text:
    A12A0352.
    GRAHAM et al. v. COBB COUNTY et al.
    (730 SE2d 439)
   DOYLE, Presiding Judge.

This case arises from the death of an inmate, Justin Graham, in the Cobb County jail. The decedent’s family, led by his twin brother, Jason Graham, filed claims against several defendants, including Cobb County, Cobb County Sheriff Neil Warren in his official and individual capacities; Sandra Brocker, the medical contract compliance administrator at the Cobb County Adult Detention Center, in her official and individual capacities; Quest Medical, LLC; and WellStar Health Systems, Inc. (“WellStar”). The trial court denied Graham’s motion to compel and granted in part summary judgment against Graham, who now appeals. For the reasons that follow, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA§ 9-11-56 (c). Adenovo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the record establishes that the Cobb County Sheriff’s Office (“CCSO”) contracted with WellStar to provide medical care to detainees at the Cobb County jail. The contract explicitly stated that “there [were] no third[-]party beneficiaries to th[e] Agreement,” and CCSO did not intend to exercise control over clinical decisions made by WellStar’s physicians, although WellStar was required to follow policies set forth by CCSO. Brocker’s role was to manage and oversee the medical facility at the jail.

On May 18, 2006, at 2:22 a.m., Justin was arrested for driving under the influence of alcohol after registering blood alcohol levels of 0.274 and 0.283 on a breath test. He was transported to the jail, and after being checked at the infirmary, he was sent to general population.

Later that day, at about 5:05 p.m., Justin suffered a seizure as he was being escorted by guards, who called a “Code Blue” and had him transported to the infirmary. Justin spent the night in the infirmary, where he was treated with alcohol detoxification and anti-seizure medications and found to have a high bilirubin level of 3.9 mg. After a few days of treatment, Dr. Clarence Hendrix, a doctor in the infirmary, deemed Justin’s treatment for alcohol withdrawal successful and sent him back to the general population on May 22, with instructions to continue medication and follow up in two weeks.

On May 23, Justin complained of back pain and constipation, and an infirmary nurse observed him to have a yellow tinge in his eyes and upper torso. Infirmary doctors ordered blood work and a hepatitis panel. This lab work evinced a bilirubin level of 17.0 mg, which could indicate liver damage and impending liver failure.

On May 25, Justin made another request for medical treatment. Later that day, guards called another “Code Blue” on him after he fainted, and he was taken by wheelchair to the infirmary. During this visit, a nurse examined Justin but did not contact a physician. On May 28, Justin showed some improvement, but his bilirubin level was still elevated at 16.5 mg, he was still jaundiced, and he still had an elevated pulse rate and other elevated lab values. Nevertheless, Justin was returned to general population. Over the following three days, he continued to complain of constipation, was given medication and vitamins, and had more blood tests scheduled.

On June 2, Justin had another blood test done, which returned a bilirubin level of 27.5 mg, indicating progressing liver disease and possible failure. By June 5, doctors observed that Justin was yellow and his abdomen was swollen, and Dr. Hendrix ordered him to be transported to the WellStar Cobb Hospital emergency room. Justin was diagnosed at the hospital with end stage liver disease, and he was placed on life support nine days later and, thereafter, died on July 7, 2006, at age 25 of complications from liver failure, including renal failure and myocardial infarction.

After hearings on various motions, the trial court granted summary judgment as to Cobb County, Sheriff Warren, Brocker, and Quest Medical and denied Graham’s motion to compel. This appeal followed.

1. Graham argues that the trial court erred by granting summary judgment to Cobb County, Sheriff Warren, and Brocker. We disagree.

(a) Federal claims.

Graham’s complaint alleged that the above-listed defendants failed to provide Justin with adequate medical care, thereby leading to his death in violation of the Eighth Amendment of the United States Constitution.

Under 42 USC § 1983, civil liability is imposed upon one “who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws. . . .” The first inquiry in any § 1983 suit, therefore, is whether the plaintiff has been deprived of a right “secured by the Constitution and laws.”

To state an Eighth Amendment violation for inadequate medical care, a plaintiff must show that his medical treatment was “so grossly incompetent, inadequate, or excessive as to shock the conscience or be intolerable to fundamental fairness or [that] the medical care is so inappropriate as to evidence intentional maltreatment or a refusal to provide essential care.” Conduct that does not purport to be punishment at all, such as medical care, must involve more than lack of due care in order to be cruel and unusual punishment; it requires obduracy and wantonness, not inadvertence or error in good faith, to violate the prohibitions of the Cruel and Unusual Punishments Clause. Deliberate indifference to serious medical needs of prisoners constitutes an Eighth Amendment violation, while an inadvertent failure to provide adequate medical care does not. Moreover, this Court has stated that to show an Eighth Amendment claim, “an inmate must show not only the infliction of cruel and unusual punishment [,] but also must show a culpable state of mind on the part of prison officials.”

Even if all of Graham’s allegations are taken to be true, they do not show that Sheriff Warren and Brocker wantonly denied Justin medical care. Graham points to several facts that could show a difference of opinion with the defendants concerning the propriety of medical treatment rendered to Justin, such as a failure to send him to the hospital when his bilirubin levels failed to stabilize. Nevertheless, nothing in Graham’s allegations or in the record shows wantonness, deliberate indifference, or a culpable state of mind on the part of Sheriff Warren or Brocker. Indeed, in his brief, Graham repeatedly complains of inadequate medical care; this Court has previously stated that such a claim sounds in medical malpractice and is inadequate to maintain a § 1983 action.

In Epps, this Court required a showing of a denial or refusal of treatment in order to show deliberate indifference. In granting summary judgment to the defendants, this Court noted that “the record shows that [the decedent] did in fact receive medical care every time he completed a medical request form.” Likewise, Graham concedes that Justin was diagnosed and treated, and the record further indicates that he was treated and given medication whenever he fainted or complained of back pain or constipation. Consequently, the evidence does not support a finding of deliberate indifference on the part of Sheriff Warren or Brocker.

Furthermore, Graham’s contention that Sheriff Warren or Brocker breached his duty by delegating supervisory authority to WellStar is incorrect. In Epps, this Court recognized that a local government contracting with a third party to provide medical care at a detention center “does not amount to an intentionally corrupt or impermissible policy which would violate any citizen’s Eighth Amendment rights.”

Accordingly, the trial court properly granted summary judgment to Cobb County, Sheriff Warren, and Brocker on the § 1983 claims, (b) State law claims.

Graham also argues that the trial court erred by finding that defendants Cobb County, Sheriff Warren, and Brocker are immune from his asserted state law tort and contract claims. We disagree.

(i) Sovereign Immunity

A governmental unit having custody of an inmate has the responsibility to furnish any needed medical and hospital attention. Nevertheless, “[a] county is not liable to suit. . . unless made so by statute.” While OCGA § 42-5-2 (a) imposes upon the county the duty and cost of medical care for inmates in its custody, it does not waive sovereign immunity of the county or its agents or employees. Thus, the trial court correctly determined that the state law claims made against Cobb County and against Sheriff Warren and Brocker in their official capacities are barred.

(ii) Official Immunity

Under the doctrine of official, or qualified, immunity, law enforcement officers may be personally liable for negligent actions taken in the performance of ministerial functions, but are immune from personal liability for discretionary acts taken within the scope of their official authority and performed without wilfulness, malice, or corruption. Stated succinctly, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.

“A ministerial act is commonly one that is simple, absolute, and definite . . . and requiring merely the execution of a specific duty. A discretionary act calls for the exercise of personal deliberation and judgment. . . .”

[The provision of] adequate medical attention ... is a ministerial act by the sheriff and his ... deputies ... and... is not subject to . . . official immunity. In contrast, the determination of what medical treatment to provide is an act of discretion subject to official immunity.

Because the determination of how to provide adequate medical care to the prisoners at the jail involved the use of discretion by Sheriff Warren and Brocker, and because Graham has failed to allege any facts that establish that either party acted with wilfulness, malice, or corruption, the trial court correctly determined that they are shielded from personal liability by official immunity.

2. Further, Graham claims that the trial court erred by finding that Justin was not a third-party beneficiary to the contract between the Cobb County Sheriff’s Office and WellStar and consequently denying his breach of contract claims. We disagree.

“The beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on the contract.” “In order for a third party to have standing to enforce a contract[,] ... it must clearly appear from the contract that it was intended for his benefit. The mere fact that he would benefit from performance of the agreement is not alone sufficient.”

Here, under the express terms of the contract, there are no third-party beneficiaries to the agreement. Accordingly, this enumeration is without merit.

3. Graham next argues that the trial court erred by granting summary judgment as to his punitive damages claim for the alleged Eighth Amendment violations. Based on our conclusions that the trial court correctly granted summary judgment to Cobb County, Sheriff Warren, and Brocker in Divisions 1 and 2, this enumeration is without merit.

Decided July 11, 2012.

Laura E. Austin, for appellants.

Downey & Cleveland, Curtis E. Anderson, Kelley E. Webb, Green-berg Traurig, Lori G. Cohen, Jessica C. Cabral, Rutherford & Christie, Vincent A. Toreno, Deborah L. Dance, Allison M. Richardson, for appellees.

4. Finally, Graham argues that the trial court erred by denying his motion to compel discovery. Nevertheless, because he has failed to establish through his argument on appeal that the trial court abused its discretion by denying the motion, we will not disturb this ruling.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

       The trial court denied summary judgment to various defendants who are not parties to this appeal.

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

       The reference interval for normal bilirubin levels is 0.1 to 1.2 mg.

       (Punctuation and emphasis omitted.) Baker v. McCollan, 443 U. S. 137,140 (99 SC 2689, 61 LE2d 433) (1979).

       Id.

        Merritt v. Athens Clarke County, 233 Ga. App. 203, 204-205 (1) (504 SE2d 41) (1998), citing Rogers v. Evans, 792 F2d 1052, 1058 (11th Cir. 1986).

