author: Johnson, Chief Judge.

text:
    A00A0338, A00A0339.
    STAGL v. ASSURANCE COMPANY OF AMERICA (two cases).
    (539 SE2d 173)
   Johnson, Chief Judge.

Kevin Stagl sought to build a vacation home in Dahlonega, Georgia. In connection with the construction, he purchased a builder’s risk insurance policy from Assurance Company of America.

Stagl contracted with Precision Foundations, Inc. to construct a poured wall foundation for the home. About one month after the foundation was completed, Stagl traveled from his Florida home to inspect the work. Based on his inspection and inspections done by others, he concluded that the foundation walls were built using defective materials and methods, lacked strength and durability, lacked steel reinforcement in some places, and contained a “cold joint,” a defect which results from improper pouring of concrete. The walls did not fall or crumble, but Stagl halted construction of the house.

Stagl pursued an action for negligent construction against the contractor, the outcome of which is not readily apparent from the record. He also filed a claim with Assurance under his builder’s risk policy, which provides coverage for a loss involving collapse of all or part of a building caused by the use of defective materials or methods in construction. Stagl claimed that the walls as constructed amounted to a “collapse” within the meaning of the policy. When Assurance refused to pay the claim, Stagl sued Assurance. Assurance moved for summary judgment, urging that the loss complained of was not the type of loss covered by the policy.

Before the motion for summary judgment was ruled upon, Stagl filed a second action against Assurance, asserting causes of action based on breach of contract and negligence. Assurance moved for summary judgment under OCGA § 9-2-5 (a), claiming that Stagl was simultaneously prosecuting two lawsuits with the same cause of action and against the same party. After hearing arguments on both motions, the trial court granted summary judgment to Assurance as to the original case and dismissed the second action, finding that it involved matters which were alleged or could have been alleged in the original lawsuit.

In Case No. A00A0338, Stagl files a pro se appeal from the grant of summary judgment in the original case and from the order denying his motion to recuse the judge who granted summary judgment. In Case No. A00A0339, he files a pro se appeal from the dismissal of the second case. He has submitted a single four-part enumeration of error and brief for consideration in both appeals.

1. Stagl has designated four enumerations of error. In them, he alleges that the trial court erred in (1) failing to consider crucial matters in the first case; (2) not giving him proper notice of a hearing; (3) continuing to act in the first case after being presented with a recusal motion; and (4) granting summary judgment in the first case and dismissing the second case. The argument and citation of authority section of his brief, however, contains only two subsections, entitled “RECUSAL” and “SUMMARY JUDGMENT.”

The rules of this court require that there be a direct and logical relationship between the enumerations of error and the arguments contained in the brief. These requirements as to the form of appellate briefs were created not to present an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully comprehended by the court. Despite Stagl’s violation of these rules, we will exercise our discretion to consider what we believe are his main arguments, to the degree that we are able to discern them.

Case No. A00A0338

2. Stagl contends the trial court erred in granting summary judgment to Assurance when genuine issues of material fact remain regarding whether, a collapse occurred as contemplated by the policy. Stagl argues that “collapse,” which term is not defined in the policy, may occur where there is a reasonably detectable serious impairment of the structure’s integrity. He urges that in this case there is evidence that the structural integrity of the foundation walls is impaired.

Unless otherwise defined in the contract, terms in an insurance policy are given their ordinary and customary meaning. According to Webster’s Third New International Dictionary, “collapse” means “1: to break down completely: fall apart in confused disorganization: crumble into insignificance or nothingness: disintegrate . . . [;] 2: to fall or shrink together abruptly and completely: fall into a jumbled or flattened mass through the force of external pressure ...[;] 3: to cave in, fall in, or give way: undergo ruin or destruction as if by falling down.” Giving the term “collapse” its usual meaning, even taking Stagl’s allegations as to the condition of the foundation walls as true, it is clear that no collapse occurred.

This usual meaning of “collapse” is consistent with the policy at issue here. The policy defines “loss” as “accidental loss and accidental damage.” Here, there is no evidence, nor even any allegation, that the condition complained of involved any sort of accident. Rather, the condition of the foundation walls, as it existed at the time of Stagl’s inspection just after the work was done, resulted from the alleged use of defective materials and poor workmanship by the contractor unaccompanied by any accident.

Contrary to Stagl’s argument, Lipsitz v. Fireman’s Fund Ins. Co. &c., does not require a contrary result. Lipsitz involved the actual collapse of a roof after the accumulation of rain and ice on the roof caused it to sag and eventually cave in. Lipsitz basically teaches us that a condition may amount to collapse where the structure’s integrity is seriously impaired and collapse is imminent, as it was in Lipsitz. Moreover, there is no indication that the policy in Lipsitz, like the one here, required that a loss involve an accident.

Nor does Nationwide &c. Ins. Co. v. Tomlin, require a finding in Stagl’s favor. Nationwide, which was concurred in by only one judge and is physical precedent only, involved an all-risk rather than a builder’s risk policy. In that case, the foundation was built on tree stumps and was beginning to sink. There was no dispute that the home was in a seriously deteriorating condition and that a collapse, as that term is traditionally defined, was inevitable. A worsening of the structure’s condition had already occurred. Here, however, as of the time of his deposition in April 1998, Stagl was aware of no detrimental changes in the structure’s condition since its completion. And while a report submitted by Stagl’s expert suggests that there are some problems with the structure, he does not indicate that the foundation walls are severely impaired or that collapse is imminent. In addition, there is nothing in the Nationwide opinion suggesting that the policy specified that a loss must involve an accident to be compensable.

In attempting to construe any portion of a contract, we must examine the contract as a whole. In its exclusions section, the policy specifically provides that, except for previously listed covered causes (such as collapse), Assurance will not pay for loss caused by the following: any quality in the property itself that causes it to damage or destroy itself; faulty, inadequate, or defective design, workmanship, or construction; or faulty, inadequate, or defective materials used in construction. Thus, the builder’s risk policy is not intended to cover losses resulting solely from poor construction. By its clear terms, this policy covers the accidental collapse of a structure occasioned by an underlying structural defect. Stagl’s position does not realistically reflect the purpose of the builder’s risk policy.

It is clear that Stagl is dissatisfied with the quality of the work done by the contractor. If Stagl has a viable cause of action at this point in time, it is against Precision Foundations, not the builder’s risk insurer. Under this policy, no compensable loss has occurred. The trial court did not err in granting summary judgment to Assurance.

3. As presented, the section of Stagl’s brief entitled “RECUSAL” is extremely difficult to decipher. Reading Stagl’s third enumeration of error along with the argument included in this section, it appears he is arguing that the trial judge improperly based its July 9, 1999 order denying Stagl’s motion to recuse on false statements as to the chronology of events, thereby attacking the truthfulness of assertions contained in Stagl’s motion. Stagl does not elaborate regarding which of the judge’s statements are false or show that any of the judge’s statements are false. Nor does he demonstrate that the judge attacked the truthfulness of his motion. Beyond the mere allegation that the judge made false statements and thereby attacked his credibility, Stagl offers no other argument or support for his position. The burden is on Stagl as appellant to show error affirmatively by the record. This he has not done, and our review of the record reveals no error.

Reconsideration denied July 11, 2000

Kevin A. Stagl, pro se.

Drew, Eckl & Farnham, Clayton H. Farnham, for appellee.

Case No. A00A0339

4. As noted in Division 1, Stagl has failed to clearly designate a section in his brief to address his abatement argument, even though it is the order granting the plea in abatement which is being appealed from in Case No. A00A0339. As best we can tell from the brief, Stagl’s argument is that the motion in abatement in the second case should not have been granted because the cases involved different causes of action. We disagree.

No plaintiff may prosecute two actions at the same time for the same cause of action and against the same party. If two such actions are commenced at different times, the pendency of the former is a defense to the latter. Separate actions involve the same cause where the relief requested relates to substantially the same set of facts. The two cases at issue involve the same parties, arise out of the same conduct, and seek relief related to substantially the same set of facts. Therefore, there was no error.

Judgments affirmed.

Phipps and Mikell, JJ., concur.

       Court of Appeals Rule 27 (c) (1).

       See Jones v. State of Ga., 241 Ga. App. 768, 769 (1) (527 SE2d 611) (2000).

       See id.; Thomas Financial Group v. Standard Chartered Bank, 225 Ga. App. 879-880 (1) (485 SE2d 237) (1997).

        Boardman Petroleum v. Federated Mut. Ins. Co., 269 Ga. 326, 328 (498 SE2d 492) (1998).

       183 Ga. App. 270, 271 (358 SE2d 624) (1987).

       Id.

       181 Ga. App. 413 (1) (352 SE2d 612) (1986) (physical precedent only).

        Hill v. Nationwide &c. Ins. Co., 214 Ga. App. 715, 716 (448 SE2d 747) (1994).

       See generally Kelly v. Pierce Roofing Co., 220 Ga. App. 391, 392 (2) (469 SE2d 469) (1996).

       OCGA § 9-2-5 (a).

       Id.

        Liner v. North, 184 Ga. App. 74-75 (2) (360 SE2d 637) (1987).

       See id.; see generally Reeves Transp. Co. v. Gamble, 126 Ga. App. 165, 167 (190 SE2d 98) (1972).


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A00A1402.
    D’AMBROSIO v. THE STATE.
    (536 SE2d 218)
   Phipps, Judge.

This is a pro se appeal by Joseph D’Ambrosio from his conviction of two counts of driving on a suspended license. Finding no merit in any of the constitutional, jurisdictional, or evidentiary challenges he makes, we affirm.

Accusations in the State Court of Gwinnett County charged D’Ambrosio with numerous traffic violations. Following arraignment, he filed a notice of removal of the prosecution to federal district court pursuant to 28 USC § 1446. Under subsection (c) (1) and (3) of the federal statute, the filing of a notice of removal shall not prevent the state court in which the prosecution is pending from proceeding farther, except that a judgment of conviction shall not be entered unless the prosecution is first remanded.

