Fulton County, Georgia v. Maria Colon

• Court: Court of Appeals of Georgia
• Decided: June 25, 2014
• Docket: A12A0529
• Status: Published

Opinion

FOURTH DIVISION ANDREWS, P. J., DOYLE, P. J., and BOGGS, J.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/

June 25, 2014

In the Court of Appeals of Georgia A12A0529. FULTON COUNTY v. COLON. A12A0530. FULTON COUNTY v. WARREN.

ANDREWS, Presiding Judge.

In Fulton County v. Colon, 316 Ga. App. 883 (730 SE2d 599) (2012), we

consolidated the captioned appeals by Fulton County in actions brought by Maria

Colon and Gwendolyn Warren pursuant to OCGA § 45-1-4, the whistleblower statute.

In those cases, the County appealed from the trial court’s denial of identical motions

filed in each action. In the motions, the County sought: (1) dismissal pursuant to

OCGA § 9-11-12 (b) (1) for lack of subject matter jurisdiction on the basis that the

County’s sovereign immunity barred the action; and (2) for judgment on the pleadings

(a) because the whistleblower complaints did not relate to a “state program or operation,” and (b) because Warren was a high-level employee not entitled to

whistleblower protection.

As to the motions seeking dismissal on the basis of sovereign immunity, we

concluded that the trial court correctly found that OCGA § 45-1-4 expresses a

specific waiver of sovereign immunity and the extent of the waiver. As to the motions

seeking judgment on the pleadings because the complaints did not relate to a “state

program or operation,” we construed OCGA § 45-1-4 and, based on that statutory

construction, vacated the trial court’s denial of the motions on that issue and

remanded. In light of our construction of OCGA § 45-1-4, we also vacated the trial

court’s denial of the motions on the sovereign immunity issue and remanded. As to

the motion seeking judgment on the pleadings on the basis that Warren was not

entitled to whistleblower protection because she was a high-level employee, we

affirmed the trial court’s denial of the motion. Accordingly, in Colon, supra, we

affirmed the trial court’s judgment in part, and vacated in part and remanded.

In Colon v. Fulton County, 294 Ga. 93 (751 SE2d 307) (2013), the Supreme

Court affirmed our decision in Colon, 316 Ga. App. 883, “insofar as it relates to the

express waiver of sovereign immunity created by OCGA § 45-1-4,” but disagreed

with and reversed our construction of OCGA § 45-1-4. Colon, 294 Ga. at 96-100.

2 Accordingly, our decision in Colon, 294 Ga. App. 883, is vacated to the extent it was

reversed by the Supreme Court, and the judgment of the Supreme Court is made the

judgment of this Court. It follows that the judgment of the trial court denying Fulton

County’s motions in the captioned appeals seeking dismissal for lack of subject

matter jurisdiction on the basis of sovereign immunity, and seeking judgment on the

pleadings is affirmed.

Judgment affirmed. Doyle, P. J., and Boggs, J. concur.