text:
    A00A1525.
    NORTHSIDE HOSPITAL, INC. v. RUOTANEN.
    (541 SE2d 66)
   Ellington, Judge.

Jeanne Ruotanen sued Northside Hospital, Inc., alleging, inter alia, that her treatment by Northside in connection with the disposition of the body of her deceased father constituted intentional infliction of emotional distress. The trial court denied Northside’s motion for summary judgment on Ruotanen’s claim for intentional infliction of emotional distress. Following our grant of Northside’s application for interlocutory review of the trial court’s order, Northside contends that its employees’ conduct as alleged by Ruotanen was not sufficiently extreme and outrageous to be actionable in tort. We agree and reverse.

When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence.

(Citations omitted.) Stanford v. Paul W. Heard & Co., 240 Ga. App. 869 (1) (a) (525 SE2d 419) (1999). See OCGA § 9-11-56; Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Viewed in the light most favorable to Ruotanen’s claim, the facts are as follows: On March 27, 1996, Ruotanen received a call from a Northside representative asking her to come to the hospital. When she arrived, a nurse told her that her father had passed away at the hospital. The nurse asked her if she wished to meet with the hospital chaplain and a woman the nurse identified as Ruotanen’s father’s fiancée. Ruotanen refused to meet with the fiancée and asked to make immediate arrangements for the release of her father’s body. The nurse told Ruotanen that her father’s fiancée had a power of attorney which appeared to give her the right to handle the arrangements for disposition of the body. Northside had a general policy to release bodies to the deceased’s next of kin. In cases of conflicting claims of authority to direct disposition of a body, the hospital attempted to mediate among the parties and to determine if the deceased had provided directions in a will. The nurse told Ruotanen that nothing could be done that evening and that she should contact Wayne Collier, Northside’s risk manager, the next day. Despite her disappointment at the delay, Ruotanen felt the hospital staff treated her very nicely that evening.

The next day, in her effort to secure the release of her father’s body, Ruotanen contacted the coronary care unit which referred her to the hospital morgue. She was upset by the morgue personnel’s reference during that conversation to her father’s body as “the body.”

Ruotanen also contacted Collier, as she had been instructed to do. Collier told Ruotanen that her father had signed a document giving his fiancée power of attorney as to the disposition of the body and, therefore, the hospital did not have the authority to release the body to Ruotanen. Ruotanen alleges Collier, a lawyer, knew the power of attorney was not legally valid. This first conversation with Collier ended “fairly amiably.”

Sometime later that day, Ruotanen called Collier again and asserted her right as the next of kin to claim her father’s body. Collier told her that her father’s letter could be interpreted as a will, she did not have her “facts together,” the hospital had no obligation to her, and he had no obligation to talk to her. Collier abruptly hung up on Ruotanen. Ruotanen paged Collier several more times that day but did not receive a return call.

Three days after his death, after the executors of the estate obtained letters of administration, Northside released Ruotanen’s father’s body to the executors. The executors complied with Ruotanen’s choice of funeral home and desire to have an autopsy performed.

The trial court held that summary judgment was not warranted on Ruotanen’s claim for intentional infliction of emotional distress because under the circumstances, there was a genuine issue of material fact as to whether Northside should be liable for failing to release the body to Ruotanen. The trial court stated:

[v]iewing the evidence most favorably to the Plaintiff, a jury could reasonably find that Mr. Collier’s allegedly rude conduct towards Plaintiff as well as his alleged knowing misrepresentations of a purportedly valid power of attorney during Plaintiff’s time of grief may be conduct that is outrageous and extreme, rather than merely rude or insulting.

The four elements which must be proved in order to sustain a claim of intentional infliction of emotional distress are:

(1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; and (4) The emotional distress must be severe. Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law. Moreover, it has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.

(Citations and punctuation omitted.) Phinazee v. Interstate Nationalease, 237 Ga. App. 39-40 (514 SE2d 843) (1999). “Generally, the case is one which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” ComSouth Telesvcs. v. Liggett, 243 Ga. App. 446, 447-448 (1) (531 SE2d 190) (2000).

Decided October 19, 2000.

Goldner, Sommers, Scrudder & Bass, Glenn S. Bass, Matthew P. Lazarus, for appellant.

Robert A. Eisner, for appellee.

The evidence presented in this case clearly fails to meet this standard. First, the use of the clinical term “the body” by the hospital morgue staff cannot be considered outrageous to an average member of the community. Next, given that the deceased had executed a document which directed that his fiancée be responsible for the disposition of his body, it was not unreasonable for Northside to proceed deliberately in determining who had the authority to claim the body. We find no evidence in the record that Collier made knowing misrepresentations about the effect of the purported power of attorney. Cf. Williams v. Stepler, 227 Ga. App. 591, 594 (2) (490 SE2d 167) (1997). Collier’s comments and conduct, although possibly rude and insensitive in light of Ruotanen’s recent loss, do not rise to the level of outrageousness necessary to sustain a claim for intentional infliction of emotional distress. Pyle v. City of Cedartown, 240 Ga. App. 445, 447 (2) (524 SE2d 7) (1999); Biven Software v. Newman, 222 Ga. App. 112, 114 (1) (473 SE2d 527) (1996). The trial court erred in denying Northside’s motion for summary judgment on Ruotanen’s claim for intentional infliction of emotional distress.

Judgment reversed.

Andrews, P. J., and Ruffin, J., concur.

       The trial court granted Northside’s motion for summary judgment with respect to Ruotanen’s claim for a violation of OCGA § 45-16-25.1 (duties of coroner or county medical examiner with custody of remains of a deceased). Ruotanen did not appeal that ruling.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A00A1547.
    OLIVER v. SUTTON.
    (540 SE2d 645)
   Pope, Presiding Judge.

Stanley Oliver instituted a medical malpractice action against J. Carl Sutton, Jr., M.D., alleging that Dr. Sutton failed to properly diagnose and treat a condition of subtalar osteoarthritis in his left ankle. Dr. Sutton sought and obtained summary judgment on the sole basis that Oliver’s claims were time-barred. We affirm in part and reverse in part.

After Oliver broke his left ankle during a softball game, he obtained treatment from Dr. Sutton, an orthopedic physician. During the surgery of September 19, 1994, Dr. Sutton inserted a screw to stabilize Oliver’s ankle. After the operation, Oliver was seen by Dr. Sutton on nine occasions spanning about an eighteen-month period. Most of the visits were clustered near the time of the surgery. Oliver consulted Dr. Sutton only twice in 1995 and only once in 1996. He asserts that he has been in continuous pain since the injury and also since the surgery. At the office visit on April 11, 1995, seven months after the injury, Oliver complained of left ankle pain. According to the office notes of that day, Dr. Sutton described his impression as “Post-Traumatic Osteoarthritis of Left Ankle.” Oliver returned on January 11, 1996, and had x-rays taken. On that day, Dr. Sutton wrote in his notes what Oliver contends is the correct diagnosis: “Subtalar osteoarthritis, especially posterior facet.” But there is an issue of fact concerning whether he told Oliver of this diagnosis. Dr. Sutton recommended certain treatment and instructed Oliver to return in two months. Oliver never returned.

Oliver filed the underlying malpractice action on January 8, 1998, and later amended his complaint. He alleged that Dr. Sutton misdiagnosed and failed to treat his condition up through January 11, 1996, and that even though Sutton may have reached the correct diagnosis on January 11,1996, he failed to tell Oliver. Oliver claimed he did not obtain the correct diagnosis of “post-traumatic arthritis of the subtalar joint” until April 11, 1997, when Stanley R. Kalish, D.P.M., a podiatrist, detected that condition.

In this appeal, Oliver contends that the two-year statute of limitation under OCGA § 9-3-71 (a) did not commence until his medical problem was properly diagnosed and disclosed to him.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is “no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). On appeal of a grant of summary judgment, this Court reviews the evidence de novo. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).

In most cases, the applicable limitation period for a claim of misdiagnosis begins to run at the time of the alleged misdiagnosis. Walker v. Melton, 227 Ga. App. 149, 150 (1) (b) (489 SE2d 63) (1997). This is the rule because, generally, the pain, suffering, or economic loss sustained by the patient begins at the time of the misdiagnosis and continues until the medical problem is properly diagnosed and treated. Frankel v. Clark, 213 Ga. App. 222, 223 (444 SE2d 147) (1994); Jones v. Lamon, 206 Ga. App. 842, 845 (1) (426 SE2d 657) (1992) (the focus of OCGA § 9-3-71 (a) is not the date of the negligent act but the “consequence of the defendant’s acts on the plaintiff”). Further, it is the misdiagnosis itself that comprises the injury, not the subsequent discovery of the correct diagnosis. Daughtry v. Cohen, 187 Ga. App. 253 (1) (370 SE2d 18) (1988). Thus, Oliver cannot use April 11, 1997, the date when he was first examined by Dr. Kalish, as the beginning point of the period of limitation. Id. See also Crowe v. Humana, Inc., 263 Ga. 833, 834 (1) (439 SE2d 654) (1994) (applying OCGA § 9-3-73 (b)).

Here, misdiagnosis, if any, occurred on or before April 11, 1995. (In his affidavit, Oliver does not contend that Sutton failed to tell him the April 11, 1995 diagnosis.) And Oliver’s injury, improper treatment, occurred on or before that date because his injury had physically manifested itself by that time, i.e., he experienced continuous pain. Oliver did not file suit until January 8, 1998. Thus, any claim of misdiagnosis is time-barred, as is any claim of improper treatment based on the misdiagnosis. Frankel, 213 Ga. App. at 224.

Oliver’s only remaining allegation is that Sutton failed to communicate the correct diagnosis at the January 11 visit and to properly treat him after that based on the correct diagnosis. Dr. Sutton’s office notes demonstrate that he made the proper diagnosis of “subtalar osteoarthritis” on January 11, 1996. In his affidavit, however, Oliver states that on January 11, Dr. Sutton never mentioned the diagnosis and said that he could not detect any other problems with his foot nor the source of his continuous discomfort.

