author: ELLINGTON, Presiding Judge. McMlLLIAN, Judge,

text:
    A14A0242.
    HENDERSON et al. v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (762 SE2d 106)
   ELLINGTON, Presiding Judge.

Jennifer and Lee Henderson filed this action in the Superior Court of Lincoln County against Georgia Farm Bureau Mutual Insurance Company, seeking benefits under their homeowners’ insurance policy for water damage to their home and for their loss of use, statutory penalties for Georgia Farm Bureau’s alleged bad faith in refusing to pay benefits, and attorney fees. A jury found in favor of the Hendersons and awarded them $27,799 for damage to the structure not already paid by Georgia Farm, $8,400 for their loss of the use of the property, $6,000 in penalty for Georgia Farm Bureau’s bad faith in refusing to pay a covered loss, and $35,000 in attorney fees. Georgia Farm Bureau filed a motion for judgment notwithstanding the verdict, arguing, inter alia, that there was no evidence that the Hendersons’ home sustained any water damage that was separate and distinct from mold damage, for which Georgia Farm Bureau paid benefits under a special rider. After a hearing, the trial court granted Georgia Farm Bureau’s motion for judgment notwithstanding the verdict “in its entirety])]” The Hendersons appeal, and, for the reasons explained below, we reverse.

A motion pursuant to OCGA § 9-11-50 (b) for judgment notwithstanding the verdict may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a “one-way” verdict proper, judgment [notwithstanding the verdict] should not be awarded.

(Citation and punctuation omitted.) Fertility Technology Resources v. Lifetek Med., 282 Ga. App. 148, 149 (637 SE2d 844) (2006).

The appellate standard for reviewing the grant of a judgment notwithstanding the verdict is whether the evidence, with all reasonable deductions therefrom, demanded a verdict contrary to that returned by the factfinder. If there is any evidence to support the jury’s verdict, viewing the evidence most favorably to the party who secured the verdict, it is error to grant the motion.

(Citations and punctuation omitted.) Mosley v. Warnock, 282 Ga. 488 (1) (651 SE2d 696) (2007).

Viewed in the light most favorable to the Hendersons, the record shows the following. Georgia Farm Bureau agreed to cover the Hendersons “against risks of direct loss to property ... if that loss is a physical loss of property [.]” Losses causedby “[c]onstant or repeated seepage or leakage of water or the presence of condensation or humidity, moisture or vapor, over a period of weeks, months or years[,]” (hereinafter, “seepage of water, etc.”) were included among the Perils Insured Against (hereinafter, “the covered risks”) as long as such seepage of water, etc. “and the resulting damage is unknown to all ‘insureds’ and is hidden within the walls or ceilings or beneath the floors or above the ceilings of a structure.” The policy limit for such seepage of water, etc. was $153,500. Otherwise, that is, for seepage of water, etc. and resulting damage that was known to an insured or was not hidden, the policy provided no coverage for losses caused by seepage of water, etc.

In addition to this coverage, the Hendersons, for an additional premium, opted for additional coverage for “ensuing mold, fungi or bacteria caused by or resulting from” one of the covered risks (hereinafter, “ensuing mold”); as noted above, the covered risks included seepage of water, etc. where the resulting damage was unknown to all insureds and hidden as defined by the policy. The limit of such additional coverage for ensuing mold was $32,675.

On October 4, 2010, Jennifer Henderson discovered a puddle of water in her kitchen and contacted Georgia Farm Bureau. Georgia Farm Bureau’s contractor tore out a section of the floor and checked the kitchen, dining room, and living room floors for moisture but discovered no problems other than the area of flooring damaged by the puddle. Days later, however, the Hendersons removed another part of the floor in the kitchen and discovered standing water and black mold underneath. Georgia Farm Bureau’s claims adjuster suggested that the Hendersons should vacate the house because black mold could be toxic, and the Hendersons did so and were unable to return for one year.

Over the course of that year, the Hendersons’ home was inspected by numerous engineers, mold remediation specialists, contractors, and repairmen, many of whom were hired by Georgia Farm Bureau in the course of addressing the Hendersons’ claim for benefits. In addition to areas of mold found under floors, behind walls, and over ceilings, these workers found such damage as areas of flooring and subflooring that were completely rotted through, where one “could just step through the hole and be under the house [,]” critical rot to 90 percent of the floor joists, and a “trough” or “dry riverbed” in the crawlspace, where water flowed through and collected in puddles.

Ultimately, Georgia Farm Bureau conceded that the Hendersons had suffered losses caused by mold in excess of the limit of their additional mold coverage ($32,675) and tendered payment for such. Georgia Farm Bureau, however, denied the Hendersons’ claim under coverage for other (non-mold) damage from seepage of water, etc. (policy limit of $153,000). Although the jury apparently rejected Georgia Farm Bureau’s characterization of the Hendersons’ losses, the trial court, after verdict, agreed with Georgia Farm Bureau, finding that

[t]he overwhelming weight of the evidence established that the “resulting damage” was not water damage. Rather, it was mold damage. As a consequence, the policy’s limited mold coverage applied, and [the Hendersons] could not recover more than the mold coverage limits unless they could identify and quantify areas of the structure which were only damaged by water, not mold. There is no evidence in the record of any non-mold damage that can support an award of damage beyond the Mold Endorsement Limit, which was exhausted by Georgia Farm Bureau’s earlier payment before suit was filed____[The Hendersons] failed to show any damages that were caused solely by water or moisture that were separate and distinct from the mold damage to the structure. . . . Based on the evidence, there was no remaining coverage available under the policy because the actual damages sustained by [the Hendersons] were ensuing mold damages, all of which fell under [their] limited mold coverage and had been paid in full by [Georgia Farm Bureau].

1. The Hendersons contend that the trial court erred in failing to apply the policy according to its plain terms. Further, they contend that the trial court erred in ruling that there was no evidence of water damage that was separate from the mold damage for which Georgia Farm Bureau paid benefits to the mold coverage policy limit. Accordingly, they contend that the trial court erred in granting Georgia Farm Bureau’s motion for judgment notwithstanding the verdict as to their claim for benefits for property damage.

As with any other contract, where the terms of an insurance contract “are clear and unambiguous, and capable of only one reasonable interpretation, the court is to look to the contract alone to ascertain the parties’ intent.” (Citation and punctuation omitted.) Fireman’s Fund Ins. Co. v. Univ. of Ga. Athletic Assn., 288 Ga. App. 355, 356 (654 SE2d 207) (2007). Even when the trial court is authorized to construe an insurance contract, because a pertinent provision is ambiguous, the trial court must construe strictly against the insurer any ambiguities in the contract and any exclusion from coverage sought to be invoked by the insurer as drafter of the document and must read the insurance contract in accordance with the reasonable expectations of the insured where possible. Id. at 357.

In concluding that the Hendersons had failed to come forward with evidence showing that the property had been damaged by water only and not by mold, the court was implicitly construing the policy of insurance to mean that mold damage is not and can never be an item of damage that results as a consequence of water seepage. This is perplexing in light of the policy’s express requirement that mold damage ensue as a consequence of a covered risk, one of which is seepage of water, etc.

The trial court’s interpretation is also not demanded by the evidence. Although the evidence showed that all of the Hendersons’ mold damage was moisture damage (in the sense that mold growth and resulting damage only occurs in the presence of persistent or recurrent moisture), the evidence did not show the reverse, that is, that all of the Hendersons’ water damage was mold damage. The Bartram, LLC v. Landmark American Ins. Co., 864 FSupp.2d 1229, 1239 (III) (F) (N.D. Fla. 2012) (As used in a standard builder’s all-risk insurance policy, an “ensuing loss” is one that follows and flows proximately from an underlying covered loss.). There was no evidence at all that the “trough” and “dry riverbed” in the crawlspace resulted from mold, that the rotted floor and subfloor, through which a person could fall into the crawlspace, resulted from mold, or that the critical failure of the floor joists resulted from mold, even if the moisture that caused these items of destruction might have also allowed mold to flourish.

Granted, the Hendersons apparently were not litigation-savvy enough to require the contractor whom they hired to make their home habitable, after Georgia Farm Bureau rejected their claim for non-mold benefits, to provide a line-item bill attributing each item of repair to general seepage of water, etc. versus to mold. (One wonders how much such special accounting practices would have added to the total cost of repairs.) But, the evidence showed that all of the Hendersons’ property damage was from the seepage of water, etc. and that, of that damage, some of it was from ensuing mold. Georgia Farm was entitled to pay only $32,675 for the portion of the Hendersons’ property damage that resulted only from the mold. But, for those damages resulting from the seepage of water, etc. that was not solely mold damage, a policy limit of $153,500 applied.

The trial court’s order allows Georgia Farm Bureau to penalize the Hendersons, having opted into so-called “additional” mold coverage, for suffering from both nonmold-related water damage and mold-related water damage. Because the jury’s verdict was authorized by the evidence, the trial court applied an inapplicable legal standard in weighing the evidence, and the trial court construed the policy contrary to its plain terms and in favor of the insurer and against coverage, the trial court erred in granting Georgia Farm Bureau’s motion for judgment notwithstanding the verdict as to the jury’s award for property damage.

