FOURTH DIVISION DOYLE, P. J., MILLER and DILLARD, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
July 8, 2014
In the Court of Appeals of Georgia A14A0469. ATLANTA EMERGENCY SERVICES, LLC v. CLARK.
DILLARD, Judge.
Linda Clark, M.D., sued Atlanta Emergency Services, LLC (“AES”), alleging
that AES breached a contract between the parties when it terminated her employment
as an emergency-room physician at Piedmont Hospital. Following a jury verdict and
judgment in Dr. Clark’s favor, AES appeals, arguing that the trial court erred in
denying its motions for directed verdict and judgment notwithstanding the verdict
(j.n.o.v.). Specifically, AES contends that no genuine issues of material fact support
Dr. Clark’s claims for breach of contract or attorney fees and that the jury’s damages
award was unlawful. For the reasons set forth infra, we affirm the jury’s verdict and
the trial court’s judgment. Construed in favor of the jury’s verdict,1 the evidence shows that AES is an
operating entity of a private company known as the Schumacher Group, which is
engaged in the business of providing emergency-medicine-practice management to
both small and large hospitals throughout the southeast. Toward that end, the
Schumacher Group, via its operating entities such as AES, contracts with hospitals
to provide physician staffing for the hospitals’ emergency departments and does so
by recruiting independent-contractor physicians. From July 2010 until April 2012,
AES provided Piedmont Hospital with emergency-department physicians pursuant
to such a contract.
In July 2010, Dr. Clark, a board-certified emergency-room physician, entered
into an employment contract with AES, titled “Physician Agreement,” to work in the
emergency department at Piedmont Hospital. The agreement included a provision,
designated as Section 7, that outlined the means by which the agreement—and the
physician’s employment—could be terminated. Subsection (a), in part, provided: “this
Agreement shall be subject to termination without cause by either party giving not
less than sixty (60) days prior written notice to the other party specifying the date of
termination.” In contrast, subsection (b), in part, provided: “Corporation may also
1 See, e.g., Horton v. Hendrix, 291 Ga. App. 416, 416 (662 SE2d 227) (2008).
2 terminate this Agreement immediately in the event that . . . (v) Hospital requests the
removal of Physician or reports that Physician is being disruptive, unprofessional, or
unreasonably uncooperative with the medical or administrative staff of Hospital. . .
.”
Over the course of the next year, the medical director of AES, Dr. Michael
Flueckiger, who was also an emergency-department physician at Piedmont Hospital,
received over a dozen complaints from nurses in the emergency department, stating
that Dr. Clark treated them rudely and/or disrespectfully. During that same period of
time, despite the fact that it was undisputed that she was a competent emergency-
department physician, Dr. Flueckiger also received similar complaints about Dr.
Clark from other physicians on staff at Piedmont, as well as from several emergency-
room patients. Consequently, in late July 2011, Dr. Flueckiger and Cynthia Troutman,
AES’s nurse liaison to Piedmont Hospital, met with Dr. Clark to discuss means by
which to resolve these issues and prevent their recurrence.
Nevertheless, on September 25, 2011, Troutman and Dr. John Limehouse,
AES’s assistant medical director at Piedmont Hospital, met with Dr. Clark and
informed her that her employment was being terminated without cause effective in
60 days and, thus, her last day of employment would be November 24, 2011. During
3 this meeting, Dr. Clark requested written notice regarding this termination decision,
but none was ever provided to her. Then, on October 26, 2011, the new medical
director for AES requested that Dr. Clark participate in a conference call, at which
time he informed her that her employment was being terminated immediately for
cause based on a request by the administration of Piedmont Hospital. Later, however,
Dr. Clark learned that the decision to terminate her employment for cause was made
by AES and that Piedmont Hospital had made no such request.
On January 18, 2012, Dr. Clark filed a lawsuit against AES, alleging that AES
breached the Physician Agreement when it terminated her employment for cause
despite the fact that the conditions required for such a termination were not satisfied.