Before this case came on for trial in the State Court of Gwinnett County, the federal court entered an order denying D’Ambrosio’s request that the state court prosecution be enjoined. The order, however, failed to remand the prosecution to state court.

At trial, the jury found D’Ambrosio guilty of two counts of driving on a suspended license based on his commission of this offense on two separate dates. Several days after entry of D’Ambrosio’s convictions and sentence, the federal court entered a new order correcting its earlier order by adding remand language. D’Ambrosio’s sentence was vacated and then reentered following another sentencing hearing.

1. D’Ambrosio challenges the jurisdiction of the Georgia court and the constitutionality of this prosecution based on assertions that there was no evidence that he drove or operated a motor vehicle on a public highway in this state, or that he resided in this state so as to be subject to a requirement that he obtain a Georgia driver’s license.

Testimony from the arresting officer and supporting documentation showed that D’Ambrosio resided in Snellville, Georgia, and that he was operating a motor vehicle on public highways in Gwinnett County on the dates in question after his Georgia driver’s license had been suspended. “Under its police power the State may control generally the operation of motor vehicles upon a public highway, and any constitutional attack upon the exercise of such police power as being unconstitutional is without merit. [Cits.]”

2. D’Ambrosio complains that he was not given adequate notice of the resentencing hearing, as it was held the day after the notice was mailed to him. The record, however, shows that the hearing was held over one week after the notice was mailed.

3. In his final enumeration, D’Ambrosio complains that the suspension of his driver’s license was in error because it was based on convictions or charges which were either expunged from his record or are subject to collateral attack on constitutional grounds.

This enumeration is without merit for at least two reasons. It is unsupported by the record. Moreover, the offense of driving a motor vehicle when one’s privilege to do so has been suspended is an offense separate and distinct from the offenses which led to the suspension. Until the license is reinstated, it is illegal to drive.

Decided June 22, 2000

Reconsideration denied July 11, 2000

Joseph J. D’Ambrosio, pro se.

Gerald N. Blaney, Jr., Solicitor, Gary S. Vey, Jeffrey P. Kwiatkowski, Assistant Solicitors, for appellee.

Judgment affirmed.

Johnson, C. J., and Smith, P. J., concur.

       OCGA § 40-5-121.

       OCGA § 40-5-121 (a).

       OCGA §§ 40-5-20; 40-5-21.

       Ward v. State, 188 Ga. App. 372-373 (1) (373 SE2d 65) (1988).

       Cf. Smith v. State, 248 Ga. 828, 830 (3) (286 SE2d 709) (1982).


author: Miller, Judge.

text:
    A00A0212.
    NATIONAL BUSINESS ACQUISITIONS, INC. v. MANDULA.
    (537 SE2d 162)
   Miller, Judge.

This case concerns a contract between a business broker and a potential business purchaser containing a provision that the purchaser may be liable if he interferes with the broker’s right to a commission from the seller of a certain business. The question on appeal is whether this contract provision renders that purchaser liable if he contacts the seller and buys the business long after the purchaser has had any contact with the broker. Since the broker was not entitled to a commission from the seller, we hold that the contract does not impose any liability and therefore affirm summary judgment in the purchaser’s favor.

Construed in favor of the plaintiff/broker, the evidence shows that the owner of Transmission Air Conditioning Parts Specialists, Inc. (TAPS) offered his business for sale under an “open listing,” which meant that any broker could sell the property and earn a commission. In August 1995, National Business Acquisitions (NBA), a business broker, approached John Mandula about buying TAPS. NBA had Mandula sign an “Acknowledgment and Confidentiality Agreement,” drafted by NBA, which included the following provision:

In consideration of information furnished and presented to me of the places of business listed above [including TAPS], I agree that should I buy . . . any of them within three (3) years from date hereof, that I will protect [NBA’s] right to commission. I understand that [NBA] has a listing agreement or contract with owner or their authorized agent, of the places listed [above] which provides for a commission payment. I understand that if I interfere in any way with the broker’s contract right to a commission from seller, I may be personally liable for the payment of that commission.

Shortly following NBA’s presentation regarding TAPS, Mandula announced that he was not interested in buying the business, and no offer was made.

Over a year later, an employee in Mandula’s business (which did business with TAPS) informed Mandula that TAPS was for sale. Mandula did nothing. In early 1997, the employee once again brought the matter to Mandula’s attention, who then contacted TAPS and without the involvement of NBA negotiated a purchase of TAPS’s assets that closed in May 1997.

NBA sued Mandula for breach of contract, claiming that the “Acknowledgment and Confidentiality Agreement” obligated Mandula to pay NBA a commission on the business sale if he interfered with NBA obtaining a commission from the seller. The trial court granted Mandula’s motion for summary judgment, holding that because NBA had no right to a commission from the seller, Mandula could not have interfered with that right. NBA appeals the summary judgment order.

1. NBA’s sole argument on appeal is that because there is a factual dispute whether in 1996 and 1997 Mandula remembered that NBA had first brought TAPS to his attention, summary judgment was inappropriate. This fact is immaterial to determining whether Mandula breached his agreement with NBA or whether NBA was the procuring cause. “[S]ummary judgment is not inappropriate where contradictory statements are made with regard to wholly immaterial matter.”

Nevertheless, we will review the merits of the trial court’s order on summary judgment. On review of a grant of summary judgment, we apply a de novo standard of review and view the evidence in the light most favorable to the nonmovant. If there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law, summary judgment is proper.

2. The “Acknowledgment and Confidentiality Agreement” did not obligate Mandula to pay NBA a commission if he interfered with NBA’s right to a commission from the seller of TAPS. The agreement provided only that if he interfered with NBA’s right to a commission from the seller, he “may” be liable for payment of that commission. It did not specify the conditions under which he would be liable. Even if this provision were ambiguous, it would be construed against NBA as its drafter. Thus, NBA’s only alleged cause of action — that Mandula breached his contractual obligation to pay the commission — must fail.

Moreover, even if the provision mandated that Mandula would be liable if he interfered with NBA’s contract right to a commission from- the seller, that provision would be triggered only if NBA had such a contract right. Though the agreement claimed that NBA had a listing agreement or contract with the seller providing for a commission payment, NBA’s president and owner readily admitted that TAPS’s seller had no listing agreement with NBA and did not owe NBA a commission on the sale to Mandula. As conceded in NBA’s appellate brief, “Appellant did not, and does not contend, that the previous owner of TAPS was liable for a commission since there was an ‘open listing’ on the business.” Thus, even if the terms of the contract were not merely precatory, those terms would not purport to make Mandula liable for interfering with a commission due from the seller where it is conceded that no commission was due.

3. Nor does the evidence allow NBA to pursue a tort action for tortiously interfering with NBA’s right to a commission from the seller. First, NBA admits that the seller owed no commission. Second, where the business is being sold under an “open listing,” a broker is not entitled to a commission unless the broker was the procuring cause of the sale. On appeal NBA does not directly contest the trial court’s ruling that under the undisputed facts NBA was not the procuring cause of the sale.

Moreover, the trial court’s conclusion was correct. To be the procuring cause the broker must show “that there were negotiations still pending between the broker and the prospective purchaser and that the owner was aware that negotiations were still pending at the time he consummated the sale.” Here, despite NBA’s entreaties in 1995, Mandula did not begin negotiations nor make any offer on the property; rather, Mandula clearly informed NBA that he was not interested. Not until 1997 did Mandula, at the behest of his own employee, contact TAPS’s owner about purchasing the business, which resulted in the sale at issue.

Decided July 11, 2000.

John J. Capo, for appellant.

Troutman Sanders, Mark S. VanderBroek, Lisa M. Arent, for appellee.

These facts parallel those of Income Properties v. Glass, in which the court explained that as a matter of law the plaintiff/brokers were not the procuring cause of the sale under such circumstances:

Inasmuch as appellants have failed to show that either of them received an exclusive listing; that any offer was made to the seller through [them]; or that any negotiations ever took place between them and the purchaser, we find no evidence that appellants were the procuring cause of the sale.

If the broker is not the procuring cause, the broker is not entitled to a commission, and therefore there can be no tort for interfering with that broker’s right to a commission.

4. We deny Mandula’s motion to impose a frivolous appeal penalty under Court of Appeals Rule 15 (b).

Judgment affirmed. Motion for damages for frivolous appeal denied.

Pope, P. J., and Smith, P. J., concur.

       (Emphasis supplied.)

       (Citation omitted.) Wallace v. ARA Svcs., 185 Ga. App. 639, 642 (3) (365 SE2d 461) (1988).

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       Id.; see OCGA § 9-11-56 (c).

        Alexander v. Steining, 197 Ga. App. 328, 330 (2) (398 SE2d 390) (1990).

        Cartel Realty v. Southern Bearings &c. Co., 243 Ga. App. 653, 654 (2) (534 SE2d 119) (2000).

       (Punctuation and footnote omitted.) Id.

       195 Ga. App. 127 (392 SE2d 728) (1990).

       Id. at 129 (1); accord Hendrix v. First Nat. Bank of Columbus, 173 Ga. App. 513, 516 (326 SE2d 489) (1985) (broker was not procuring cause because there was no evidence that broker ever discussed or negotiated terms with the buyer or that the broker ever conveyed an offer to the seller on the buyer’s behalf); Kraft Land Svcs. v. Hart Co., 165 Ga. App. 358, 363 (1) (300 SE2d 186) (1983).

        Hendrix, supra, 173 Ga. App. at 516; see Kinard Realty v. Evans, 152 Ga. App. 813, 814 (1) (264 SE2d 282) (1979).


author: Smith, Presiding Judge.

text:
    A00A0250, A00A0251.
    ROBINSON et al. v. WILLIAMSON et al.; and vice versa.
    (537 SE2d 159)
   Smith, Presiding Judge.

On February 3, 1997, Hildred Robinson, as legal guardian of Geneva Masdon, an incompetent adult, filed this action against Reveo Discount Drug Centers, Inc. and J. Carl Williamson, Jr., a pharmacist for Reveo. They alleged that Williamson incorrectly filled a prescription for her ward and that this interruption of her correct medication caused her to suffer a stroke in August 1994.