This claim survives the statute of limitation problem if failing to disclose the correct diagnosis on January 11, 1996, constitutes a separate act of negligence from the above claim for misdiagnosis. We find that it does. There is no question that the claim could stand alone. “The confidential relationship between doctor and patient creates a duty to inform the patient of his or her condition.” Hendrix v. Schrecengost, 183 Ga. App. 201, 202 (1) (358 SE2d 486) (1987). And Dr. Kalish has testified that Sutton’s failure to inform Oliver of the diagnosis on January 11, 1996, fell below the standard of care. Although determining the correct diagnosis after allegedly misdiagnosing the problem is certainly not negligence, failing to communicate the proper diagnosis can be.

This decision is reinforced by the reasoning of Hamrick v. Ray, 171 Ga. App. 60, 62-63 (4) (318 SE2d 790) (1984). That case analyzed whether several actions by one doctor could constitute separate acts of negligence by putting another doctor in the place of the defendant at the time of the alleged separate act. Applying Hamrick here, if Oliver had seen a different doctor on January 11, 1996, who came to the correct diagnosis but failed to tell Oliver, then that doctor could be found negligent, and the statute of limitation would begin to run on that day.

Decided October 19, 2000.

Albert B. Wallace, Stephen B. Wallace II, for appellant.

Allen & Weathington, Paul E. Weathington, Scott W. Boak, for appellee.

Frankel is not controlling on this point. In that case, this Court held that a dentist’s failure to correct his earlier misdiagnosis was not a separate act of negligence. But there, the defendant never withheld the correct diagnosis and no alleged specific separate act of negligence occurred less than two years before suit was filed. Frankel, 213 Ga. App. at 224. Here, Sutton’s alleged failure to tell Oliver of the correct diagnosis occurred less than two years before Oliver filed suit.

Of course, Oliver’s damages are only those arising from the alleged failure to treat Oliver for the correct condition from that day forward. And in this case, there are serious questions about whether there are any damages given Oliver’s refusal to return as instructed and the possibility that the treatment was proper anyway. But this appeal concerns only whether the statute of limitation has run on that claim.

Judgment affirmed in part and reversed in part.

Miller and Mikell, JJ., concur.

       The parties’ arguments on issues other than the statute of limitation are not relevant. Sutton’s motion for summary judgment raised only one issue — the statute of limitation. See generally Hodge v. SADA Enterprises, 217 Ga. App. 688, 689 (1) (458 SE2d 876) (1995) (plaintiff not required to respond to issues not raised in motion for summary judgment).

       There is an issue of fact as to whether the two diagnoses were the same.

       The plaintiff’s deposition was not made a part of the record.

       Oliver does not argue that Sutton’s failure to reveal the correct diagnosis tolls the running of the statute of limitation. Nor would tolling be applicable here because Oliver was aware of his injury from the time of the misdiagnosis.

        Hamrick also held that the continued failure to inform a patient of the presence of a foreign object left in the patient’s body is not a separate act of negligence. However, that holding is specifically limited to OCGA § 9-3-72 and the one-year limitation period for that type of negligence. That Code section provides that the one-year limitation period commences upon discovery of the object. Thus, if a continuing failure to inform constituted a separate act of negligence, it “would emasculate OCGA § 9-3-72 and render it inapplicable to the cases for which it was specifically designed. . . .” Hamrick, 171 Ga. App. at 62 (3).


text:
    A00A1666.
    COX v. ERWIN et al.
    (541 SE2d 69)
   Pope, Presiding Judge.

Ronald Cox claims his employer failed to pay him the full commissions he earned during his tenure as a salesman of lumber and building materials. He also claims that the defendants fraudulently induced him to continue his employment. The trial court granted summary judgment on these claims, and Cox appeals.

It is undisputed that Cox was an at-will independent contractor of Ervac, Inc. and that he did not have a written agreement stating that he was going to be paid a set commission. Cox claims that in either 1987 or 1988, or possibly as early as 1984, Ervac agreed to pay him a commission of 60 percent of the profit from the sales he made. He claims that Ervac changed the compensation arrangement without his knowledge in December 1989 and that he did not learn of the change for a period of seven or more months. Cox also claims that Ronald Erwin, the corporate representative of Ervac, fraudulently induced him to continue his employment after he discovered the change.

1. We first look at Cox’s assertion that the trial court erred by granting summary judgment on his fraud claim. But Cox has failed to support this enumeration with any citations to the lengthy record to support any of the facts underlying this fraud claim as required by Court of Appeals Rule 27 (a) (1) and (c) (3) (i). “It is not the function of this court to cull the record on behalf of a party in search of instances of error. The burden is upon the party alleging error to show it affirmatively in the record.” (Citation and punctuation omitted.) Bergmann v. McCullough, 218 Ga. App. 353, 355-356 (3) (461 SE2d 544) (1995). It is impossible for us to determine whether Cox carried his burden of showing that he has factual support for the five elements of a fraud claim without citation to any facts. Accordingly, we find this enumeration to be without merit.

2. We will, however, address the issue of Cox’s commission claim because it is primarily a question of law.

The trial court, citing Stover v. Candle Corp. of America, 238 Ga. App. 657, 658 (2) (520 SE2d 7) (1999), held that because Cox was an at-will employee, any term of his contract, including the commission rate, could be varied without his consent. However, the rule in Stover applies only to prospective changes in the commission rate of which the employee was given notice. Stover admitted that the change in his case was not retroactive. Id. Here, Cox alleges that he had already earned the commissions before the rate was changed. Even in an at-will agreement, the employer is not at liberty to change the agreed rate of pay after the associated work has been performed. Atlanta Dairies Co-Op v. Grindle, 182 Ga. App. 409, 410-411 (2) (356 SE2d 42) (1987).

Ervac counters that Cox’s evidence regarding the manner in which the commission was to be calculated was inconsistent. And that therefore, summary judgment was correct because Cox did not prove an essential element of the contract, i.e., the amount of compensation. See, e.g., Laverson v. Macon Bibb County Hosp. Auth., 226 Ga. App. 761, 762 (487 SE2d 621) (1997); BellSouth Advertising &c. Corp. v. McCollum, 209 Ga. App. 441, 444 (2) (433 SE2d 437) (1993) (alleged contract with “no firm agreement as to the price is unenforceable”).

Decided October 19, 2000.

Eugene W. Walters, for appellant.

Wimberly & Lawson, Jim Wimberly, Jr., James L. Hughes, McNally, Fox & Grant, Patrick J. Fox, for appellees.

In his deposition Cox testified that Ervac agreed to pay 60 percent of the “net profit” derived from his sales. Cox defined “net profit” to mean the invoice amount minus the cost of goods sold, the freight charge, and the credit insurance. In his subsequent affidavit, Cox stated that he was entitled to the same percentage of the “gross profit on the Purchase Orders when they were shipped.” Our review of the testimony does not necessarily show that the two definitions are inconsistent. Black’s Law Dictionary defines “gross profit” as: “The difference between sales and the cost of goods sold before allowance for operating expenses and income taxes.” “Net profit” results from subtracting operating expenses (overhead) and income taxes from that figure. See Black’s. Thus, arguably, both of Cox’s definitions included deduction for the cost of goods sold, and neither included subtracting operating expenses (overhead) and income taxes. Without more, we cannot say that his testimony is so inconsistent that it destroys his claim for commissions.

Cox raised a material issue of fact as to whether he was entitled to a 60 percent commission on all sales prior to the day he was informed that the rate would be different. Therefore, summary judgment was not proper on this count.

Judgment affirmed in part and reversed in part.

Miller and Mikell, JJ, concur.


author: ANDREWS, Presiding Judge.

text:
    A00A1074.
    LA COSECHA, INC. v. HALL.
    (540 SE2d 659)
   ANDREWS, Presiding Judge.

La Cosecha, Inc. d/b/a La Parilla, a Mexican restaurant, appeals the denial of its motion for summary judgment in Julie Hall’s wrongful death action premised on OCGA § 51-1-40 (b) following the death of her husband Daniel Hall in a single vehicle accident.

In reviewing the grant or denial of a motion for summary judgment, we apply a de novo standard of review and consider the evidence with all reasonable inferences therefrom in favor of the party opposing summary judgment. Birnbrey, Minsk & Minsk, LLC v. Yirga, 244 Ga. App. 726 (535 SE2d 792) (2000).

So viewed, the evidence was that Hall, Tatum, and Tarnecki worked together and also socialized frequently. On Sunday, January 4, 1998, Hall called Tatum around 9:00 a.m. and asked if he could come to Tatum’s residence. He arrived within 30 minutes. Hall had a six-pack of beer with him and was already drinking beer and smoking marijuana. Around 11:00 a.m., Hall and Tatum went to Smyrna to return a rototiller and went by “Margaret and Pete’s” house around 1:30 p.m. Margaret and Pete were drinking beer; however, Tatum did not remember if he drank beer at Margaret and Pete’s. Hall and Tatum then went to Rogers’ house where Hall looked at an engine hoist.

Tarnecki was getting gas around 3:00 p.m. when Tatum and Hall drove by. Prior to this time, Tarnecki had nothing alcoholic to drink. He then joined Tatum and Hall at Tatum’s house where Tatum drank three beers. They decided to go to La Parilla in Marietta, and Tatum drove them to the restaurant in his Ford Expedition around 6:00 p.m. They sat at the bar and were waited on by the bartender. The three ate chips and salsa, and Tatum ordered three tacos. Each man ate one. Tatum drank a monster beer, a frozen margarita, and a shot of tequila. Tarnecki and Hall drank similar amounts of alcohol. Tatum had his car keys in his pocket, and there was no discussion in the presence of the bartender among the men about their having driven to the restaurant or that they would be driving when they left.

Tarnecki had previously observed others when they were intoxicated, which was evidenced by bloodshot eyes, instability, slurred speech, and loud talking. Further, Tarnecki had been with Tatum when he was intoxicated, manifested by Tatum’s loud talking and slurred speech. When they left La Parilla, Tatum’s behavior was normal and he did not appear intoxicated, according to Tarnecki. Tarnecki did not recall anyone questioning how much they had to drink or refusing them service at La Parilla, and Tatum deposed that they had no difficulty getting off their bar stools and leaving. Tarnecki did not consider himself or Hall to be intoxicated when they left La Parilla.

From La Parilla, Tatum drove them to Norm’s, a bar with pool tables. During the approximately five-minute drive to Norm’s, Tarnecki observed no signs of intoxication in Tatum or any swerving or speeding. They arrived at Norm’s about 8:00 p.m. and stayed there drinking beer and Crown Royal and shooting pool for two or three hours.