Dr. Clark’s complaint also alleged that AES’s actions constituted bad faith, and thus,
she sought to recover attorney fees as well as lost income. AES filed an answer, and
after discovery closed, it moved for summary judgment, arguing that its termination
of Dr. Clark’s employment for cause was authorized by the unambiguous terms of the
Physician Agreement. In response, Dr. Clark argued that summary judgment was
precluded because the agreement was ambiguous regarding whether complaints from
individual nurses and physicians constituted “reports” from the “Hospital” that Dr.
Clark was “disruptive, unprofessional, or unreasonably uncooperative with the
4 medical or administrative staff of Hospital.” Following a hearing, the trial court
denied AES’s motion and, later, denied AES’s motion for reconsideration of the
issue.
The case then proceeded to trial. And after Dr. Clark rested, AES moved for
a directed verdict as to all of her claims, but the trial court reserved ruling. AES then
presented its evidence, and at the conclusion of the trial, the jury found in favor of Dr.
Clark and, pursuant to a general-verdict form, awarded her $61,721.02 in damages.
Thereafter, the trial court made the jury’s verdict its final judgment. Subsequently,
AES filed a motion for j.n.o.v., which the trial court denied after a hearing. This
appeal follows.
1. AES contends that the trial court erred in denying its motions for directed
verdict and j.n.o.v.,2 arguing that the termination provision in the Physician
Agreement is unambiguous and, thus, no genuine issues of material fact support Dr.
Clark’s claim for breach of contract. We disagree.
2 AES also contends that the trial court erred in denying its motion for summary judgment and motion for reconsideration regarding these issues, but “after a verdict and judgment, review of an order denying summary judgment is moot.” Rowe v. Law Offices of Ben C. Brodhead, P.C., 319 Ga. App. 10, 16 (3) n.7 (735 SE2d 39) (2012).
5 It is, of course, axiomatic that on appeal from the denial of a motion for a
directed verdict or a motion 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.” 3 In fact, because the jurors are the
“sole and exclusive judges of the weight and credit given the evidence,” we 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.”4 However, we review questions of law de
novo.5 With these guiding principles in mind, we turn now to AES’s specific claims
of error.
Free access — add to your briefcase to read the full text and ask questions with AI
FOURTH DIVISION DOYLE, P. J., MILLER and DILLARD, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
July 8, 2014
In the Court of Appeals of Georgia A14A0469. ATLANTA EMERGENCY SERVICES, LLC v. CLARK.
DILLARD, Judge.
Linda Clark, M.D., sued Atlanta Emergency Services, LLC (“AES”), alleging
that AES breached a contract between the parties when it terminated her employment
as an emergency-room physician at Piedmont Hospital. Following a jury verdict and
judgment in Dr. Clark’s favor, AES appeals, arguing that the trial court erred in
denying its motions for directed verdict and judgment notwithstanding the verdict
(j.n.o.v.). Specifically, AES contends that no genuine issues of material fact support
Dr. Clark’s claims for breach of contract or attorney fees and that the jury’s damages
award was unlawful. For the reasons set forth infra, we affirm the jury’s verdict and
the trial court’s judgment. Construed in favor of the jury’s verdict,1 the evidence shows that AES is an
operating entity of a private company known as the Schumacher Group, which is
engaged in the business of providing emergency-medicine-practice management to
both small and large hospitals throughout the southeast. Toward that end, the
Schumacher Group, via its operating entities such as AES, contracts with hospitals
to provide physician staffing for the hospitals’ emergency departments and does so
by recruiting independent-contractor physicians. From July 2010 until April 2012,
AES provided Piedmont Hospital with emergency-department physicians pursuant
to such a contract.