Robinson and Masdon moved for partial summary judgment on the issue of liability, and Williamson and Reveo moved for summary judgment on several grounds, including the statute of limitation for medical malpractice. The trial court granted summary judgment to Williamson and Reveo on the basis of expiration of this statute of limitation, and we affirm on the same basis.

1. The statute of limitation for medical malpractice claims is determined by the application of three interlocking statutory enactments. OCGA § 9-3-70 provides:

As used in this article, the term “action for medical malpractice” means any claim for damages resulting from the death of or injury to any person arising out of: (1) Health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such service or by any person acting under the supervision and control of the lawfully authorized person; or (2) Care or service rendered by any public or private hospital, nursing home, clinic, hospital authority, facility, or institution, or by any officer, agent, or employee thereof acting within the scope of his employment.

OCGA § 9-3-71 (a) provides: “Except as otherwise provided in this article, an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.” Finally, OCGA § 9-3-73 (b) provides: “Notwithstanding Article 5 of this chapter, all persons who are legally incompetent because of mental retardation or mental illness . . . shall be subject to the periods of limitation for actions for medical malpractice provided in this article.” The term “legally incompetent because of mental retardation or mental illness” includes those suffering from brain injury, and the tolling provisions of OCGA § 9-3-90 therefore do not apply even when such mental incapacity exists. Kumar v. Hall, 262 Ga. 639, 642 (1) (b) (423 SE2d 653) (1992).

We have repeatedly noted that the broad scope of OCGA § 9-3-70 is not limited to licensed physicians. Bradway v. American Nat. Red Cross, 263 Ga. 19, 21 (426 SE2d 849) (1993) (blood bank); Zechmann v. Thigpen, 210 Ga. App. 726, 727 (1) (437 SE2d 475) (1993) (optometrist); Allrid v. Emory Univ., 166 Ga. App. 130, 131 (1) (303 SE2d 486) (1983), aff’d, 251 Ga. 367 (306 SE2d 905) (1983) (hospital dispensing drug). Also, Faser v. Sears, Roebuck & Co., 674 F2d 856 (11th Cir. 1982), was cited with approval in Harrell v. Lusk, 263 Ga. 895, 898 (439 SE2d 896) (1994), as well as in Zechmann, supra, and Allrid, supra. This Eleventh Circuit opinion explicitly holds that the dispensing of prescription medication by a pharmacist constitutes “a ‘medical . . . prescription . . . rendered by a person authorized by law to perform such (a) service’ ” and falls within the purview of OCGA § 9-3-70. Faser, supra at 859. Decisions of federal courts are not binding authority on this court, but their reasoning may be persuasive. Macon-Bibb County Hosp. Auth. v. Nat. Treasury Employees Union, 265 Ga. 557, 558 (458 SE2d 95) (1995). As in Zechmann, we find the reasoning of the Eleventh Circuit in Faser persuasive and consistent with the holdings of the Georgia courts, and we conclude that an action based upon the conduct of a pharmacist in dispensing medication upon a doctor’s prescription constitutes an “action for medical malpractice” within the meaning of OCGA § 9-3-70.

Robinson and Masdon also contend that the medical malpractice statute of limitation does not apply to their claims for strict product liability and breach of warranty, alleging that Williamson and Reveo sold Masdon a defectively packaged and mislabeled product. But strict product liability applies only to a manufacturer, not a “product seller.” OCGA § 51-1-11.1 (b). A “product seller” is defined as one who “sells and distributes; installs; prepares; blends; packages; labels; markets; or assembles pursuant to a manufacturer’s plan, intention, design, specifications or formulation.” OCGA § 51-1-11.1 (a). The trial court correctly held that a pharmacist and pharmacy that package and label drugs manufactured by another are product sellers, not manufacturers, within the meaning of strict product liability. We have held that the medical malpractice statute of limitation applies to both tort and contract theories of liability when the claim “calls into question the conduct of a professional in his area of expertise. [Cit.]” Knight v. Sturm, 212 Ga. App. 391, 392 (2) (442 SE2d 255) (1994). And claims against a pharmacist based on a breach of warranty theory require “a showing of negligence amounting to professional malpractice.” Sparks v. Kroger Co., 200 Ga. App. 135, 136 (2) (407 SE2d 105) (1991) (OCGA § 9-11-9.1 affidavit).

Robinson and Masdon brought this action on February 3, 1997, almost six months after the expiration of the two-year statute of limitation, and their claims therefore are barred. Because the statute of limitation issue is dispositive here, we do not reach the remaining issues addressed by the trial court and the parties.

2. The cross-appeal by Williamson and Reveo is accordingly dismissed as moot.

Decided July 11, 2000

Smith, Wallis & Scott, Kenneth A. Smith, James W. Wallis, Jr., for appellants.

Nall, Miller, Owens, Hocutt & Howard, Robert B. Hocutt, Paul J. Pontrelli, for appellees.

Judgment affirmed in Case No. A00A0250. Appeal dismissed as moot in Case No. A00A0251.

Pope, P. J., and Miller, J., concur.

       Christine Masdon later joined this action as an additional guardian.

       Robinson and Masdon’s assertion that OCGA § 9-3-70 violates the Americans with Disabilities Act, 42 USC § 12101 et seq., is without merit. Assuming without deciding that the statute applies to a state procedural rule, nothing in OCGA § 9-3-70 prevents the guardian of a mentally incompetent person from taking timely action on her ward’s behalf. Robinson and Masdon have not shown that they were unable to obtain guardianship of their mother or assert her claim in a timely manner, so they have not shown that the State’s enactment subjected their ward to discrimination within the meaning of 42 USC § 12132.


text:
    A00A0265.
    STEWART v. STEWART.
    (537 SE2d 157)
   Miller, Judge.

Permission to file a discretionary appeal from a citation for contempt of a visitation order was granted under the following circumstances: Deborah Ann Stewart and Richard Allen Stewart were married in 1988 and had a son, R. S., born in September 1989. Richard and Deborah were divorced in 1996, and primary physical custody of R. S. was placed with Richard. Deborah was given some visitation every weekend and extended visitation once the school year ended: From the Saturday following the last day of school until the day before school reconvenes, or from June 1 to September 1.

Shortly after the divorce, Deborah moved to Texas. Logistically, she could exercise visitation only on the third weekend of the month. Yet Richard repeatedly failed to use plane tickets Deborah sent for R. S. , causing her to incur losses and transfer fees. In April 1999, Deborah initiated this contempt action, alleging that, since August 1998, Richard denied Deborah her visitation right by refusing to put R. S. on a plane to Houston, Texas, despite being ordered to do so after an earlier contempt hearing. In his answer, Richard denied the material allegations, countermoved for contempt, and further petitioned for a modification of custody, visitation, and child support. Two weeks before the scheduled hearing, however, Richard dismissed his petition to modify custody, visitation, and child support, without prejudice.

After an evidentiary hearing, the trial court found Richard in contempt for withholding visitation and for not making reasonable efforts to facilitate visitation, in that Richard had been previously ordered to put R. S. on direct, nonstop flights to Houston. The court modified visitation in several particulars, specifying that Richard was responsible for delivering R. S. to Deborah’s residence, which could be accomplished by placing him on a direct, nonstop flight to Houston or any other suitable mode of transportation, at Richard’s discretion and at his own expense. Deborah bore a reciprocal obligation to return R. S. In addition, the court ordered that, after his extended summer visitation with Deborah, R. S. be returned to Richard one week before school started, rather than one day before as originally ordered.

In three related enumerations of error, Richard objects to the change in visitation procedures that requires him to pay for airfare to Texas.

1. Richard first contends the trial court was unauthorized to require him to pay for R. S.’s airfare to Texas, arguing this amounted to an unauthorized change in child support. We disagree.

Procedurally, Richard is correct that child support obligations fixed in a final divorce decree cannot be modified in a contempt action. But under OCGA § 19-9-1 (b), the trial court is expressly authorized to modify visitation rights, even on its own motion, during a contempt proceeding. So there is no jurisdictional impediment to the trial court’s change of visitation in this case.

It is the express [public] policy of [Georgia] to encourage that a minor child has continuing contact with parents . . . and to encourage parents to share in the rights and responsibilities of raising their children after such parents have separated or dissolved their marriage.

Substantively, we hold that requiring Richard to pay some travel costs incurred by his child’s out-of-state visits to the mother does not amount to the imposition of child support in this case. Rather, such cost is merely incidental to the authorized requirement that Richard meet Deborah halfway by delivering the child for visitation. Certainly, there is no order requiring Richard to pay Deborah any fixed, recurring amount. If Richard pays the airline directly, he has complied. If the parties can agree to split the cost of a roundtrip ticket, then any reimbursement Richard pays to Deborah (or vice versa) is merely to effectuate visitation. Richard’s reliance on Moody v. Moody is misplaced, for that decision does not involve the unavoidable costs involved with interstate child visitation and does not hold that such costs amount to child support. The first enumeration is without merit.

2. The second enumeration contends the trial court abused its discretion in making Richard responsible for airfare based upon only five days advance notice of when Deborah wished to exercise her weekend visitation rights. In our view, this contention has merit.

Under the modified visitation procedures, Richard will be responsible for ten or more one-way plane tickets, because it is highly unlikely that any other mode of transportation between Atlanta and Houston would be chosen, considering the best interest of the child. There is no faster transportation, and the travel time by train or bus would likely disrupt the child’s schooling in order to present R. S. to Deborah in Houston by 6:00 p.m. Friday. The order modifying visitation does not mandate that Deborah provide a roundtrip ticket with five days notice. And Deborah herself acknowledged that one week is insufficient notice. It is common knowledge that the less expensive plane tickets frequently require a 14-day advance purchase. So it is arbitrary and capricious to needlessly require Richard to buy the most expensive plane ticket in order to facilitate out-of-state visitation on behalf of the parent who moved. Accordingly, Richard is entitled to not less than 15 days advance notice from Deborah. The judgment modifying visitation is affirmed upon the condition that, within ten days of the receipt of the remittitur, Deborah agrees to give Richard not less than 15 days advance notice of when she intends to exercise her visitation, in order to facilitate the presentation of R. S. to her through the most economical and convenient mode of travel. If she does not so agree, then the judgment is reversed as to advance notice.