2. The Hendersons contend that the trial court erred in granting Georgia Farm Bureau’s motion for judgment notwithstanding the verdict as to bad faith and attorney fees, which was based on its determination that the parties had a bona fide dispute as to coverage for the Hendersons’ claim for property damage. The question of bad faith is generally for the jury. Jimenez v. Chicago Title Ins. Co., 310 Ga. App. 9, 12 (2) (712 SE2d 531) (2011); Certain Underwriters at Lloyd’s of London v. Rucker Constr., Inc., 285 Ga. App. 844, 850 (3) (648 SE2d 170) (2007); First Financial Ins. Co. v. American Sandblasting Co., 223 Ga. App. 232, 233 (2) (477 SE2d 390) (1996); St. Paul Fire & Marine Ins. Co. v. Snitzer, 183 Ga. App. 395, 397 (2) (358 SE2d 925) (1987). As the Supreme Court of Georgia has explained,

[t]he proper rule is that [a] judgment [against an insurer for damages and attorney fees for bad faith in refusing to pay a claim] should be affirmed if there is any evidence to support it unless it can be said as a matter of law that there was a reasonable defense which vindicates the good faith of the insurer.

Colonial Life & Accident Ins. Co. v. McClain, 243 Ga. 263, 265 (1) (253 SE2d 745) (1979). We discern no basis for concluding that Georgia Farm Bureau’s defense was reasonable as a matter of law. Consequently, the trial court erred in not deferring to the jury’s assessment.

3. The Hendersons contend that the trial court erred in granting in part Georgia Farm Bureau’s motion for summary judgment relating to bad faith and attorney fees. The record shows that the trial court granted Georgia Farm Bureau’s motion for summary judgment in part, to the extent that the Hendersons sought a bad faith penalty for the insurer’s denial of their claim for the loss of the use of their home. Accordingly, the issue of whether Georgia Farm Bureau denied the Hendersons’ loss of use claim in bad faith was not submitted to the jury.

Under OCGA § 9-11-56 (c)
[s]ummary judgment is warranted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. We review the grant or denial of a motion for summary judgment de novo, and we view the evidence, and the reasonable inferences drawn therefrom, in a light most favorable to the nonmovant.

(Punctuation and footnotes omitted.) Assaf v. Cincinnati Ins. Co., 327 Ga. App. 475 (759 SE2d 557) (2014). As with the part of the Hendersons’ bad faith claim that was submitted to the jury, see Division 2, supra, we discern no basis for concluding that Georgia Farm Bureau’s defense was reasonable as a matter of law. Consequently, the trial court erred in granting in part Georgia Farm Bureau’s motion for summary judgment.

Judgment reversed.

Phipps, C. J., Barnes, P. J., and McFadden, J., concur. Andrews, P. J., Ray and McMillian, JJ., concur specially and in judgment only as to Division 1 and dissent as to Divisions 2 and 3.

McMlLLIAN, Judge,

concurring specially in part and in judgment only and dissenting in part.

1. Pursuant to Court of Appeals Rule 33 (a), I concur specially and in judgment only as to Division 1.

2. I must respectfully dissent from Divisions 2 and 3 of the majority’s opinion because the record demonstrates that the Hendersons failed to prove that they were entitled to recover a bad faith penalty or attorney fees. The Hendersons assert that the trial court erred in granting a JNOV as to their claim for bad faith and attorney fees. Specifically, the Hendersons claim that Georgia Farm Bureau (“GFB”) acted in bad faith because Palacz initially applied an exclusion under the Policy to deny them coverage, a decision that was overruled by his superiors after the Hendersons made a written demand, and because GFB denied additional coverage under the Water Damage Coverage provision of the Policy.

To establish liability for penalties and attorney fees under OCGA § 33-4-6, “the insured must prove: (1) that the claim is covered under the policy, (2) that a demand for payment was made against the insurer within 60 days prior to filing suit, and (3) that the insurer’s failure to pay was motivated by bad faith.”

(Citations and punctuation omitted.) Jimenez v. Chicago Title Ins. Co., 310 Ga. App. 9, 11-12 (2) (712 SE2d 531) (2011). “Penalties for bad faith and attorney fees are not authorized where the insurance company has any reasonable ground to contest the claim and where there is a disputed question of fact.” (Citation and punctuation omitted.) Bell v. Liberty Mut. Fire Ins. Co., 319 Ga. App. 302, 307 (3) (734 SE2d 894) (2012). And

[t]he test of bad faith within the meaning of the law in such cases is as of the time of trial, in the final analysis, and not at the time of refusal to pay upon demand. Whatever the facts are at the time of such refusal to pay if at the trial there was a reasonable ground for the insurer to contest the claim there can be no finding against the insurance company for bad faith and attorney’s fees regardless of the outcome of the case.

Decided July 16, 2014.

Tucker Long, John B. Long, for appellants.

Swift, Currie, McGhee & Hiers, Mark T. Dietrichs, Melissa K. Kahren, for appellee.

(Citation and punctuation omitted.) Fortson v. Cotton States Mut. Ins. Co., 168 Ga. App. 155, 158 (1) (308 SE2d 382) (1983). “Since it imposes a penalty, the statute’s requirements are strictly construed.” (Citation and punctuation omitted.) Jimenez, 310 Ga. App. at 12 (2).

Here, although GFB initially refused coverage, it reversed its position within 60 days of the Hendersons’ demand, and after investigating to determine the amount of the Hendersons’ damages, it paid them in excess of their policy limits to cover the full cost of remediation and other documented damage to furniture. Also, a genuine dispute existed as to whether GFB owed any amounts over and above the policy limits under the Mold Coverage provision. I believe that GFB reasonably contested the issue of whether they were required to pay any additional amounts under the Water Damage Coverage provision without proof of water damage separate and apart from mold damage.

Accordingly, I would find that the trial court properly granted a JNOV and summary judgment as to the Hendersons’ bad faith claims.

I am authorized to state that Presiding Judge Andrews and Judge Ray join in this opinion.

       If the Hendersons had not opted for additional coverage for ensuing mold, fungi or bacteria caused by one of the covered risks, Georgia Farm Bureau’s standard policy excluded coverage for loss caused by “[m]old, fungi or bacteria[.]”

       We note that there was some evidence that, as constructed, the Hendersons’ home lacked certain improvements intended to limit seepage of water or collection of condensation, such as, rain gutters, “French” drains, vapor barriers in the crawlspace, and properly installed (right-side down) subfloor insulation. There was no evidence, however, that the Hendersons were aware of those deficiencies, or the significance of such deficiencies, before the water and mold damage occurred.

       It is undisputed that the seepage of water that caused all of the Hendersons’ property damage was unknown to them and hidden within the walls or ceilings or beneath the floors or above the ceilings until the day in October 2010 that the Hendersons lifted part of the floor in the kitchen and saw standing water and mold underneath.

       To the contrary, the Hendersons testified that their home had both water damage and mold damage and that water had damaged the paneling on the walls and rotted the wood supporting the walls and floor. The contractor who repaired their home identified the required repairs as being for “water damage.” In addition, witnesses testified that, “[a]nytime you have mold, water has something to do with it[,]” and that “condensation occurring on the floor sheathing due to humid air conditions in the crawlspace” had, in turn, caused the mold growth.

       We note that the jury heard the testimony of Georgia Farm Bureau’s claims adjuster, Phillip K. Palacz, regarding his initial recommendation that the Hendersons’ claim be denied in its entirety (including the mold coverage the insurer later paid) and the later handling of their claim. See dissent at p. 402 (2). The jury was responsible for assessing the credibility of all of the witnesses, including Palacz, and determining, in the context of all of Georgia Farm Bureau’s actions in the handling of the Hendersons’ claims, whether the insurer’s decision to pay mold coverage, that was capped by the policy at $32,675, and to then take the position that such payment precluded any coverage under the general property damage coverage, that was capped by the policy at $153,500, arose from a genuine belief that the policy so provided or whether it constituted a bad faith denial of coverage.


source: Caselaw Access Project

author: Boggs, Judge. BARNES, Presiding Judge,

license: Public Domain

text:
    A14A0265.
    CHAMBERS v. MONROE COUNTY BOARD OF COMMISSIONERS.
    (762 SE2d 133)
   Boggs, Judge.

We granted claimant Pamela Chambers’ discretionary application in this workers’ compensation case because it appeared that additional precedent in this area would benefit the bench and bar, and for a review of the entire record to ensure that the facts supported the Board’s findings. After considering the record, including the claimant’s testimony, and given the deferential standard of review, the Board’s finding that Chambers’ injury was not compensable because it was “idiopathic” — that is, not “arising out of” her employment — was supported by some evidence and therefore must be affirmed.

When reviewing awards in workers’ compensation cases, both the appellate court and the superior court must construe the evidence in the light most favorable to the party prevailing before the appellate division of the State Board of Workers’ Compensation. It is axiomatic that the findings of the State Board of Workers’ Compensation, when supported by any evidence, are conclusive and binding.

(Citation, punctuation and footnote omitted.) Med. Office Mgmt. v. Hardee, 303 Ga. App. 60, 61 (693 SE2d 103) (2010). So viewed, the evidence shows that on January 27, 2012, Pamela Chambers was employed as an firefighter/EMT for Monroe County. After returning from a call to the fire station, she sat down at a desk to complete some paperwork and then remained at the desk watching television. Her supervisor asked her to get up from the desk so that he could use it. When she rose from her chair, Chambers felt and heard a “pop” in her left knee. She continued to work, but as the pain increased she went to the emergency room. She had knee surgery and will probably need a knee replacement.

The ALJ found the injury compensable on the basis that Chambers was required to be in the location where she was injured and was following her supervisor’s orders. The employer appealed, and the Appellate Division vacated the ALJ’s award. It found “no evidence that the Employee slipped, tripped, or fell or came in contact with any object or hazard that increased her risk of injury,” but that she simply rose from a seated position. The Appellate Division therefore concluded that Chambers had failed to show a causal connection between her employment and her injury or that her injury arose out of her employment. The superior court affirmed, noting the deference it was required to give the findings of the Appellate Division, and finding that some evidence in the record supported the award. From this judgment, Chambers appeals.