In July 2010, Dr. Clark, a board-certified emergency-room physician, entered
into an employment contract with AES, titled “Physician Agreement,” to work in the
emergency department at Piedmont Hospital. The agreement included a provision,
designated as Section 7, that outlined the means by which the agreement—and the
physician’s employment—could be terminated. Subsection (a), in part, provided: “this
Agreement shall be subject to termination without cause by either party giving not
less than sixty (60) days prior written notice to the other party specifying the date of
termination.” In contrast, subsection (b), in part, provided: “Corporation may also
1 See, e.g., Horton v. Hendrix, 291 Ga. App. 416, 416 (662 SE2d 227) (2008).
2 terminate this Agreement immediately in the event that . . . (v) Hospital requests the
removal of Physician or reports that Physician is being disruptive, unprofessional, or
unreasonably uncooperative with the medical or administrative staff of Hospital. . .
.”
Over the course of the next year, the medical director of AES, Dr. Michael
Flueckiger, who was also an emergency-department physician at Piedmont Hospital,
received over a dozen complaints from nurses in the emergency department, stating
that Dr. Clark treated them rudely and/or disrespectfully. During that same period of
time, despite the fact that it was undisputed that she was a competent emergency-
department physician, Dr. Flueckiger also received similar complaints about Dr.
Clark from other physicians on staff at Piedmont, as well as from several emergency-
room patients. Consequently, in late July 2011, Dr. Flueckiger and Cynthia Troutman,
AES’s nurse liaison to Piedmont Hospital, met with Dr. Clark to discuss means by
which to resolve these issues and prevent their recurrence.
Nevertheless, on September 25, 2011, Troutman and Dr. John Limehouse,
AES’s assistant medical director at Piedmont Hospital, met with Dr. Clark and
informed her that her employment was being terminated without cause effective in
60 days and, thus, her last day of employment would be November 24, 2011. During
3 this meeting, Dr. Clark requested written notice regarding this termination decision,
but none was ever provided to her. Then, on October 26, 2011, the new medical
director for AES requested that Dr. Clark participate in a conference call, at which
time he informed her that her employment was being terminated immediately for
cause based on a request by the administration of Piedmont Hospital. Later, however,
Dr. Clark learned that the decision to terminate her employment for cause was made
by AES and that Piedmont Hospital had made no such request.
On January 18, 2012, Dr. Clark filed a lawsuit against AES, alleging that AES
breached the Physician Agreement when it terminated her employment for cause
despite the fact that the conditions required for such a termination were not satisfied.
Dr. Clark’s complaint also alleged that AES’s actions constituted bad faith, and thus,
she sought to recover attorney fees as well as lost income. AES filed an answer, and
after discovery closed, it moved for summary judgment, arguing that its termination
of Dr. Clark’s employment for cause was authorized by the unambiguous terms of the
Physician Agreement. In response, Dr. Clark argued that summary judgment was
precluded because the agreement was ambiguous regarding whether complaints from
individual nurses and physicians constituted “reports” from the “Hospital” that Dr.
Clark was “disruptive, unprofessional, or unreasonably uncooperative with the
4 medical or administrative staff of Hospital.” Following a hearing, the trial court
denied AES’s motion and, later, denied AES’s motion for reconsideration of the
issue.
The case then proceeded to trial. And after Dr. Clark rested, AES moved for
a directed verdict as to all of her claims, but the trial court reserved ruling. AES then
presented its evidence, and at the conclusion of the trial, the jury found in favor of Dr.
Clark and, pursuant to a general-verdict form, awarded her $61,721.02 in damages.
Thereafter, the trial court made the jury’s verdict its final judgment. Subsequently,
AES filed a motion for j.n.o.v., which the trial court denied after a hearing. This
appeal follows.
1. AES contends that the trial court erred in denying its motions for directed
verdict and j.n.o.v.,2 arguing that the termination provision in the Physician
Agreement is unambiguous and, thus, no genuine issues of material fact support Dr.
Clark’s claim for breach of contract. We disagree.