After leaving Norm’s, Tatum lost control of the Expedition. Hall died in the accident, and Tarnecki was severely injured.

Velasquez, the owner/manager of La Parilla, which has four locations, deposed that all employees are instructed from a training manual regarding alcohol service and that their policy is not to serve intoxicated customers. The manual is kept in each restaurant’s office and is available to employees upon request. At the Marietta location, some customers walk to the restaurant instead of driving to it. On Sunday evenings, Velasquez deposed that a lot of people walk to the restaurant from the Marietta square.

OCGA § 51-1-40 (b), an exception to the social host liability statute (OCGA § 51-1-40 (a)), requires that, in order to hold a seller of alcoholic beverages to a person of lawful drinking age liable for injuries resulting from intoxication, the seller must sell, furnish, or serve “alcoholic beverages to a person who is in a state of noticeable intoxication, knowing that such person will soon be driving a motor vehicle,” if the sale, furnishing, or serving of that alcohol is the proximate cause of such injury or damage. (Emphasis supplied.) Birnbrey, Minsk &c., supra at 727-728 (1).

In denying the motion for summary judgment, the trial court focused on inconsistencies found in the depositions of Tatum and Tarnecki and on the fact that “[t]here is no proof of how much Defendant Tatum had to drink prior to arriving at La Parilla or what his physical appearance was upon leaving.”

Independently reviewing these two depositions, however, we do not find material contradictions which would preclude summary judgment. See Chelena v. Ga. Fed. Sav. &c. Assn., 256 Ga. 336, 337 (349 SE2d 180) (1986). It is the duty of each party at summary judgment to present their case in full or risk judgment going against them. Sharfuddin v. Drug Emporium, 230 Ga. App. 679, 681 (2) (498 SE2d 748) (1998).

Where direct and positive testimony is presented on an issue, the opposing party must show some other fact which contradicts the testimony. If this other fact is direct evidence, that is sufficient to allow the case to go to the jury; if the other fact is circumstantial evidence, it must be inconsistent with the defendant’s evidence, or if consistent, it must demand a finding of fact on the issue in favor of the plaintiff.

(Citations and punctuation omitted.) Michelin Tire Corp. v. Irving, 185 Ga. App. 783, 784 (1) (366 SE2d 156) (1988). See also Kappa Sigma Intl. Fraternity v. Tootle, 221 Ga. App. 890, 892 (1) (473 SE2d 213) (1996).

Decided October 20, 2000.

Hall, Booth, Smith & Slover, John E. Hall, Jr., Heather C. McGrotty, Jason P. King, for appellant.

Douglas J. Davis, for appellee.

La Parilla relied upon Tarnecki’s statement that Tatum did not appear intoxicated while at the restaurant or when they left, on Tatum’s statement that he had no trouble leaving the restaurant, and on La Parilla’s policy to not serve intoxicated customers. In response, the only evidence presented by Hall was an affidavit of Dr. Robert Goldberg, a forensic pathologist. His conclusion that Tatum’s blood alcohol content would have been 0.29 before being served the final shot of tequila and that he would have exhibited clinical symptoms of intoxication is premised on three assumptions: that Tatum smoked marijuana at approximately 9:30 a.m.; that between 1:30 p.m. and 6:00 p.m., Tatum consumed at least five 12-ounce beers, a 20-ounce monster beer, a three-shot margarita, and thereafter two shots of tequila; and that he weighed approximately 185 pounds on January 4, 1998.

Only the last assumption is supported by evidence of record. Regarding Tatum’s marijuana use, he was asked if he had smoked marijuana that morning and replied he did not remember. Asked if he “could have,” he said he could have. This amounts, at best, to a mere possibility. “ ‘Guesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment. (Cits.)’ Brown v. Amerson, 220 Ga. App. 318, 320 (469 SE2d 723) (1996).” Tuggle v. Helms, 231 Ga. App. 899, 902 (2) (499 SE2d 365) (1998).

Additionally, no evidence is contained in the record regarding how many shots were contained in La Parilla’s margaritas or that Tatum consumed a total of ten alcoholic drinks that day.

Therefore, on the record before us, we conclude that Hall, following La Parilla’s production of direct evidence that Tatum did not appear intoxicated at its establishment, failed to come forward with proof that there was a triable issue as to this essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991); Birnbrey, Minsk &c., supra at 727; Kappa Sigma, supra at 891. La Parilla was entitled to summary judgment.

Judgment reversed.

Ruffin and Ellington, JJ., concur.

       The trial court granted a certificate of immediate review, and this Court granted the application to appeal.


author: Ruffin, Judge.

text:
    A00A1290.
    INGRAHAM et al. v. MARR et al.
    (540 SE2d 652)
   Ruffin, Judge.

While driving a car belonging to Morris Drane, Francis Ingraham hit a car driven by Charles Marr. Marr sued Ingraham for negligently causing his injuries, and he sued Drane under a theory of respondeat superior. Drane moved for summary judgment, arguing that he could not be held liable for any of Ingraham’s allegedly negligent acts. Ingraham sought either summary judgment or dismissal, asserting that Marr failed to serve him within the statute of limitation. The trial court denied both motions, and we granted defendants’ interlocutory appeal. For reasons that follow, we reverse.

1. Drane contends that the trial court erred in failing to grant his motion for summary judgment because there are no facts under which he can be held liable for Ingraham’s negligence. We agree.

A defendant may prevail at summary judgment by demonstrating that there is no jury issue on at least one essential element of the plaintiffs case. This may be done

by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).

In his complaint, Marr sought to hold Drane liable under the doctrine of respondeat superior, under which a principal may be held liable for the acts of his agent. Drane, however, submitted an affidavit denying that Ingraham was his agent, and such denial “is a statement of fact sufficient to support a motion for summary judgment in an action based on the doctrine of respondeat superior.” Accordingly, the burden shifted to Marr to set forth facts that supported his claim of agency. As Marr failed to point to any evidence contradicting Drane’s denial, the trial court erred in failing to grant Drane’s motion for summary judgment on this basis.

Marr also contends that issues of fact remain as to whether Drane is liable under either the family purpose doctrine or negligent entrustment. We note, however, that Marr never raised either of these theories in his complaint, nor did he amend his complaint to include them. “A complaint must set forth the intended theory of recovery because there can be no recovery on a theory not alleged.” Accordingly, Marr’s failure to allege these theories below precludes him from raising them on appeal.

Marr contends that the pleadings should be deemed amended to conform to the evidence. It is true that pleadings may be deemed amended. Here, however, the evidence does not raise either theory.

There are four prerequisites to establishing a claim under the family purpose doctrine:

(1) the defendant must own or have an interest in or control over the automobile; (2) the defendant must have made the automobile available for family use; (3) the driver must be a member of the defendant’s immediate household', and (4) the vehicle must have been driven with the permission or acquiescence of the defendant.

Drane testified on deposition that Ingraham, his brother-in-law, was purchasing the car from him, that Ingraham was not a member of his immediate household, and that Ingraham was using the car for his own benefit at the time the collision occurred. Given this unrefuted testimony, we fail to see how Drane could be held liable under the family purpose doctrine.

Under a negligent entrustment theory, “liability is predicated ... on a negligent act of the owner in lending his automobile to another to drive, with actual knowledge that the driver is incompetent or habitually reckless. Here, Marr points to no evidence tending to show that, at the time of the collision, Drane had actual knowledge that Ingraham was incompetent or reckless.

Thus, the evidence does not raise either the family purpose doctrine or negligent entrustment, and the complaint may not be deemed amended to include them. Accordingly, we reverse the order of the trial court denying Drane’s motion for summary judgment and remand to the trial court to enter summary judgment for Drane.

2. Ingraham contends that the trial court erred in failing to grant his motion to dismiss or, in the alternative, for summary judgment based upon Marr’s failure to serve him within the statute of limitation. The trial court determined that Marr exercised due diligence in attempting to locate and serve Ingraham, and it denied his motion.

The record reveals that the collision occurred on August 29, 1997. Marr filed his complaint on November 19, 1998. A deputy sheriff attempted to serve Ingraham at a Duluth address on December 1, 1998, but Ingraham had apparently moved without leaving a forwarding address. On August 4, 1999, Ingraham filed his answer and raised the defense of insufficient service of process, and, on October 4, he filed a “Motion to Dismiss and/or Summary Judgment.”

On October 5, 1999, a sheriff attempted to serve Ingraham at a Monroe address that Drane provided, but was unable to find him. Following a November 29, 1999 hearing, the trial court concluded that Marr had exercised due diligence in attempting to serve Ingraham. Ingraham was finally served on November 30, 1999 — over three months after the expiration of the statute of limitation.

If a party is served beyond the statute of limitation, the service will relate back to the time of filing of the complaint if the plaintiff is able to show that he acted diligently in serving the defendant. If a defendant’s answer raises the issue of defective service, however, a plaintiff is, from that point forward, “obligated to exercise, not due diligence, but the greatest possible diligence to ensure proper and timely service.”

In concluding that Marr exercised “due diligence,” the trial court applied an incorrect standard. Accordingly, we must reverse. Ordinarily, we would remand to the trial court as the issue of diligence “is generally a matter committed to the discretion of the trial court.” But the undisputed facts of this case demonstrate that Marr failed to exercise the greatest possible diligence in serving Ingraham.

Marr claims that Ingraham should not be rewarded for being an “artful dodger of service of process.” In determining whether Marr exercised the greatest possible diligence, however, we focus on his actions, not Ingraham’s. The fact that a defendant may be hard to find does not justify a lack of effort on the part of a plaintiff. Here, Ingraham raised the issue of defective service in his answer, which he filed on August 4, 1999. From this point forward, Marr was required to exercise the greatest possible diligence in serving Ingraham. Nevertheless, he waited until October 5, 1999, to attempt service.

Decided October 20, 2000.

Shur, McDuffie, Brockman & Williams, Reynolds E. Pitts, Jr., for appellants.

Webb & Webb, Michael S. Webb, for appellees.

Although Marr emphasizes the fact that he was unable to find Ingraham on this date, he provides no explanation as to why he waited over two months to even attempt service. Had Marr attempted service earlier, he would have had time to serve Ingraham by publication within the statute of limitation, as provided for in OCGA § 9-11-4 (e).