       See Alford v. Osei-Kwasi, 203 Ga. App. 716, 718-719 (2) (418 SE2d 79) (1992), citing Whitley v. Albers, 475 U. S. 312, 319 (106 SC 1078, 89 LE2d 251) (1986).

       See Estelle v. Gamble, 429 U. S. 97 (97 SC 285, 50 LE2d 251) (1976).

       (Punctuation and emphasis omitted.) Merritt, 233 Ga. App. at 208 (3).

       Compare with Howard v. City of Columbus, 239 Ga. App. 399, 408 (1) (a) (iii) (521 SE2d 51) (1999) (physical precedent only) (“The fact that ten to thirteen inmates have died from diabetes while in custody between 1980 and 1992 is some evidence of deliberate indifference to providing appropriate medical care and treatment for diabetics.”).

       See Epps v. Gwinnett County, 231 Ga. App. 664, 666, 668 (3) (499 SE2d 657) (1998).

       See id. at 667 (3).

       Id.

       Compare with Howard, 239 Ga. App. at 406-407 (1) (a) (ii) (policy in jail that doctors and nurses failed to provide sufficient care for budget reasons was sufficient evidence to support § 1983 claim against sheriff).

        Epps, 231 Ga. App. at 669 (7) (a).

       See OCGA § 42-5-2 (a).

       OCGA§ 36-1-4.

       See Gish v. Thomas, 302 Ga. App. 854, 862-863 (4) (691 SE2d 900) (2010); Howard, 239 Ga. App. at 410 (2) (a).

       (Citation and punctuation omitted.) Gish, 302 Ga. App. at 857 (1).

       (Punctuation omitted.) Id. at 858 (1).

       (Emphasis in original.) Howard, 239 Ga. App. at 411 (2) (b). See also Murphy v. Bajjani, 282 Ga. 197, 198-200 (1) (647 SE2d 54) (2007) (explaining that the statute at issue in that case (which statute, similar to this case, imposed a duty upon certain county actors) was “a textbook example of the difference between statutorily-mandated action and a ministerial act, as it clearly requires that action be taken and sets forth parameters for the action to be taken, but the action required is not simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty that is the hallmark of a ministerial duty”) (punctuation omitted).

       OCGA§ 9-2-20 (b).

       (Punctuation and emphasis omitted.) Walls, Inc. v. Atlantic Realty Co., 186 Ga. App. 389, 391 (1) (367 SE2d 278) (1988) (holding that because the express terms of a contract explicitly limited beneficiaries of the contract to the signatory parties, the plaintiff could not allege contract claim as a third-party beneficiary).

       See id. at 392 (1).

       See Chaney v. Harrison & Lynam, LLC, 308 Ga. App. 808, 819 (3) (708 SE2d 672) (2011).

       See Medical Staffing Network v. Connors, 313 Ga. App. 645, 650 (2) (722 SE2d 370) (2010).


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A12A0376. A12A0704.
    ZIONS FIRST NATIONAL BANK v. MACKE. MACKE v. CADILLAC JACK, INC. et al.
    (730 SE2d 462)
   DOYLE, Presiding Judge.

In Case No. A12A0704, Michael Macke appeals from an order granting partial summary judgment against him and denying partial summary judgment in his favor with respect to several claims he brought against Cadillac Jack, Inc. (“CJ”), Smart Games Group Corporation, and Eugene Chayevsky. Macke’s claims arise from the decline of CJ’s fortunes after he sold a majority stake in CJ to a company controlled by Oleg Boyko, a Russian national with whom Chayevsky worked in various capacities. Macke contends that the trial court erred in the following ways: (1) granting the defendants’ summary j udgment motion on Macke’s breach of fiduciary duty claim based on (a) a restructuring of CJ’s debt and (b) withholding funding from CJ in bad faith; (2) denying Macke’s summary judgment motion on CJ’s counterclaims alleging Macke’s breach of (a) restrictive covenants and (b) fiduciary duties and the duty of loyalty; and (3) granting defendants’ summary judgment motion on Macke’s claim for conspiracy to wrongfully accelerate a loan from Zions First National Bank (“Zions”). For the reasons herein, we affirm in that case.

In Case No. A12A0376, Zions First National Bank appeals from the partial grant of summary judgment in favor of Macke on a wrongful foreclosure claim he filed against the Bank in connection with the suit above. For the reasons herein, we affirm in that case.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

The facts of each case are essentially undisputed, but where disputes occur in the record, we view the evidence according to the standard above.

The record shows that CJ manufactures gaming equipment and was founded in 1995 by Macke, who was the president and sole shareholder of the company. In 2004, Smart Games acquired 60 percent of the shares of CJ for approximately $14 million. Smart Games is owned by Finstar Gaming Partners, L.P., a Delaware company controlled by Boyko. Macke retained his position as CEO of CJ, and in 2005, CJ hired Greg Gronau as president. In 2006, Eugene Chayevsky, Boyko’s associate and the managing partner of a Finstar affiliate, obtained a seat on C J’s board of directors, joining Boyko and Macke. Between 2006 and 2008, CJ encountered increased cash-flow problems, debt was increasing, and C J needed funding to continue to grow as planned.

Before 2008, Chayevsky had negotiated several short-term loans from various entities affiliated with Boyko to CJ, generally ranging from $ 1 million to $2 million at an interest rate of 12 percent. By 2008, however, C J was in default on most if not all of that debt. Chayevsky researched options for restructuring that debt with at least one outside source, at an approximately 18 percent interest rate, with other costs and collateralization conditions. Chayevsky recommended that the company not accept that loan, which loan offer was ultimately withdrawn by the lender, and instead, CJ’s board (including Macke) voted to restructure the debt with loans from Boyko entities at 20 percent interest with fewer costs and conditions.

Based on CJ’s highly leveraged position and its cash flow problems, CJ’s valuation fell from $85 million in 2006 to approximately $2 million in 2008. As authorized by Macke’s employment agreement, Boyko and Chayevsky voted to terminate Macke’s employment in June 2008, and Macke’s 40 percent stake was bought out for $2 million.

After his termination, Macke remained the owner of the real property leased by CJ, and he remained CJ’s landlord. Zions held a security interest in the property, which was collateral for a loan assumed by Macke. Zions received an assignment of rent paid by C J as payment on the loan, and CJ was a guarantor on the loan.

In late 2009, CJ was in contact with Zions about the possibility of purchasing Macke’s loan. On December 11, 2009, CJ sent Zions a letter purporting to revoke its guaranty of the loan to Macke, which Zions treated as triggering a default. On December 22, 2009, Zions then sent a letter to Macke notifying him of the default, specifically referencing the revocation of CJ’s guaranty. At the time of the default, the outstanding principal was approximately $1.9 million and the property was valued in the range of $2.18 million and $3.35 million.

Thereafter, Zions foreclosed on the property and granted C J a full release and dismissed with prejudice a confirmation petition against C J as guarantor. The property was ultimately sold at a public auction for $2,010,513.

Also after Macke’s termination, another dispute arose about whether he breached certain restrictive covenants governing his employment with CJ. After his termination, Macke’s wife formed Primero Games, a gaming company that competed with CJ in the redemption game business. Shortly thereafter, Primero hired a longtime C J employee, Fred Benschine, and Primero began a relationship with Bluberi, a company with which CJ had enjoyed an exclusive relationship. Around the time of his termination, Macke also had conversations with the Puyallup Tribe of Indians, a CJ client, complaining about the way CJ was managing funds used to pay the Tribe’s gaming winners.

As CJ’s business faltered and the new relationships failed, Macke filed suit in 2008 against C J, Smart Games Group, Chayevsky, and Boyko, ultimately adding Zions Bank and alleging claims for breach of fiduciary duty, breach of contract, wrongful foreclosure, conspiracy to wrongfully accelerate the loan, and other related claims. The defendants answered and brought various counterclaims including breach of contract claims based on the restrictive covenants. After conducting discovery, all parties moved for summary judgment, which motions were denied in part and granted in part. Macke appealed in Case No. A12A0704.

Case No. A12A0704

1. Macke first contends that the trial court erred by granting the defendants’ summary judgment motion as to Macke’s breach of fiduciary duty claim. He focuses on (a) the restructuring of CJ’s debt and (b) the alleged withholding of adequate funding from CJ.

(a) Debt restructuring. Macke argues that the debt restructuring agreement, which resulted in consolidated debt at 20 percent interest, between CJ and Vigo Trading Limited, an entity controlled by Boyko, was reached pursuant to a conflict of interest on the part of Chayevsky and Boyko.

Under OCGA § 14-2-860 et seq., upon a showing that an officer or director had a beneficial financial interest in a transaction with the corporation (such that it would reasonably be expected to influence his judgment in voting on the transaction), the burden of proof devolves upon the officer or director to show that the transaction received proper approval or was fair to the corporation.

Based on this rule, Macke argues that the trial court erred by granting summary judgment because the record contains factual disputes as to the fairness of the debt restructuring.

Specifically, Macke points to the fact that at around the time of the restructuring, CJ had the opportunity to obtain a loan at 18 percent interest, but Chayevsky insisted that they not pursue it, claiming that the lender was “raping” CJ at the terms offered. Macke also points to a $1.5 million personal loan Chayevsky had obtained from Boyko sources at an interest rate of only ten percent. Nevertheless, as pointed out by the trial court, these facts do not show unfairness because the 18 percent loan was premised on much less favorable conditions such as a collateralized guaranty by a Boyko entity, a prepayment penalty, a security interest in all of CJ’s assets and its subsidiaries, warrants entitling the lender to an ownership interest in CJ, and $900,000 in closing costs. These terms are undisputably more onerous than the loan CJ eventually obtained from the Boyko entity, so the availability of these terms does not evince unfairness of the CJ restructuring. Likewise, with respect to the personal loan obtained by Chayevsky, the amount was significantly lower, and Chayevsky did not, as CJ did, have an existing history of default on multiple loans to Boyko entities. Thus, the existence of this personal loan does not support an inference of unfairness to CJ. Accordingly, the trial court did not err by granting summary judgment on the breach of fiduciary duty claim premised on this basis.

