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. We review the grant of summary judgment de novo, construing the
evidence in favor of the nonmovant. This court has consistently found that
attorney fees are not recoverable under OCGA 13-6-11 where there is no award of
damages or other relief on any underlying claim. For W.D. Parkcenter v.
McKendrick 260 Ga. App. 340 (2003). The expenses of litigation recoverable
pursuant to OCGA 13-6-11 are ancillary may only be recovered where other
elements of damage are also recovered. OCGA 13-6-11 provides that the expenses
of litigation generally shall not be allowed as part of the damages but when
the plaintiff has specially pleaded and has made prayer therefor and where the
defendant has acted in bad faith, has been stubbornly litigious, or has caused
plaintiff unnecessary trouble and expense, the jury may allow them. The expense
of litigation recoverable pursuant to OCGA 13-6-11 are ancillary and may only
be recovered were other elements of damages are also recoverable because First
Bank is not entitled to attorney fees and expenses under OCGA 13-6-11 as a
matter of law, the trial court erred in denying SR ES’s motion for summary judgment
on this count. For W.D. Parkcenter Inc. v. McKendrick, 260 Ga. App. 340 (2003).
Opinions daily, December 9, 2013. Citrus Tower Boulevard imaging
Center LLC v. David S Owens M.D. P.C. A 13A1121, A 13A1122 (11/20/2013)
Creditors and debtors rights
The Court of Appeals affirmed the grant of the defendant’s Dr. David
S Owens motion for summary judgment on Citrus Tower Boulevard imaging Center
LLCs claim seeking to recover from him personally pursuant to a guarantee on a
lease for certain magnetic resonance imaging equipment and related services,
holding that the express and unambiguous language of the guaranty establish
that the guarantor was David S Owens M.D. P.C., not Owens himself. The court
held that Owen subsequently withdrawn admission regarding whether he signed the
guaranty in his personal capacity, did not create an issue of fact precluding
the grant of summary judgment and strongly cautioned trial courts against
relying on any decisions employing dicta regarding the meaningless of a
corporate guarantee of corporate debt as a justification for imposing personal
liability on a signatory to a guarantee when the clear and unambiguous language
of such indicates the exact opposite. In case number a 13, a 1122, the court
affirm the grant of summary judgment, citrus Tower Boulevard imaging Center LLC
on its breach of contract claim seeking to recover rent and other amounts due
under the lease, holding that the lease was unambiguous and the trial court
properly excluded parole evidence of any alleged oral agreements between the
parties. The court also held that the trial court properly found that no
genuine issue of fact existed as to whether Owens imaging Center was
functionally operational pursuant to the terms of the lease, any error in the
trial court’s failure to address Owens’s objection to the affidavit of citrus’
managing member was harmless and David S Owens M.D. P.C. cannot support its
affirmative defenses of fraud in the inducement and lack of consideration. At
the outset we note that summary judgment is appropriate when the moving party
can show that there is no genuine issue of material fact and that the movant is
entitled to judgment as a matter of law. A movant may meet this burden on the
documents affidavits and depositions and other evidence in the record reveal
that there is no evidence sufficient to create a jury issue on at least one
essential element of the plaintiff’s case. And should the moving party meet
this burden the nonmoving party cannot rest on its pleadings but must point to
specific evidence giving rise to a triable issue. So viewed, the record shows
that Owens, the P.C.’s principal, is a radiologist whose practice focuses on
reading and interpreting body scan images made with CRT, MRI, x-ray and other
medical equipment. The P.C., according Owens, receives and interprets films
from primarily around the southeast.
Citrus, a Georgia LLC, owned and managed a diagnostic imaging Center
in Clermont, Florida. On or about December 16, 2008, Citrus and the P.C. enter
into the lease agreement (lease) at issue here. Under the terms of this lease,
which the parties agreed would be governed by Georgia law, the P.C. leased from
Citrus the use of certain imaging equipment and related services. The P.C.
initially agreed to pay citrus rent in the amount of 100,000 per month, but
that amount was later increased 250,000 per month in a January 2009 amendment
to the lease. The term of the lease was 10 years, “commencing on the first day
that the imaging center is functionally operational”. The P.C.’s right to use
the leased equipment was on a nonexclusive basis, and the rent was payable
whether or not the P.C. actually used the leased equipment. On or about
December 15, 2008 Owens executed a guarantee agreement also governed by Georgia
law pursuant to which the guarantor agreed to guarantee to citrus the full and
prompt payment in cash and whenever due all sums now or hereafter payable under
the lease. And while it is not disputed that Owens signed the guaranty, the
guarantor is designated as David Owens M.D. P.C. in two separate places, with
Owens writing David Owens M.D. P.C. on the signature line. Owens also signed
his name under the signature line accompanied by what he contends to be and
citrus does not dispute, the designation of managing member. In October 2010
the P.C. announced that it was opening a satellite office in Clermont Florida.