By failing to attempt service of process in a timely manner, Marr failed to exercise the greatest possible diligence. Accordingly, we reverse the order of the trial court, and we remand the case to the trial court with direction to enter summary judgment for Ingraham on Marr’s negligence claim.

Judgment reversed and remanded with direction.

Andrews, P. J., and Ellington, J., concur.

       Marr’s wife also brought a claim for loss of consortium.

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       Id.

         See Johnson v. Dallas Glass Co., 183 Ga. App. 584, 586 (1) (359 SE2d 448) (1987).

        Withrow Timber Co. v. Blackburn, 244 Ga. 549, 551 (261 SE2d 361) (1979).

       See id. See also Lau’s Corp., supra.

        Thomas v. Schouten, 210 Ga. App. 244, 245-246 (2) (435 SE2d 746) (1993).

        Gomez v. Chao, 239 Ga. App. 474, 475 (1) (521 SE2d 421) (1999).

        Mazur v. Food Giant, 183 Ga. App. 453, 454 (2) (359 SE2d 178) (1987).

       (Footnote omitted; emphasis in original.) Simmons v. Hill, 242 Ga. App. 22, 23-24 (528 SE2d 557) (2000).

       (Punctuation omitted.) Liddy v. Hames, 177 Ga. App. 517 (1) (339 SE2d 778) (1986).

       Although Marr points to the fact that Ingraham had a subsequent car accident, this is irrelevant to Drane’s knowledge at the time of the first collision.

        Powers v. Latimer, 215 Ga. App. 245, 247-248 (3) (450 SE2d 295) (1994).

       See OCGA § 9-3-33. We note, however, that a loss of consortium claim has a statute of limitation of four years and, thus, the claim brought by Marr’s wife is not subject to dismissal on this basis.

        Allen v. Kahn, 231 Ga. App. 438, 439 (499 SE2d 164) (1998).

       (Punctuation omitted.) Patterson v. Johnson, 226 Ga. App. 396, 398 (486 SE2d 660) (1997).

       Id.

       Although Marr’s attorney did file an affidavit as required prior to service by publication, he did not do so until November 19, 1999 — after the statute of limitation had expired and more than three months after Ingraham’s answer raising the issue of defective service.

        Patterson, supra.


author: Miller, Judge.

text:
    A00A1618.
    THOMAS v. THE STATE.
    (540 SE2d 662)
   Miller, Judge.

Renard Carlos Thomas was tried before a jury and found guilty of aggravated assault, false imprisonment, and aggravated stalking for acts committed against his former girlfriend, Karen Grundy. In five related enumerations of error, he challenges the denial of his motion for new trial on the special ground of ineffective assistance of retained counsel. We affirm.

1. When inadequate representation is alleged,

the critical factual inquiry ordinarily relates to whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; and whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy. Generally, the burden is on the defendant claiming ineffectiveness of counsel to establish (1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.

Thomas’s first specification of ineffective assistance is that trial counsel “failed to comprehend the meaning of ‘similar transaction evidence,’ and therefore failed to timely object to introduction of same.” The similar transactions involved Thomas’s 1991 guilty plea to simple battery against his then-wife Marguerite Thomas, by “grabbing her and dragging her on the ground,” and his 1992 guilty plea to aggravated assault against her by shooting a handgun in her direction.

Trial counsel, aged 79, had a 50-year career in the law but did not have many criminal trials in his practice. Counsel was under the erroneous impression that similar transaction evidence was admissible only for purposes of sentencing. Computer research by counsel’s paralegal produced nothing useful. Nevertheless, at the hearing prescribed by Uniform Superior Court Rule 31.3 (B), counsel did object to this evidence on the ground that it was stale. He obtained a contemporaneous limiting instruction on the permissible uses for such similar transaction evidence, when it was offered at trial.

The similar transaction evidence that Thomas was jealous, emotionally and physically abusive, and obsessively controlling in his relationship with his former wife closely paralleled that of Grundy in the case on trial.

In cases of domestic violence, prior incidents of abuse against family members or sexual partners are more generally permitted because there is a logical connection between violent acts against two different persons with whom the accused had a similar emotional or intimate attachment.

Thus, testimony from a former spouse that the accused had beaten, kicked, slapped, and threatened to kill her is admissible to prove a continuing course of abusive and intimidating conduct. And proof of an unrelated shooting is admissible where relevant to show the accused’s propensity to use a gun.

We assume that trial counsel’s assistance fell below an objectively reasonable standard when he failed to possess that familiarity with similar transaction evidence and persuasive challenges thereto expected of a reasonably effective criminal defense advocate and also when he failed to obtain that familiarity through effective legal research. Nevertheless, we hold that trial counsel’s ineffective challenge to admissible similar transaction evidence is harmless in this instance because that ineffectiveness cannot reasonably be shown to have changed the outcome of the trial. Since Thomas failed to prove the prejudice element of the necessary showing, the trial court did not err in denying Thomas’s motion for new trial based on this specification. The first two enumerations are without merit.

2. In the other three enumerations of error, Thomas contends trial counsel was ineffective in that he failed to prepare adequately for trial, failed to prepare defense witnesses, conducted no pre-trial discovery, filed no motions, submitted no written requests to charge, made only one objection during trial, and failed to vigorously cross-examine the victim and other witnesses for the State. At the hearing on this motion, trial counsel noted the victim’s location was confidential pursuant to court order. He defended the trial strategy of impeaching the victim with her words from a taped telephone message she left defendant, wherein she stated she wanted to get back together. Counsel felt defendant was prepared to take the stand and defend himself, after their many hours spent discussing the case. The trial court granted counsel’s oral requests to charge based upon the pattern instructions.

Here, it is unnecessary to address each and every specification of challenged trial tactics and strategy. It is sufficient to note that strategic choices made after thorough investigation are virtually unchallengeable. The evidence authorizes the trial court’s findings that counsel adequately investigated the case and prepared for trial, with perfectly acceptable trial strategy. Consequently, the trial court’s ultimate determination, that Thomas failed to overcome the strong presumption that the assistance actually rendered fell within the broad range of reasonably effective assistance, is not clearly erroneous and is affirmed.

Decided October 20, 2000.

Richard Green II, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Thomas S. Clegg, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

       (Citations and punctuation omitted; emphasis in original.) Johnson v. State, 214 Ga. App. 77 (1) (447 SE2d 74) (1994) (whole court).

       (Footnote omitted.) Smith v. State, 232 Ga. App. 290, 295 (1) (501 SE2d 523) (1998).

        Bohannon v. State, 208 Ga. App. 576, 578 (2), 579 (2) (b) (431 SE2d 149) (1993).

        Jones v. State, 236 Ga. App. 330, 332 (1) (b) (511 SE2d 883) (1999).

        Dixon v. State, 267 Ga. 136, 138 (2) (475 SE2d 633) (1996).

        Stephens v. State, 265 Ga. 120, 122 (2) (453 SE2d 443) (1995). Accord Hudson v. State, 218 Ga. App. 671, 673 (1) (b) (462 SE2d 775) (1995).

        Smith v. State, 256 Ga. 483 (351 SE2d 641) (1986).


author: Andrews, Presiding Judge.

text:
    A00A1764.
    In re ESTATE OF SIMS.
    (540 SE2d 650)
   Andrews, Presiding Judge.

This is the third appearance of this case before this Court. As set out in Sims v. Sims, 265 Ga. 55 (452 SE2d 761) (1995), the controversy involves the distribution of the estate of Curtis Richard Sims (Sims). In that case, the Supreme Court determined that the probate court erred in not granting the motion for judgment notwithstanding the verdict of Edward and Wayne Sims, Sims’ sons and co-executors, after a jury verdict for the granddaughters/caveators (children of Sims’ deceased son Marshall) on the petition to probate Sims’ will. The Supreme Court found insufficient evidence of undue influence by Edward and Wayne on their father with regard to the preparation and execution of the will, and the matter was returned to probate court where, by order of March 23, 1995, the will was admitted as proven and letters testamentary issued to Edward and Wayne.

On June 27, 1996, Brenda Sims Heath, Sims’ daughter and a beneficiary, filed a Petition to Remove the Co-Executors pursuant to OCGA § 53-7-148. The probate court entered its order of March 11, 1997, finding that any improper actions by Edward and Wayne did not rise to such a level as would make removal appropriate. Further deeming it in the estate’s best interest, the probate court entered

a final order at this time removing this cloud over the administration of this estate. However, the Court is concerned that one or both Co-Executors may have certain conflicts of interest and may not have handled all estate matters entirely properly. For example, one area of concern is the operation of the family farm. The Court will address these issues at a later date as a continuation of that aspect of this petition or in a final accounting proceeding.

(Emphasis supplied.) No appeal was taken from this order.

On June 26, 1997, Brenda Sims Heath filed suit against Edward and Wayne in superior court, seeking damages for breach of fiduciary duty and an equitable accounting of the estate. That suit was dismissed by the superior court which concluded that probate court was the proper forum for the dispute and that, regarding the request for equitable accounting, the probate court provided adequate legal remedies in the form of a final accounting. This dismissal was upheld in Heath v. Sims, 242 Ga. App. 691 (531 SE2d 115) (2000), cert. denied, Case No. S00C1162 (September 11, 2000), in which it was noted that, pursuant to OCGA § 15-9-30 (a) (10), the probate court has jurisdiction over a claim that an estate’s co-executors have breached their fiduciary duty. Heath, supra at 692.

On October 18, 1999, Brenda Sims Heath filed, in probate court, her Motion to Prohibit Executors From Using Estate Funds to Defend Against Allegations of Maladministration, indicating her intention to pursue the claim of maladministration in probate court. By order of January 24, 2000, the probate court granted Heath’s motion, reserving until the conclusion of the litigation the issue of whether the co-executors would be entitled to reimbursement of any attorney fees resulting from the charges of maladministration. It is from this order that the executors filed their notice of direct appeal.

“Although not raised by either party, it is incumbent upon this Court to consider our jurisdiction of this matter. [Cits.]” Sipple v. Atwood, 223 Ga. App. 677 (478 SE2d 473) (1996).