(b) Failure to otherwise provide adequate funding. Macke contends that the initial sale of the majority interest in CJ was premised on the notion that Boyko would provide necessary funding to grow the company. Macke argues that when CJ faltered and Boyko failed to provide adequate funding, it evinced bad faith on the part of Boyko and Chayevsky, constituting a breach of their fiduciary duty to the company as directors. Nevertheless, Boyko, who has not been served and is not a party to this appeal, controlled the funding decisions (not Chayevsky), and it is undisputed that Boyko extended numerous multi-million dollar loans to CJ, including the restructuring about which Macke complains. Under these facts, the trial court did not err on this ground.

2. Macke also contends that the trial court erred by denying him summary judgment on CJ’s counterclaims alleging Macke’s breach of (a) restrictive covenants and (b) fiduciary duties and the duty of loyalty.

(a) Breach of restrictive covenants. Macke’s employment agreement and shareholder agreement contained certain covenants restricting his ability to compete against CJ for a limited time frame. As noted above, in December 2008, Macke’s wife set up Primero Games, LLC, which competed against CJ. The trial court found that questions of fact exist as to the extent of Macke’s involvement in Primero and the business it transacted with Bluberi, a CJ vendor.

On appeal, Macke relies on sworn statements he made in an affidavit denying involvement in Primero or competing with CJ. Macke contends that because CJ’s evidence to the contrary is circumstantial, the trial court erred by ignoring his affidavit.

Circumstantial evidence may be sufficient to create a jury issue in the face of direct evidence to the contrary. 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.

Here, the record contains evidence that Macke’s wife started Primero, a business that directly competed with CJ within months of Macke’s termination from CJ. The record also contains evidence that shortly thereafter, Primero hired a CJ employee and began a relationship with Bluberi, a company with which CJ had an exclusive distribution agreement. There is direct testimony from Chayevsky confirming conversations CJ had with Bluberi about its allegedly competing relationships with Primero and CJ. Finally, CJ received e-mails, presumably by mistake, addressed to “Mike Macke at Prim-ero Games” discussing what appeared to be Primero business. Based on this record, there is at least some circumstantial evidence supporting CJ’s counterclaim based on Macke’s alleged competition with CJ. Accordingly, the trial court did not err by denying Macke’s summary judgment on that basis.

(b) Breach of fiduciary duty and duty of loyalty. The trial court also denied Macke’s summary judgment motion as to CJ’s counterclaims that Macke was disloyal to CJ leading up to and after his termination. CJ’s claims center on alleged conversations between Macke and the Puyallup Indian Tribe concerning a Wide Area Progressive Network (‘WAP”) gaming system. The WAP system coordinates activity among various machines placed at Indian gaming facilities. Macke deposed that around the time of his termination in 2008, he visited the Puyallup Tribe and stated that CJ was not in compliance with certain funding requirements pertaining to the Tribe’s WAP system. Macke also sent an e-mail to the Tribe with a balance sheet detailing the allegedly inadequate funding of the WAP system, informing the Tribe that CJ was quickly seeking another tribal host, and urging the Tribe to contact the other potential tribal host to slow the process.

Macke contends that CJ failed to show any evidence that this behavior caused harm to CJ. Nevertheless, the record contains evidence that the Tribe eventually ended at least one account with CJ. When construed in favor of the nonmovant, CJ, this is at least some evidence that CJ suffered harm as a result of Macke’s conversations with the Puyallup Tribe, and we cannot conclude at this stage that CJ’s counterclaim must fail as a matter of law. Accordingly, the trial court correctly denied Macke’s summary judgment motion on this ground.

3. Macke finally challenges the trial court’s grant of summary judgment to the defendants on his claim that Zions and C J conspired to wrongfully accelerate his loan and foreclose on the property.

A conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means. To recover damages for a civil conspiracy claim, a plaintiff must show that two or more persons, acting in concert, engaged in conduct that constitutes a tort.

Here, Macke points to communications between Zions and CJ in late 2009 about CJ’s desire to purchase Macke’s loan, which was guaranteed by C J and which was secured by property occupied by C J. CJ stopped making rent payments after its lease expired in September 2009, and in October and November, Macke failed to make his mortgage payments. But by December, Macke had made his missed payments and the December 2009 payment. On December 11, 2009, CJ sent a letter to Zions purporting to revoke its guaranty, which Zions treated as triggering a default clause in the loan documents. Macke learned of this in a letter from Zions on December 22 noting the default and stating that the entire loan balance — approximately $2 million — would be accelerated. The parties attempted to come to a resolution on forbearance and payment, but Zions ultimately foreclosed on the property in July 2010. After the foreclosure, Zions released CJ and dismissed with prejudice a confirmation petition against CJ as guarantor seeking a deficiency judgment on the property.

Civil conspiracy is an act which is by its very nature covert and clandestine, and usually not susceptible of proof by direct evidence. Concert of action, amounting to a conspiracy, may be shown by circumstantial as well as direct evidence. Wdiether the facts shown established a conspiracy is a question of fact for the jury. Applying the rule that the party opposing the motion for summary judgment is entitled to all reasonable doubts and favorable inferences that may be drawn from the evidence, where there is some evidence — albeit circumstantial, from which a jury may infer existence of the fact to be proved, and this circumstantial evidence is in conflict with direct evidence of the movant, this conflict is sufficient to raise an issue required to be submitted to the triers of fact.

Here, the trial court found that CJ may have been in an adversarial position to Macke when it withdrew its guaranty, thereby causing a default. Nevertheless, with respect to Zions, the trial court found an absence of evidence, circumstantial or otherwise, showing how Zions would “benefit by Macke’s default and its subsequent foreclosure on the commercial property during the worst property market in decades.”

As evidence to the contrary, Macke points to Zions’s awareness of an appraisal showing that the property was worth more than the loan value and the fact that Zions allegedly released CJ after the foreclosure. Nevertheless, despite any ill motive by CJ, the fact that Zions perceived a default and did not ultimately pursue CJ as a potential guarantor in a post-foreclosure deficiency action in this case is not sufficient to show Zion’s participation in a prior common design to wrongfully default Macke.

The gravamen of any civil conspiracy claim is not that the defendants acted in concert to damage the plaintiff, but that such action was tortious conduct which proximately caused injury to the plaintiff. Here, the actions taken by [Zions was] either legal, or not the proximate cause of the damage alleged by the plaintiff. The circumstantial evidence pointed to by [Macke] from which he claims a conspiracy may be inferred is purely speculative. An inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.

Accordingly, Zions’s conduct in foreclosing and excusing CJ’s guaranty does not evince some earlier tacit understanding with CJ to accomplish an unlawful design, such that it entered into a civil conspiracy recognized by the law.

Case No. A12A0376

In this appeal, Zions appeals from the trial court’s grant of summary judgment to Macke on his wrongful foreclosure claim against the bank. Zions contends that the trial court erred because (1) Macke was in default, the loan acceleration was warranted, and Macke failed to pay after December 2009; and (2) the trial court’s sua sponte grant of summary judgment was procedurally improper.

4. (a) Zions’s decision to default Macke. It is undisputed that Macke was current on his loan payments as of December 10, 2009. Zions’s letter to Macke informing him that he was in default was premised on CJ’s revocation of its guaranty. CJ’s revocation came in the form of a letter to Zions stating as follows, in relevant part:

You are further notified that, to the extent allowable under the Guaranties and applicable law, each of the Cadillac Jack Entities hereby revokes any and all guaranties of any loans, obligations or indebtedness to [Zions] whether now existing or hereafter incurred or created. Without limitation and also to the extent allowable under the Guaranties and applicable law, each of the Cadillac Jack Entities hereby revokes the Guaranties, any guaranties of the Loan, any guaranties of any indebtedness, loans or obligations of Michael Macke to Zions, and any [other] guaranties... to Zions or its affiliates.

The trial court ruled that this was not an effective revocation because of the conditional language “to the extent allowable,” but this gives too little credit to the language in the deed defining default events to include when “any Guarantor . . . revokes, or disputes the validity of, or liability under, any guaranty of the indebtedness ....” Thus, based on this language, Zions was within its rights under the deed to treat CJ’s letter as a default event.

Nevertheless, the trial court also ruled that even if CJ’s revocation triggered a default, Zions wrongfully failed to give Macke an opportunity to cure the default before accelerating the loan. In so ruling, the trial court relied on the following language in the security deed:

Right to Cure. If such a failure [event of default] is curable, and if [Macke] has not been given a notice of a breach of the same provision of this Security Deed within the preceding twelve (12) months, it may be cured (and no Event of Default will have occurred) if [Macke], after Lender sends written notice demanding cure of such failure: (a) cures the failure within fifteen (15) days; or (b) if the cure requires more than fifteen (15) days, immediately initiates steps sufficient to cure the failure and thereafter continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical.

This language does not explicitly address the question of whether Macke’s right to cure is dependent on Zions’s having sent him written notice demanding a cure, but to the extent this language is ambiguous on that question, we, like the trial court, construe it against the drafter, Zions. Having done so, we conclude that Macke had a right to cure the default within 15 days (presumably by obtaining another guarantor or convincing CJ not to revoke), and Zions never gave him that opportunity before it accelerated the debt. Zions’s letter notifying Macke of the default and accelerating the debt was sent 11 days, not 15 days, after the alleged default event, and it did not allow him the right to cure the alleged default. Zions’s right to accelerate is premised on a default, but since a cured default is treated as if no event of default occurred, the debt acceleration was premature without a curing period. Accordingly, Zions’s December 2009 default of Macke was improper, and the trial court did not err in so holding.