The legal standard governing whether an injury “arises out of” employment is well established. In Chaparral Boats v. Heath, 269 Ga. App. 339 (606 SE2d 567) (2004), a 12-judge whole court decision, we held:

Where the injury would have occurred regardless of where the employee was required to be located, and results from a risk to which the employee would have been equally exposed apart from any condition of the employment, there is no basis for finding a causal connection between the employment and the injury, and no basis for compensation under the positional risk doctrine. The general rule still applies that the injury does not arise out of the employment where the causative danger is not “peculiar to the work” in a way that causally connects the employment to the injury.

(Citations omitted.) Id. at 343. In Chaparral Boats, Heath was walking “at a quicker than normal pace” across her employer’s parking lot in order to get to work on time when she “felt popping and pain in her left knee.” Id. at 339.

[T]he ALJ found upon review of the evidence that Heath’s knee injury was not the result of a slip, trip, fall, or contact with any object, and that there was no evidence Heath claimed any particular cause. The evidence showed that, when the knee injury occurred, Heath was simply walking at a pace of her own choosing.

Id. at 344 (1). Accordingly, we reversed the superior court’s order concluding that the Board erred in denying benefits because the injury did not arise out of Heath’s employment. Id. at 348.

Similarly, in St. Joseph’s Hosp. v. Ward, 300 Ga. App. 845 (686 SE2d 443) (2009), a nurse injured her knee when she turned to get a cup of water for a patient. Id. at 846. The Appellate Division found that “the employee was not exposed to any risk unique to her employment by standing and turning, and that, in turning, she did not come into contact with any object or hazard of employment.” Id. at 847. Once again, we reversed the superior court for substituting its judgment for that of the Board. Id. at 848 (1).

At the hearing, Chambers testified that she did not get up from her chair in an unusual manner. She offered no testimony to establish any causal connection between her employment and her injury: for example, that the chair or desk configuration caused her to lose her balance or strain to reach a standing position, that a work-related emergency such as a fire alarm caused her to jump out of the chair in a hurried manner, or that she came in contact with any object or hazard such as the desk, stairs, or a piece of equipment.

Chambers relies almost exclusively upon Harris v. Peach County Bd. of Commrs., 296 Ga. App. 225 (674 SE2d 36) (2009), arguing that we should apply across the board that case’s affirmance of the Appellate Division’s finding that the employee’s activity arose out of employment. In Harris, the claimant, a custodian, dropped a pill on the floor. She injured her knee when she bent over to pick it up after her supervisor pointed it out to her. Id. at 226. The Board concluded that picking up obj ects from the floor was part of the claimant’s duties as a custodian, but the superior court reversed, concluding that her injury arose solely from her obesity, which placed unusual strain on her knee. Id. at 226-227. We reversed the superior court’s judgment, observing:

[T]he operative question is whether the claimant performed the activity in furtherance of her job duties, and this is a question of fact that is committed to the factfinder at the administrative level. In Chaparral Boats, the factfinder found that under the circumstances walking did not constitute an employment function, and we deferred to that finding. In this case, the factfinder found that under the circumstances bending over to pick up an object, even though it was the claimant’s personal medication, did constitute an employment function, and, again, we defer to that finding because the fact-finding body must in each case remain the final arbiter of the compensability of the injury and of whether the claimant’s disability arose out of the employment as well as in the course of it.

(Citations, punctuation and footnotes omitted; emphasis supplied.) Id. at 228-229.

While the dissent asserts that we nevertheless may review de novo the findings of the Board in the case before us, the cases cited do not support the assertion that the Board’s determination of whether an injury “arises out of” employment is subject to de novo review. In Renu Thrift Store v. Figueroa, 286 Ga. App. 455 (649 SE2d 528) (2007), the compensability of an injury was not at issue. In deciding the appropriate benefits and penalties due a claimant after a unilateral suspension of benefits by the employer, we construed three statutory provisions of the Workers’ Compensation Act governing a statute of repose, a penalty for delayed payment by the employer, and the award of attorney fees. And in Thornton v. Hartford Accident & Indem. Co., 198 Ga. 786 (32 SE2d 816) (1945), our Supreme Court reversed this court and applied the broad “traveling salesman” rule to uphold the original finding of the Board, affirmed by the superior court, that the claimant’s death from slipping on a wet street arose in the course of his employment. The court observed, “It has been so repeatedly held that where there is any competent evidence to sustain a finding by the board such finding is conclusive and binding on a reviewing court, that no citations are deemed necessary.” Id. at 792. It held that the Board’s original finding that the injury arose out of the claimant’s employment “was authorized, and we think demanded, since the facts were undisputed.” Id. at 795. It did not apply the principle of de novo review to overturn the Board’s finding as to a mixed issue of law and fact, as to which deference to the Board’s findings is required as in Chaparral Boats and St. Joseph’s.

It is for this reason that Harris (which found that an injury was compensable) and Chaparral Boats and St. Joseph’s (which found that it was not), present no question of law for de novo review. All are consistent in holding that the superior courts (and this court) may not substitute their judgment for that of the Board on the question of whether an injury arose out of the claimant’s employment. To hold otherwise would work a dramatic alteration in our long-standing “any evidence” rule in this regard.

An injury arises out of one’s employment where there is a causal connection between the employment and the injury. The claimant carries the burden of establishing causation. Factual questions concerning causation are properly left to the State Board to determine rather than to the superior court or the appellate courts, and the Board’s findings must be affirmed if there is any evidence to support them.

(Citations and punctuation omitted.) Hughston Orthopedic Hosp. v. Wilson, 306 Ga. App. 893, 895 (1) (703 SE2d 17) (2010). There, we reversed the superior court because some evidence supported the Board’s finding that the employee had not suffered a compensable work-related injury.

Here, there was some evidence to support the Board’s determination that Chambers’ injury had no causal connection to her employment, and we may not disturb it. We therefore affirm the judgment of the superior court.

Judgment affirmed.

Ellington, P. J., Doyle, P. J., Dillard and Branch, JJ., concur. Barnes, P. J., and Miller, J., dissent.

BARNES, Presiding Judge,

dissenting.

Pamela Chambers injured her knee when her supervisor directed her to get up from a desk so that he could complete some paperwork. In this context, where the undisputed evidence shows that the employee was injured while undertaking a physical activity at the express direction of her supervisor, the injury arose out of and in the course of the employment as a matter of law, and the employee should receive workers’ compensation benefits. Because the majority concludes otherwise, I must respectfully dissent.

“The Workers’ Compensation Act in Georgia is intended to have broad application so as to cover a wide variety of injuries and the pain and suffering incident to such injuries.” Hennly v. Richardson, 264 Ga. 355, 355-356 (1) (444 SE2d 317) (1994). It is “highly remedial in nature” and “must be construed liberally in favor of the claimant in order to accomplish its beneficent purposes.” (Citation and punctuation omitted.) CGU Ins. Co. v. Sabel Indus., 255 Ga. App. 236, 243 (2) (564 SE2d 836) (2002). See Gassaway v. Precon Corp., 280 Ga. App. 351, 354 (634 SE2d 153) (2006) (workers’ compensation system is “designed especially to protect workers injured in the course of their work”). We must always bear these principles in mind when analyzing whether an accidental injury is compensable under the Act.

An accidental injury is compensable under the Workers’ Compensation Act if the employee’s injury arose out of and in the course of her employment. See OCGA § 34-9-1 (4); Hughston Orthopedic Hosp. v. Wilson, 306 Ga. App. 893, 895 (1) (703 SE2d 17) (2010). “These are two independent and distinct criteria, and an injury is not compensable under the Act unless it satisfies both.” (Citation and punctuation omitted.) Dixie Roadbuilders v. Sallett, 318 Ga. App. 228, 231 (2) (733 SE2d 511) (2012). An injury arises “in the course of” the employment

when it occurs within the period of the employment, at a place where the employee reasonably may be in the performance of [her] duties, and while [she] is fulfilling those duties or engaged in doing something incidental thereto. This statutory requirement relates to the time, place and circumstances under which the injury takes place.

(Citations and punctuation omitted.) Id. It is undisputed that Chambers’ injury arose in the course of her employment, and thus that criteria has been satisfied.

“An injury arises ‘out of’ the employment when a reasonable person, after considering the circumstances of the employment, would perceive a causal connection between the conditions under which the employee must work and the resulting injury.” Hennly, 264 Ga. at 356 (1). See Fried v. U. S. Fidelity & Guar. Co., 192 Ga. 492, 495 (15 SE2d 704) (1941); Dixie Roadbuilders, 318 Ga. App. at 231 (2). The conditions of employment need not be the sole cause of the employee’s injury; rather, the employment conditions need only be a “contributing proximate cause” to the injury sustained. See Thornton v. Hartford Accident & Indem. Co., 198 Ga. 786, 787 (32 SE2d 816) (1945). See also Ga. Farm Bureau Mut. Ins. Co. v. Troupe, 154 Ga. App. 108, 109 (1) (267 SE2d 834) (1980) (in case involving dispute over no-fault automobile insurance coverage, court notes distinction between “contributing proximate cause” and “sole cause”).