Although the order is denoted “Final Order,” it is substance and not mere nomenclature which determines the nature and finality of the order. Cobb Center &c. v. Gordon, 242 Ga. App. 73, 74 (1) (529 SE2d 138) (2000). As noted by the probate court in the order, “[i]t appears that allegations by Ms. Heath of misconduct by the Co-Executors will continue to be pursued in either the Superior or Probate Court of Fulton County.” This order was entered prior to our decision in Heath, supra, upholding the superior court’s dismissal of Heath’s suit there. The order also notes that the general rule providing for determination of the executors’ or trustees’ right to attorney fees at the end of litigation over maladministration

would apply to a petition for accounting where the alleged misconduct of the fiduciary is at issue. . . . The authorization in the will concerning payment of attorney’s fees does not apply to allegations of misconduct. The authorization in the will is for legal expenses incurred to carry out the intention of the testator, which issue can only be resolved at the outcome of any case concerning alleged misconduct.

Decided October 20, 2000.

Chestnut & Livingston, Tom Pye, for appellants.

Caldwell & Watson, Harmon W! Caldwell, Jr., Robert S. Carlson, for appellees.

Therefore, it appears that there has, as yet, been no final accounting of this estate, including the charges of maladministration. See OCGA §§ 53-7-163 through 53-7-191.

As provided in OCGA § 53-7-164,

Upon proof of citation pursuant to Code Section 53-7-163, the judge of the probate court may proceed to make an account, hear evidence upon any contested question, and settle finally between the distributee and administrator or executor. The settlement may be enforced by a judgment, writ of fieri facias, execution, or attachment for contempt, either party having the right to appeal.

See also OCGA § 15-9-123 (b) (general laws and rules of appellate practice and procedure applicable to cases from superior courts applicable to civil appeals from probate courts).

No certificate of immediate review having been obtained, this Court has no jurisdiction to consider this appeal, and it is dismissed. Parker v. Kennon, 235 Ga. App. 272 (509 SE2d 152) (1998).

Appeal dismissed.

Ruffin and Ellington, JJ., concur.

       Pursuant to Ga. L. 1996, p. 504, § 10, effective January 1,1998, the former Chapter 7, Administration of Estates Generally, was repealed and replaced by current Chapter 7. The pre-1998 statutes are cited unless otherwise noted.


author: Johnson, Chief Judge.

text:
    A00A1024.
    BLITCH v. PEOPLES BANK.
    (540 SE2d 667)
   Johnson, Chief Judge.

Under Georgia’s dissenters’ rights statute, which is modeled after the Revised Model Business Corporations Act, shareholders in a corporation may dissent from certain corporate actions and be paid the fair value of their shares. Although Georgia’s statute does not expressly indicate whether a court may discount the fair value of shares because the shareholder is in the minority or because there is no public market for the shares, the Model Act was recently amended to provide that such minority and marketability discounts are improper. And the majority of states with dissenters’ rights statutes like ours have held that such discounts should not be applied in determining fair value. Are minority and marketability discounts applicable in determining the fair value of dissenters’ shares under the Georgia statute? Like the Model Act and the majority of other jurisdictions, we conclude that such discounts should not be applied in determining the fair value of dissenters’ shares.

In 1997, J. Dan Blitch III owned 763.5 shares of stock in the Peoples Bank. His shares amounted to 5.5 percent of the Bank’s outstanding stock. The Peoples Holding Company owned the remaining shares. On several occasions, the Bank management asked Blitch to relinquish his shares, but he refused.

In October 1997, the Bank merged with an interim corporation that was wholly owned by the Holding Company. As a result of the merger, Blitch ceased being a shareholder of the Bank, and the Holding Company became its sole owner. Blitch dissented from the merger, thus entitling him to receive the fair value of his shares as of the merger date.

The Bank filed a petition under OCGA § 14-2-1330, seeking a determination of the fair value of Blitch’s 763.5 shares at the time of the merger. A nonjury trial was held, and the parties presented expert testimony on the value of the shares. The Bank’s expert, who discounted the share value because Blitch was a minority shareholder and because there was no public market for the shares, concluded that each share was worth $1,214. Blitch’s expert, who did not apply either a minority shareholder or lack of marketability discount, determined that each share was worth $2,342.

The trial court rejected the valuation of Blitch’s expert because, among other things, he failed to use minority and marketability discounts. The court found the valuation of the Bank’s expert to be generally sound, applied minority and marketability discounts, and concluded that the fair value of each share was $1,418. Based on that per share value, the court entered judgment for Blitch in the amount of $1,083,185, plus interest. The court also denied the parties’ opposing requests for attorney fees.

Blitch appeals, claiming that the court erroneously applied the minority shareholder and lack of marketability discounts and improperly refused to award him attorney fees. While the court did not abuse its discretion in refusing to award attorney fees, the court did err in applying the discounts to the value of Blitch’s shares. We therefore affirm the trial court’s denial of attorney fees and reverse the judgment as to the value of the shares.

1. As the Supreme Court has explained, at common law a corporation needed unanimous shareholder consent for fundamental corporate changes. This unanimity requirement allowed minority shareholders to establish a nuisance value for their shares by refusing to cooperate in proposed changes. In response to this situation, legislatures authorized corporations to make changes by majority vote, which in turn led to victimization of minority shareholders. To solve the dilemma, legislatures have adopted statutes which permit minority shareholders who dissent from corporate action to recover the value of their shares.

In 1968, Georgia’s legislature adopted the dissenting shareholders statute from the New York Business Corporation Law. The statute provided that shareholders who dissent from corporate action must be paid the fair value of their shares as of the close of business on the day prior to the date of the shareholders’ vote authorizing the action. The statute did not provide a method for determining fair value and did not indicate whether courts should apply discounts for minority shares and lack of marketability in calculating fair value.

In 1984, this court issued its only opinion addressing the question of discounts, finding that discounts may be considered in determining fair value, but cautioning against overemphasizing them. That opinion, however, is nonbinding physical precedent because the judgment was not fully concurred in by all the judges ruling on the case.

In 1988, Georgia revised its Business Corporation Code, including the dissenters’ rights statute, to follow the Revised Model Business Corporation Act. Based on the Model Act, Georgia’s new dissenters’ rights statute still provides that a shareholder of a corporation is entitled to dissent from various corporate actions and be paid the fair value of his shares. The new statute defines fair value as “the value of the shares immediately before the effectuation of the corporate action to which the dissenter objects, excluding any appreciation or depreciation in anticipation of the corporate action.” Like the former dissenters’ rights statute, the current statute is silent on whether courts should apply minority and lack of marketability discounts in determining fair value.

There is no Georgia case law interpreting fair value under our current statute. But the majority of other jurisdictions with similar statutes have held that minority and marketability discounts should not be applied when determining the fair value of dissenting shareholders’ stock. These courts have reasoned that using discounts injects speculation into the appraisal process, fails to give minority shareholders the full proportionate value of their stock, encourages corporations to squeeze out minority shareholders, and penalizes the minority for taking advantage of the protection afforded by dissenters’ rights statutes.

Reflecting this majority view, the Model Act definition of fair value was modified in 1999. While the Model Act still defines fair value as the value of the shares immediately before the effectuation of the corporate action that the shareholder objects to, it now expressly provides that fair value should be determined without discounting for lack of marketability or minority status. The Official Comment to the new Model Act explains:

Subsection (iii) of the definition of “fair value” establishes that valuation discounts for lack of marketability or minority status are inappropriate in most appraisal actions, both because most transactions that trigger appraisal rights affect the corporation as a whole and because such discounts give the majority the opportunity to take advantage of minority shareholders who have been forced against their will to accept the appraisal-triggering transaction. Subsection (iii), in conjunction with the lead-in language to the definition, is also designed to adopt the more modern view that appraisal should generally award a shareholder his or her proportional interest in the corporation after valuing the corporation as a whole, rather than the value of the shareholder’s shares when valued alone.

When Georgia changed its Business Corporation Code in 1988 to follow the Model Act, comments to the new Code provided: “To the extent this statute follows the Model Act, the Official Comments to the Model Act should be regarded as providing guidance to the interpretation of this Code.” And while Georgia has not yet adopted the Model Act’s recent change explaining the definition of fair value, we nevertheless are guided by the Model Act’s change and its official comments in interpreting the meaning of fair value under our Code. Likewise, we find the reasoning of the majority of jurisdictions rejecting minority and marketability discounts to be persuasive.

Accordingly, based on the clear expression by the amended Model Act and the sound reasoning of the majority view, we find that under Georgia’s dissenters’ rights statute a court should not apply minority or marketability discounts in determining the fair value of dissenters’ shares. Rather, the term fair value in our statute encompasses the modern view expressed by the Model Act that a shareholder should generally be awarded his or her proportional interest in the corporation after valuing the corporation as a whole.

In the instant case, the trial court thus erred in applying minority and marketability discounts in calculating the fair value of Blitch’s shares. We therefore reverse the trial court’s judgment as to the fair value of Blitch’s shares and remand the case with direction that it recalculate the value of those shares without discounting for lack of marketability or minority status.

2. Generally, in appraisal actions such as this one, the court shall assess the costs of the proceeding, but not attorney fees, against the corporation. The court may, however, assess attorney fees against either party — the corporation or the dissenter — if the court finds that the party against whom fees are assessed acted arbitrarily, vexatiously, or not in good faith.

Here, the trial court found that the Bank did not act arbitrarily, vexatiously, or in bad faith. Instead, the court found that the dispute between the Bank and Blitch as to the value of the shares was genuine and the parties had acted in good faith. Because the award of attorney fees is a matter fully within the trial court’s discretion, we will not reverse the denial of such an award absent an abuse of that discretion. Blitch has shown no abuse of discretion by the trial court, and therefore the denial of Blitch’s request for attorney fees is affirmed.

Decided October 23, 2000

Kidd & Vaughan, James D. Blitch, Brinson, Askew, Berry, Seigler, Richardson & Davis, C. King Askew, for appellant.

Kilpatrick Stockton, Stephen E. Hudson, Jordana R. Sternberg, for appellee.

3. Because of our holding in Division 1, we need not address Blitch’s remaining enumerated errors concerning the trial court’s calculation of the value of his shares.

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

Smith, P. J., and Phipps, J., concur.

       OCGA § 14-2-1302 (a).