(b) Other grounds for default. Zions also argues that because Macke never made payments after December 2009, he remained in default, which supported the subsequent foreclosure. But after the wrongful acceleration, Zions immediately demanded full payment and maintained that any payments made by Macke would be considered partial payments of tire full amount owed, and it would not reinstate the terms of the payment schedule. Thereafter, Zions demanded payment of attorney fees, penalties, and late fees as preconditions of having the loan reinstated. Under the circumstances of this case, Macke’s failure to make those payments cannot be considered a separate basis for default. Therefore, Macke’s behavior after the wrongful acceleration did not constitute a separate basis for the foreclosure.

5. Sua sponte grant of summary judgment. Zions argues that the trial court erred by sua sponte granting summary judgment to Macke on his wrongful foreclosure claim because Zions was not provided notice and an opportunity to be heard on that claim.

[A] trial court may grant summary judgment sua sponte under certain circumstances, so long as it ensures that the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment. While in most cases it is better practice to await a motion for summary judgment before entering it for a party, it may not be erroneous under the circumstances of a given case, where the issues are the same as those involved in the movant’s motion.

Here, the record shows that Zions moved for summary judgment on the wrongful foreclosure claim, and at the hearing on its motion while specifically addressing that claim, Zions’s counsel stated, “There are no factual disputes here about what happened. There’s not a question for the jury. We’re arguing legal questions, interpretation of the loan documents [,] and the interpretation of the Utah Supreme Court case.” Zions was fully heard on its arguments as to the interpretations of the loan documents and applicable legal precedent. Zions argues on appeal that it did not have an opportunity to present evidence showing factual disputes such as its disagreement about whether CJ was entitled to revoke its guaranty or whether CJ’s failure to renew its lease was a material adverse change triggering default. Nevertheless, these arguments rest on legal issues, and based on our analysis above, they do not demonstrate error in the trial court’s grant of summary judgment to Macke as to the wrongful foreclosure claim.

Judgments affirmed. Andrews and Boggs, JJ., concur.

Decided July 11, 2012.

Parker, Hudson, Rainer & Dobbs, Andrea P. Block, Eric J. Taylor, for Zions First National Bank.

Chamberlain, Hrdlicka, White, Williams & Martin, Scott M. Ratchick, Taylor, English & Duma, Michele L. Stumpe, for Cadillac Jack, Inc.

Raley & Sandifer, G. Brian Raley, Kathryn E. Thomson, for Macke.

       Macke’s complaint also named Boyko as a defendant, but Boyko has not been served.

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

        Rosenfeld v. Rosenfeld, 286 Ga. App. 61, 66 (4) (648 SE2d 399) (2007) (physical precedent only).

       We note that Macke conceded that CJ’s existing debt to the Boyko entities was a risk to Boyko, as opposed to leverage over C J. If that debt was accelerated, CJ could have been forced into bankruptcy, which would have threatened Boyko’s investment.

       (Punctuation omitted.) Jones v. Bd. of Regents &c. of Ga., 262 Ga. App. 75, 81 (4) (585 SE2d 138) (2003).

       See id.

       See Matjoulis, 226 Ga. App. at 459 (1).

       (Punctuation omitted.) J. Kinson Cook of Ga., Inc. v. Heery / Mitchell, 284 Ga. App. 552, 560 (e) (644 SE2d 440) (2007).

       (Citations omitted.) Mixon v. Phoenix Landscaping, 136 Ga. App. 344, 345 (221 SE2d 225) (1975).

       The foreclosure sale brought less than the outstanding loan obligation.

       (Citation and punctuation omitted.) Green v. Sams, 209 Ga. App. 491, 498 (1) (433 SE2d 678) (1993).

       Compare Blackstone Indus. v. Andre, 232 Ga. 715, 716 (208 SE2d 815) (1974) (civil conspiracy requires some showing “that two or more persons in any manner either positively or tacitly come to a mutual understanding that they will accomplish the unlawful design.”).

       (Emphasis supplied.)

       See Dept. of Community Health v. Pruitt Corp., 295 Ga. App. 629, 632 (673 SE2d 36) (2009) (a “rule of construction requires us to construe ambiguous contract provisions against the drafter”).

       See KIXX, Inc. v. Stallion Music, 610 P2d 1385, 1389 (Utah 1980) (defendant was not required to tender payment of delinquent installment after wrongful acceleration). The loan documents stipulate that they are governed by the law of Utah.

       (Citation and punctuation omitted.) Forsyth County v. Waterscape Svcs., 303 Ga. App. 623, 629 (1) (694 SE2d 102) (2010).

       See id.


author: MCFADDEN, Judge.

text:
    A12A0401.
    MORTGAGE ALLIANCE CORPORATION v. PICKENS COUNTY et al.
    (730 SE2d 471)
   MCFADDEN, Judge.

This appeal is from a summary judgment holding that a proceeding appellant had denominated an inverse condemnation action was untimely filed. The trial court correctly held that the action is properly characterized as an appeal from a county zoning decision and is therefore subject to the 30-day time limit for appeals to superior court set out in OCGA § 5-3-20. The zoning decision was in the form of a letter from the sole county commissioner. Because the action was filed more than 30 days after the letter was signed, the trial court correctly determined that the action was untimely, and we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citations omitted.) Adams v. Ga. Power Co., 299 Ga. App. 399, 400 (682 SE2d 650) (2009).

So viewed, the evidence shows that Robert Jones, as the sole commissioner of Pickens County, makes final zoning decisions for the county. On August 8, 2006, Jones signed a resolution adopting new zoning ordinances for the county which required, among other things, minimum lot sizes of one acre for subdivisions with on-site sewage. At that time, pending before the county was Mortgage Alliance Corporation’s proposal to develop certain property as a 240-lot residential subdivision with a private sewer system. On August 11, 2006, Jones sent a letter to Leon Bridges, the chief executive officer of Mortgage Alliance, notifying him that the proposed development was required to meet the new zoning regulations and would not be given “grandfathered” status. The letter stated that “[i]t is the County’s position that any proposal to develop [your] property as a subdivision shall comply with the current code of ordinances of Pickens County.” Thereafter, Mortgage Alliance developed a smaller subdivision than that originally proposed, with public water and septic tanks.

On August 6, 2008, Mortgage Alliance filed an inverse condemnation action against the county, Jones and others, claiming, in pertinent part, that the county’s requirement that the project comply with the new zoning ordinances was unlawful and forced Mortgage Alliance to abandon the project as economically unfeasible. On summary judgment, the trial court found that the August 11, 2006 letter from Jones constituted a decision within the meaning of OCGA § 5-3-20, “such that the Plaintiff’s claim for inverse condemnation is barred by its failure to file the complaint within 30 days of the county action at issue.” Mortgage Alliance appeals.

1. Mortgage Alliance argues that the trial court erred in finding that the August 11, 2006 letter constituted a decision that triggered the 30-day time limit of OCGA § 5-3-20. We disagree.

OCGA § 5-3-20 provides:

(a) Appeals to the superior court shall be filed within 30 days of the date the judgment, order, or decision complained of was entered.
(b) The date of entry of an order, judgment, or other decision shall be the date upon which it was filed in the court, agency, or other tribunal rendering same, duly signed by the judge or other official thereof. . . .

This 30-day time limit applies to challenges to county zoning decisions and “is jurisdictional, so that a superior court lacks jurisdiction when such an appeal is filed beyond the time allowed by law.” (Citations omitted.) Fortson v. Tucker, 307 Ga. App. 694, 696 (705 SE2d 895) (2011).

Although Mortgage Alliance now claims that Jones’ letter was not a zoning decision, in its complaint Mortgage Alliance specifically alleged that “[t]he Pickens County letter of August 11, 2006 constitutes a final decision by Pickens County officials to apply the current zoning and development procedures to Plaintiff’s property.” Bridges also swore in an affidavit that the August 11, 2006 letter from the commissioner informed him that the current ordinances applied to Mortgage Alliance’s property and that the letter was based on a decision Jones and other county officials had made about the property in a July 31, 2006 meeting.

While it is true that Jones deposed that he never took final action to deny the proposed 240-lot development, such a final denial was not the meaning or decision memorialized by the letter in question. Rather, the plain meaning of that letter was to notify Bridges that the proposed development must comply with the new county zoning ordinances. Having reviewed all the evidence, we conclude that the trial court correctly found that the letter constituted a zoning decision by the county.

“[A] party dissatisfied with a zoning decision must appeal to the superior court; it cannot circumvent the review process by instituting an untimely collateral attack on the zoning decision.” Fortson, supra. Indeed, in another case involving an attempt to challenge a zoning decision via an inverse condemnation action, the Supreme Court of Georgia held that “a suit attacking the zoning ordinance as applied to the property involved is untimely when no suit challenging the zoning classification is filed within 30 days of the local authorities’ final act on the zoning issue, as was the case here. [Cits.]” Mayor &c. of Savannah v. Savannah Cigarette &c., 267 Ga. 173, 174 (476 SE2d 581) (1996). Likewise, Mortgage Alliance’s inverse condemnation action attacking the decision that it must comply with the new county zoning ordinances is an untimely collateral attack on that decision. Compare Head v. DeKalb County, 246 Ga. App. 756, 759 (1) (542 SE2d 176) (2000) (lawsuit not an appeal from a zoning decision where plaintiffs did not seek to attack that decision, and instead merely sought a declaratory judgment as to the effect of that decision).

