                             SECOND DIVISION
                               MILLER, P. J.,
                          ANDREWS and BRANCH, JJ.

                    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


                                                                    January 24, 2017




In the Court of Appeals of Georgia
 A15A1033. GEORGIA DEPARTMENT OF COMMUNITY
     HEALTH v. NEAL.

      BRANCH, Judge.

      In Ga. Dept. of Community Health v. Neal, 334 Ga. App. 851 (780 SE2d 475)

(2015), this Court reversed the denial of the Georgia Department of Community

Health’s motion to dismiss plaintiff Trecia Neal’s complaint on the ground that the

Department had not waived its sovereign immunity by means of either documents

issued as part of the State Health Benefits Plan or any relevant regulation. Id. at 859

(2). As we noted at the outset of our opinion, the Department had taken a direct

appeal from the denial of the Department’s motion to dismiss, with the parties

agreeing that the direct appeal had been properly taken under the collateral order

doctrine because “the trial court [had] conclusively determined that sovereign
immunity did not apply. See Bd. of Regents v. Canas, 295 Ga. App. 505, 507 (1) (672

SE2d 471) (2009).” Id. at 852, n. 1.

       On March 25, 2016, having previously granted Neal’s petition for certiorari,

the Supreme Court of Georgia vacated this Court’s judgment and remanded the case

to this Court for “reconsideration” of our conclusion that we had jurisdiction over the

Department’s] direct appeal in light of the Supreme Court’s intervening decision in

Rivera v. Washington, 298 Ga. 770 (784 SE2d 775) (2016). After noting the “small

class of cases for which the collateral order doctrine [is] appropriate,” the Rivera

Court held that “an interlocutory order rejecting a claim of qualified immunity is not

directly appealable under the collateral order doctrine,” but must rather “be pursued

under the interlocutory procedures of OCGA § 5-6-34 (b).” 298 Ga. at 776, citing

Turner v. Giles, 264 Ga. 812, 813 (1) (450 SE2d 421) (1994) (punctuation and

footnote omitted). Rivera went on to overrule Canas and its progeny, including Neal

— one of the many cases depending on Canas “as authority to apply the collateral

order doctrine in cases claiming sovereign, official, qualified, or other immunity.”

Rivera, 298 Ga. at 778, n. 7.

       In a supplemental brief filed on remand to this Court, the Department concedes

that we lack jurisdiction, but asks that we direct the trial court either to reconsider the

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Department’s motion to dismiss or to issue a certificate of immediate review. We

cannot take such actions, however. In Butler v. Gray, 177 Ga. App. 498 (339 SE2d

769) (1986), for example, we granted a motion to dismiss a direct appeal for a failure

to follow the interlocutory appeal procedures, but also denied appellee’s requests for

a frivolous-appeal penalty and direction to the trial court on remand, noting that the

appellant’s failure to follow the appeal procedures “does not invoke the jurisdiction

of this court and consequently deprives this court of the power to act upon

[appellee’s] requests for any action beyond the motion to dismiss.” Id. at 499.

Similarly, we do not have jurisdiction to take any actions in this case other than to

dismiss the Department’s appeal.

      When a plaintiff has failed to seek a certificate of immediate review under

OCGA § 5-6-34 (b), and “unless the trial court’s order falls under some other

exception to the final judgment rule, [the] appeal must be dismissed.” First Christ

Holiness Church v. Owens Temple First Christ Holiness Church, 282 Ga. 883, 884

(655 SE2d 605) (2008) (footnote omitted). Having noted the Supreme Court’s

decision overruling of Canas and its progeny in Rivera, we also observe that the

Department has not asserted any exception to the final judgment rule authorizing a

direct appeal in this case. We therefore dismiss the Department’s direct appeal on the

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ground that it was not in compliance with the procedures laid out in OCGA § 5-6-34

(b). See Rivera, 298 Ga. at 778 (affirming the Court of Appeals’ dismissal of the two

direct appeals at issue as not in compliance with OCGA § 5-6-34 (b)).

      Appeal dismissed. Miller, P. J., and Andrews, J., concur.




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