Georgia Department of Transportation v. Shaheen & Company, Inc.

• Court: Court of Appeals of Georgia
• Decided: April 4, 2013
• Docket: A13A1045
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,__________________ April 04, 2013

The Court of Appeals hereby passes the following order:

A13A1045. GEORGIA DEPARTMENT OF TRANSPORTATION v. SHAHEEN & COMPANY, INC.

Defendant Georgia Department of Transportation filed a motion to dismiss, asserting that it is immune from suit under the doctrine of sovereign immunity. The trial court entered an order summarily denying the motion. The Georgia Department of Transportation then filed this notice of direct appeal. Ordinarily, the denial of a motion to dismiss is an interlocutory order, the appeal of which must comply with the interlocutory appeal procedure. See OCGA § 5-6-34 (b). According to the appellant, it is entitled to directly appeal the trial court’s ruling under Board of Regents v. Canas, 295 Ga. App. 505 (672 SE2d 471) (2009). In Canas, we held that the collateral order doctrine permits a direct appeal from an order “that denies a motion to dismiss, based on a conclusive determination that the State (or a state officer or employee) is not immune from suit on the basis of sovereign immunity.”1 Our decision hinged on the principle that “sovereign immunity is an immunity from suit, rather than a mere defense to liability, and is effectively lost if a case is erroneously permitted to go to trial.” (Citation omitted.) Id. Under Canas, therefore, a governmental entity can file a direct appeal from an order that conclusively rejects a sovereign immunity defense.

1 Under the collateral order doctrine, an interlocutory order may be appealed directly if it: (1) resolves an issue that is substantially separate from the basic issues to be decided at trial, (2) would result in the loss of an important right if review had to await final judgment, and (3) completely and conclusively decides the issue on appeal. Britt v. State, 282 Ga. 746, 748 (1) (653 SE2d 713) (2007). A close reading of the order in this case, however, reveals that the trial court has not made such a conclusive determination. The court merely denied the motion to dismiss, without stating the reasons for the denial. Under these circumstances, Canas and the collateral order doctrine are inapplicable, and the ruling is interlocutory. Accordingly, the appellant’s failure to comply with the interlocutory procedure in OCGA § 5-6-34 (b) deprives us of jurisdiction over the appeal, which is hereby DISMISSED.

Court of Appeals of the State of Georgia 04/04/2013 Clerk’s Office, Atlanta,__________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.