Judgment affirmed upon condition; otherwise, reversed as to advance notice.

Pope, P. J., and Smith, P. J., concur.

Decided July 11, 2000.

Conner & Conner, Stacie A. Conner, for appellant.

Deborah A. Stewart, pro se.

        Department of Human Resources v. Gould, 222 Ga. App. 489, 490 (1) (474 SE2d 682) (1996).

        Blalock v. Blalock, 247 Ga. 548, 550 (1) (277 SE2d 655) (1981). Accord Richwood & Assoc. v. Osborne, 267 Ga. 89, n. 2 (475 SE2d 606) (1996).

       OCGA § 19-9-3 (d).

        Jones v. Jones, 220 Ga. 753, 756 (4) (141 SE2d 457) (1965) (prudential provisions to effectuate and carry out court-ordered visitation committed to the very broad discretion of the trial court in custody matters).

       See Pruitt v. Butterfield, 189 Ga. 593, 595 (6 SE2d 786) (1940) (whether to require nonresidential custodian to post a bond during visitation outside of Georgia pending return of the child is discretionary). Compare King v. King, 202 Ga. 838, 839 (4) (44 SE2d 791) (1947), underlying policy rationale disapproved, Connell v. Connell, 222 Ga. 765, 768 (3) (152 SE2d 567) (1966) in which the decree requiring father to deliver child to “home” of mother for three-month summer visitation and pick him up, or pay for transportation, was not construed to apply to “home” outside of Georgia after mother moved to California, because both parents were Cobb County residents at the time decree was entered. Here, the court’s order recites Richard was previously held in contempt for not putting R. S. on a plane to Houston as ordered.

       224 Ga. 13, 15 (3) (159 SE2d 394) (1968).

       The third enumeration, contending that the travel schedule for monthly visitation is, as a matter of law, contrary to the best interest of the child under Katz v. Katz, 264 Ga. 440 (445 SE2d 531) (1994), is without merit.

       Id.


text:
    A00A0690.
    PLANTATION PIPELINE COMPANY v. ROYAL INDEMNITY COMPANY.
    (537 SE2d 165)
   Smith, Presiding Judge.

This appeal arises out of the trial court’s grant of summary judgment to Royal Indemnity Company (“Royal”) on the ground that Plantation Pipeline Company (“PPL”) failed to give proper notice of an occurrence to Royal, as required by insurance policies issued to PPL by Royal. Under the circumstances of this case, we agree with the trial court that the delay in providing notice was unreasonable as a matter of law, and we therefore affirm.

The following facts are undisputed. PPL is an interstate common carrier by pipeline of refined petroleum products. Royal issued insurance policies to PPL, one effective from November 30, 1967 to November 30, 1970, and one effective from November 30, 1970 to November 30, 1973. These policies recite that Royal will pay on the insured’s behalf all sums that the insured becomes legally obligated to pay as damages because of bodily injury or property damage “caused by an occurrence.” The policies further define “occurrence” as “an accident, including injurious exposure to conditions, which results ... in bodily injury or property damage neither expected nor intended” by the insured. (Emphasis omitted.) The policies also include, in a section labeled “conditions,” the following notice provision:

In the event of an occurrence, written notice containing particulars sufficient to identify the insured and also reasonable obtainable information with respect to the time, place and circumstances thereof, and the name and addresses of the injured and of available witnesses, shall be given by or for the insured to the company or any of its authorized agents as soon as practicable.

On January 27,1968, PPL discovered evidence of a leak along its pipeline right-of-way near Kokomo, Mississippi. Over the next two days, PPL work crews observed that leaked gasoline had soaked into the ground before the discovery. On January 29, 1968, two days after the leak was discovered, PPL agreed to pay property owner Dolphus Jacobs $200 for damage to his cotton crops. On the same date, Jacobs executed a release in favor of PPL agreeing never to assert claims relating to the pipeline leak.

Approximately one year later, nearby property owners Benny and Wanda Dunaway informed PPL that their well water was contaminated with gasoline. PPL determined that this contamination was caused by the leak discovered on January 27, 1968. In February 1969, PPL agreed to pay for the installation of a new water well and pump on the Dunaway property. The following April, PPL expended approximately $600 on the Dunaways’ behalf for the well and pump and executed a settlement agreement, in which the Dunaways accepted $400 in consideration of their agreement to release all claims arising out of the leak against PPL.

The parties do not dispute that PPL promptly reported the 1968 leakage to landowners in the area, repaired and pressure checked the pipeline, engaged in extensive testing of the area, and relocated wells for certain landowners. It is also undisputed, however, that PPL failed to notify Royal about these leaks until June 17, 1993, when “PPL advised Royal of a pollution claim in Marion County, Mississippi arising from an escape of petroleum belonging] to Plantation Pipeline . . . on or about January 27, 1968.” (Punctuation omitted.) This notification to Royal occurred after a third property owner complained of gasoline odor in his well. Several lawsuits were filed against PPL in Mississippi.

PPL then filed this declaratory judgment action seeking, among other things, a declaration that Royal was required to defend and indemnify it under the policies issued by Royal. After Royal answered, PPL moved for partial summary judgment on Royal’s duty to defend. Following Royal’s response, the trial court denied summary judgment to PPL with respect to coverage for the Mississippi claims and sua sponte granted summary judgment to Royal on the ground that PPL did not comply with the notice provision. The court found that prompt notice was a condition precedent to coverage and defense by Royal, focusing on the releases obtained by PPL from landowners in the late 1960s. The trial court stated as follows:

In insuring that it obtained a release that freed PPL of any future liability, PPL makes it clear that it feared that the incident could reasonably give rise to a possible claim. At that point, PPL’s duty to notify Royal was triggered. Because PPL failed to notify Royal of the January 1968 pipeline leak until 1993, the Court finds that, as a matter of law, PPL’s delay in giving notice of an accident to Royal was unjustified and unreasonable.

PPL then filed a motion seeking, among other things, reconsideration of the trial court’s ruling on the late notice issue. The trial court denied this motion as well, and PPL appeals from these rulings.

1. PPL primarily argues that it did not have a duty to notify Royal of the 1968 leak or, alternatively, that whether it gave reasonable notice in 1993 was at least a question for the jury. PPL bases these contentions on the releases obtained in 1968 and 1969 and on the contention that its loss was less than its deductible of $5,000.

In general, the question of whether an insured gave notice of an event or occurrence “as soon as practicable,” as required by a policy of insurance, is a question for the factfinder. See, e.g., Southern Trust Ins. Co. v. Clark, 148 Ga. App. 579, 582 (1) (251 SE2d 823) (1978). And an insured often may “be able to present evidence of excuse or justification for the delay.” Richmond v. Ga. Farm &c. Ins. Co., 140 Ga. App. 215, 220 (2) (231 SE2d 245) (1976). Whether the excuse or justification was sufficient and whether the insured acted diligently in giving the notice “are generally questions of fact, to be determined by the jury, according to the nature and circumstances of each individual case.” (Citations omitted.) Clark, supra, 148 Ga. App. at 582 (1). See also State Farm &c. Ins. Co. v. Sloan, 150 Ga. App. 464, 466 (2) (258 SE2d 146) (1979); Norfolk & Dedham &c. Ins. Co. v. Cumbaa, 128 Ga. App. 196, 198-199 (2) (196 SE2d 167) (1973). But even so, we have also held that “[u]nder all of the facts and circumstances of a particular case it may be found that an insured’s delay in giving notice of an accident to his insurer was unjustified and unreasonable” as a matter of law. Richmond, supra, 140 Ga. App. at 220-221 (2). See also Protective Ins. Co. v. Johnson, 256 Ga. 713, 714 (1) (352 SE2d 760) (1987); KHD Deutz of America Corp. v. Utica Mut. Ins. Co., 220 Ga. App. 194, 195 (1) (469 SE2d 336) (1996); Caldwell v. State Farm &c. Ins. Co., 192 Ga. App. 419, 420-421 (2) (385 SE2d 97) (1989).

Citing a number of cases from other jurisdictions, PPL bases its arguments that its notice was reasonable on the “doctrine of trivial occurrence.” Then, relying heavily on Southern Guaranty Ins. Co. v. Miller, 183 Ga. App. 261 (358 SE2d 611) (1987), PPL contends that this doctrine “has become a fixture of Georgia law.” In Miller, an employee of the insured was driving the employer’s vehicle and was involved in an automobile collision. Because the employer determined from the police report and accounts given by the driver and another witness that no injuries or significant damage had occurred, the employer “decided to ignore the matter.” Id. at 262. On the question of whether the employer’s subsequent notice to its insurer was adequate, this court concluded that the employer was justified as a matter of law in not reporting the collision to its insurer in “the absence of any apparent personal injury to the parties involved and the minimal property damage.” Id. at 263.

Relying on Miller, PPL maintains that by virtue of the releases it obtained and the fact that its loss was far less than the $5,000 deductible, it reasonably believed that it had “assured . . . that no formal claims or lawsuits giving rise to coverage . . . would arise from this leak.” According to PPL, as long as it “acted reasonably” in assuming the leak would not give rise to a future claim covered by Royal’s policies, it “cannot be penalized for failing to notify Royal until the severity of that occurrence became apparent in the mid-1990s.” We agree with PPL that under Miller, an insured is “not required to foresee every possible claim, no matter how remote,” that might arise from an accident. Guaranty Nat. Ins. Co. v. Brock, 222 Ga. App. 294, 295 (474 SE2d 46) (1996). Instead, an insured is “only required to act reasonably under the circumstances.” Id.

But under the circumstances of this case, we cannot agree that PPL’s failure to notify Royal of the leak for approximately 25 years was reasonable as a matter of law, or even that at least an issue of fact exists as to the reasonableness of PPL’s belief in the late 1960s that no further claims would be made. As stated by the trial court, unlike Miller, the insured here procured releases from affected landowners, a fact showing PPL’s knowledge that more claims could arise.