In evaluating whether an accidental injury is compensable, we must defer to the factual findings of the Appellate Division of the State Board of Workers’ Compensation (the “State Board”) if there is any evidence to support them. The Medical Center v. Hernandez, 319 Ga. App. 335 (1) (734 SE2d 557) (2012). Moreover, “[w]hether an injury arises out of and in the course of employment is generally a mixed question of law and fact.” Lee v. Sears, 223 Ga. App. 897 (479 SE2d 196) (1996). Significantly, however, where the material facts are not in dispute, the question whether an injury arises out of and in the course of employment is a question of law. See id.; Thornton, 198 Ga. at 795. And “erroneous applications of law to undisputed facts, as well as decisions based on erroneous theories of law, are subject to the de novo standard of review.” (Citation and footnote omitted.) Renu Thrift Store v. Figueroa, 286 Ga. App. 455, 456 (649 SE2d 528) (2007). Here, the material facts are undisputed, and the issue is the application of the law to those facts to determine whether Chambers’ injury arose out of her employment. Thus, contrary to the conclusion reached by the majority, the proper standard of review is de novo.

When that standard of review is applied in the present case, it is clear that the State Board and superior court erred in concluding that Chambers’ injury did not arise out of her employment. This is because the undisputed record before us demonstrates that the conditions of Chambers’ employment were a contributing proximate cause to her knee injury as a matter of law. Specifically, the facts show that on the day of the accident, Chambers, an EMT and firefighter, was working a 24-hour shift and had returned to the fire station after responding to an emergency call. Chambers was seated at a desk in the station when her supervisor approached and asked her to get up from the desk so that he could complete some paperwork. One of Chambers’ job duties was to carry out the instructions of her supervisor, and she immediately stood up from the desk. As she rose from the desk, her left knee made a loud popping noise and she felt instant pain, signaling a knee injury that impaired her ability to carry out her work duties and ultimately required surgery.

As this record demonstrates, Chambers injured her knee as she rose from a desk at the express direction of her supervisor, as she was required to do in accordance with her job duties. In this respect, the State Board found that Chambers’ supervisor “asked [her] to get up from the desk so that he could use it,” and that Chambers complied and injured her knee. Thus, Chambers’ supervisor directed Chambers to undertake the very movement that resulted in her knee injury. When a supervisor expressly directs an employee to undertake a specific physical activity, and the employee is then injured while carrying out that very activity, there is a sufficient causal connection between the conditions of employment and the resulting injury to warrant compensation, no matter how mundane the physical activity itself (i.e., walking, standing, etc.) may be. See, e.g., Harris v. Peach County Bd. of Commrs., 296 Ga. App. 225, 228 (674 SE2d 36) (2009) (employee’s knee injury, which resulted from her reaching down to pick up her personal medication off the workplace floor, was compensable, where, among other things, “her supervisor required and expected her to remove the pill from the floor”). Any other result would turn the principle that the Workers’ Compensation Act is to be “liberally construed to provide coverage to the worker” on its head. Gassaway, 280 Ga. App. at 354.

It is true that Georgia courts have stated that an employee’s injury is not compensable if the injury “results from a risk to which the employee would have been equally exposed apart from any condition of employment,” and that “the injury does not arise out of the employment where the causative danger is not ‘peculiar to the work’ in a way that causally connects the employment to the injury.” (Citations and punctuation omitted.) Chaparral Boats v. Heath, 269 Ga. App. 339, 343 (1) (606 SE2d 567) (2004). Interpreted too expansively, however, these principles would eliminate from compensation a large number of injuries sustained at work simply because the claimant might perform the same physical activity outside of the workplace. Where, as in the present case, an employer through its agent expressly directs an employee to undertake a specific physical activity, and the employee is then injured while carrying out that very activity, then the “causative danger” faced by the employee is not independent of the employment relationship, and there is a straightforward causal connection between the employment and the injury justifying compensation.

Decided July 16, 2014 —

Knott & Lemon, Paul M. Knott, for appellant.

Murphy & Sibley, Phillip A. Sibley, for appellee.

For these combined reasons, the evidence demonstrates that Chambers’ knee injury arose out of and in the course of her employment as a matter of law. Consequently, Chambers is entitled to workers’ compensation benefits, and the State Board and superior court erred in reaching the opposite conclusion. Because I would reverse the judgment entered in favor of Chambers’ employer, I respectfully dissent.

I am authorized to state that Judge Miller joins in this dissent.

       Three judges concurred specially, agreeing with the result but contending that an earlier case need not he overruled. 269 Ga. App. at 349-350.

       The dissent is incorrect in asserting that a request or order from a supervisor renders a claim compensable as a matter of law, and we did not rely upon such a principle in Harris. There, as here, we explicitly deferred to the Board on the mixed question of law and fact as to whether an injury arose out of the claimant’s employment.

       Neither Chaparral Boats v. Heath, 269 Ga. App. 339 (606 SE2d 567) (2004), nor St. Joseph’s Hosp. v. Ward, 300 Ga. App. 845 (686 SE2d 443) (2009), cited by the majority, involved a supervisor directing the employee to undertake a specific physical activity that resulted in the employee’s injury.

       Notably, New Amsterdam Cas. Co. v. Sumrell, 30 Ga. App. 682 (118 SE 786) (1923) was the first Georgia case setting out the principles that an injury is not compensable if it “comes from a hazard to which the workmen would have been equally exposed apart from the employment,” and that “[tjhe causative danger must be peculiar to the work, and not common to the neighborhood.” Id. at 688 (2), quoting In re Employers’Liability Assur. Corp., 102 NE 697 (1) (Mass. 1913). In New Amsterdam, a traveling salesman died after running over a dog while driving alone at night, id. at 686 (2), and it was in that unusual context that the court discussed these principles. Id. at 688 (2). Other early cases discussing these principles also involved unique factual circumstances. See Thornton, 198 Ga. at 787-795 (traveling salesman slipped and fell while returning to hotel after dinner); Fried, 192 Ga. at 493-496 (employee died after entering the place of business of a third person for the purpose of collecting a bill owed to his employer and engaging in disorderly conduct at the office). These early cases from which these principles originated are a far cry from the situation where an employee sustains an injury while undertaking some physical activity at the workplace consistent with her job duties.


author: Phipps, Chief Judge. McMlLLIAN, Judge,

text:
    A14A0297.
    THE STATE v. ALLEN et al.
    (762 SE2d 111)
   Phipps, Chief Judge.

After police discovered marijuana in a car that was stopped for lane infractions, Patrick Scott and Dorian Allen, the driver and the passenger, respectively, were indicted for the possession of more than one ounce of marijuana.* Scott and Allen moved to suppress the drug evidence as the fruit of an illegal seizure. The court conducted an evidentiary hearing, then granted their motion. The state appeals. For reasons that follow, we affirm.

The sole witness at the suppression hearing was the patrol officer who initiated the traffic stop. On direct examination, he testified to the following. On September 13, 2012, while stationed in the median of an interstate to monitor traffic, the officer observed a 2012 Nissan Altima vehicle cross from the center lane of travel into “the fast lane.” As the Altima passed the officer’s stationary position, the officer saw the driver “pointing his finger all in the passenger’s face.” Concerned that the driver was distracted, the officer decided to catch up with the Altima. As he did so, the officer saw the Altima “make the same lane infractions again”; the officer also saw that the driver was “still reaching over with his fingers, pointing in the passenger’s face.” The officer initiated the traffic stop.

The officer walked to the Altima and informed the two occupants, appellees Scott and Allen, that they were stopped because of lane infractions. The officer asked them whether they were having an argument. Scott answered no, and stated that he was just talking to Allen. The officer advised Scott that he would be writing him a courtesy warning for the lane infractions. The officer obtained from Scott his driver’s license and obtained from Allen a South Carolina identification card.

The officer perceived that Scott and Allen were nervous. Because of the lane infractions, the officer wanted to “see how [Scott] was on his feet” to “make sure he wasn’t intoxicated.” The officer asked Scott to exit the vehicle; Scott got out of the vehicle and walked to the location designated by the officer. The officer conducted a pat-down search of Scott; after finding no weapon, the officer “engaged in general conversation with [Scott]” while he wrote the courtesy warning.

But after writing the warning, the officer did not thereupon hand it (along with the identifications) to Scott, who was standing beside him. Instead, as the officer testified,

[0]nce I completed the warning I had dispatch check both of their driver’s license [s]. Mr. Allen’s was through South Carolina and Mr. Scott’s was through Georgia. While waiting on returns from GCIC to come back, waiting on dispatch I had asked Mr. Scott for consent to search his vehicle. Mr. Scott wouldn’t deny nor consent to a search.

The officer testified that Scott replied only that “you already got me stopped,” and “[s]o at that time I had Mr. Allen exit the vehicle also and once Mr. Allen exited the vehicle I had them both stand at the front of my patrol car and I retrieved my K-9 partner Kazan out of the rear of my vehicle.” When the officer walked the drug dog around the Altima, the dog showed a positive odor response. The officer put Kazan back into the patrol car, then began searching the Altima. While searching the interior of the vehicle, the officer received the requested GCIC information from dispatch; when the officer’s search reached the trunk of the car, he discovered the marijuana.

An audio-video recording of the traffic stop was played at the suppression hearing.

On cross-examination, the officer provided additional details. He testified that, when talking to Scott and Allen as they sat in the Altima, he had looked at the vehicle’s interior, but had seen neither marijuana nor any drug paraphernalia; and he had not detected the odor of marijuana. The officer stated that, when Scott complied with his directive to step outside the Altima, Scott continued to appear nervous, but showed “no signs of being intoxicated or impaired.” The officer had concluded, “[Scott] wasn’t intoxicated.” Additionally, the officer agreed that “the courtesy warning was completed at that time as we see in the video... when [he] contacted] dispatch”; that “[a]fter [he] completed the warning” he “ran the license[s] at that point”; and that the “written warning was completed prior to [his] running the GCIC to dispatch.”