Mortgage Alliance further argues that even if the letter was a final decision, it was not “entered” and thus did not commence the running of the 30-day time period. However, in a case similar to this one, the Supreme Court of Georgia held that a letter sent by a zoning board to notify the appellant of a zoning decision constituted the “pivotal order” for purposes of determining when the 30-day period under OCGA § 5-3-20 began running; and since the appeal was filed within 30 days of the date the letter had been signed, it was timely under the statute. Taco Mac v. City of Atlanta Bd. of Zoning Adjustment, 255 Ga. 538, 539 (340 SE2d 922) (1986). As further clarified in Chadwick v. Gwinnett County, 257 Ga. 59, 60 (1) (354 SE2d 420) (1987), the Supreme Court has “chose[n] the signing of the initial document reducing the decision to writing as the commencement for the running of the clock under OCGA § 5-3-20.”

Decided July 11, 2012

Zoning. Pickens Superior Court. Before Judge Smith from Mountain Circuit.

John R. Bevis, for appellant.

In the instant case, as in Taco Mac, Jones’ signing of the letter reducing to writing the decision to require Mortgage Alliance’s compliance with the new zoning ordinances commenced the running of the clock under OCGA § 5-3-20. However, Mortgage Alliance

failed to file an appeal within 30 days of the [decision] that forms the basis of their complaint. Instead, they waited nearly [two] years to file [an inverse condemnation] action____ [Mortgage Alliance] cannot be permitted to do indirectly that which the law does not allow to be done directly.

Fortson, supra at 697. Accordingly, the trial court correctly granted summary judgment on the basis that the action is time-barred.

2. The trial court did not err in concluding that the additional claim for punitive damages was moot since the underlying action for inverse condemnation had been disposed of on summary judgment. See Irvin Intl. v. Riverwood Intl. Corp., 299 Ga. App. 633, 639 (3), n. 17 (683 SE2d 158) (2009) (punitive damages not an independent cause of action).

3. The appellees’ motion to dismiss the appeal on the ground that it should have been brought by application is without merit. It is true that

[a]ppeals in zoning cases require an application because they are appeals from court decisions reviewing a decision of an administrative agency within the meaning of OCGA § 5-6-35 (a) (1). [But w]here a zoning case does not involve superior court review of an administrative decision, the trial court’s order does not come within the purview of OCGA § 5-6-35 (a) (1) and no application for appeal need be filed.

(Citations and punctuation omitted.) King v. City of Bainbridge, 272 Ga. 427, 428 (1) (531 SE2d 350) (2000). Here, the superior court did not review the merits of the zoning decision, and instead reviewed and ruled on the timeliness of the underlying lawsuit. Because the order appealed from does not involve the review of the merits of a zoning decision, no application for appeal was required and we therefore deny the motion to dismiss.

Judgment affirmed.

Barnes, R J., and Adams, J., concur.

Landrum, & Friduss, Phillip E. Friduss, Ellen L. Ash, Deborah V. Haughton, for appellees.


author: MlKELL, Presiding Judge. BARNES, Presiding Judge,

text:
    A12A0513.
    LOCKHART v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA et al.
    (730 SE2d 475)
   MlKELL, Presiding Judge.

Lynne Lockhart filed a medical negligence action against the Board of Regents of the University System of Georgia (the “Board of Regents”) and against MCG Health, Inc. (“MCGHI”). The Board of Regents moved to dismiss and MCGHI moved for summary judgment. The trial court granted both motions, and Lockhart appeals. For the reasons that follow, we affirm in part and reverse in part.

Lockhart sought treatment for her teeth from Steven K. Nelson, DMD, at the Medical College of Georgia School of Dentistry (“Dental School”). She deposed that Dr. Nelson was supposed to put three implants in her upper left jaw, and that she never authorized him to work on her bottom teeth. She came to an October 13, 2004, dental appointment expecting work to be done for the upper implants. When Dr. Nelson began working on her bottom teeth, however, Lockhart assumed he was “doing some bonding, maybe getting some stain off, maybe getting some decay out. I never once, my hand to God, thought that he was drilling them down to put crowns on them.” When Lockhart got up to spit in the sink, she looked in a mirror and saw that her lower teeth had been drilled down to “nubs.” Dr. Nelson made temporary crowns for the lower teeth, then told her someone would call her when she needed to come back for permanent crowns. No one ever called Lockhart, so she contacted the dental clinic four months later, in February 2005, and was given an appointment. She deposed that when Dr. Nelson removed the temporary crowns, her teeth were “bloody, stubby, soft-looking things” and when Dr. Nelson saw them, he “freaked out.” This litigation ensued.

1. Lockhart argues that the trial court erred in granting the Board of Regents’ motion to dismiss for lack of subject matter jurisdiction, finding that the Board of Regents was immune from liability because of sovereign immunity granted to the state in the Georgia Tort Claims Act (“GTCA”), OCGA§ 50-21-20 et seq.

[Sovereign immunity is a threshold issue for the trial court’s consideration. The Georgia Tort Claims Act sets forth exceptions to a state agency’s sovereign immunity, which are subject to certain limitations; and a plaintiff bears the burden of establishing that a state agency’s conduct is excepted from sovereign immunity. Moreover, we review a trial court’s grant of a motion to dismiss on sovereign immunity grounds de novo, bearing in mind that a motion to dismiss may be granted only when a plaintiff would not be entitled to relief under any set of facts that could be proven in support of its claim. Nevertheless, when the trial court determines a jurisdictional issue based upon conflicting factual issues, on appeal, the court’s finding on a factual issue will be sustained if there is evidence which authorizes the finding.

Specifically, the trial court found that Lockhart’s claim fell within an exception to the state’s waiver of sovereign immunity under OCGA § 50-21-24 (7), which provides that “[t]he state shall have no liability for losses resulting from:... [ajssault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, or interference with contractual rights.”

The trial court acknowledged that no Georgia appellate case has examined a technical battery such as that presented in the instant case in the context of the GTCA’s assault and battery exception, but reasoned that in addition to intentional batteries, even such unintentional batteries as unauthorized medical touching fall within the GTCA’s ambit. The trial court granted the Board of Regents’ motion to dismiss, finding that Lockhart suffered permanent damage as a result of dental work done on her lower teeth without her permission and that this damage resulted from unauthorized medical touching amounting to a battery.

Lockhart’s complaint and accompanying expert affidavit do not allege injury resulting only from the unauthorized medical touching, however. Her complaint alleges separate acts of negligence. Specifically, Lockhart’s complaint argues that “all Defendants were negligent in that the MCG School of Dentistry and Dr. S. K. Nelson prepared Plaintiffs lower teeth for restoration and applied temporary caps and failed to timely follow up on removing the temporary caps and replacing with permanent caps.” Also, Lockhart’s complaint alleged that “each act of negligence took place in Richmond County, Georgia.”

The complaint further alleged that the Board of Regents failed to exercise the degree and skill required by the medical profession in similar conditions “as specifically stated in the affidavit of Nancy B. Napier, DMD.” Napier, as Lockhart’s expert, focused not on the initial unauthorized treatment, but on the subsequent deterioration of the teeth after Dr. Nelson failed to contact Lockhart for a follow-up appointment. Dr. Napier stated in her affidavit that the Dental School and Dr. Nelson

failed to exercise that degree of skill and care ordinarily required by the dental profession in general under like conditions and similar circumstances in that MCG School of Dentistry, its agents, employees including Dr. S. K. Nelson left the dental treatment performed on teeth [ ]23, 24, 25 and 26 in a “temporary” state of restoration longer than they should have been. The design and fabrication of the temporary/provision restoration for these teeth were inadequate to prevent leakage over an extended period of time. This caused further deterioration of her natural teeth.... In order to have properly treated the patient under these circumstances, the standard of care required MCG School of Dentistry, its agents, employees including Dr. S. K. Nelson to properly design and fabricate temporaries for teeth 23, 24, 25 and 26 and to timely replace the same with permanent restoration,

Viewing all allegations in the complaint as true, as we must, we recognize that two instances of injury are presented: (1) the unauthorized grinding down of Lockhart’s teeth, and (2) the failure to ensure that the temporary caps were removed and replaced in time to prevent damage to the teeth.

(a) We find that the trial court was authorized to dismiss on grounds of subject matter jurisdiction Lockhart’s claim of negligence regarding Dr. Nelson’s work on her lower teeth. That action falls within the purview of the assault and battery exception in OCGA § 50-21-24 (7).

Although Lockhart argues that

the assault and battery exception should only apply in cases where the perpetrator acted with the intent to cause harm to the victim [,] [h]er suggestion is without merit. In the context of OCGA § 50-21-24 (7), the legislature clearly used the terms “assault” and “battery” in their tort sense.

The cases cited by the parties interpreting OCGA § 50-21-24 (7)’s battery exception address the state’s liability for intentional batteries such as a shooting or a rape, but this exception also applies in the context of unauthorized medical touching.

Our courts have found that unauthorized medical touching, similar to what happened to Lockhart when Dr. Nelson worked on her lower teeth rather than her upper teeth, is a battery sounding in tort. For example, in Joiner v. Lee, the plaintiff, after signing a consent form contemplating the possible removal of both ovaries, had one ovary removed, then returned for further surgery on a vaginal fistula and signed a second consent form for that surgery. When the physician removed the other ovary during the second surgery, the plaintiff sued, alleging that as she had not consented, this was a battery. This Court held that “[a] cause of action for battery exists when objected-to treatment is performed without the consent of, or after withdrawal of consent by, the patient.” Further, a battery may occur where a medical professional performs a procedure that exceeds the scope of consent. “A medical ‘touching’ without consent is like any other touching without consent: it constitutes the intentional tort of battery for which an action will lie.”

Because the decision to waive sovereign immunity is voluntary on the part of the state, the state may prescribe the terms and conditions under which it consents to be sued, and the manner in which the suit will be conducted. “The doctrine of sovereign immunity requires that the conditions and limitations of the statute that waives immunity be strictly followed.”

When a statute is plain and susceptible of but one natural and reasonable construction, a court must simply follow the literal language of the statute, unless doing so would lead to absurd or wholly impracticable consequences. A statute is ambiguous when it is susceptible of more than one natural and reasonable interpretation.