We do not agree with PPL that obtaining these releases showed that PPL reasonably believed it was protected from future liability or that the possibility of further claims following the 1968 incident was “remote.” See Brock, supra, 222 Ga. App. at 295. First, although some landowners executed releases in favor of PPL, PPL was not entitled to rely on its own conclusion that it was not liable as a justification for failure to notify Royal of the leakage.

Justification for failure to give notice as soon as practicable . . . may not include the insured’s conclusion that he was free of fault and that there was no liability to the other party. That is the very issue which the company must have reasonable opportunity to investigate with promptness, and which requires a prompt notice of the occurrence.

(Citation and punctuation omitted.) Richmond, supra, 140 Ga. App. at 220 (2).

Second, even assuming that PPL correctly concluded that it was not liable to the landowners from whom it obtained releases, it is axiomatic that those releases on which PPL so heavily relies released PPL only from future claims made by two sets of landowners. The evidence presented by PPL itself, however, shows that PPL at least should have foreseen a reasonable likelihood that additional damage related to the 1968 leak could occur. The Dunaway release specifically recited:

The parties hereto specifically recognize that, while Plantation Pipe Line Company has taken all reasonable precautions to repair the leak and to control, eliminate, and destroy any existing escaped petroleum products, nevertheless there exists the possibility that with future rains some soaked-in and otherwise hidden petroleum product may be washed up and brought to the surface so as to be a potential source of further pollution. This release contemplates and includes such eventuality with respect to said leak described aforesaid.

(Emphasis supplied.)

The release recognizes the distinct possibility of further leakage. And as shown by the record, the leakage was not contained to the boundaries of one particular property. As discussed above, in the late 1960s over a period of one year, leakages were found on two separate properties, a fact showing that the leakage was not simply a “trivial” problem confined to one landowner’s property. Furthermore, PPL’s own evidence belies the notion that the occurrence was “trivial,” as PPL reported the 1968 leakage to landowners in the area, repaired the pipeline, engaged in extensive testing, and relocated certain wells.

The purpose of a notice provision in a policy of insurance is to allow the insurer to investigate promptly the facts surrounding the occurrence and to prepare a defense or determine whether a settlement is feasible, while the facts “are still fresh and the witnesses are still available.” Richmond, supra, 140 Ga. App. at 221 (3). The purpose of the notice provision in the policies issued by Royal was not fulfilled, and we do not agree that PPL offered a sufficient legal justification for its failure to comply with that provision. Summary judgment in favor of Royal was consequently warranted.

This conclusion is not inconsistent with Lumbermens Mut. Ins. Co. v. Plantation Pipeline Co., 214 Ga. App. 23 (447 SE2d 89) (1994), in which we affirmed the grant of summary judgment to Plantation Pipeline on the issue of whether it had given timely notice to its excess insurer. We concluded that no evidence showed that Plantation Pipeline should have known that its liability would exceed the $1,000,000 ceiling of its primary insurance policy. We explicitly distinguished that case from other cases concluding that delay in giving notice to a primary carrier was unreasonable as a matter of law in part on the ground that those cases did not involve excess policies where “the notice obligation [was] triggered by the insured’s assessment of the likelihood of the monetary amount of the property damage for which it may be liable exceeding the ‘ceiling’ of the primary policy.” Id. at 25 (1).

2. Relying on language in M. A. Indus. v. Maryland Cas. Co., an unreported federal district court decision, PPL contends that the trial court erroneously considered “extrinsic facts,” or facts outside those alleged in the underlying Mississippi complaints, in deciding the issue of whether it provided timely notice to Royal. We do not agree. First, PPL’s reliance on M. A. Industries is misplaced, since this unreported district court decision is not binding on this court. See generally Floyd v. First Union Nat. Bank, 203 Ga. App. 788, 790-791 (1) (417 SE2d 725) (1992) (unreported decisions not binding on this court); Winburn v. McGuire Investment Group, 220 Ga. App. 384, 385 (1) (469 SE2d 477) (1996) (federal district court not binding but may be persuasive).

More importantly, it is true that if the facts of a complaint even arguably bring an occurrence within an insurance policy’s coverage, the insurer has a duty to defend. See, e.g., Penn-America Ins. Co. v. Disabled American Veterans, 224 Ga. App. 557, 559 (481 SE2d 850) (1997), aff’d, 268 Ga. 564 (490 SE2d 374) (1997); City of Atlanta v. St. Paul Fire &c. Ins. Co., 231 Ga. App. 206, 207 (498 SE2d 782) (1998). And the allegations of the complaint are looked to to determine whether a covered claim has been asserted. Id. But we do not reach the issue of whether PPL asserted a claim that might or might not be covered under the policies issued by Royal, for proper notice was a condition precedent to coverage, as expressly stated by the policies. It is well established that a notice provision expressly made a condition precedent to coverage is valid “and must be complied with, absent a showing of justification. Where an insured has not demonstrated justification for failure to give notice according to the terms of the policy[,] . . . then the insurer is not obligated to provide either a defense or coverage.” (Citation omitted.) Richmond, supra, 140 Ga. App. at 222 (3). As discussed in Division 1, PPL did not demonstrate justification, as a matter of law, for its failure to provide notice “as soon as practicable” and, therefore, did not comply with a condition precedent to coverage.

3. PPL also contends that the facts alleged by the plaintiffs in the underlying Mississippi complaints raise the possibility of separate gasoline leaks after the leak discovered in the late 1960s. Indeed, the Mississippi complaints allege that “other leaks, releases and discharges likely occurred . . . both before and after 1968 as a result of actions, inactions, and conduct of Defendants.” But when all of the underlying allegations are considered in their totality, we agree with the trial court that the Mississippi plaintiffs all allege that harm is linked “to the leak which occurred in January 1968.” The plaintiffs in the underlying claims also allege that the defendants discovered a leak from PPL’s pipelines in 1968 and that PPL knew or should have known in 1968 that the gasoline and its constituent products had contaminated the groundwater. The complaints further recite that despite knowledge of the toxicity and health risk to humans and animals exposed to the gasoline, the defendants failed to prevent continued contamination to area groundwater. Based on these allegations, we cannot say the trial court erred in concluding that the Mississippi complaints link all harm to the 1968 leak.

4. PPL argues that the trial court “misapplied the standards for reviewing summary judgment motions” in three respects. It first maintains that the trial court drew an “unreasonable inference” from the releases PPL obtained from the landowners in the 1960s. We do not agree. For reasons discussed in Division 1, the record supports the finding that by virtue of the releases, PPL demonstrated its knowledge that future claims might arise.

PPL also argues that the trial court erroneously resolved the disputed factual issue of the timeliness of notice. We find no merit in this contention, for as discussed above, a trial court may be authorized to find, under the facts and circumstances of a particular case, that an insured failed to give notice of an occurrence to its insurer “as soon as practicable.” The undisputed facts in this case show that PPL knew of a pipeline leak in the late 1960s but failed to report this leak to Royal until 1993, and the justification offered by PPL for its failure to timely notify Royal was unreasonable as a matter of law.

Finally, we reject PPL’s argument that the trial court was not authorized to enter a sua sponte grant of summary judgment to Royal. The fact that Royal did not formally move for summary judgment on the issue of notice is not dispositive of the issue. As long as a grant of summary judgment is “proper in all other respects,” a trial court may grant summary judgment sua sponte. Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995). See also Holmes v. Achor Center, 242 Ga. App. 887, 891-892 (2) (531 SE2d 773) (2000). “This means that in addition to ensuring the record supports such a judgment, the trial court must ensure that the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment.” (Citations and punctuation omitted.) Hodge, supra, 217 Ga. App. at 690 (1). In response to PPL’s motion for summary judgment, Royal requested the entry of summary judgment in its favor, basing this request on its argument that PPL failed to provide timely notice of the occurrence. In its reply brief, PPL responded to this argument, fully arguing its contention that notice was timely. PPL had full and fair opportunity to respond to Royal’s contentions, and the trial court did not err in entering a sua sponte summary judgment in favor of Royal.

Decided July 11, 2000

Kilpatrick Stockton, Richard A. Horder, Edmund M. Kneisel, Edward T. Floyd, for appellant.

Lord, Bissell & Brook, Michael J. Athans, Corliss L. Worford, for appellee.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       Several lawsuits were also filed against PPL in Alabama, and in its complaint in this case, PPL sought a declaration that Royal was required to defend and indemnify it with respect to these claims. The trial court granted partial summary judgment in favor of PPL with respect to Royal’s duty to defend against the Alabama claims. This ruling is not a subject of this appeal.

       Civil Action No. 1:92-2659-HTW (N.D. Ga., July 1, 1993).

       Only one Mississippi complaint appears in the record, although several were filed. The parties agree, however, that the representations in that complaint are “ ‘representative’ of the allegations in the other Mississippi Claims for the purpose of PPL’s partial summary judgment motion on the duty to defend.”


text:
    A00A0766.
    DYER et al. v. SPECTRUM ENGINEERING, INC.
    (537 SE2d 175)
   Miller, Judge.

Spectrum Engineering, Inc. (“SEI”) sued Steven Dyer, his wife Mary Dyer, and his company Spectrum Environmental in various counts arising out of their alleged actions following the sale of Spectrum Environmental’s assets to SEI. When both Dyers failed to appear for their duly noticed depositions, SEI moved to strike Mary’s answer (or in the alternative to compel her to appear for deposition) and moved to compel Steven to appear for deposition (or to present medical evidence to document his failure to appear). After an evidentiary hearing, the court struck the answers of Steven, Mary, and Spectrum Environmental and further struck Spectrum Environmental’s counterclaim. Although the court did not formally strike Steven’s counterclaim (Mary had no counterclaim), the court and the parties apparently understood that the order struck his counterclaim also. A damages trial ensued, resulting in a judgment of over $200,000 against all defendants.