On motion to suppress the evidence, Scott and Allen argued that the drug evidence was discovered only after the officer had unlawfully expanded the traffic stop. In its order ruling thereon, the court recited that it had considered, inter alia, both the officer’s testimony and the recording. The court set forth the state’s position that the extended detention was authorized by the officer’s need to run a computer check, then found, however, that “the officer did not begin this inquiry until... at the point when the officer had finished writing a warning citation for the traffic offense.” The court also determined that it was the drug dog’s response that provided probable cause to search the vehicle, but ruled that at the time the drug dog had so responded, Scott and Allen were being unlawfully detained — i.e., detained without any articulable suspicion of criminal activity. Citing Weems v. State, 3the trial court granted the suppression motion. In three related claims of error, the state challenges this suppression ruling.

In Miller v. State, the Supreme Court of Georgia reiterated three fundamental principles that must be followed when conducting appellate review of a ruling upon a motion to suppress:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be
disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

Further, the Court instructed, “To properly follow the first principle, [an appellate court] must focus on the facts found by the trial court in its order, as the trial court sits as the trier of fact.”

Here, the trial court explicitly included in its order this pertinent finding: “the officer did not begin this inquiry [the computer check at issue] until . . . the point when the officer had finished writing a warning citation for the traffic offense.” This finding must be accepted, as there was evidence adduced at the hearing that supported it. For instance, as detailed above, the officer unequivocally testified so. Moreover, the audio-video recording of the traffic stop supports the officer’s account. Construed most favorably to the upholding of the trial court’s findings and grant of the suppression motion, the evidence showed that, before initiating the computer check, the officer had concluded the tasks related to the investigation of the lane infractions, including a determination that the driver Scott was not intoxicated. The officer, therefore, lacked articulable suspicion of any drug (or other) crime, as the officer’s perception that Scott and Allen were nervous “did not support a finding of reasonable, articulable suspicion that would have justified prolonging the detention.”

As a general rule, an investigatory stop is not unreasonably prolonged by the time necessary to run a computer check. But it does not necessarily follow that an officer may initiate a computer check after completing the investigation into the basis for the traffic stop. Further, a police officer may check “for outstanding warrants or criminal histories on the occupants of a vehicle at a valid traffic stop” based upon concerns for officer safety “as long as under the circumstances they do not unreasonably prolong the stop.” But “[o]nce the tasks related to the investigation of the traffic violation and processing of the traffic citation have been accomplished, an officer cannot continue to detain an individual without articulable suspicion.”

A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission. The officer’s purpose in an ordinary traffic stop is to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with the intent to issue a citation or warning. Once the purpose of that stop has been fulfilled, the continued detention of the car and the occupants amounts to a second detention.

Accordingly, the evidence here showed that the officer — having accomplished the tasks related to his investigation into lane infractions and having no reasonable, articulable suspicion of criminal activity aside from the traffic violation—unreasonably prolonged the duration of the traffic stop when he initiated the computer check.

The foregoing, governing principles were recently reinforced by the Supreme Court of Georgia’s decision in Rodriguez v. State, which recited:

In some cases, a detention is prolonged beyond the conclusion of the investigation that warranted the detention in the first place, and in those cases, the courts generally have concluded that such a prolongation — even a short one — is unreasonable, unless, of course, good cause has appeared in the meantime to justify a continuation of the detention to pursue a different investigation.

Construing the evidence in the instant case most favorably to the upholding of the trial court’s findings and judgment, the investigation that warranted the detention in the first place — for lane infractions —- had concluded. And there was no evidence that any “good cause ... appeared in the meantime to justify a continuation of the detention in order to pursue a different investigation” — that began when the computer check at issue was initiated. (No evidence was adduced, and no argument has been made, that the computer check was intended to aid the officer in determining whether lane infractions had occurred.)

Finally, although the ultimate conclusion in Rodriguez was that the drug evidence was admissible, the analysis employed by the Court is illustrative as demonstrating adherence to and application of the above-cited governing principles — the Rodriguez Court considered whether the evidence, when construed most favorably to the upholding of the trial court’s findings and judgment, supported the trial court’s suppression ruling that the computer check was initiated during a lawful detention. In that case, the car driven by Rodriguez, who was accompanied by a passenger, was stopped by police for the purpose of investigating the whereabouts of a man with an outstanding warrant, “Enrique Sanchez.” The police found drugs in Rodriguez’s car, giving rise to the criminal prosecution, during which Rodriguez moved to suppress the drug evidence, but the trial court denied her motion. The question presented by that case was whether the detention was unreasonably prolonged by certain identification inquiries, including a computer check. The Court answered that question in the negative.

In reaching its conclusion, the Rodriguez Court made clear that it was construing the evidence most favorably to support the findings and judgment of the trial court in that case —• the denial of the accused’s suppression motion. Further, the Rodriguez Court explained that the inquiries and computer check at issue did not constitute a different investigation, but were related to the investigation of the basis for the traffic stop:

[T]hese additional inquiries to which Rodriguez objects were not altogether unrelated to the investigation of Sanchez and his whereabouts. Ascertaining and verifying the identities of the women in the car were minimally intrusive means of confirming that neither was the “Enrique Sanchez” for whom the officer was looking. . . . The additional inquiries [and computer check] were not altogether unrelated to the justification for the traffic stop.

The Rodriguez Court — having determined that the inquiries and computer check were not a different investigation, but part of the original investigation (that formed the basis of the stop) into the whereabouts of “Enrique Sanchez” — then cited “officer safety” as an alternative basis for affirming the denial of Rodriguez’s motion to suppress. Indeed, reliance upon “officer safety” presupposes that the officer is engaged in the lawful discharge of his duties.

The evidence in the instant case, when construed most favorably to the upholding of the trial court’s findings and judgment granting the accused’s suppression motion, shows that the officer had concluded his investigation that warranted the detention in the first place; that the computer check initiated thereafter was not related to the investigation of the basis for the stop (lane infractions); and that no good cause had appeared in the meantime to justify a continuation of the detention while the officer pursued a different investigation (that began when the computer check was initiated). The continued detention — even if a short one — beyond the conclusion of the investigation that warranted the traffic stop in the first place was therefore unreasonable. Because the officer was not authorized to initiate a different investigation during that unlawful detention, it cannot be said that he was then engaged in the lawful discharge of his duties; “officer safety,” thus, cannot serve as justification for the computer check or for the unlawful detention. Notably, the officer did not testify, nor did the prosecutor argue before the trial court, that officer safety played any role in the computer check, the prolonged detention, or the search for drugs in the Altima.

Given the foregoing, the state has demonstrated no basis to disturb the order granting Scott’s and Allen’s motion to suppress the drug evidence. When the evidence is viewed most favorably to the upholding of the trial court’s findings and judgment, the trial court was authorized to conclude that the drug evidence was discovered as a result of an unconstitutional seizure.

In concluding otherwise, the dissent states that it is relying solely on the audio-video recording, and—after assessing those facts de novo •— details a series of actions taken by the officer before he completed the written warning, then asserts that the officer initiated the computer check “[w]hile still speaking with Scott about the nature of the warning.” Despite this broad characterization of the officer’s conduct, what the recording specifically shows is the officer volunteering what he had already said to the driver Scott minutes before — that he was issuing a courtesy warning, not a ticket. But more importantly, as the trial court found (and as the officer testified and as the recording shows), at the time the officer initiated the computer check, he had already completed the written warning; rather than giving the completed warning to the driver and allowing Scott and Allen to leave, the officer prolonged the detention by initiating the computer check — which check had nothing to do with the purpose of the stop: to investigate lane infractions. Finally, as the recording confirms, after initiating the computer check, the officer engaged in nothing relating to the investigation of the lane infractions. Indeed, the dissent cites nothing. As Miller cautions: Areviewing court violates a “principle of appellate review by focusing on its own assessment of the facts, rather than the facts set forth by the trial court.”

On numerous occasions the appellate courts of this state have invoked [the fundamental principles of appellate review explained in Miller] to affirm trial court rulings that upheld the validity of seizures. These same principles of law apply equally to trial court rulings that are in favor of the defendant and their application to this trial court’s order . . . demand[s] that the court’s order be affirmed.

Judgment affirmed.

Barnes, P. J., Ellington, P. J., and McFadden, J., concur. Andrews, P. J., Ray and McMillian, JJ., dissent.

McMlLLIAN, Judge,

dissenting.

I respectfully dissent because I believe that the majority improperly focuses on the officer’s testimony to conclude that the stop was completed at the time he contacted dispatch to run the computer check. In doing so, the majority applies an overly formulaic test and mistakenly ignores the objective facts surrounding the stop. While I agree that credibility determinations made by a trial court must be accepted unless clearly erroneous, I find that the controlling facts in this case are undisputed because they are plainly discernible from the patrol car-mounted video recording, and this Court should therefore review those facts de novo. See Johnson v. State, 299 Ga. App. 474, 474-475 (682 SE2d 601) (2009). Moreover, even if I were persuaded by the majority’s characterization of the officer’s testimony, “[t]he officer’s subjective belief that he lacked authority to detain [defendants] for continued investigation does not control where the facts objectively show the officer had such authority.” Cole v. State, 254 Ga. App. 424, 426 (2) (562 SE2d 720) (2002).

Here, the recording clearly shows that the stop had not yet been completed. Approximately seven minutes after the camera began recording, Officer Jackson returned to the front passenger window to ask Allen for his current address to include on the written warning. One minute later, he returned to the front of his patrol car where Scott was waiting and continued writing the warning and answered additional questions from Scott. While still speaking with Scott about the nature of the warning and with the warning still in his hand, Officer Jackson contacted dispatch via the radio on his lapel to ask for a computer check of Scott’s license and Allen’s identification card.