Here, the language of OCGA § 50-21-24 (7) is plain and unequivocal. The trial court was authorized, as to the portion of Lockhart’s claim relating to the unauthorized grinding down of her lower teeth, to grant the Board of Regents’ motion to dismiss.

(b) However, Lockhart’s claim that Dr. Nelson’s failure timely to schedule an appointment, and to remove and replace the caps, requires a different analysis. This is because our Supreme Court has recognized in Schramm u. Lyon that “multiple breaches of the standard of care may constitute new and separate instances of professional negligence and more than one negligent act may contribute to a plaintiff’s injury.” Specifically, as in the instant case, new acts of negligence may occur where a plaintiff’s complaint alleges separate injuries accruing in separate encounters where the physician failed to warn, treat, or advise the plaintiff when she presented for the treatment of new medical conditions not related to the condition for which she first sought treatment.

Lockhart’s claims are analogous to Schramm, where the Supreme Court recognized that a complaint may allege more than one act of professional negligence resulting in a new injury, where physicians failed timely to warn a patient about preventative measures and failed to prescribe appropriate medications and vaccinations which would have prevented infection.

In the case sub judice, the first injury occurred in the context of a battery, when Dr. Nelson ground down Lockhart’s teeth without her consent. Lockhart deposed that she saw “stubs, white, beautiful stubs, but stubs.” She then consented to Dr. Nelson’s installing temporary crowns over those stubs, deposing that she “rationalized that these teeth — being that they were already drilled down to nubs, I knew they were going to have crowns on them and I knew I could either stay there and have crowns on them that was already paid for ... or I could flip out and go somewhere else and pay.” The second injury occurred in the context of negligence, when Dr. Nelson failed to contact Lockhart and failed to timely remove the temporary crowns. After installing the temporary crowns, Dr. Nelson told Lockhart that someone would contact her to set up an appointment to have permanent crowns installed. Over the course of four months, however, no one contacted her. During that four-month period, Lockhart was asymptomatic, learning of the deterioration resulting from Dr. Nelson’s failure to timely remove and replace the temporary crowns only after she contacted the Dental School for an appointment, at which Dr. Nelson removed the crowns, revealing that her teeth were “bloody, stubby, soft-looking things.”

“Based on these allegations, [Lockhart’s] complaint cannot properly be characterized as asserting a single, persistent negligent act as argued by appellants.” The injury resulting from the failure to contact Lockhart for a new appointment and the failure to timely remove and replace the temporary crowns is not a battery. It is negligence. The state has waived sovereign immunity for the torts of state employees acting in the scope of their employment pursuant to OCGA § 50-21-23 (a). It is undisputed that Dr. Nelson was a state employee acting within the scope of his employment. Accordingly, Lockhart has met her burden of establishing a waiver of sovereign immunity, and the trial court was not authorized to conclude that it lacked subject matter jurisdiction over the portion of Lockhart’s claim asserting negligence from Dr. Nelson’s failure to contact her for an appointment and failure to timely remove her temporary crowns and replace them with permanent crowns. We reverse as to this claim.

2. Lockhart contends that the trial court erred in granting summary judgment to MCGHI, which denied liability for Lockhart’s claims.

The trial court found that although MCGHI began operating the Medical College of Georgia Hospital and Clinics on July 1, 2000, pursuant to a lease agreement with the Board of Regents, when Lockhart was treated in 2004, MCGHI did not own, operate or manage the School of Dentistry, which was and is a part of the Board of Regents. Lockhart does not contest these findings on appeal. Rather, Lockhart argues that the lease and transfer agreements between MCGHI and the Board of Regents provide that MCGHI assumes liability for her injuries. This argument is meritless.

The trial court found, inter alia, that Lockhart could not defeat MCGHI’s summary judgment motion by relying on MCG Health v. Nelson (“Nelson I”), because of a later iteration of that case, Nelson v. Bd. of Regents cfee. of Ga. (“Nelson II”). Both cases involve the question of whether MCGHI is liable for injuries committed after it shifted the operations of the hospital to the Board of Regents. Nelson I quotes lease and transfer agreements in which MCGHI agrees to “assume, and . . . perform and discharge, all of the liabilities and obligations of [the Board of] Regents and MCG . . . which were incurred or arose in connection with the Leased Facilities or Assets, whether known or unknown, contingent or otherwise.” In Nelson I, upon which Lockhart relies, this Court affirmed the denial of summary judgment to MCGHI, reasoning that it had not shown as a matter of law that it did not assume liability. In Nelson II, however, after MCGHI supplemented the record, we upheld, on procedural grounds, the trial court’s grant of summary judgment in MCGHI’s favor after new evidence showed that plaintiffs’ claims were excluded from the liabilities MCGHI agreed to assume.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law. A defendant may do this by either presenting evidence negating an essential element of the plaintiff’s claims or establishing from the record an absence of evidence to support such claims.

To defeat a summary judgment motion, Lockhart “must plead a legally-viable affirmative defense supported by some evidence rather than mere guesswork. Mere speculation, conjecture or possibility are insufficient to preclude summary judgment.”

Although Lockhart cited language from the lease and transfer agreements as quoted in Nelson I, those agreements are not in the record before us. Nor has Lockhart provided any evidence or inference that the agreements cover the Dental School. Both Nelson I and Nelson II only refer to the hospital’s liabilities. Further, Lockhart offered no evidence or inference indicating she is a beneficiary of these agreements or that her claim is included in their liability provisions.

Where there is an absence of evidence to support at least one essential element of a plaintiff’s case, the defendant is entitled to summary judgment. Although the trial court’s rationale in granting MCGHI’s motion for summary judgment differs from ours, the trial court did not err.

Judgment affirmed in part and reversed in part.

Adams, J., concurs. Barnes, P. J., concurs specially and in judgment only.

BARNES, Presiding Judge,

concurring specially.

I concur in the majority opinion, but in judgment only. The majority opinion thus decides only the issues in this case and may not be cited as binding precedent. Court of Appeals Rule 33 (a). I write separately to voice my concern over application of the assault and battery exception to the conduct of medical professionals under the circumstances presented in this case.

While it may be good public policy to except intentional torts from the State’s waiver of sovereign immunity provided by the Georgia Tort Claims Act, I believe that extending that exception to medical or surgical errors that constitute no more than a technical battery is neither wise nor just. Surely the legislature, in enacting the assault and battery exception to the Act, did not foresee that the exception would encompass what essentially are botched medical procedures rather than intentional wrongful acts.

Nevertheless, our job is to construe statutes as written, and we have repeatedly held that the unqualified use of the terms “assault” and “battery” in OCGA § 50-21-24 (7) encompasses all acts that would constitute those common law torts. See Davis v. Standifer, 275 Ga. App. 769, 774-775 (1), n. 5 (621 SE2d 852) (2005); Dept. of Human Resources v. Coley, 247 Ga. App. 392, 398 (3) (544 SE2d 165) (2000), disapproved in part on other grounds by Ga. Dept. of Transp. v. Heller, 285 Ga. 262, 265-266 (1) (674 SE2d 914) (2009). And, as the majority indicates, it is well-settled that “a physician who undertakes to treat another without express or implied consent of the patient is guilty of at least a technical battery.” Mims v. Boland, 110 Ga. App. 477, 481 (1) (a) (138 SE2d 902) (1964). See Bailey v. Belinfante, 135 Ga. App. 574, 575-576 (2) (218 SE2d 289) (1975) (evidence of unauthorized extraction of additional teeth by oral surgeon would support finding that a technical battery occurred). Consequently, I agree with the ultimate result reached by the majority that we must affirm the trial court’s dismissal of Lockhart’s claim relating to the unauthorized grinding down of her lower teeth.

That being said, I believe that the General Assembly should amend the Georgia Tort Claims Act to remove the conduct of medical professionals constituting a mere technical battery from the scope of the assault and battery exception contained in OCGA § 50-21-24 (7). As this Court has pointed out, “[sovereign immunity is a harsh doctrine, not an equitable one. Indeed, it is just the opposite of equity —it is the [Sjtate declaring that it cannot be sued even where it would otherwise be liable.” Coley, 247 Ga. App. at 398 (3). That harshness is only exacerbated by the unqualified use of the terms “assault” and “battery” in OCGA § 50-21-24 (7), which has the effect of extending the statutory exception beyond situations of intentional wrongful conduct to those more in the nature of professional medical malpractice. Because “[o]ur job is to read the statute, not to rewrite it to conform to an equitable result,” Coley, 247 Ga. App. at 398-399 (3), the remedy in this situation lies with the legislature, and I urge it to act.

Decided July 11, 2012.

Frails & Wilson, Edwin A. Wilson, for appellant.

Samuel S. Olens, Attorney General, J. David Stubins, Assistant Attorney General, Trotter Jones, James S. V. Weston, for appellees.

       Lockhart specifically identified the Medical College of Georgia Dentistry School as a department or agency within the purview of the Board of Regents.

       Although Lockhart’s complaint also named Dr. Nelson as one of the defendants, Dr. Nelson was dismissed from the case prior to the filing of the motions giving rise to this appeal.

       (Punctuation and footnotes omitted.) Sadler v. Dept. of Transp. &c., 311 Ga. App. 601, 603 (716 SE2d 639) (2011).

       (Emphasis supplied.)

       (Emphasis supplied.)

       (Emphasis supplied.)

        Oconee Community Svc. Bd. v. Holsey, 266 Ga. App. 385 (597 SE2d 489) (2004).

       (Citation and punctuation omitted.) Davis v. Standifer, 275 Ga. App. 769, 775 (1) (b), n. 5 (621 SE2d 852) (2005).

       See, e.g., Dept. of Human Resources v. Hutchinson, 217 Ga. App. 70-71 (456 SE2d 642) (1995) (plaintiff raised failure to warn claim after state placed juvenile in plaintiff’s home, and he shot plaintiff); Christensen v. State, 219 Ga. App. 10, 13 (6) (464 SE2d 14) (1995) (three elderly plaintiffs brought suit after they were raped and assaulted by a convicted rapist on parole after the state denied him medical and psychiatric care).