On appeal the defendants cite three reasons to challenge the striking of their answers and counterclaims: (1) the motion to compel and for sanctions did not seek to strike the answers and counterclaims of Steven and Spectrum Environmental; (2) the court made no finding that Steven’s and Mary’s failure to attend was wilful; and (3) SEI did not file with its motion a statement that it had engaged in a good faith effort to resolve the discovery dispute. We agree with defendants on the first reason but rule against them on the other two.

1. SEI did not move to sanction Steven; rather, it moved “to compel Steven Dyer to appear for his deposition on a date ordered by the Court or present all relevant medical evidence to document his failure to appear.” Only with regard to Mary did SEI seek the sanction of striking pleadings and entering default judgment. And nowhere in the motion is found any mention of seeking an order or sanction against Spectrum Environmental.

Where a party has filed a motion seeking only to compel compliance with discovery requests, the court is without authority to order the extreme sanction of striking the pleadings. “Since this drastic remedy was not invoked by a party at interest [against Steven or Spectrum Environmental], the trial court could not invoke it on its own motion. Thus the judge abused his discretion in ordering [their pleadings struck].” Accordingly, we reverse the order striking the answers and counterclaims of Steven and Spectrum Environmental and also reverse the resulting judgments against them.

2. This leaves the question of whether the court erred in striking Mary’s answer on the ground that she failed to attend her deposition. OCGA § 9-11-37 (d) (1) authorizes the striking of pleadings and the rendering of judgment by default against a party who fails to appear at her duly noticed deposition. To authorize this sanction, there need not be an order to compel attendance. But the court must find that the failure to attend was wilful. Resource Network Intl. v. Ritz-Carlton Hotel Co. reiterated the meaning of wilfulness in this regard:

There is no requirement that the plaintiff display and the trial court find actual wilfulness. The sanction of dismissal for failure to comply with discovery provisions of the Civil Practice Act requires only a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance. A conscious or intentional failure to act is in fact wilful.

Ample evidence supported a finding that Mary wilfully refused to attend her deposition. Without explanation and without proposing any reasonable alternatives, Mary and Steven (on the eve of their depositions) simply faxed a single-sentence letter to SEI stating that they would not be attending the depositions. Thus, evidence showed that she consciously and intentionally chose not to attend; it was certainly not accidental, and she did not assert it was involuntary. When SEI moved for sanctions, she failed to respond with an explanation in a timely manner. Her husband Steven filed a pro se response asserting that Mary failed to attend due to the costs of travel to Atlanta and a concern for her personal safety, but as a nonattorney he could not represent Mary in this action. Her later response and affidavit asserting these same grounds were not only untimely as responses to the sanctions motion, but also ineffectual, as such grounds were not asserted prior to the deposition either in a motion for a protective order or in any communications with SEI’s counsel, nor was any reason given as to why they had not been asserted earlier.

Though the court gave three weeks notice of the hearing on the sanctions motion, Mary and Steven chose not to attend and instead sent the court a letter (received on the date of the hearing) announcing that they would not attend. The court held the legally mandated evidentiary hearing on the sanctions motion and found that Mary had not provided the court with any legitimate excuse for her failure to appear at her deposition. The court also noted previous discovery abuses by Mary. The court accordingly struck her answer.

“A trial court’s finding that a party has wilfully failed to comply with its discovery obligations will not be reversed if there is any evidence to support it.” In addition to the supporting evidence described above, we note that the evidentiary hearing was not transcribed nor included in the record on appeal. “[I]n the absence of a transcript of the hearing on appellee’s motion for sanctions, we must assume the evidence supported a finding that appellant’s failure to appear was wilful.”

Mary also contends that the court did not expressly find that she wilfully failed to attend the deposition. Though the court did not use these precise words in its order, that finding is implicit in the trial court’s conclusion that “Mary Dyer has not provided the Court with any legitimate excuse for her failure to appear at her deposition.” This statement suffices.

3. Mary’s argument that SEI failed to file a “good-faith” certificate as required by Uniform Superior Court Rule 6.4 (B) is without merit.

We affirm the judgment against Mary Dyer. We reverse the judgments against Steven Dyer and Spectrum Engineering and remand with instructions to reinstate their answers and counterclaims.

Judgments affirmed in part and reversed in part and case remanded with instructions.

Pope, P. J., and Smith, P. J., concur.

Decided July 11, 2000.

James J. McGinnis, for appellants.

Gray, Hedrick & Edenfield, Robert L. Bunner, for appellee.

       Although Ethos Engineering and Ethos Engineering, Inc. are listed in the caption of the complaint as possible defendants, both are treated here as mere forms of Steven Dyer. No service was effected on either, nor was judgment entered against either.

        Johnson v. Martin, 137 Ga. App. 312, 313 (1) (223 SE2d 465) (1976); see McIntosh v. Moye, 154 Ga. App. 520 (268 SE2d 791) (1980); see generally Citibank &c. v. Hill, 161 Ga. App. 186, 187 (1) (288 SE2d 258) (1982) (“where the complaining party did not request the sanction of dismissal it was error for the court to invoke it.”).

       On appeal Mary complains that the notice of deposition was improperly served in that it was served on her personally rather than on her attorney whom she had fired, but whose withdrawal the court did not formally approve until the day after the depositions were noticed. She acted pro se thereafter in the trial court. But this alleged defect in notice was not asserted to the trial court and thus cannot be considered on appeal. See Peavy v. Goodroe, 237 Ga. App. 36, 37 (1) (514 SE2d 699) (1999).

        Cook v. Lassiter, 159 Ga. App. 24, 25 (282 SE2d 680) (1981); see James v. Gray, 229 Ga. App. 39, 40-41 (494 SE2d 198) (1997); cf. OCGA § 9-11-37 (b) (2) (C).

        Stolle v. State Farm &c. Ins. Co., 206 Ga. App. 235, 237 (3) (424 SE2d 807) (1992) (whole court).

        Smith v. Mullinax, 122 Ga. App. 833, 835 (3) (178 SE2d 909) (1970) (whole court); see Cook, supra, 159 Ga. App. at 25.

       232 Ga. App. 242 (501 SE2d 573) (1998).

       (Punctuation and footnote omitted.) Id. at 242 (1).

       Before this letter was sent, SEI was aware of two purported written opinions of a physician that medical reasons precluded Steven from traveling to a deposition in Atlanta. The opinions made no mention of Mary.

       See Gamble v. Diamond “D” Auto Sales, 221 Ga. App. 688, 689 (3) (472 SE2d 446) (1996); see generally OCGA § 15-19-51 (a) (1).

       See OCGA § 9-11-26 (c).

       Compare Cook, supra, 159 Ga. App. at 24, where the pro se defendant filed a timely and reasonable request to change the place and time of a noticed deposition in exchange for defendant’s agreement to produce documents at that new time. This Court reversed the imposition of sanctions that were based on a finding of wilfulness.

       See Serwitz v. Gen. Elec. Credit Corp., 184 Ga. App. 632, 634-635 (362 SE2d 439) (1987).

       (Punctuation and footnote omitted.) Resource Network Intl., supra, 232 Ga. App. at 244 (1).

       (Citations omitted.) Freeman v. Ripley, 177 Ga. App. 522 (339 SE2d 795) (1986); see Boles v. Lee, 270 Ga. 454, 455 (1) (511 SE2d 177) (1999) (“[a] party alleging error carries the burden of showing it affirmatively by the record, and when that burden is not met, the judgment is assumed to be correct and will be affirmed”) (footnote omitted); Aqua Sun Investments v. Kendrick, 240 Ga. App. 671, 672 (1) (524 SE2d 519) (1999).

       See Rivers v. Almand, 241 Ga. App. 565, 566-567 (1) (527 SE2d 572) (1999); Peoples v. Yu, 184 Ga. App. 252, 253 (361 SE2d 244) (1987).

       See Daniel v. Corporate Property Investors, 234 Ga. App. 148 (1) (505 SE2d 576) (1998).


text:
    A00A1097.
    SMITH v. DAVIS.
    (536 SE2d 261)
   Phipps, Judge.

Valerie Smith leased a house from John Davis under an agreement giving her an option to purchase. Smith sued Davis seeking specific performance of the option agreement, recovery of damages under theories of breach of contract and unjust enrichment, and other relief. She appeals the trial court’s grant of partial summary judgment to Davis on the breach of contract and specific performance claims. We must determine the legal effect of (1) a series of letters Davis wrote to Smith after the lease option agreement was executed, and (2) a rent payment Smith made in response to notice of a rent increase in one of the letters. The dispositive questions are whether Davis made an enforceable offer to decrease the $699,000 option price set forth in the lease agreement to $600,000 and, if so, whether Smith accepted this offer before it was withdrawn by Davis.

Davis and Smith entered into the lease on December 9, 1994. The initial term was January 1, 1995, through March 1, 1996. Each party was given a right to terminate the lease by giving the other party 30 days written notice before the end of the term, but neither party gave such notice. As a result, the lease was automatically extended on a month-to-month basis, with 30 days written notice required to terminate the monthly tenancy. The lease gave Davis the right to increase the amount of rent by giving written notice 30 days before the effective date of the increase. Smith was given an option to purchase the property for $699,000.

By letter dated February 12, 1998, Davis rejected an oral offer by Smith to increase the purchase price of the option if Davis would defray the cost of various improvements to the house. Davis wrote, “This leaves us with these options: 1. Sell the house to you for $600,000 net to us. 2. You rent the house as is, on a month to month basis. We are increasing the rent to $3750 April 1, 1998. 3. Put the house back on the market immediately.” By letter dated March 8, Davis informed Smith that, “[b]y September 1, 1998, we will need from you, a firm contract to purchase, with earnest money, that is nonrefundable and a closing date not later than December 1, 1998. If your plans should change and you decide not to purchase the property we expect you to vacate the property by September 1, 1998.”

On April 15, Davis wrote to Smith that he had not received the rent increase announced in the February 12 letter and that, as a result, he felt that Smith’s plans to purchase the property would not materialize. He asked her to vacate the property on or before September 1. Davis later received and accepted a check dated April 13 for the monthly rent increase. But on April 28, Davis sent Smith another letter informing her that his plans had changed, that the home was no longer for sale, and that he wanted to retake possession on September 1.