2 AES also contends that the trial court erred in denying its motion for summary judgment and motion for reconsideration regarding these issues, but “after a verdict and judgment, review of an order denying summary judgment is moot.” Rowe v. Law Offices of Ben C. Brodhead, P.C., 319 Ga. App. 10, 16 (3) n.7 (735 SE2d 39) (2012).
5 It is, of course, axiomatic that on appeal from the denial of a motion for a
directed verdict or a motion 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.” 3 In fact, because the jurors are the
“sole and exclusive judges of the weight and credit given the evidence,” we 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.”4 However, we review questions of law de
novo.5 With these guiding principles in mind, we turn now to AES’s specific claims
of error.
As previously mentioned, AES argues that its termination of Dr. Clark’s
employment for cause was authorized by the unambiguous terms contained in Section
7 of the Physician Agreement. And in considering this argument, we begin by noting
that an issue of contract construction is usually a question of law for the court to
3 Park v. Nichols, 307 Ga. App. 841, 845 (2) (706 SE2d 698) (2011) (punctuation omitted). 4 Wood v. B & S Enterprises, Inc., 314 Ga. App. 128, 135 (5) (723 SE2d 443) (2012) (footnote and punctuation omitted). 5 Eason v. Dozier, 298 Ga. App. 65, 65 (679 SE2d 89) (2009).
6 resolve and, as such, it is subject to de novo review.6 That being said, “the
construction of a contract involves three steps.”7 The first step is for the court “to
decide whether the language of the contract is clear and unambiguous.”8 If there is no
ambiguity, “the contract is enforced according to its plain terms, and the contract
alone is looked to for meaning.”9 Importantly, contract language is unambiguous if
“it is capable of only one reasonable interpretation.”10 Secondly, if the language of the
contract is ambiguous in some respect, “the rules of contract construction must be
applied by the court to resolve the ambiguity.”11 And lastly, if ambiguity remains after
applying the rules of construction, “the issue of what the ambiguous language means
and what the parties intended must be resolved by a jury.”12
6 Mon Ami Int’l, Inc. v. Gale, 264 Ga. App. 739, 740-41 (1) (592 SE2d 83) (2003). 7 Bd. of Comm’rs of Crisp County v. City Comm’rs of the City of Cordele, 315 Ga. App. 696, 699 (727 SE2d 524) (2012). 8 Id. 9 Id. 10 Stefano Arts v. Sui, 301 Ga. App. 857, 860 (1) (690 SE2d 197) (2010) (punctuation omitted). 11 Bd. of Comm’rs of Crisp County, 315 Ga. App. at 699. 12 Id. (punctuation omitted).
7 Here, as noted supra, Section 7 (b) (v) of the Physician Agreement provides
that the agreement can be terminated immediately in the event that the Hospital
requests the removal of the Physician or reports that she is being disruptive,
unprofessional, or unreasonably uncooperative with the medical or administrative
staff of Hospital. However, the term “Hospital” is not defined in the agreement. Thus,
it is unclear who must report that a physician is being disruptive, unprofessional, or
unreasonably uncooperative in order to justify immediate termination. And while
AES argues that individual nurses and physicians constitute the “Hospital,” Dr.
Flueckiger—AES’s former medical director—testified that individual nurses did not
speak for the hospital and that the hospital instead spoke through its “executive
team.” Similarly, the term “reports” is also not defined. Consequently, it is likewise
unclear whether individual verbal complaints from nurses and physicians amount to
the reporting contemplated by the agreement or whether a more formal written report
from the hospital’s executive team is required. Given that its language is capable of
more than one reasonable interpretation, the trial court did not err in finding that
Section 7 (b) (v) is ambiguous, and this same evidence supported the jury’s verdict
8 that AES’s immediate termination of Dr. Clark’s employment breached the
agreement.13
2. AES also contends that the trial court erred in denying its motions for
directed verdict and j.n.o.v. as to Dr. Clark’s claim for attorney fees under OCGA §
13-6-11. Once again, we disagree.