        King v. Dodge County Hasp. Auth., 274 Ga. App. 44, 45 (616 SE2d 835) (2005).

       197 Ga. App. 754, 755 (399 SE2d 516) (1990).

       Id.

       Id.

       (Citation omitted.) Id. at 756 (1).

       See Johnson v. Srivastava, 199 Ga. App. 696, 698 (2) (405 SE2d 725) (1991) (denial of summary judgment to physician affirmed on plaintiff’s battery claim where physician removed skin lesion when patient had consented only to excision biopsy).

       (Citation and punctuation omitted.) King, supra at 45.

        State Bd. of Ed. v. Drury, 263 Ga. 429, 430 (1) (437 SE2d 290) (1993).

       (Citation and punctuation omitted.) Hutchinson, supra at 71 (1).

       (Citations and punctuation omitted.) Fulton County Bd. of Tax Assessors v. Greenfield Investment Group, 313 Ga. App. 195, 198 (721 SE2d 128) (2011).

       285 Ga. 72 (673 SE2d 241) (2009).

       (Citation omitted.) Id. at 74 (1).

       Id. at 73 (1).

       Id. at 74 (1).

       Id. Misdiagnosis cases dealing with when statutes of limitation begin to run in the context of separate acts of negligence are informative here: See generally Amu v. Barnes, 283 Ga. 549, 553 (662 SE2d 113) (2008) (fact question found as to existence of separate acts of negligence following misdiagnosis, where plaintiff was asymptomatic for a time as to initial medical complaints before new injury manifested); Sidlow v. Lewis, 271 Ga. App. 112, 114 (608 SE2d 703) (2004) (fact question for jury existed as to whether separate acts of negligence occurred where patient, who was asymptomatic at time of correct diagnosis, later received improper treatment resulting in injury); Oliver v. Sutton, 246 Ga. App. 436, 438 (540 SE2d 645) (2000) (physician’s alleged failure to inform patient of diagnosis stands as separate claim from underlying negligence).

        Bd. of Regents &c. of Ga. v. Oglesby, 264 Ga. App. 602, 605 (1) (591 SE2d 417) (2003).

       270 Ga. App. 409 (606 SE2d 576) (2004).

       307 Ga. App. 220 (704 SE2d 868) (2010).

       (Punctuation omitted.) Nelson I, supra at 410 (1).

       Id. at 412 (2).

       Supra at 228-229 (2).

       Id. at 227 (2).

       (Punctuation and footnote omitted.) Hawkins v. DeKalb Med. Center, 313 Ga. App. 209, 220 (1) (a) (721 SE2d 131) (2011).

       (Citations and punctuation omitted.) State of Ga. v. Rozier, 288 Ga. 767, 768 (707 SE2d 100) (2011).

        Nelson I, supra at 410; Nelson II, supra at 220.

        Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991).

        City of Gainesville v. Dodd, 275 Ga. 834, 835 (573 SE2d 369) (2002) (“Under the‘right for any reason’ rule, an appellate court will affirm a judgment if it is correct for any reason, even if that reason is different than the reason upon which the trial court relied”) (citation omitted).


author: Andrews, Judge.

text:
    A12A0620.
    CITY OF BALDWIN v. WOODARD & CURRAN, INC.
    (730 SE2d 486)
   Andrews, Judge.

The City of Baldwin, Georgia (City) appeals after a jury awarded Woodard & Curran, Inc. (W&C) $203,000 on its claim for money owed under a contract to provide services for the City’s wastewater treatment plant. Because there was sufficient evidence to support the award, we affirm.

The record shows that W&C sued for breach of a contract under which it was to be paid for engineering and design services for the City’s water system (May contract). W&C claimed that it provided supporting engineering documents for the City’s application for government stimulus funds to improve the City’s wastewater treatment plant under the May contract and also under a proposal submitted on June 15, 2009 (June proposal). The June proposal was signed by the mayor under “authorization to proceed,” and provided that W&C would be paid a sum “not to exceed $210,000.00.” In the alternative, the complaint asked for damages of $203,870.44 as the value of the services provided to the City.

The City’s position was that it paid the $5,000 owed under the May contract and that was the total amount due. The City stated in its Answer that the mayor’s signing of the June proposal was an ultra vires act and was not binding on the City because it was not approved by a quorum of the city council. The City also stated that the June 2009 proposal was to secure funding and W&C failed to secure the funding; therefore, the City was unable to proceed with the project.

The case went to trial, and the evidence at trial, viewed in the light most favorable to the jury’s verdict, was that W&C began operating the City’s wastewater treatment plant in January 2008. In conjunction with an application for funding to help improve the plant, W&C agreed to

provide the supporting engineering documents ... in order to convert this project from “fundable” to “funded” for a Lump Sum fee of $5,000. ... Under separate covers we will be preparing a scope, budget and schedule for the actual design work for the Headwords [sic] and associated improvements (including the Design Development Report for the overall plant) and also will submit a grant application to Rural Development to fund the development of a capital master plan for the water and wastewater systems. Additional engineering fees will only be contracted once funding has been committed.

Brent Bridges, a senior vice president with W&C testified that the $5,000, as stated in the proposal, was to be paid for the documents to support the funding application for stimulus money. The second part of the proposal agreed to in the May contract was not covered by the $5,000 and involved supplying the design engineering necessary to apply for funding.

The senior project manager at W&C testified that pursuant to the second part of the May contract, there was a meeting with the mayor and two city council members and they authorized the second project of the May contract and authorized payment of $210,000 for that work.

At this meeting with the mayor and council members, W&C was told to proceed with the work necessary to continue the application process. This work included hiring surveyors, hiring geo-technical core drillers, getting bids for the work, and completing the design plans.

After the mayor signed the authorization to proceed, and as the work progressed, the project engineer was asked to attend a city council meeting and update the mayor and city council on the work that W&C was doing. The engineer stated that he attended the meeting and described the work that was being done and the status of the permits, applications, designs, specifications and reports. He testified that the City owed W&C approximately $203,000 for this work.

The mayor who signed the June proposal testified that it was his understanding that the full amount contracted for was the $5,000 and any additional engineering fees would be contracted for once the funding was committed. The mayor said that he signed the proposal for the additional work but did not date it because he could not obligate the City by himself and it would have to be voted on by the council and reviewed by the city attorney.

The mayor testified as to the benefit to the City if improvements were made to the wastewater treatment plant, stating that improvements to the headworks would have averted the possibility of substantial fines from the EPD. The mayor acknowledged that he knew W&C was doing engineering work for the City in order to obtain the stimulus money, and agreed that there was no question that W&C was going to continue doing work for the City toward applying for the stimulus money. The mayor said that he knew that deadlines existed and knew that the project must be “shovel-ready by November 1[, 2009] .”

The mayor acknowledged that there was a council meeting attended by W&C representatives in September at which the mayor and council were told that W&C was going to have to do “engineering” for the project. The mayor said that he knew at that time that “there was a good deal more to be done.” In addition, a tape was played for the jury of this September meeting of the city council at which W&C told the council about the work that had been completed and the work that still needed to be done in order to file the application for funds.

The jury returned a verdict in favor of W&C in the amount of $203,000. The City now appeals.

Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence____The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of defendant’s motions for new trial and [j.n.o.v.] will not be disturbed.

(Punctuation omitted.) Lofty v. Fuller, 223 Ga. App. 95, 97 (477 SE2d 30) (1996).

1. The City contends that the trial court erred in allowing the claim for quantum meruit to go to the jury. First, we note that the verdict form does not show whether the award was made on the breach of contract claim or whether it was made on the basis of the quantum meruit claim. The City did not request special findings and did not object to the verdict form. This Court will not speculate as to the findings of fact supporting the verdict. All Risk Ins. Agency v. Southern Bell Tel. &c. Co., 182 Ga. App. 190, 192 (355 SE2d 465) (1987).

Further, we reject the City’s argument that H. G. Brown Family, L.R v. City of Villa Rica, 278 Ga. 819 (607 SE2d 883) (2005), precludes claims of quantum meruit and unjust enrichment where an alleged contract between the municipality and a contractor is ultra vires and void. Although the trial court held that the June proposal was not a valid contract because it was not approved by a quorum of the city council, the City overlooks the fact that there was evidence submitted to the jury that the work was done in accordance with the May contract, which was a valid contract.

Further, it is well-settled law that “[w]here, as here, an ‘agreement’ exists to perform lawful services for a municipality but it is not otherwise enforceable as a valid express contract, a recovery in quantum meruit is authorized to the extent of the value of the benefit that the municipality receives.” (Punctuation omitted.) Walston & Assoc. v. City of Atlanta, 224 Ga. App. 482, 484 (480 SE2d 917) (1997); City of St. Marys v. Stottler Stagg & Assoc., 163 Ga. App. 45, 46 (292 SE2d 868) (1982); City of Dallas v. White, 182 Ga. App. 782, 783 (357 SE2d 125) (1987).

The City argues that it can no longer be held liable under the quasi-contractual theory of quantum meruit because the Supreme Court’s holding in H. G. Brown impliedly overruled the above cases. In H. G. Brown, the Court held that because the contract was not approved by a quorum of the city council before being signed by the mayor, “the City acted with a total absence of power and in direct contradiction to the strictures of its charter. Where, as here, a municipality contracts with a total absence of power, it is not estopped from denying the resulting agreement’s validity.” Id. at 821. The City argues that in light of H. G. Brown, the reasoning in City of St. Marys v. Stottler, supra, no longer applies. In Stottler, this Court held:

Quantum meruit is not available when a county is the defendant. This result is dictated by the statutory requirements for establishing a contract with a county. See Code Ann. § 23-1701 [now OCGA § 36-10-1] and Division 1. (Emphasis supplied.) PMS Const. Co. [v. DeKalb County], 243 Ga. at 872 [(257 SE2d 285) (1979)], supra. We know of no “statutory requirements” for establishing a contract with a municipality which are comparable to those cited in PMS Const. Co. as precluding a quantum meruit recovery against a county. Indeed it appears to have long been the law that, under certain circumstances, quantum meruit is an available remedy against a municipality. Since the city could have legally contracted for the service it received, it would seem that an implied contract would arise to pay a reasonable value for such beneficial service. We find no decision in Georgia to prohibit it; and the many cases hereinabove cited and others, under the “common-honesty rule,” intimate the liability of the city.