       54 Bus. Law. 251, 256-257 (1998); 55 Bus. Law. 405 (1999).

       See discussion in Lawson Mardon Wheaton, Inc. v. Smith, 160 N.J. 383, 401 (734 A2d 738) (1999).

        Voeller v. Neilston Warehouse Co., 311 U. S. 531, 535, n. 6 (61 SC 376, 85 LE 322) (1941).

       Id.

       Id.

       Id.

        Atlantic States Constr. v. Beavers, 169 Ga. App. 584, 586 (2) (314 SE2d 245) (1984) (physical precedent only).

       Id. at 586 (3).

       Id.

       Id. at 588-589 (6) (d), (e).

       See Court of Appeals Rule 33 (a).

       Ga. L. 1988, p. 1070; OCGA § 14-2-101 Comment.

       OCGA § 14-2-1302 (a).

       OCGA § 14-2-1301 (5).

       See Lawson Mardon Wheaton, supra. See also Hansen v. 75 Ranch Co., 55 Mont. St. Rep. 322 (957 P2d 32) (1998); Security State Bank v. Ziegeldorf, 554 NW2d 884, 888-889 (Iowa 1996).

        Lawson Mardon Wheaton, supra at 401-402.

       54 Bus. Law. 251; 55 Bus. Law. 405.

       54 Bus. Law. 256-257.

       Comment to OCGA § 14-2-101.

       Because Atlantic States Constr. v. Beavers, supra, is physical precedent only and interprets the former statute, it need not be overruled to the extent it is in conflict with this holding.

       See OCGA § 14-2-1331 (a); VSI Enterprises v. Edwards, 238 Ga. App. 369, 375 (2) (518 SE2d 765) (1999).

       OCGA § 14-2-1331 (a).

       See generally Head v. Head, 234 Ga. App. 469, 477-478 (4) (507 SE2d 214) (1998).


author: Smith, Presiding Judge.

text:
    A00A1206.
    WADE et al. v. AMERICAN NATIONAL INSURANCE COMPANY et al.
    (540 SE2d 671)
   Smith, Presiding Judge.

In this “dog bite” case, Sherman and Cathy Wade filed an action on behalf of their minor son Matthew Wade after Matthew was bitten by a guard dog at the softball complex where Matthew and Sherman Wade worked. The trial court granted summary judgment to the defendants, American National Insurance Company d/b/a Softball Country Club and Weston Management Corporation. The Wades appeal. Because we conclude that the record does not show the defendants had superior knowledge of a vicious temperament on the part of the dog, we affirm.

Construed in favor of the Wades as nonmovants on motion for summary judgment, the following evidence was presented in the trial court. Sherman Wade was employed as a security officer by Softball Country Club. His 13-year-old son Matthew also worked part-time in the batting cage. On the night of the incident, Sherman accompanied Charlie Rogers, the club’s assistant league director, into the club’s office area to help Rogers count money received that night. Matthew was also present. This was the “normal routine” followed by Rogers and Sherman and Matthew Wade at the end of the evening. A dog, “Champ,” was used by the complex to guard equipment inside a fenced area. As he had done on prior occasions, Rogers allowed Champ into the room while Sherman and Matthew were present. Matthew rubbed Champ’s back as the dog passed by him, and Champ lay on the floor approximately three or four feet from Matthew. A short time later Matthew began to stand up, and Champ jumped up and bit him on the face. The Wades then filed this action.

In a lengthy and detailed order, the trial court granted summary judgment to the defendants. The court concluded that the Wades’ claim could not survive because they failed to show that Champ had bitten anyone before the attack on Matthew or alternatively because they failed to show superior knowledge by the owners that the dog had a vicious propensity. We agree that summary judgment was warranted.

1. In Georgia, a dog owner will be liable for damages only if the owner has knowledge that the “dog has the propensity to do the particular act (biting) which caused injury to the complaining party.” (Citations, punctuation and emphasis omitted.) Hamilton v. Walker, 235 Ga. App. 635 (510 SE2d 120) (1998). Under this test, the plaintiff must show whether the dog had the propensity to do the act that caused the injury and, “if so, whether the owner had knowledge of that propensity. [Cit.]” Id.

Sherman Wade, himself an employee of the club, testified on deposition that before Matthew’s attack, he had never seen Champ growl at anyone or charge the fence where he was kept. When asked whether he had observed Champ exhibiting aggressive tendencies, he stated that the dog would sometimes bark but that “fw]e’d always speak to him, and he’d just go off wagging his tail.” When Wade petted Champ on prior occasions, Champ wagged his tail and never growled at Wade or showed his teeth. He stated he would not have had any reservation about being alone with Champ based on his previous contact with the dog and that “the doggone dog was just a big pet.” Sherman Wade also testified he had seen Matthew pet Champ and that Champ never reacted aggressively. Champ would simply “[w]ag his tail, lick his hand, just as docile and as calm as he could be.” According to Sherman Wade, Champ and Matthew had been together in the same room while money was being counted, and on those occasions, Champ had never growled. He had no reason to believe Champ was a threat.

Matthew Wade similarly testified that he had been in the office with Champ four or five times while his father helped count money and had petted the dog. Champ had never growled or bared his teeth at Matthew but simply wagged his tail. Matthew was not afraid of Champ and had even fed him through the fence. He testified that he had never seen Champ attack any person or any animal.

Rogers testified on deposition that on the night of the attack, he opened the door to allow Champ to enter the office because he wanted to be sure that Champ saw him before the dog saw anyone else. He stated that “[i]f the dog saw me first, he wouldn’t bother anybody.” Also, as correctly pointed out by the Wades, he stated that it “was just a natural” to make sure that no one went into Champ’s enclosure alone or that the dog was not “turned out” when other people were around. But Rogers also testified that as long as Champ was with him, the dog “was fine.” We note that when asked whether Champ had displayed “aggressive behavior such as growling, chasing, any sort of threatening actions toward any other people,” Rogers acknowledged that the dog “would do that anytime a stranger walked up to the fence.” But Rogers also recounted an incident when a man had walked into Champ’s enclosure. While the man’s presence in the fenced enclosure incident “scared [Rogers] to death,” Champ did not attack or even bother the man. Rogers further testified that he had known Champ to escape his fenced enclosure and that to his knowledge, Champ had never attacked anyone before the incident at issue here.

The evidence presented in the trial court shows that the defendants did not have knowledge of any propensity of Champ to bite. The testimony of Sherman Wade, an employee of the defendants for approximately three years before the incident, showed he had never known the dog to act aggressively. And we cannot conclude that Rogers’s testimony created issues of fact as to the defendants’ knowledge concerning the dog’s propensity to act viciously. He indeed testified that he took precautions such as allowing Champ to see him first so Champ would not “bother” anyone, and he stated that it was “natural” for him not to allow other people to be alone with the dog.

But the record also shows Rogers’s knowledge that Champ exhibited aggressive behavior only to strangers when they walked up to his enclosure. Even then, under Georgia law, a dog’s aggressive or menacing behavior alone is not sufficient to place its owner on notice of a propensity to bite. Hamilton, supra at 636. Even though evidence was presented that Champ barked and growled at strangers at the fence, the record is devoid of evidence of previous attacks on people or animals. Furthermore, Rogers believed Champ would not harm anyone while Rogers was nearby. The record is clear that Matthew was not a stranger to Champ, nor was he alone with Champ inside Champ’s enclosure. Instead, Rogers was present in the same small office with Champ, Sherman Wade, and Matthew. Summary judgment in the defendants’ favor was therefore warranted.

The defendants were entitled to summary judgment for another reason. A central theory of liability advanced by the Wades is that because Champ was a guard dog, the defendants should have known that he had a vicious propensity. But both Sherman and Matthew Wade also knew Champ was a guard dog. Sherman Wade acknowledged that he had made the “basic assumption” that Champ was a guard dog with the intended task of guarding equipment in the compound where he was housed. Matthew also assumed that Champ was a guard dog and might bite someone who came into the area he was to protect. Whether their cause of action is based on the premises liability statute (OCGA § 51-3-1) or the dangerous animal liability statute (OCGA § 51-2-7), they are “still required to produce evidence of the vicious propensity of the dog in order to show the dangerous condition of which the premises owner had superior knowledge. [Cit.]” (Emphasis supplied.) Webb v. Danforth, 234 Ga. App. 211, 212 (505 SE2d 860) (1998). In other words, “the true test of liability” is the owner’s “superior knowledge of his dog’s temperament. [Cits.]” Supan v. Griffin, 238 Ga. App. 404, 406 (519 SE2d 22) (1999). Under the facts of this case, the evidence does not demonstrate that the defendants had knowledge of Champ’s temperament superior to that of the Wades.

The cases relied on by the Wades are distinguished on their facts from those here. In Supan, supra at 404, we concluded that issues of fact existed as to whether the defendant dog owner had superior knowledge of his dog’s vicious propensity. He owned several dogs, and less than a month before the attack on plaintiffs’ son, he had told another neighbor “ ‘to do whatever was necessary to keep the dogs from attacking.’ ” Id. at 404-405. Those dogs had previously “ ‘viciously attacked’ ” the neighbor’s dog and had threatened the neighbor with “ ‘bared fangs, vicious growls and attack behavior.’ ” Id. at 405. Similarly, in Thurmond v. Saffo, 238 Ga. App. 687 (520 SE2d 43) (1999) (physical precedent only), we concluded that factual issues existed as to the defendants’ knowledge of their dog’s vicious propensity, since the evidence showed they knew the dog “had tried to attack another person and had scolded him for this behavior.” Id. at 688. Here, however, the record does not show that the defendants had any knowledge that Champ had ever attempted to attack another animal or human. In fact, the record shows that although Champ was kept to guard equipment in the fenced area where he was housed, he did not attack a stranger who entered the area.

Likewise, McBride v. Wasik, 179 Ga. App. 244 (345 SE2d 921) (1986) is not controlling. In McBride, although the dog had never bitten anyone, evidence was presented that he had been seen charging and leaping “upon small children while snarling and growling, knocking the children to the ground on numerous occasions.” Id. Testimony was also presented that the defendant had commanded the dog to kill a neighbor and that the dog responded by running toward her, stopping only after the defendant commanded the dog to do so. Id. No such evidence of violent behavior was presented here.