Under Georgia law, expenses of litigation and attorney fees may be awarded,
pursuant to OCGA § 13-6-11, if “the fact-finder determines the defendant has acted
in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary
trouble and expense.”14 Of course, questions concerning bad faith, stubborn
13 See Certain Underwriters at Lloyd’s of London v. Rucker Constr. Inc., 285 Ga. App. 844, 848-50 (2) (648 SE2d 170) (2007) (holding that trial court did not err in finding that language in insurance contract was sufficiently ambiguous to create a jury question, and that evidence supported jury’s verdict that insurer breached the contract). Cf. Barrett v. Britt, 319 Ga. App. 118, 122-24 (736 SE2d 148) (2012) (reversing trial court’s grant of summary judgment in defendants’ favor because genuine issues of fact remained and created a jury issue as to the meaning of ambiguous terms in real estate contract); Higginbotham v. Knight, 312 Ga. App. 525, 528-31 (719 SE2d 1) (2011) (reversing grant of summary judgment because ambiguous terms in parties’ deeds created genuine issues of fact to be resolved by a jury); Peaches Land Trust v. Lumpkin County School Bd., 286 Ga. App. 103, 105 (1) (648 SE2d 464) (2007) (reversing grant of summary judgment because real estate contract contained ambiguities that created genuine issues of fact to be resolved by a jury). 14 Forsyth County v. Martin, 279 Ga. 215, 219 (2) (b) (610 SE2d 512) (2005); see OCGA § 13-6-11 (“The expenses of litigation generally shall not be allowed as
9 litigiousness, and unnecessary trouble and expense under OCGA § 13-6-11 are
“generally questions for the jury to decide.”15 And an award of attorney fees under
OCGA § 13-6-11 is to be affirmed if “there is any evidence to support it.”16
AES argues that attorney fees were unwarranted because there was no evidence
of bad faith, and a bona fide controversy existed as to whether its immediate
termination of Dr. Clark’s employment breached the Physician Agreement. But as we
have previously explained, “[a] bona fide controversy within the contemplation of
[OCGA § 13-6-11] pertains solely to the issue of stubborn litigiousness or causing
the plaintiff unnecessary trouble and expense.” 17 Moreover, regardless of “the
existence of a bona fide controversy as to liability, a jury may find that defendant
acted in the most atrocious bad faith in his dealing with the plaintiff.”18 In this regard,
a part of the damages; but where the plaintiff has specially pleaded and has made [a] prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.”). 15 Martin, 279 Ga. at 219 (2) (b) (punctuation omitted). 16 City of Gainesville v. Waters, 258 Ga. App. 555, 559 (4) (574 SE2d 638) (2002) (punctuation omitted). 17 Southern Co. v. Hamburg, 220 Ga. App. 834, 841 (4) (470 SE2d 467) (1996). 18 Id. (punctuation omitted).
10 bad faith warranting an award of attorney fees must have “arisen out of the
transaction on which the cause of action is predicated,” and it “may be found in
defendant’s carrying out the provisions of the contract, that is, in how defendant acted
in his dealing with the plaintiff.” 19 Thus, defendants can be held liable for attorney
fees if they “committed the breach [of contract] in bad faith.”20
Here, there was evidence from which the jury could conclude that AES decided
to terminate Dr. Clark’s employment immediately even though it lacked cause to do
so. As mentioned supra, on September 25, 2011, AES initially informed Dr. Clark
that she was being terminated without cause and, therefore, under the terms of the
Physician Agreement her final day of employment would have been November 24,
2011. However, contrary to the terms of the agreement, this decision was never
provided to Dr. Clark in writing. And then, one month later, AES informed Dr. Clark
that she was now being terminated for cause effective immediately and that this
decision had come from the Hospital when, in fact, it had not. During trial, Cynthia
Troutman, AES’s nurse liaison, could not explain why Dr. Clark was not provided
19 Harris v. Tutt, 306 Ga. App. 377, 380 (3) (702 SE2d 707) (2010) (punctuation omitted). 20 Id. (punctuation omitted).
11 with written notice of the initial termination-without-cause decision other than to
agree that AES’s responsibility to provide such notice “fell through the cracks.”