It is well-established law that a valid traffic stop
includes the time necessary to verify the driver’s license, insurance, registration, and to complete any paperwork connected with the citation or written warning. A reasonable time also includes the time necessary to run a computer check to determine whether there are any outstanding arrest warrants for the driver or the passengers.

(Citations omitted; emphasis in original.) Matthews v. State, 294 Ga. App. 836, 838 (2) (670 SE2d 520) (2008). Moreover, I am not aware of any controlling authority that would require officers to initiate a computer check at a specific point within a valid, ongoing traffic stop. Nor am I aware of any authority that would require an officer to proceed in the most expeditious manner possible, as determined by a court after the fact.

Rather, as the United States Supreme Court has cautioned,
[a] creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished. But the fact that the protection of the public might, in the abstract, have been accomplished by “less intrusive” means does not, by itself, render the search unreasonable.

(Citations and punctuation omitted.) United States v. Sharpe, 470 U.S. 675, 686-687 (II) (B) (105 SCt 1568, 84 LE2d 605) (1985). In United States v. Brigham, the en banc Fifth Circuit emphasized that “[tjhere is... no constitutional stopwatch on traffic stops” and, noting the Fourth Amendment touchstone of reasonableness, declined to impose a particular sequence or constitutionally mandated protocol on questioning and computer checks during traffic stops. 382 F3d 500, 511 (5th Cir. 2004).

As the majority notes, our Supreme Court recently provided additional guidance on this very issue in Rodriguez v. State, 295 Ga. 362 (761 SE2d 19) (2014). The Court explained that there are two different types of claims that a detention was unreasonably prolonged —those in which a detention is allegedly prolonged beyond the conclusion of the investigation that warranted the detention and those in which the investigation itself purportedly took too long. Id. at 369 (2) (b). In rejecting Rodriguez’s claim that her detention was prolonged beyond the conclusion of the officer’s investigation into the reason for the stop, the Court found that, although he may have gathered some information that might have dispelled the original impetus for the stop, “the officer had done or said nothing at that point to indicate to the women that his investigation of [the reason for the stop] was concluded.” Id. at 370 (2) (b).

Turning to the second type of prolonged detention, the Court emphasized that, although the length of the prolongation is not itself dispositive, the officer’s additional actions prolonged the detention for only a couple of minutes at most. Rodriguez, 295 Ga. at 371 (2) (b). “So long as an officer pursues his investigation with reasonable diligence, the Fourth Amendment is not offended.” Id. (“[T]he police are not constitutionally required to move at top speed or as fast as possible. At a traffic stop, the police can occasionally pause for a moment to take a breath, to think about what they have seen and heard, and to ask a question or so.”) (citation and punctuation omitted).

Here, although Officer Jackson may have completed the physical writing of the warning, as in Rodriguez and unlike in Weems v. State, 318 Ga. App. 749 (734 SE2d 749) (2012) the traffic stop had not yet concluded. See Rodriguez, 295 Ga. at 371 (2) (b), n. 13 (“ ‘Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave.’ ”) (quoting Arizona v. Johnson, 555 U.S. 323, 333 (II) (B) (129 SCt 781, 172 LE2d 694) (2009)). Officer Jackson had inquired and obtained identity information from Allen and Scott prior to writing up the warning, and as he was finishing the warning, the video shows that Officer Jackson called in the identification information that he had previously obtained. Therefore, the stop was not prolonged beyond the conclusion of Officer Jackson’s investigation into the stop.

Nor was the investigation itself unreasonably long. The record shows that at the time Officer Jackson’s K-9 alerted to the presence of narcotics, the stop had been extended by only three minutes. See Rodriguez, 295 Ga. at 373 (2) (b) (noting with approval an Eleventh Circuit case holding that a request for criminal histories as part of a routine computer check is justified for officer safety and that such a check is reasonable even if it extends the stop for three minutes beyond what was necessary to complete the investigation that justified the stop).

Based on the totality of the circumstances and the particular facts of this case, I do not find Officer Jackson’s actions to be unreasonable or that he unlawfully detained Appellees. See Young v. State, 310 Ga. App. 270, 273-274 (712 SE2d 652) (2011) (finding no unlawful detention where officer’s sequence of actions were to first request relevant paperwork, ask the driver to step out of the vehicle, engage him in conversation, and then request a K-9 unit before contacting dispatch to run a computer search on the driver’s and passenger’s criminal histories); Hall v. State, 306 Ga. App. 484, 486 (2) (702 SE2d 483) (2010) (because the officer requested consent to search before he received verification on the driver’s license, the request for consent occurred before the purpose of the traffic stop was fulfilled); see also Bowens v. State, 276 Ga. App. 520, 521 (623 SE2d 677) (2005) (traffic stop was not prolonged by the dog’s free air search where the stop was still in progress because the officer was running a computer check on the driver’s license and registration). I would therefore reverse the judgment of the trial court granting the Appellees’ motion to suppress.

Decided July 16, 2014 —

James L. Wright III, District Attorney, Jordan K. Van Matre, Assistant District Attorney, for appellant.

Christina M. Kempter, William C. Puckett, Jr., Veal & Lamar, Holly W. Veal, for appellees.

I am authorized to state that Presiding Judge Andrews and Judge Ray join in this dissent.

       See OCGA § 16-13-30 (prohibiting possession of controlled substances).

       318 Ga. App. 749 (734 SE2d 749) (2012).

       See OCGA § 5-7-1 (a) (4) (allowing the state to appeal “[f]rom an order, decision, or judgment suppressing or excluding evidence illegally seized”).

       288 Ga. 286 (702 SE2d 888) (2010).

       Id. at 286 (1) (citation and footnote omitted).

       Id. at 287 (1) (emphasis in original).

       See id.

       See generally Salmeron v. State, 280 Ga. 735, 737 (1) (632 SE2d 645) (2006) (citing the officer’s unequivocal testimony as support for the trial court’s finding).

       See Miller, supra at 286 (1).

        Nunnally v. State, 310 Ga. App. 183, 187 (2) (713 SE2d 408) (2011); see Bell v. State, 295 Ga. App. 607, 609-610 (2) (672 SE2d 675) (2009) (holding that nervousness, perceived from driver’s refusal to make eye contact with officers, together with driver’s “dry mouth,” did not constitute a particularized and objective basis for officers to suspect that motorist possessed contraband); Payne v. State, 244 Ga. App. 734, 739-743 (4), (5) (536 SE2d 791) (2000) (deputy’s testimony — that the stopped driver, inter alia, was nervous, had “shaking” hands, dropped items from his wallet, would not “look me in the eye,” and was “shuffling around” — showed no particularized and objective basis for suspecting that driver was, or was about to be, engaged in criminal activity; thus, driver’s detention was unlawful).

        Hayes v. State, 292 Ga. App. 724, 729 (2) (b) (665 SE2d 422) (2008).

       Cf. St. Fleur v. State, 296 Ga. App. 849, 851 (1) (676 SE2d 243) (2009) (“In this process [of writing a warning], the officers checked [the driver’s) identity with a dispatcher.”); State v. Williams, 264 Ga. App. 199, 205 (590 SE2d 151) (2003) (“[T]he computer checks run by the officer were diligently pursued during the course of a valid traffic stop.”).

        Matthews v. State, 294 Ga. App. 836, 840 (2) (d) (670 SE2d 520) (2008) (citation and punctuation omitted; emphasis supplied).

        Weems, supra at 752 (1) (citation and punctuation omitted) (finding that “[t]he officer had completed the tasks related to the investigation of the traffic violation of following too closely and had written the courtesy warning,” and, having completed the investigation related to the traffic stop, “to legally expand beyond the original investigation of following too closely and the issuance of the warning, the officer had to show that he had articulable suspicion of other illegal activity”).

        Salmeron, supra at 736 (1) (citation and punctuation omitted).

       See, e.g., Rosas v. State, 276 Ga. App. 513, 517 (1) (c) (624 SE2d 142) (2005) (finding that “[a]n officer who lacks reasonable suspicion of other criminal activity exceeds the scope of a permissible investigation of a traffic offense only if he continues to detain and interrogate the subject, or seeks consent to search, after the conclusion of the traffic stop or after the tasks related to the investigation of the traffic violation have been accomplished”); cf. Young v. State, 310 Ga. App. 270, 273-274 (712 SE2d 652) (2011) (finding that ‘because the officer’s suspicions were piqued by his observations of the truck’s condition, the strong scent of perfume emanating from the cab,” the passenger’s demeanor, and the driver’s response to questioning, the investigating officer was prompted and authorized to request a K-9 unit and to run criminal histories on both the driver and the passenger).

       See Weems, supra (officer had no reason to continue to detain driver, “particularly since he had already written [the driver] a warning citation before he inquired into other criminal activity”).

       295 Ga. 362 (761 SE2d 19) (2014).

       Id. at 369 (2) (b) (citation omitted; emphasis supplied).

       Id. (citation omitted; emphasis supplied).

       See generally footnote 16, supra, and the text it accompanies.

       Accord Salmerón, supra.

        Rodriguez, supra at 366 (2).

       Id. at 362.

       Id. at 369-370 (2) (b).

       Id. at 373 (2) (b).

       Id. at 368 (2) (b).

       Id. at 371-372 (2) (b) (emphasis supplied).

       Id. at 372 (2) (b).

       See id. at 373 (2) (b) (noting principle that “[c]heeking for outstanding warrants or criminal histories on the occupants of a vehicle at a valid traffic stop is justified by concern for the officer safety during the stop”) (emphasis supplied).

       See Miller, supra.