Owens testified that the Clermont facility began scanning real patients around
October 2010 and that the facility open in the autumn of 2010. At the time,
Owens and the P.C. began reading MRI scans taken at the Clermont facility.
Nevertheless, the P.C. failed to make any rent payments under the lease, and in
April 2011, citrus sent a demand letter to Owens and the P.C. requesting
payment of past due rent, plus interest, from December 2010 through April 2011.
And when no payments were forthcoming, citrus sued the P.C. and Owens in the
state court of Fulton County, alleging breach of contract under both the lease
and guarantee. The trial court subsequently granted Owens cross motion for
summary judgment on citrus’s claims under the guarantee. Citrus appeals from
this order in case number a 13A1121. But the trial court granted citrus’s
motion for summary judgment against the P.C. as to citrus’s claims on the
lease. In case number a 13A1122 the P.C. cross-appeals from this order. As
applicable here, former OCGA 24-3-30 provides that without offering the same in
evidence, either party may avail himself of allegations or admissions made in
the pleadings of the other. 4 in admitting party to contravene its admission
the party must first amend the pleadings to withdraw the admission in judicio
before such evidence may be submitted. Even so the other party may rely on the
original evidence. In other words, although a party may withdraw or strike from
the pleadings an admission in judicio by amendment and tender evidence to
contravene such admission, the opposite party can tender in evidence the
original admission in judicial against such party as an admission against
interest. Notwithstanding the foregoing in admission in judicial applies only
to the admission of fact and does not apply where the admission is merely the
opinion or conclusion of the pleader as to law or fact. Thus where the
admission is simply an opinion on the part of the party making it as to the
legal effect of the paper the withdrawn admission is not a fact that can be
taken advantage of by the opposing party. Notwithstanding the foregoing, in
admission in Judiciary applies only to the admission of fact, and in the case
sub judice Owens withdrew his admission by amending his answer and so the
relevant issue is whether the withdrawn admissions were nevertheless evidence
of the fact that precluded the trial court’s grant of summary judgment to
Owens. And in our view the withdrawn admissions do not constitute such
evidence. Owens admission that he executed the guaranty may demonstrate that he
signed the guaranty, but that fact is undisputed and in itself does not create
a genuine issue of material fact as to whether Owens was personally bound
thereby. And Owens’s admission that pursuant to the terms of the guarantee he
guaranteed payment of all sums owing under the lease is only an opinion or
conclusion as to the legal effect of that instrument. The elements of fraud
according to the P.C., were established by Olin’s averment that citrus’s
representative Franklin trial made false representations to Owens which Owens
then relied upon in causing the P.C. to enter the lease, guarantee, and the
amendment to the lease. According to Owens Trail falsely represented to him
that citrus secured or would secure the elements of functionally operating
imaging Center discussed supra, such as adequate patient referral flow
agreements and insurance contracts, among other things. The P.C. asserts the
jury could find that those representations were made with citrus’s knowledge
that the statements were false or with an intent not to perform. Here however
the P.C. continue to utilize the services provided by citrus’s Clermont
facility even after it realized that the alleged representations were false and
it opted not to formally rescind the lease even, according to Owens with the
lawsuit coming on. And as we previously explained is incumbent upon a party who
attempts to rescind a contract for fraud to repudiate it promptly on discovery
of fraud. Thus in as much as the P.C. did not rescind the lease it was bound by
the terms contained therein. Accordingly the P.C.’s precluded from relying on
representations that were not part of the contract. And as fraud requires a
showing of justifiable reliance, the P.C. simply cannot establish that it was
fraudulently induced into entering into the lease and shows no grounds for
reversal.
Lastly P.C. contends that the trial court erred in granting summary
judgment to citrus because there is a genuine issue of material fact as to its
affirmative defense of lack of consideration. Once again we disagree the
evidence showed that citrus did provide P.C. with the functionally operating
imaging Center even though P.C. contends that there was a failure of consideration
because it was never functionally operational. Contact an Atlanta DUI lawyer today.