2. The Wades contend the trial court erred in refusing to consider a receipt and check concerning Champ’s purchase. The receipt does contain the term “on-site aggitation [sic]” and indicates that the price paid for Champ included the dog and “its training.” The Wades argue that this language creates an issue of fact as to the defendants’ knowledge of Champ’s temperament. But assuming, without deciding, the trial court should have considered the check, no evidence in the record even suggests the meaning of the term “on-site aggitation.” Any assumption by the Wades that this term shows Champ’s propensity to bite amounts to simple speculation and cannot defeat the appellees’ showing that no genuine issues of material fact exist as to their knowledge of Champ’s temperament. “Guesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment. [Cits.]” Brown v. Amerson, 220 Ga. App. 318, 320 (469 SE2d 723) (1996).

3. Arguing that no precedent exists in this state concerning “attacks on third parties by dogs specifically purchased and used for guarding commercial property,” the Wades contend the standard of liability for attacks by such dogs “should not be the same standard used for household pets as applied by the trial court.” They propose the following standard:

[S]ince such animals are employed as security dogs to protect commercial property, this fact by itself. . . establishes a rebuttable presumption that such animals have a known propensity to attack which, standing alone, creates a jury question concerning the defendants’ liability to third parties attacked by said dogs.

We first note that some authority does exist for applying the “first bite” rule to a watchdog. As stated in Smith v. Culver, 172 Ga. App. 183 (322 SE2d 294) (1984), “[t]his court has adhered to the sci-enter requirement even where a dog apparently served as a nighttime watchdog on the owner’s commercial premises. [Cit.]” See also McCree v. Burks, 129 Ga. App. 678 (200 SE2d 491) (1973). But even in the absence of this authority, the Wades’ argument seems to be premised, at least in part, on the assumption that guard dogs are inherently vicious. Our legislature, however, has enacted a statute addressing the liability of owners of vicious animals for injuries caused by those animals. OCGA § 51-2-7. Creation of a special “subclass” of animals specifically designated as inherently dangerous must be addressed to the legislature, not this court. Moreover, even if we adopted the standard proposed by the Wades, summary judgment would have been appropriate here, as the evidence presented in the trial court rebutted any presumption that the defendants had superior knowledge of Champ’s propensity to bite, if any.

Decided October 23, 2000.

Cross & Rosenzveig, John P. Cross II, Bette E. Rosenzveig, for appellants.

Finley & Buckley, Jerald R. Hanks, Hull, Towill, Norman, Barrett & Salley, James S. Weston, for appellees.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.


text:
    A00A1615.
    BULLINGTON v. FAYETTE COUNTY SCHOOL DISTRICT et al.
    (540 SE2d 664)
   Smith, Presiding Judge.

Rickey M. Bullington appeals from the trial court’s grant of summary judgment to the Fayette County School District and Dave Brotherton, its Superintendent (collectively “the school district”) in the suit brought by Bullington to recover back wages and penalties he claims are due him as overtime compensation under certain provisions of the Fair Labor Standards Act (“the Act”). 29 USC §§ 207 (a) (2); 216 (b). The school district answered, and cross-motions for summary judgment were filed. The trial court granted the school district’s motion and denied that of Bullington. Bullington appeals, contending the trial court erred in finding that he waived his right to maintain an action under the Act and that he is an executive exempt from the Act’s overtime provisions. We find no error and affirm the grant of summary judgment to the school district.

The record shows that Bullington was employed as head custodian at a Fayette County elementary school. He supervised two other full-time custodians and a number of part-time custodians. According to his principal, these supervisory duties took up more than 50 percent of Bullington’s time. As a favor to Bullington, in late spring or summer 1996 he was hired as one of the part-time custodians, with night and weekend responsibilities, in addition to his full-time job as head custodian. He was paid a salary for his job as head custodian, while he was paid on an hourly basis for his job as part-time custodian.

Shortly after a new Human Resources Staff Development Director was hired by the school district, she reviewed employment-related issues, including the district’s compliance with the Act. Based upon this review, the district became concerned about a problem with overtime compensation for hourly employees. The school district held meetings with officials of the U. S. Department of Labor, who instructed the district to provide them with documents showing which employees worked more than 40 hours per week, how many hours each worked, how much they were paid, and the appropriate pay under the regulations. Some of the school district’s calculations were inaccurate, according to the Department of Labor officials, and the school district corrected them to the Department of Labor’s satisfaction. Bullington’s overtime pay was included in the approved calculations. The Department of Labor then provided the school district with a copy of its receipt Form WH-58 for each employee due back wage payments and instructed the school district to give the form to each employee along with his or her settlement check.

On December 18, 1997, the school district, under the supervision of the U. S. Department of Labor’s Wage and Hour Division in Atlanta, sent to Bullington an overtime settlement payment in the gross amount of $3,811.03, along with the form WH-58. The form recites:

NOTICE TO EMPLOYEE. — Your acceptance of back wages due under the Fair Labor Standards Act means that you have given up any right you may have to bring suit for such back wages under Section 16 (b) of that Act. Section 16 (b) provides that an employee may bring suit on his/her own behalf for unpaid minimum wages and/or overtime compensation and an equal amount as liquidated damages, plus attorney’s fees and court costs. Generally a 2-year statute of limitations [sic] applies to the recovery of back wages. Do not sign this report unless you have actually received payment of the back wages due.

Bullington cashed the check, and he testified by affidavit that he “was presented a check in the gross amount of $3,811.03 that I was told was the full payment I would receive for unpaid overtime for a two-year period.” He did not, however, sign the attached WH-58 form.

1. The trial court found that Bullington “waived his right to sue for any additional payment” by cashing the check. Bullington contends this finding was error because he did not sign the WH-58 form. We do not agree.

The issue raised by Bullington requires us to construe federal statutes. To address Bullington’s contentions, therefore, we first look to those statutes and the cases interpreting them. 29 USC § 216 (c) provides, in pertinent part:

The Secretary is authorized to supervise the payment of the unpaid . . . overtime compensation owing to any employee or employees under section 6 or 7 of this Act, and the agreement of any employee to accept such payment shall upon payment in full constitute a waiver by such employee of any right he may have under subsection (b) of this section to such unpaid . . . overtime compensation and an additional equal amount as liquidated damages.

The cases construing this subsection are instructive. They hold, for instance, that this subsection serves to provide an incentive for employers, by avoiding additional liability, to pay the required overtime under the supervision of the Department of Labor. It provides employees with a choice: take the settlement offered immediately and forgo the right to additional damages, or forgo immediate payment and pursue the right to additional damages. Rose v. Consolidated Elec. Distrib., 816 FSupp. 489, 490 (N.D. Ill. 1993).

The crucial element for waiver is a demonstration that the settlement, although not payment in full, was supervised by and approved by the Department of Labor.

Ordinarily there would be no need for a statute allowing settlement of a dispute between employer and employees — people may resolve their own affairs, and an accord and satisfaction bars a later suit. Yet the Fair Labor Standards Act is designed to prevent consenting adults from transacting about minimum wages and overtime pay. Once the Act makes it impossible to agree on the amount of pay, it is necessary to ban private settlements of disputes about pay. Otherwise the parties’ ability to settle disputes would allow them to establish sub-minimum wages. Courts therefore have refused to enforce wholly private settlements. See Lynn’s Food Stores, Inc. v. United States, 679 F2d 1350, 1352 (11th Cir. 1982). Yet a prohibition of settlement ensures costly litigation, even though the parties might be able to compromise their dispute without subverting the principles of the statute. Section 16 (c) creates the possibility of a settlement, supervised by the Secretary to prevent subversion, yet effective to keep out of court disputes that can be compromised honestly.

Walton v. United Consumers Club, 786 F2d 303, 306 (7th Cir. 1986). Bullington is correct that payment alone is not enough to cause a waiver. There must also be a release or acknowledgment that it is payment in full. Id. In Walton, there was no such release on the check, and the Department of Labor did not send out form agreements or ask the employees in question to surrender or waive any rights. The Seventh Circuit held that “[t]he employees’ cashing of the checks they received therefore did not release their full claims against” their employer. Id. at 307.

The Department of Labor, however, differentiates among various types of settlements. When it believes it has achieved a settlement close to what it believes is “full payment” for the employees it sends them a form WH-58 or a similar agreement. Such agreements explicitly release the right to sue, and employees are requested to sign the form “if they wish to take the money.” Walton, supra at 306. If the Department of Labor does not believe the settlement achieves enough for the employees, it does not send out the forms or solicit employees’ signatures. Id. In this manner, the supervision of the Department of Labor replaces the private bargaining the statute prohibits. Id.

Bullington’s reliance upon Walton is misplaced. In Walton the Department of Labor sent out no forms, and the employer in Walton was arguing that cashing the settlement check alone was sufficient to create a waiver. In this case, the Department of Labor supervised the settlement and determined that it achieved “enough” for the employees in issue; form WH-58 was sent out with the checks.

Mion v. Aftermarket Tool &c. Group, 990 FSupp. 535 (W.D. Mich. 1997) is similar to this case, in that the employee in Mion cashed the settlement check but refused to sign the accompanying release forms. Id. at 537. She then filed suit under the Act for damages. The court held that the employee’s refusal to sign the release form did not prevent waiver. By accepting the Department of Labor-supervised payment, which was accompanied by the release form, the employee waived the right to litigate. Id. at 540-541.

In Heavenridge v. Ace-Tex Corp., 1 WH Cases 2d (BNA) 1367, 1993 U. S. Dist. LEXIS 21129 (E.D. Mich. September 3, 1993), a similar result obtained. Heavenridge cashed a settlement check but failed to sign an acknowledgment of receipt of payment, which provided that acceptance of the check meant he was giving up any right to bring suit under § 16 (b) of the Act. Id. The Heavenridge court acknowledged that the Walton court had held that “the mere cashing of a check does not constitute an ‘agreement’ to settle and thus waiver. [Cit.]” Id. But the Heavenridge court distinguished the case before it from Walton because, unlike the employer in Walton, the check there was forwarded to the Department of Labor, which forwarded it to Heavenridge with the acknowledgment and receipt. Since the receipt was an acknowledgment that acceptance of payment was in “release of all claims,” Heavenridge waived his right to sue.

Decided October 23, 2000.

Christopher J. Ramig, for appellant.