       But see Miller, supra at 286 (1) (clarifying “fundamental principles which must be followed when conducting an appellate review” of suppression rulings).

       See generally footnote 16, supra, and the text it accompanies.

        Miller, supra at 289 (2).

       Id. at 286-287 (1) (citation omitted).

       Unlike the majority, I am not persuaded that a computer check must be directly related to the reason for the investigative stop in order to find that continued detention is warranted to complete the check.


author: Branch, Judge.

text:
    A14A0333.
    LIBERTY COUNTY SCHOOL DISTRICT et al. v. HALLIBURTON.
    (762 SE2d 138)
   Branch, Judge.

After Laverne Halliburton’s contract as a school principal in the Liberty County School District was not renewed for the 2011-2012 academic year, Halliburton sued the District and a number of its officers, including Superintendent Dr. Judy Burton Scherer and seven members of the county school board (collectively, “defendants”), for racial discrimination. Halliburton sought a writ of mandamus, other injunctive relief, damages, and attorney fees. Defendants moved to dismiss on grounds including that defendants were entitled to sovereign and/or qualified immunity. On appeal from the trial court’s denial of the motion to dismiss, defendants argue that their motion should have been granted because Halliburton had no right to a renewed contract and because her claims are barred by sovereign and qualified immunity. We conclude that although the District itself is exempt from suit under sovereign immunity, due to the very early stage of this litigation, it is conceivable that Halliburton could produce facts consistent with her claim that Scherer and/or one or more board members acted with actual malice such that they would not be entitled to qualified immunity. We therefore affirm in part and reverse in part.

The Supreme Court of Georgia has recently reiterated how a trial court should treat a motion to dismiss:

“A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.”

Austin v. Clark, 294 Ga. 773, 774-775 (755 SE2d 796) (2014), quoting Anderson v. Flake, 267 Ga. 498, 501 (2) (480 SE2d 10) (1997). In other words,

a motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.

Austin, 294 Ga. at 775 (citation and punctuation omitted). On appeal, we review a trial court’s decision to grant or deny a motion to dismiss de novo. Chandler v. Opensided MRI of Atlanta, 299 Ga. App. 145 (682 SE2d 165) (2009).

On September 26, 2011, Halliburton filed a verified complaint in Liberty County Superior Court alleging that during Scherer’s tenure as superintendent of the county school district, Scherer treated Halliburton “differently from similarly situated white employees” in that she “made a recommendation” to the Board “to non-renew” Halliburton’s contract as principal for the 2011-2012 school year. The complaint alleged that when the Board voted 4-3 along racial lines not to accept Scherer’s recommendation, Scherer “illegally,” “without legal authority” and “unilaterally’ refused to renew Halliburton’s contract. According to the complaint, Scherer took these actions in “retaliation” for Halliburton’s complaints to Scherer about the job performance of a white assistant principal, which retaliation violated Halliburton’s right to freedom of speech. The complaint also alleged that Scherer had “allowed white employees [of the District] to undermine [Halliburton’s] authority and position,” had replaced Halliburton with a white principal, and later transferred the white assistant principal rather than declining to renew or terminating that person’s contract; that Scherer had discriminated against Halliburton “on the basis of her race” in violation of her constitutional rights; and that Scherer had acted “oppressively, maliciously, corruptly, or without authority of law” and with the intent to injure Halliburton. Finally, the complaint alleged that as a result of defendants’ acts, including the board members’ ratification of Scherer’s acts, Halliburton suffered damages including lost past and future wages, mental anguish, emotional distress, and “physical discomfort.”

On October 26, 2011, defendants filed their verified answer, which included a motion to dismiss the District and the individual defendants in their official capacity under sovereign immunity and the individual defendants personally under qualified (also known as “official”) immunity because their actions “were discretionary and done in good faith in the performance of [their] official duties.” The answer also alleged that “all actions taken by any [defendant with respect to [Halliburton’s] allegations” were “legitimate, nondiscriminatory, and unprejudiced” and that no defendant had acted with “discriminatory intent.” After Halliburton requested a hearing, defendants filed a separate motion to dismiss with a supporting brief arguing for the application of sovereign and qualified immunity. Between December 12 and December 16, 2011, Halliburton served nine discovery requests on the defendants, who immediately moved to stay discovery on the ground that the motion to dismiss “raise [d] exclusively legal issues as to which no discovery is necessary.” On February 17, 2012, after a hearing which was not transcribed, the trial court stayed discovery pending its ruling on the motion to dismiss. More than a year later, on August 30, 2013, the trial court denied the motion to dismiss without explanation and lifted the stay on discovery. This appeal followed.

1. Halliburton has moved to transfer this appeal to the Supreme Court of Georgia on the ground that this Court is not authorized to decide an appeal involving relief by writ of mandamus. See Ga. Const, of 1983, Art. VI, Sec. VI, Par. Ill (5) (giving Supreme Court appellate jurisdiction over “all cases involving extraordinary remedies,” which category includes mandamus); Lamar County v. E. T. Carlyle Co., 277 Ga. 690, 692-693 (1) (594 SE2d 335) (2004) (Supreme Court of Georgia had exclusive appellate jurisdiction over plaintiff developer’s action for declaratory relief and mandamus when the trial court had granted plaintiff mandamus relief). The only issue on this appeal, however, is whether the trial court erred when it denied defendants’ motion to dismiss on the grounds of sovereign and qualified immunity. As this trial court did not grant or deny a writ of mandamus, see Mid-Ga. Environmental Mgmt. Group v. Meriwether County, 277 Ga. 670 (594 SE2d 344) (2004), we conclude that this Court has jurisdiction to entertain this appeal, and we therefore deny Halliburton’s motion to transfer. See City of Tybee Island v. Live Oak Group, 324 Ga. App. 476, 477, n. 1 (751 SE2d 123) (2013) (Court of Appeals had jurisdiction over appeal concerning only whether trial court erred in its ruling on an inverse condemnation claim even when that claim asked for mandamus relief).

2. Halliburton has also moved to dismiss this appeal as not among the categories of direct appeals authorized by OCGA § 5-6-34 (a). We disagree.

In general, a party seeking to appeal an interlocutory ruling who fails to comply with the interlocutory appeal procedures set forth in OCGA § 5-6-34 (b) deprives this Court of jurisdiction over the appeal. Bd. of Regents of the Univ. System of Ga. v. Canas, 295 Ga. App. 505, 506 (1) (672 SE2d 471) (2009). “A small class of decisions, however, are excepted” from this rule “by the collateral order doctrine.” Id. at 507. In order to obtain an appeal on a collateral order, the order “must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” Id. (citation and punctuation omitted).

Although this trial court’s order denying the motion to dismiss did not explain its ruling, the unambiguous posture of this case, including the grounds of sovereign and qualified immunity raised in the answer and repeated in the motion to dismiss, suggests that the trial court’s rejection of the defenses of sovereign and qualified immunity was “conclusive” such that defendants were entitled to a direct appeal under the collateral order doctrine. Eshleman v. Key, 326 Ga. App. 883, 884 (1) (755 SE2d 926) (2014) (asserting jurisdiction over denial of summary judgment motion asserting defense of qualified immunity to a suit brought by a plaintiff bitten by a police dog that escaped its kennel). Halliburton’s motion to dismiss this appeal is denied.

3. Defendants argue that the District and the individual defendants in their official capacities are entitled to sovereign immunity as to Halliburton’s claims. We agree.

The sovereign immunity of the state and its departments and agencies “can be waived only by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of the waiver.” Wellborn v. DeKalb County School Dist., 227 Ga. App. 377, 379 (4) (489 SE2d 345) (1997), citing Ga. Const, of 1983, Art. I, Sec. II, Par. IX (e); see also Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, 294 Ga. 593, 602 (2) (755 SE2d 184) (2014) (“sovereign immunity [can] only be waived by the General Assembly”). Because the Liberty County School District is a political subdivision of the State, Crisp County School System v. Brown, 226 Ga. App. 800 (1) (487 SE2d 512) (1997), the District “is vested with sovereign immunity unless such immunity is waived” by virtue of the same constitutional provision. Wellborn, 227 Ga. App. at 379 (4) (citations omitted); see also OCGA § 36-1-4 (“A county is not liable to suit for any cause of action unless made so by statute.”). Specifically, “[t]he Georgia Tort Claims Act provides for a limited waiver of the state’s sovereign immunity for the torts of its officers and employees, but it expressly excludes school districts from the waiver.” Coffee County School Dist. v. Snipes, 216 Ga. App. 293, 294-295 (454 SE2d 149) (1995), citing OCGA § 50-21-22 (5) (defining “State” for purposes of the Georgia Tort Claims Act as including “any of its offices, agencies, authorities, departments, commissions, boards, divisions, instrumentalities and institutions,” but excluding “counties, municipalities, school districts,” and “other units of local government”) (emphasis supplied).

According to Halliburton herself, the gravamen of her complaint is her request for “reinstatement” pursuant to a renewed contract as well as “back pay” and “attorney fees.” Our Constitution waives sovereign immunity in “any action ex contractu for the breach of any written contract.” Ga. Const, of 1983, Art. I, Sec. II, Par. IX (c). But this constitutionally sanctioned waiver cannot apply when Halliburton is seeking a new contract that the District refused to issue. See Bd. of Regents of Univ. System of Ga. v. Ruff, 315 Ga. App. 452, 455 (726 SE2d 451) (2012) (no waiver of sovereign immunity when plaintiff could not show that he entered into a written contract with a university board of regents).

