Dekalb County, Georgia v. Paul Champion D/B/A Champion Tree Service ( 2015 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
February 10, 2015
The Court of Appeals hereby passes the following order:
A15A0972. DEKALB COUNTY, GEORGIA v. PAUL CHAMPION d/b/a
CHAMPION TREE SERVICE.
Paul Champion filed suit against DeKalb County alleging breach of contract.
DeKalb County filed a motion for summary judgment, arguing, in part, that it was
immune from suit based on sovereign immunity. The trial court denied the motion for
summary judgment, and DeKalb County filed a direct appeal from this ruling.
Ordinarily, the denial of a motion for summary judgment is an interlocutory
order that may be appealed only through the interlocutory appeal procedure. See
OCGA § 5-6-34 (b). DeKalb County contends that 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 Id. at 507 (1); see also Effingham County v.
Roach, 329 Ga. App. 805, n. 1 (764 SE2d 600) (2014). 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.) Canas, supra. Under Canas, therefore, a governmental
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).
entity can file a direct appeal from an order that conclusively rejects a sovereign
immunity defense.
The order in this case, however, reveals that the trial court has not made such
a conclusive determination. To the contrary, the court found that summary judgment
was not appropriate because the evidence establishes that a contract existed between
the parties. Under these circumstances, Canas and the collateral order doctrine are
inapplicable, and DeKalb County was required to comply with the interlocutory
appeal procedure of OCGA § 5-6-34 (b) to appeal the trial court’s order. DeKalb
County’s failure to do so deprives us of jurisdiction over this appeal, which is hereby
DISMISSED.
Court of Appeals of the State of Georgia
02/10/2015
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.