Shortly thereafter, Troutman testified that after AES realized that it failed to provide
the required notice, it decided to terminate Dr. Clark’s employment immediately.
Troutman further conceded that given the choice between restarting the 60-day notice
period at the time AES realized notice had not been provided or immediately
terminating Dr. Clark’s employment for cause, the less expensive option was the
latter. Accordingly, the trial court did not err in denying AES’s motions for directed
verdict and j.n.o.v. as to Dr. Clark’s claim for attorney fees under OCGA § 13-6-11
and allowing the issue to go to the jury.21
21 See id. (holding that whether homeowners misrepresented to contractor certain construction costs that otherwise should have been included in the calculation of his compensation and, therefore, warrant an award of attorney fees based on homeowners’ bad faith, was an issue for the jury); Capital Health Mgmt. Group, Inc. v. Hartley, 301 Ga. App. 812, 823-24 (4) (689 SE2d 107) (2009) (holding that evidence that employer terminated employee and denied her deferred compensation payments based on an improper motive was sufficient to support award of attorney fees for bad faith in employee’s breach of contract action); ISS Int’l Serv. Sys. v. Widmer, 264 Ga. App. 55, 62-63 (4) (589 SE2d 820) (2003) (finding of bad faith under OCGA § 13-6-11 supported by evidence that defendant terminated senior executive and ignored clear terms of employment agreement simply to avoid having to pay the executive).
12 3. AES further contends that the trial court erred in denying its motion for
j.n.o.v. because the jury’s damages award was unlawful on its face in that it did not
correspond with Dr. Clark’s lost-income claim but, rather, corresponded—to the
penny—with her claim for attorney fees. This contention lacks merit.
Importantly, the question of damages is ordinarily one for the jury, “and the
court should not interfere with the jury’s verdict unless the damages awarded by the
jury are clearly so inadequate or so excessive as to be inconsistent with the
preponderance of the evidence in the case.” 22 In addition,
[a] trial court’s approval of a jury verdict as to damages . . . creates a presumption of correctness that cannot be disturbed on appeal absent compelling evidence, and a reviewing court is powerless to interfere unless it is clear from the record that the verdict of the jury was prejudiced or biased or was procured by corrupt means.23
Here, Dr. Clark claimed lost earnings of just over $50,000, plus pre-judgment
interest, and submitted additional evidence that she had incurred $61,702.02 in
attorney fees. Thus, we do not find that the jury’s total damages award of $61,721.02
22 Hilb, Rogal & Hamilton Co. of Atlanta, Inc. v. Holley, 295 Ga. App. 54, 59 (3) (670 SE2d 874) (2008) (punctuation omitted). 23 Id. (punctuation omitted).
13 was so excessive as to be inconsistent with the preponderance of evidence
demonstrated at trial.24 Moreover, AES’s argument fails because of the form of the
verdict, which “did not require the jury to specify how it reached its damages
figure.”25 Under Georgia law, in the absence of a verdict form requiring greater
specificity, “the method by which a jury reaches a particular verdict is not a matter
of which this court can take judicial cognizance.”26 Indeed, if AES desired an
explanation of the basis for the damage award, “it should have objected to the verdict
form, which allowed the jury free rein to set damages.”27 Accordingly, the trial court
did not err in finding that the jury’s verdict was lawful.
Judgment affirmed. Doyle, P. J., and Miller, J., concur.
24 See id. at 59-60 (3). 25 Brock v. Douglas Kohoutek, L.P., 225 Ga. App. 104, 108 (3) (483 SE2d 342) (1997). 26 Id. at 108-09 (3) (punctuation omitted). 27 Id. at 109 (3).