Even if Halliburton seeks to accomplish her goal of obtaining a new contract by means of injunctive relief, our Supreme Court has recently clarified that a request for injunctive relief to restrain an allegedly illegal act does not provide any exception to the fundamental rule that sovereign immunity “can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” Center for a Sustainable Coast, 294 Ga. at 598 (2), overruling Intl. Business Machines Corp. v. Evans, 265 Ga. 215 (453 SE2d 706) (1995) (citation and punctuation omitted; emphasis in original). It is also clear from Halliburton’s complaint that she impermissibly seeks “to bind the District’s fiscal discretion going forward” by forcing it to issue her a renewed contract. DeKalb County School Dist. v. Gold, 318 Ga. App. 633, 639-640 (1) (734 SE2d 466) (2012) (trial court erred in failing to dismiss teachers’ claim for “a declaration as to [a school district’s] budgetary obligations”).

As this Court has noted, “a primary purpose of the doctrine of sovereign immunity is the protection of the public purse.” Gold, 318 Ga. App. at 639-640 (1) (citation and punctuation omitted). And “[a] waiver of sovereign immunity must be established by the party seeking to benefit from that waiver.” Ruff, 315 Ga. App. at 456 (footnote omitted). In the absence of any showing that the legislature has waived the sovereign immunity of school districts in cases involving the issuance or nonissuance of teacher contracts, we conclude that the District itself is immune from Halliburton’s suit and that the trial court should have granted the District’s motion to dismiss on this basis. Coffee County, 216 Ga. App. at 296 (reversing denial of summary judgment when plaintiff had not pointed to any “legislative act specifically providing that the sovereign immunity of [a] school district is waived and the extent of such waiver”).

Further, because “[s]uits against public employees in their official capacities are in reality suits against the state,” Cameron v. Lang, 274 Ga. 122, 126 (3) (549 SE2d 341) (2001) (punctuation and footnote omitted), such employees are also entitled to sovereign immunity when they are sued in their official capacities. Id. The trial court thus also erred when it denied the motion to dismiss as to Scherer and the board members in their official capacities. Id.

4. Defendants also argue that Scherer and the Board members are entitled at this stage of the proceedings to qualified immunity concerning Halliburton’s claim for unlawful discrimination against them in their individual capacities. We disagree.

Under the Georgia Constitution, and except as provided by the Georgia Tort Claims Act,

all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions.

Ga. Const, of 1983, Art. I, Sec. II, Par. IX (d). A suit against a public officer acting in his official capacity “will be barred by official immunity unless the public officer (1) negligently performed a ministerial duty, or (2) acted with actual malice or an actual intent to cause injury while performing a discretionary duty.” Reece v. Turner, 284 Ga. App. 282, 285 (1) (643 SE2d 814) (2007) (citations and punctuation omitted). “In other words, public officials are immune from damages that result from their performance of discretionary functions, unless those functions were undertaken with malice or intent to cause injury.” Id.

Defendants correctly point out that the process of issuing a contract to a school principal involves two steps: a “recommendation” to do so by the “executive officer” (here, superintendent Scherer), and a decision by the school board, pursuant to such a recommendation, to issue a contract. OCGA § 20-2-211 (a) (“All teachers, principals, other certificated professional personnel, and other personnel of a local unit of administration shall be employed and assigned by its governing board on the recommendation of its executive officer”); see also Gordon v. Dooly County School Dist., Case No. 5:04CV124, 2005 WL 3560659 *3 (III) (M.D. Ga. 2005) (under OCGA § 20-2-211 (a), a board of education “is authorized to take employment actions with respect to District personnel only on the recommendation of the Superintendent,” and has “no independent authority to hire, fire, or otherwise assign” personnel). As the two-step process outlined in OCGA § 20-2-211 (a) suggests, however, and as this Court has held, “the making of decisions regarding the supervision of students and school personnel is a discretionary function requiring personal deliberation and judgment.” Reece, 284 Ga. App. at 285 (1) (supervision of teacher was discretionary such that school district employees were immune from suit by a student who was molested by that teacher); see also Leake v. Murphy, 274 Ga. App. 219, 225 (3) (617 SE2d 575) (2005) (supervision of students was discretionary such that defendant superintendent and board members were immune from suit).

Halliburton’s complaint alleges that Scherer’s and/or the Board’s decision not to renew Halliburton’s contract was undertaken with an intent to discriminate against her on the basis of her race — or, in other words, that one or more of these individual defendants acted with “a deliberate intention to do wrong .’’Adams v. Hazelwood, 271 Ga. 414, 415 (2) (520 SE2d 896) (1999) (citation and punctuation omitted); see also, e.g., Simpson v. State, 218 Ga. 337, 338 (127 SE2d 907) (1962) (the equal protection clause of the Georgia Constitution “demands uniformity and impartiality and hence forbids discrimination”). Even taking account of the complaint’s allegation that the individual defendants acted “maliciously,” however, any decision by Scherer and/or any Board member not to renew Halliburton’s contract was a discretionary act for which Halliburton can recover only if she proves that one of these actors made that decision with “ ‘actual malice or an actual intent to cause injury.’ ” Reece, 284 Ga. App. at 285 (1), quoting Harper v. Patterson, 270 Ga. App. 437, 440 (2) (606 SE2d 887) (2004).

No discovery has been completed in this case, and “it cannot be said that the allegations of the complaint disclose with certainty that [Halliburton] would not be entitled to relief under any state of provable facts asserted in support” of her complaint, which alleges that the individual defendants acted with actual malice when they decided not to renew her contract based on her race. Austin, 294 Ga. at 775 (citation omitted; emphasis in original). As a result, questions of this complaint’s evidentiary sufficiency must await summary judgment. The trial court therefore did not err when it denied the individual defendants’ motion to dismiss Halliburton’s suit against them in their individual capacities. Id.; compare Chisolm v. Tippens, 289 Ga. App. 757, 760-762 (658 SE2d 147) (2008) (trial court did not err in granting defendant school district and officials’ motion to dismiss when father’s pro se claims including harassment, cruelty, and discrimination arising from officials’ refusal to set up conferences, to include father in parent-teacher association, or to place daughter in a specific class failed to allege “malicious, wilful, or wanton conduct necessary to overcome defendants’ claim of immunity”).

5. Defendants assert that the trial court erred when it failed to dismiss Halliburton’s prayer for mandamus relief compelling “the defendants,” without distinguishing between the District and the individual defendants, to provide Halliburton with a hearing and to issue a contract to her. We agree.

OCGA § 9-6-20 provides in relevant part:

All official duties should be faithfully performed, and whenever, from any cause, a defect of legal justice would ensue from a failure to perform or from improper performance, the writ of mandamus may issue to compel a due performance if there is no other specific legal remedy for the legal rights [.]

As we have suggested in Division 1, we would transfer this case to our Supreme Court if Halliburton’s complaint were “capable of being construed” so as to implicate a right to mandamus relief. City of Dalton v. Smith, 158 Ga. App. 356, 359 (280 SE2d 138) (1981). Even in the framework set out by Halliburton’s complaint, however, no law has been cited by Halliburton, and we have found none, suggesting that Halliburton had a right to a hearing on her nonrenewal or that the individual defendants’ decisions not to renew Halliburton’s contract and/or to do so without a hearing could be anything but discretionary ones. See Dalton City Bd. of Ed. v. Smith, 256 Ga. 394, 395(1) (349 SE2d 458) (1986) (when petitioners for writ of mandamus had not established “any right to a school board hearing” on the subject of the nonrenewal of a teacher’s contract, mandamus relief was not appropriate). Being a remedy “ ‘designed to compel the doing of ministerial acts,’ ” mandamus is “ ‘not an appropriate remedy to compel the exercise of official discretion.’ ” Lowe v. State of Ga., 267 Ga. 754, 756 (2) (482 SE2d 344) (1997), quoting Speedway Grading Corp. v. Barrow County Bd. of Commrs., 258 Ga. 693, 695 (1) (373 SE2d 205) (1988).

With the caveat that no mandamus remedy is available to Halliburton, we affirm the trial court’s denial of the motion to dismiss as to Scherer and the school board members in their individual capacities and remand for further proceedings consistent with this opinion.

Decided July 16, 2014.

Gannam, Gnann & Steinmetz, Christian J. Steinmetz III, Harben, Hartley & Hawkins, Phillip L. Hartley, for appellants.

Maurice L. King, Jr., for appellee.

Judgment affirmed in part and reversed in part, and case remanded with direction.

Barnes, P. J., and Boggs, J., concur.

       See OCGA § 9-11-26 (e) (1), (2) (“Upon motion by a party or by the person from whom discovery is sought and for good cause shown,” a court “may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,” including “[tjhat the discovery not be had” and “[tjhat the discovery may be had only on specified terms and conditions, including a designation of the time or place[.j”).

       As to any possible federal constitutional claims, the complaint makes no reference to 42 USC § 1983. To the extent Halliburton contends that she was deprived of her constitutional rights pursuant to § 1983, she has failed to allege that any policy or custom of the District caused the deprivation of her constitutional rights. Thus any federal constitutional claims predicated on § 1983 should have been dismissed. See King v. Pioneer Regional Educational Svc. Agency, 301 Ga. App. 547, 552 (1) (688 SE2d 7) (2009) (although “municipalities and other local governmental entities are included among those persons to whom § 1983 applies,” such entities “may not be held liable on a respondeat superior theory,” but may be held liable only when “execution of a government’s policy or custom inflicts the injury’ suffered), citing Monell v. Dept. of Social Svcs., 436 U. S. 658, 690 (II) (98 SCt 2018, 56 LE2d 611) (1978).

       As our Supreme Court has explained,
      a ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

        Austin, 294 Ga. at 774 (citation and punctuation omitted).