On May 8, Smith wrote back that she had spent substantial sums in redesigning the house and that she fully intended to close on the house “[p]ursuant to our agreement.” In response, on May 14 Davis’s attorney sent Smith a letter demanding possession of the property on or before July 1. By letter dated May 19, Smith put Davis’s attorney on notice that she intended to exercise her contractual right to purchase the house for $600,000 on or before December 31.

Smith argues that in his February 12 letter Davis reduced the purchase price of the lease option from $699,000 to $600,000 and that he is chargeable with breach of contract because of his refusal to allow her to exercise the option during the term of the lease. Davis argues that any modification of the written terms of the lease option agreement is unenforceable because of the absence of an agreement in writing as required by the statute of frauds.

Davis’s February 12 letter to Smith can be interpreted as a written offer to amend the lease option agreement by changing the purchase price from $699,000 to $600,000 net to Davis, under conditions later set forth in the March 8 letter. Because this offer was in writing, the statute of frauds has been satisfied.

But Davis withdrew this offer no later than April 28, before Smith had announced her intent to exercise the option. We find no merit in Smith’s argument that she accepted Davis’s offer by remaining in possession of the property, making improvements thereto, and paying increased rent. In his March 8 letter, Davis conditioned Smith’s acceptance of his February 12 offer on her presentation of a firm contract to purchase with nonrefundable earnest money and a closing date within a specified time period. To be effective, acceptance of the offer had to be effectuated in that manner. Although Smith’s subsequent attempts to exercise her option were made during the term of the lease, they were based on the $600,000 purchase price contained in the withdrawn offer rather than the $699,000 purchase price that remained in effect under the written lease.

Decided June 22, 2000

Reconsideration denied July 12, 2000.

James N. Cline, for appellant.

Harman, Owen, Saunders & Sweeney, Timothy J. Sweeney, James P. Robertson, Jr., for appellee.

For these reasons, we find no error by the court in its grant of partial summary judgment to Davis on the issues of breach of contract and specific performance. Smith’s claim against Davis for unjust enrichment based on the improvements she made to the property remains pending.

Judgment affirmed.

Johnson, C. J., and Smith, P. J., concur.

       (Emphasis supplied.)

       See McKown v. Heery, 200 Ga. 819, 820 (2) (38 SE2d 425) (1946) (in absence of a specified date for exercising the right of purchase, option given to lessee will be construed as operative for the term of the lease or renewal thereof).

       OCGA § 13-5-30 (4).

       See 72 AmJur2d, Statute of Frauds, § 311, p. 830 (1974) (as a general rule, written offer signed by party sought to be charged is sufficient to satisfy statute of frauds even where acceptance is oral); compare Valiant Steel & Equip. v. Roadway Express, 205 Ga. App. 237, 238 (1) (421 SE2d 773) (1992) (person making offer not bound by oral acceptance where offer conditioned on written acceptance); Presto v. Scientific-Atlanta, 193 Ga. App. 606 (1) (388 SE2d 719) (1989) (statute of frauds not satisfied by oral acceptance of written offer where offer did not contain all essential terms of agreement).

       See generally Valiant Steel, supra.

       See McKown, supra.


author: Ruffin, Judge.

text:
    A99A0302.
    GILLIS v. CARDIO TVP SURGICAL ASSOCIATES, P.C. et al.
    (537 SE2d 208)
   Ruffin, Judge.

In Cardio TVP Surgical Assoc. v. Gillis, the Supreme Court reversed Division 1 of this Court’s opinion in Gillis v. Cardio TVP Surgical Assoc. Accordingly, we vacate that Division of our earlier opinion, and the judgment of the Supreme Court is made the judgment of this Court only as to Division 1.

Judgment affirmed.

Johnson, C. J., Pope, P. J., Andrews, P. J., Smith, P. J., Eldridge and Mikell, JJ, concur.

Decided July 12, 2000.

Berrien L. Sutton, Ronald W. Hallman, Keith H. Solomon, for appellant.

Martin, Snow, Grant & Napier, John C. Edwards, Blair K. Cleveland, Sell & Melton, Mitchel P. House, Jr., Jeffrey B. Hanson, for appellees.

       272 Ga. 404 (528 SE2d 785) (2000).

       239 Ga. App. 350 (1) (520 SE2d 767) (1999).


author: Pope, Presiding Judge.

text:
    A00A0002.
    SAWYER v. COLEMAN et al.
    (537 SE2d 193)
   Pope, Presiding Judge.

This case arises out of the tragic circumstances surrounding a 14-year-old boy’s suicide by jumping from a two-story fire escape. At the time of his death, the boy was in the custody of the Department of Children & Youth Services (DCYS) in Walton County. Janice Sawyer, the boy’s mother, brought suit against Leslie Coleman, her son’s probation officer, and Margaret Laskey, Coleman’s supervisor, asserting numerous federal and state claims. The trial court granted Coleman and Laskey summary judgment on all claims, but Sawyer’s appeal challenges only the grant of summary judgment on her federal constitutional claims.

In October 1993, Sawyer’s son, Michael Grubbs, was found delinquent and committed to the DCYS on charges of abusive and obscene language, truancy, violation of probation, runaway and unruly. Michael’s case was assigned to Coleman. At the time, she was employed as a juvenile probation officer and court service worker by the DCYS, working out of the juvenile probation office in Walton County. Her duties included supervising juveniles such as Michael, who resided in Walton County and were placed in DCYS custody. Laskey was the unit director and supervisor of the DCYS offices in Walton County and Newton County.

After a brief detention in a Regional Youth Development Center (RYDC), Michael completed a Wilderness School program. He then spent a short, unsuccessful stay at home before being assigned to a group home in Augusta. On February 17, 1994, after staying in the group home for one day, Michael ran away and returned to his mother’s house. Coleman allowed Michael to stay overnight with his mother and to report to her office the following morning.

Michael’s grandmother brought him to Coleman’s office the next morning. Coleman told Michael at that point that he would have to go back to the RYDC temporarily until another group home could be found. Michael was extremely reluctant to go back to the RYDC, so he and Coleman discussed the situation. At one point, Michael remarked to Coleman that he had thought about suicide but stated that he did not really want to die. He told Coleman he had tried swallowing aspirin a month or two earlier, but he had not really wanted to kill himself. Eventually, however, he agreed to let Coleman drive him to the RYDC.

After they got in Coleman’s truck, Michael said he could not go back to detention. He then got out of the truck and started to walk away. Coleman talked to Michael for a minute before he took off running. Coleman pursued him. At one point, she “tackled” him, but he pushed away from her and kept running. Coleman caught up with Michael again and tried to talk to him. But as she approached, Michael scaled a barbed-wire-topped chain link fence at the mill where his mother worked. Coleman followed Michael over the fence and into the mill where she caught up with him on a fire escape. Michael asked one of the mill employees to get his mother, but Coleman directed the man not to because she was concerned that another interruption could adversely affect the mother’s job. While Coleman was talking to Michael, the boy climbed over the railing and jumped to his death. Coleman testified that, even after their conversation that morning, she did not believe the boy was suicidal until she saw his demeanor change minutes before he jumped.

Sawyer’s complaint alleges Coleman and Laskey violated Michael’s constitutional rights under the First, Fourth, Sixth, Eighth, Ninth and Fourteenth Amendments, and she has asserted claims pursuant to 42 USC § 1983. In response, Coleman and Laskey raised the defense of qualified immunity.

Government officials are protected by the defense of qualified immunity for their discretionary actions in all but exceptional cases:

Qualified immunity protects government officials performing discretionary fimctions from civil trials (and the other burdens of litigation, including discovery) and from liability if their conduct violates no “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U. S. 800, 818 [(102 SC 2727, 73 LE2d 396)] (1982).

Lassiter v. Alabama A & M Univ. &c., 28 F3d 1146, 1149 (11th Cir. 1994). The burden is on the government official to demonstrate that the alleged constitutional violations occurred while she was acting in the scope of her discretionary authority. Once that is established, the burden then shifts to the plaintiff to establish that the defendant violated a clearly established statutory or constitutional right. Harbert Intl. v. James, 157 F3d 1271, 1281 (11th Cir. 1998). This requirement that plaintiff show a clearly established right is a strenuous one:

For the law to be clearly established to the point that qualified immunity does not apply, the law must have earlier been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in the defendant’s place, that what he is doing violates federal law.

(Citations and punctuation omitted.) Jenkins v. Talladega City Bd. of Ed., 115 F3d 821, 823 (11th Cir. 1997). As the U. S. Supreme Court has stated, the shield of qualified immunity extends to all government actors but the plainly incompetent or those who knowingly violate the law. Malley v. Briggs, 475 U. S. 335, 341-343 (106 SC 1092, 89 LE2d 271) (1986).

Here, the allegations center around Coleman’s actions in supervising Michael. Sawyer has not alleged that Laskey had any direct involvement in the events at issue. We have previously held that a probation officer is exercising discretionary authority in supervising or monitoring probationers in his charge. Dept. of Corrections v. Lamaine, 233 Ga. App. 271, 273 (502 SE2d 766) (1998) (probation officer’s supervision of convicted criminal). Therefore, Coleman and Laskey are entitled to qualified immunity unless Sawyer can demonstrate that their conduct violated “a clear, factually-defined, well-recognized right of which a reasonable [juvenile probation officer] should have known.” (Citation and punctuation omitted.) Thomas v. Holt, 221 Ga. App. 345, 348 (1) (471 SE2d 300) (1996).

1. Sawyer argues Michael’s constitutional rights were violated when Coleman made the decision to transport him to the RYDC without a hearing. The U. S. Supreme Court has held that no liberty interest protected by the due process clause is affected when a convicted adult prisoner is transferred from one prison facility to another. Meachum v. Fano, 427 U. S. 215, 224 (96 SC 2532, 49 LE2d 451) (1976). And “[t]his general legal principle appears equally applicable to duly adjudicated juvenile delinquents in the custodial care of [the Department of Children & Youth Services in Georgia].” People v. Bertholf, 99 Misc.2d 321, 323 (416 NYS2d 173) (1979) (holding no constitutional violation in transferring juvenile to more secure facility, but finding transfer violated state statute that required a hearing). See also Cruz v. Collazo, 450 FSupp. 235, 239 (D. RR. 1978).