(Citations and punctuation omitted.) Id. at 47.

Contrary to the City’s argument, there are still no statutory requirements for establishing a contract with a city. There is therefore, no reason to conclude that Stottler has been impliedly overruled.

2. The City also argues that the trial court erred in denying its motion for directed verdict on the claim for quantum meruit. “On appeal from the denial of a motion for a directed verdict or for j.n.o.v., we construe the evidence in the light most favorable to the party opposing the motion, and the standard of review is whether there is any evidence to support the jury’s verdict.” (Punctuation omitted.) Terrell v. Pippart, 314 Ga. App. 483, n. 1 (724 SE2d 802) (2012).

The essential elements of a claim for quantum meruit are: (1) the performance of valuable services; (2) accepted by the recipient or at his request; (3) the failure to compensate the provider would be unjust; and (4) the provider expected compensation at the time services were rendered. Parris Props. v. Nichols, 305 Ga. App. 734, 735 (700 SE2d 848) (2010). The evidence, as outlined above, was sufficient to allow this claim to go to the jury.

Nevertheless, the City argues that the trial court erred in admitting evidence of the plaintiff’s labor costs because this was not evidence of the value of the work to the City. The award in a quantum meruit claim is based on the “reasonable value” of the work. Zampatti v. Tradebank Intl. &c. Corp., 235 Ga. App. 333, 340 (508 SE2d 750) (1998). “The finder of fact must determine in what amount the party receiving was benefitted or enriched by the materials and services.” Langford v. Robinson, 272 Ga. App. 376, 380 (612 SE2d 552) (2005). In other words, for a plaintiff to recover on a claim for quantum meruit, the jury must find that the plaintiff performed services valuable to the defendant and that the defendant accepted those services. When that is shown, a promise is implied to pay the reasonable value of the services. OCGA § 9-2-7; Nelson & Hill, P.A. v. Wood, 245 Ga. App. 60, 62 (537 SE2d 670) (2000). “A party cannot receive and retain the benefit of another’s labor without the duty to pay for the reasonable value of the work.” (Punctuation omitted.) Langford, supra at 380.

In this case, the value of the work was the City’s opportunity to apply for stimulus grant money. It is true that “the reasonable value which the provider is entitled to recover in quantum meruit is not the value of the labor but the value of the benefit resulting from such labor to the recipient.” Hollifield v. Monte Vista Biblical Gardens, 251 Ga. App. 124, 130 (553 SE2d 662) (2001). Here, the mayor responded <cYes” when asked: “[Y]ou were satisfied then and you’re satisfied now that the City of Baldwin would benefit greatly from the improvements to this wastewater treatment plant?” Further, “Because it would have taken a big risk off the table. Is that correct?” Answer: “That is correct.” Question: “And millions of dollars, I believe you told me?” Answer: “It had potential, depending on what the fines were from EPD.”

Thus, in reaching its determination, the jury could find that the benefit conferred was the result of W&C’s labor in putting together the application. There was therefore some evidence that the value to the City was the opportunity to secure funds for renovation of the wastewater treatment plant.

This situation is similar to instances where an attorney is discharged prior to earning a contingency fee and this Court has held that the attorney is entitled to recover fees from the client based on quantum meruit. See, e.g., Amstead v. McFarland, 287 Ga. App. 135, 137 (650 SE2d 737) (2007). In those cases, the measure of damages is reasonable attorney fees. See Greer, Klosik & Daugherty v. Yetman, 269 Ga. 271, 274 (496 SE2d 693) (1998). Likewise, the fees charged for the time and effort expended by W&C were relevant to the value of the services rendered, and the trial court did not err in admitting this evidence.

3. Next, the City argues that the trial court erred in allowing into evidence the June proposal. We disagree. The June proposal was relevant to W&C’s claim for quantum meruit in that it detailed the scope of work to be carried out and it formed the basis for the updates given by W&C to the city council on the work being done.

Where the contract could have been, but was not, properly authorized, but the representative officials in whom the right to so contract is vested have knowledge of work which is being done on the authorization of one of themselves, allow it to continue, and thereafter accept the benefits thereof on behalf of the city, an implied ratification results which will render the governmental unit liable for the reasonable value of the goods or services so received and used by it.

City of Gainesville v. Edwards, 112 Ga. App. 672, 674 (145 SE2d 715) (1965). Accordingly, the June proposal was admissible, and the trial court did not abuse its discretion in admitting it.

Further, the trial court gave a limiting instruction informing the jury that the June proposal was “not enforceable as a contract, and you should not consider it as such.” The court stated “[tjhat document is admitted for the limited purposes of showing that certain officials of the City knew that the plaintiff was performing work on behalf of the City, what work was being done . . . , and that the plaintiff expected to be paid or compensated for that work.” There was no error.

4. Next the City claims the trial court erred in allowing the jury to consider a breach of contract theory with regard to the second portion of the May contract which stated that additional services would be provided “[u]nder separate covers.” “The test of an enforceable contract is whether it is expressed in language sufficiently plain and explicit to convey what the parties agreed upon.” Advance Security v. Superior Surgical Mfg. Co., 197 Ga. App. 769, 771 (399 SE2d 488) (1990); Touche Ross & Co. v. DASD Corp., 162 Ga. App. 438 (292 SE2d 84) (1982). Moreover, “[i]t is well-settled that the policy of the law is against the destruction of contracts on the ground of uncertainty if it is possible in the light of the circumstances under which the contract was made to determine the reasonable intention of the parties.” Touche Ross, supra at 439-440. “A contract will not be held unenforceable for indefiniteness because its performance is, as to particular details, left open to subsequent agreement of the parties. This is especially true where the contract provides the guidelines for the subsequent agreement.” (Punctuation omitted.) Knoxville Med. Investors v. Nat. Healthcorp, 192 Ga. App. 460, 462-463 (385 SE2d 110) (1989).

Because this is an appeal from the denial of a directed verdict, we review this under the “any evidence” standard. See Cole v. Webb, 267 Ga. App. 174, 176 (598 SE2d 886) (2004). In this case, there was sufficient evidence to allow this issue to go to the jury. Although the contract did not specify the amount to be paid W&C for additional work because the work was ongoing, there is nothing to show that the parties, based upon their past dealings, would not have been able to agree upon the fair price for W&C’s services. See McLean v. Continental Wingate Co., 212 Ga. App. 356, 359 (442 SE2d 276) (1994) (not unenforceable merely because the agreement did not contain a formula for the calculation of the profits to which McLean was entitled under its terms). “[I]t is only when the indefiniteness of the subject matter is so extreme as not to present anything upon which the contract may operate in a definite manner that the contract is rendered void.” Waugh v. Waugh, 265 Ga. App. 799, 801 (595 SE2d 647) (2004). See Quadron Software Intl. Corp. v. Plotseneder, 256 Ga. App. 284, 289 (568 SE2d 178) (2002) (although parties left certain terms to be negotiated in the future, there was sufficient evidence from which the jury could find there was an enforceable contract); Touche Ross, supra at 440 (provision that “[djetailed tasks will be mutually agreed [upon] ... as the work progresses” does not destroy the requisite certainty for a valid agreement).

5. Next, the City claims that the trial court erred in charging the jury that a city may be held liable for value of the benefit received and also erred in failing to charge the jury that a city can only contract in the method prescribed in its charter. In light of our holdings above, we need not address this enumeration.

6. In its last enumeration, the City contends that the trial court erred in charging the jury on implied ratification and in failing to charge the jury that a party cannot accept services of which it is not aware, and the knowledge of an individual with no power to bind the City cannot be imputed to the City.

There was no error in the jury charge on implied ratification because it was a correct statement of the law and also was adjusted to the evidence at trial. See, e.g., Thompson v. Princell, 304 Ga. App. 256, 262 (696 SE2d 91) (2010).

The record shows that the City requested the following charge:

I charge you that a party may not accept services of which it was totally unaware. When an individual who had no authority to obligate the defendant on any contract with the plaintiff such that his dealings with the plaintiff were beyond the scope of his authority, the individual’s knowledge of plaintiff’s services cannot be imputed to the defendant as a matter of law.

“As we have held, if any portion of a requested charge is inapt, incorrect, misleading, confusing, argumentative, not precisely adjusted or tailored, or not reasonably raised or authorized by the evidence, denial of the charge request is proper.” (Punctuation omitted.) Dept. of Transp. v. Patten Seed Co., 290 Ga. App. 532, 535-536 (660 SE2d 30) (2008). Here, the requested charge was argumentative and not adjusted to the evidence as set out above. There was no error.

Decided July 11, 2012

Hulsey, Oliver & Mahar, R. David Syfan, for appellant.

Oliver & Weidner, James C. Weidner, Ernest H. Woods III, for appellee.

Rusi C. Patel, Susan Moore, amici curiae.

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.

        Ferman v. Bailey, 292 Ga. App. 288, 289 (664 SE2d 285) (2008).

       It appears that, through no fault of W&C, the stimulus funds were exhausted before the City submitted its application.

        H. G. Brown did not involve a claim of quantum meruit; the City made all payments due under the contract. Rather, H. G. Brown filed a petition, for mandamus to compel the City to validate the contract. Id. at 819.