Harhen & Hartley, Phillip L. Hartley, Daniel R. Murphy, for appellees.

In this case, as in Mion and Heavenridge, Bullington accepted the payment in settlement of his claim. The check was accompanied by a release form that informed him that accepting the check in settlement, not signing the form, would extinguish his right to sue, and he acknowledges that he was so informed. His signature on the form was not necessary to effect the waiver; his claim was waived when he endorsed the check and retained the proceeds. The trial court did not err in granting summary judgment to the school district on the ground that Bullington had no right to sue, having waived that right by cashing the settlement check.

2. Because we have decided that summary judgment in favor of the school district was proper on the ground discussed in Division 1, we need not address the question of whether the trial court correctly found that Bullington was exempt from the Act because he held an executive position. Even if Bullington was not exempt from the Act, he waived his right to sue under the Act by accepting the settlement check, and summary judgment in favor of the school district therefore was proper. A judgment right for any reason will be affirmed. Schoen v. Cherokee County, 242 Ga. App. 501, 503 (3) (530 SE2d 226) (2000).

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.


text:
    A00A1665.
    CONNELL et al. v. GUARANTEE TRUST LIFE INSURANCE COMPANY.
    (541 SE2d 403)
   Smith, Presiding Judge.

This case arises out of the denial of insurance benefits to Caroline Connell by Guarantee Trust Life Insurance Company. The trial court granted summary judgment to Guarantee Trust, and Caroline and John Connell appeal. Because we conclude that genuine issues of material fact exist as to whether Caroline Connell had a preexisting condition excluding her from coverage, we reverse the trial court’s order insofar as it grants summary judgment to Guarantee Trust on the Connells’ breach of contract claim.

In September 1994, Guarantee Trust issued a nonrenewable blanket student accident policy to Georgia State University for the 1994-1995 school year. The following September, Guarantee Trust issued another policy for the 1995-1996 school year. Students could obtain insurance under the policies by applying for coverage and paying the required premiums. John Connell, a graduate student, and his wife Caroline Connell paid the premiums for coverage under these policies. On May 2, 1995, Mrs. Connell, pregnant at the time, discovered blood in her urine and underwent a KUB radiological x-ray that revealed kidney stones in her left kidney. Mrs. Connell received treatment for the kidney stones in May 1996 and submitted claims for coverage for this treatment. Those claims were denied. The Connells then filed this breach of contract action against Guarantee Trust seeking to recover benefits payable under the policies as well as bad faith penalties. Guarantee Trust answered and moved for summary judgment. The trial court granted the motion without explanation, and this appeal followed.

1. We agree with the Connells that the trial court erroneously granted summary judgment to Guarantee Trust on their breach of contract claim.

Under both policies, coverage is provided for sickness expenses. Each policy recites that Guarantee Trust will pay a percentage of eligible expenses in excess of $50 incurred by the insured “within fifty-two (52) weeks from the date of . . . first treatment for sickness.” And each policy defines “sickness” as “sickness or disease which first becomes manifest and which first causes loss commencing while the policy is in force as to the insured person whose sickness is the basis of [a] claim.” The two policies also contain the following exclusions: (1) “Expense incurred after 52 weeks from the date of the . . . first medical treatment for sickness” and (2) “Expense for . . . sickness which manifested itself prior to the effective date of coverage.”

Guarantee Trust argues that Mrs. Connell’s kidney stones constituted a preexisting condition excluded from coverage. Indeed, a medical report presented to the trial court shows that Mrs. Connell was tested and was diagnosed as having kidney stones in April 1993. Also in the record is a follow-up medical report dated December 16, 1993, reciting that after treatment of Mrs. Connell’s kidney stones, “there is much quicker function on the left side, and the UPJ obstruction has been relieved. There continues to be caliectasis and calcifications in the lower pole of the left kidney.” The report concludes as follows: “Improvement in the appearance of the IVP as compared to the exam of 4/23/93. There is prompt function on the left side, with absence of the UPJ obstruction.” Guarantee Trust contends these documents show as a matter of law that the kidney stones diagnosed in 1995 constituted a condition that manifested itself before the dates of coverage under its policies.

It is axiomatic that on motion for summary judgment, all reasonable inferences must be construed in favor of the nonmovant and that summary judgment is warranted only when the record shows by plain, palpable, and undisputed evidence that a party is entitled to judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); Godwin v. Johnson, 197 Ga. App. 829, 831 (1) (399 SE2d 581) (1990). So construing the medical records presented by Guarantee Trust, the record does not demonstrate as a matter of law that Mrs. Connell’s condition for which she sought coverage was merely the continuation of the medical condition diagnosed in April 1993. While one report indicates that “caliectasis and calcifications” remained in December 1993, that report also concludes that Mrs. Connell’s left side showed “prompt function” and that no obstruction was present. As argued by the Connells, this medical record presents an issue of fact, and “a jury could reasonably conclude her earlier bout with kidney stones in 1993 had resolved.”

Guarantee Trust further argues that coverage is not afforded under the 1994-1995 policy because it expired before Mrs. Connell incurred the medical expenses for which she seeks coverage. That policy does recite that its termination date is shown on the application, and the termination date shown on the application is September 19, 1995. As argued by Guarantee Trust, Mrs. Connell’s medical expenses were not incurred until May 1996 when she received treatment for her kidney stones. But the fact that the policy may have terminated on September 19,1995, is not dispositive of the issue, for we must look to the whole contract of insurance. When construing any part of a contract, a court must look to the whole of the contract, and “[t]he construction which will uphold a contract in whole and in every part is to be preferred.” OCGA § 13-2-2 (4). As stated in Shore v. Loomis, 187 Ga. App. 674 (371 SE2d 96) (1988):

A contract should not be torn apart and construed in pieces, but the court should look to the entire instrument and so construe it as to reconcile its different parts and reject a construction which leads to contradiction, in order to ascertain the true intention of the parties, which is the real purpose of the judicial construction of contracts.

(Citations and punctuation omitted.) Id. at 675 (1).

The 1994-1995 policy defines “sickness” as any sickness that manifests itself and causes loss while the policy is in force. And as discussed above, at least a question of fact exists as to whether Mrs. Connell’s illness manifested itself while the policy was in effect. The policy then goes on to recite that coverage will be afforded for certain expenses incurred within 52 weeks of the date of the first treatment. This language contemplates that some expenses incurred due to a covered sickness might occur after expiration of the policy period, if the illness first manifests itself late in the policy term. To conclude otherwise would render meaningless the policy language providing coverage for 52 weeks following manifestation of the illness, in contravention of the rule that we must attempt to construe contracts to uphold every part.

Guarantee Trust also maintains that coverage was not available because Mrs. Connell’s expenses were incurred more than 52 weeks after the May 1995 diagnosis for kidney stones. It contends that because Mrs. Connell’s first medical treatment occurred on May 2, 1995, when the test was performed revealing the presence of kidney stones, expenses related to treatment of this condition incurred beginning in late May 1996 are excluded from coverage. But the word “treatment” as used in policies of insurance is susceptible of multiple meanings. See Beggs v. Pacific Mut. Life Ins. Co., 171 Ga. App. 204, 205-206 (2) (318 SE2d 836) (1984). And diagnostic examinations and treatment are not synonymous under Georgia law. In Mut. Life Ins. Co. v. Bishop, 132 Ga. App. 816 (209 SE2d 223) (1974), this court stated that the term “ ‘medical care and treatment’ ” refers generally “to something done in the application of the curative arts, whether by drugs or other therapy, with the end in view of alleviating a pathological condition. Thus, surgery, in its extended sense, may constitute ‘care and treatment’ when a mere examination does not.” Id. at 818 (2). This court went on to hold that when “the purpose of the two preoperative visits was for diagnostic and evaluation purposes only, with no treatment involved,” the visits were not excluded under the plaintiff’s insurance policy. Id. See also Beggs, supra. In Georgia, the insurer bears the burden of showing that a fact situation falls within an exclusionary clause of an insurance policy. Bishop, supra, 132 Ga. App. at 817 (1). And when construction of a policy is required, exclusions must be construed against the insurer and in favor of the insured. Id.

[I]f a provision of an insurance contract is susceptible of two or more constructions, even when the multiple constructions are all logical and reasonable, it is ambiguous, and the statutory rules of contract construction will be applied. Pursuant to the rule of construction set forth at OCGA § 13-2-2 (5), the contract will be construed strictly against the insurer/ drafter and in favor of the insured.

(Citations and punctuation omitted.) Peachtree Cas. Ins. Co. v. Kim, 236 Ga. App. 689, 690 (512 SE2d 46) (1999).

Here, the term “treatment” is not defined by the policy, and as shown by Beggs, supra, and Bishop, supra, it is susceptible of more than one meaning. It is an ambiguous term that must be construed against Guarantee Trust. Peachtree Cas., supra. We must consequently conclude that the term “treatment” as used in the policy does not include the diagnostic exam conducted in May 1995. Instead, the date of first treatment occurred in May 1996 when Mrs. Connell underwent an “application of the curative arts . . . with the end in view of alleviating” her condition. Bishop, supra, 132 Ga. App. at 818 (2). If a jury concludes that Mrs. Connell’s condition first manifested itself within the 1994-1995 policy period, she should be afforded coverage under that policy for expenses incurred within 52 weeks of her May 1996 treatment. As the drafter of the insurance policy, had Guarantee Trust desired to define “treatment” as including diagnosis and evaluation, it “should have definitively done so. [Cit.]” Peachtree Cas., supra, 236 Ga. App. at 690.

Decided October 23, 2000.

Swift, Currie, McGhee & Hiers, Christopher D. Balch, for appellants.

Dennis, Corry & Porter, Grant B. Smith, John D. Dixon, for appellee.

2. Because the Connells make no argument concerning the trial court’s order granting summary judgment to Guarantee Trust with respect to their bad faith claim, that portion of the trial court’s order stands affirmed.

Judgment affirmed in part and reversed in part.

Johnson, C. J., and Phipps, J., concur.

       Guarantee Trust’s reliance on Brown v. JMIC Life Ins. Co., 222 Ga. App. 670 (474 SE2d 645) (1996) for the proposition that “treatment” includes diagnosis is misplaced. That case is not binding authority, as one judge on the three-judge panel concurred specially. See Court of Appeals Rule 33 (a).