Here, Sawyer does not contest that in October 1993 a juvenile court order placed Michael into the custody of the DCYS or that he was originally assigned to the RYDC while he was being evaluated for a Wilderness program. Under OCGA § 49-4A-8 (e) (2), once a juvenile is committed to the DCYS, the department may “[o]rder the child’s confinement under such conditions as the department may believe best designed to serve the child’s welfare and as may be in the best interest of the public.” In addition, the department may order “reconfinement or renewed release as often as conditions indicate to be desirable.” OCGA § 49-4A-8 (e) (3). After Michael ran away from the group home, Coleman decided to house him temporarily at the RYDC until she could find another placement. She completed a Request for Apprehension form seeking approval for his transfer to the Lawrenceville RYDC. And in a phone conversation with Coleman, Micki Smith, a district director for the DCYS, approved the request. Under these circumstances, we find that Coleman had the authority to place Michael in the RYDC on a temporary basis and that no constitutional violation occurred.

2. Sawyer also contends Coleman violated OCGA § 49-4A-8 (i) (1) when she personally pursued Michael after he ran away. That section provides that a juvenile who has escaped from the department’s custody may be taken into custody without a warrant by “a sheriff, deputy sheriff, constable, police officer, probation officer, parole officer, or any other officer of this state authorized to serve criminal process.” OCGA § 49-4A-8 (i) (1). Sawyer contends that under this language, an officer must be authorized to serve criminal process before she is allowed to take a juvenile into custody. It is uncontested that Coleman was not so authorized.

Pretermitting the issue of whether Coleman had the authority to apprehend Michael once he escaped from custody, the evidence demonstrates that Coleman believed that Michael remained under her custody and supervision, even after he ran. She testified that she did not feel that he had left her custody, stating that he was in “arm’s distance” and was not out of her sight “for very long at all.” She continued talking to him, trying to persuade him to come back with her. Thus, her actions in chasing Michael were within her discretionary powers of supervision. See Williams v. Solomon, 242 Ga. App. 807, 809 (1) (531 SE2d 734) (2000) (officer’s decision to pursue subject discretionary). And, there is no evidence that Coleman “knowingly violated” OCGA § 49-4A-8. Therefore, Sawyer has failed to prove that Coleman’s actions in seeking to retain custody of Michael violated any clear statutory or constitutional right.

3. Sawyer next argues that qualified immunity does not apply because Coleman used excessive force in violation of Michael’s substantive due process and Fourth Amendment rights. She asserts the excessive force consisted of Coleman’s “seizing, tackling, scuffling and chasing” Michael.

In determining whether Coleman violated Michael’s constitutional rights and thus whether Coleman is entitled to qualified immunity, we must examine her actions in light of the Fourth Amendment’s objective reasonableness test, “rather than under a substantive due process approach.” (Punctuation omitted.) Graham v. Connor, 490 U. S. 386, 395 (109 SC 1865, 104 LE2d 443) (1989); Gardner v. Rogers, 224 Ga. App. 165, 167-168 (1) (480 SE2d 217) (1996). “Under that test, the question is whether an officer’s actions are objectively reasonable in light of the facts and circumstances confronting the officer, without regard to any underlying intent or motivation on the officer’s part.” (Citation and punctuation omitted.) Id. at 168 (1). And the test must be applied “from the perspective of a reasonable officer on the scene,” without the application of hindsight:

Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.

(Citation and punctuation omitted.) Graham v. Connor, 490 U. S. at 396-397.

Here, the only evidence of force was Coleman’s statement that in her pursuit of Michael, she “scuffled” with him, which she later described as “tackling” him. He pushed away from her and continued running. There is no other evidence that Coleman used any other force in seeking to stop Michael. Nor is there evidence that the force exerted caused any injury, as Michael was able to later scale a barbed-wire-topped fence and climb to a second-story fire escape. Under the circumstances of this case, there is no evidence that Coleman used any force other than that reasonably necessary for Coleman to retain custody of Michael, and Sawyer’s excessive force claim fails. See Merideth v. Grogan, 812 FSupp. 1223, 1229 (N.D. Ga. 1992).

4. Sawyer also asserts a Section 1983 claim for wrongful deprivation of life. She argues that Coleman’s actions violated the Eighth and Fourteenth Amendments in that Coleman showed deliberate indifference to what she claims were Michael’s suicidal tendencies.

Deliberate indifference in the context of a custodial suicide requires a determination of whether the defendant was “deliberately indifferent to an individual’s mental condition and the likely consequences of that condition.” (Citation omitted.) Tittle v. Jefferson County Comm., 10 F3d 1535, 1539 (11th Cir. 1994). And the Eleventh Circuit has held that no Section 1983 liability exists for the suicide of an individual “who never had threatened or attempted suicide and who had never been considered a suicide risk.” (Citation and punctuation omitted.) Id. at 1540. Therefore, deliberate indifference cannot be shown where the defendant had no knowledge of a detainee’s suicidal tendencies. Moreover, “deliberate indifference can only be established where a plaintiff demonstrates a ‘ “strong likelihood, rather than a mere possibility”’ that suicide would result from a defendant’s actions or inactions.” Id., quoting Edwards v. Gilbert, 867 F2d 1271, 1276 (11th Cir. 1989).

At the time Michael was committed to the custody of the DCYS, he was evaluated by a psychologist, and the psychologist’s report gave no indication that Michael exhibited any suicidal thoughts, tendencies or behavior. Sawyer submitted an affidavit, however, stating that she had mentioned two incidents to Coleman. On one occasion, Michael wrote Sawyer a note stating that he would be dead by the time she read it. On another occasion, Michael said he would rather be dead than return to the RYDC.

On the morning of his death, Michael told Coleman for the first time that he had thought about suicide and that he had even swallowed some aspirin about a month or two earlier. But he told Coleman that he had not meant to kill himself and that he did not want to die. Coleman concluded that Michael was not a threat to himself based upon this conversation.

Coleman did not become alarmed about Michael until moments before he jumped when the tone of his voice “completely changed,” his expression changed and he began asking disturbing questions. Coleman then began in earnest to persuade Michael not to jump, but was unfortunately not successful.

Based upon her own conversations with Michael and the psychologist’s report, Coleman did not believe that Michael had any suicidal tendencies. And when she did become alarmed, she began trying to defuse the situation. Under these circumstances, we find no evidence that Coleman’s actions demonstrated deliberate indifference or that they violated a clearly established constitutional or statutory right. See Heggs v. Grant, 73 F3d 317, 321 (11th Cir. 1996).

5. Sawyer also asserts that Coleman and Laskey violated Michael’s substantive due process rights by “failing to protect” him. We find that Sawyer has failed to establish that the law in this area has been developed “ ‘in such a concrete and factually defined context to make it obvious to all reasonable government actors, in the defendant’s place, that “what he is doing” violates federal law.’ ” Jenkins v. Talladega City Bd. of Ed., 115 F3d at 823. In establishing that a right is clearly established so as to overcome a claim of qualified immunity, a plaintiff must rely upon specific, supporting case law:

General propositions have little to do with the concept of qualified immunity. If case law, in factual terms, has not staked out a bright line, qualified immunity almost always protects the defendant. When considering whether the law applicable to certain facts is clearly established, the facts of [the] cases relied upon as precedent are important. The facts need not be the same as the facts of the immediate case. But they do need to be materially similar. . . . For qualified immunity to be surrendered, pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what [he] is doing violates federal law in the circumstances.

(Citations and punctuation omitted; emphasis in original.) Lassiter v. Alabama A & M Univ., 28 F3d at 1150.

We find that Sawyer has failed to carry her burden on this claim.

6. Sawyer’s claims center around Coleman’s actions in supervising Michael, and we have found that those actions provide no basis for a federal constitutional claim. There is no evidence that Laskey had any personal involvement with Michael. Her only knowledge of Michael’s case came from regular meetings with Coleman and the other case service workers in her office. The evidence shows no involvement by Laskey in the events of February 18, 1994, either directly or in a supervisory capacity. In fact, she was working in the Newton County office that day. Another DCYS employee authorized Michael’s transfer to the RYDC. In order to establish Section 1983 liability against a government official, a plaintiff must show some action on the part of that official that violated a constitutional right. See Wilson v. Strong, 156 F3d 1131 (11th Cir. 1998).

Accordingly, we find that the trial court correctly granted summary judgment to Coleman and Laskey.

Decided July 12, 2000

Brenda H. Trammell, J. M. Raffauf, for appellant.

Thurbert E. Baker, Attorney General, Harman, Owen, Saunders & Sweeney, David C. Will, for appellees.

Judgment affirmed.

Smith, P. J., and Miller, J., concur.

       This is not the first suit filed by Sawyer. She dismissed a prior action, filed in Fulton County, on the same day that the trial court issued an order granting summary judgment for defendants. Because the court did not use time stamps, the trial court granted Sawyer’s dismissal and set aside its summary judgment order.

       Although Sawyer states that there is nothing in the record to indicate that the juvenile court proceedings met with the requirements of due process, she bears the burden of showing that a constitutional violation occurred. In order to go behind the juvenile court’s order, she must present evidence that the proper procedures were not followed. In the absence of any transcript or other record of the juvenile court proceedings, we must presume that the juvenile court’s conduct of the hearing was proper and that the findings were supported by the evidence. See Adams v. State, 234 Ga. App. 696, 697 (2) (507 SE2d 538) (1998).

       Sawyer also contends that Coleman’s decision to pursue Michael violated department procedures. In this case, Sawyer asserts violations of her son’s rights under the U. S. Constitution. Even if Coleman violated an internal policy, such a breach does not demonstrate a violation of “a clear, factually-defined, well-recognized right” so as to remove Coleman from the protections of qualified immunity. See Sellers v. Baer, 28 F3d 895, 902 (8th Cir. 1994).