FIRST DIVISION BARNES, P. J., GOBEIL and PIPKIN, 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. https://www.gaappeals.us/rules
October 17, 2024
In the Court of Appeals of Georgia A24A0909, A24A0910. HEALTH SERVICES OF CENTRAL GEORGIA, INC. et al. v. WANNA; and vice versa.
GOBEIL, Judge.
This is the second appearance of this matter before this Court, which concerns
a dispute between the parties over Fady S. Wanna, M.D.’s contracts governing his
employment with Health Services of Central Georgia, Inc. (“Health Services”) and
Navicent Health, f/k/a Central Georgia Health Systems, Inc. (“Navicent”) (and
collectively, the “Defendants”) and the sale of his medical practice. We previously
decided companion appeals related to two summary judgment orders addressing the
parties’ claims and counterclaims, as well as a discovery order entered by the trial
court. See Wanna v. Navicent Health, Inc., 357 Ga. App. 140 (850 SE2d 191) (2020) (“Wanna I”). Upon remand, the parties’ remaining claims and counterclaims were
tried in a multi-week jury trial, and the parties have now both appealed to this Court.
In Case No. A24A0909, the Defendants argue that the trial court erred in
(1) accepting an inconsistent verdict in favor of Dr. Wanna; (2) admitting into
evidence irrelevant and unfairly prejudicial e-mails; (3) denying the Defendants’
motion for a directed verdict on Wanna’s fraud and negligent misrepresentation
claims as the evidence was insufficient to sustain the jury’s verdict on these claims;
and (4) denying the Defendants’ motion for a directed verdict on Wanna’s claim for
OCGA § 13-6-11 attorney fees and expenses.
In his cross-appeal in Case No. A24A0910, Dr. Wanna contends that the trial
court erred by (1) overruling his objections to the admission of certain defense
exhibits; (2) denying his motion for a directed verdict on the Defendants’ claim for
lost profits; (3) sustaining the Defendants’ objection to his questioning of Navicent’s
Chief Financial Officer (“CFO”) about the company’s 2023 financial information;
(4) granting the Defendants’ motion in limine regarding statements allegedly made by
Navicent’s Chief Executive Officer (“CEO”) to Wanna at an executive training
2 session; and (5) granting the Defendants’ motion for a protective order and awarding
the Defendants attorney fees.
For the reasons that follow, we affirm in part and reverse in part in Case No.
A24A0909, and remand to the trial court for an evidentiary hearing to allow Dr.
Wanna to establish the amount of OCGA § 13-6-11 attorney fees that was attributable
to his prevailing claims with respect to each attorney. We affirm in Case No.
A24A0910.
Legal Standard
“(T)his Court reviews the judgment entered by the trial court after approval
of a jury verdict upon the any evidence test, absent any material error of law.
Additionally, when a question of law is at issue, we owe no deference to the trial
court’s ruling and apply a de novo standard of review.” Howland v. Wadsworth, 324
Ga. App. 175, 176-177 (749 SE2d 762) (2013) (citations and punctuation omitted).
Background Facts and Procedural History
The extensive factual background to the underlying dispute between the parties
is recounted in Wanna I, 357 Ga. App. at 141-146. Here, we set forth only those facts
necessary to place the parties’ current appeals into context.
3 Navicent is the corporate parent of the Medical Center of Central Georgia, a
hospital located in Macon (“Medical Center”), and Health Services, a physician
group. Wanna I, 357 Ga. App. at 141. Dr. Wanna is a surgeon who is licensed to
practice medicine in the State of Georgia and is board-certified by the American Board
of Thoracic Surgery with a specialty in cardiothoracic and vascular surgery. Effective
July 1, 2013, Dr. Wanna and Navicent entered into an employment agreement under
which Wanna agreed to serve as the Chief Medical Officer and Chief Clinical Officer
of Navicent in exchange for certain compensation and benefits (“Executive
Agreement”). Pursuant to the Executive Agreement, which had an initial term of
three years, Navicent agreed to pay Wanna a base salary and certain benefits,
including, as relevant here, severance compensation if he resigned his executive
position for “Good Reason at any time” after providing Navicent notice and an
opportunity to cure. Pursuant to Section 4 (b) (1) (i) of the Executive Agreement,
“Good Reason” was defined to include a material reduction in Wanna’s base salary.
Under the Executive Agreement, Wanna also was eligible under certain circumstances
for annual incentive compensation under Navicent’s Management Incentive Plan
4 (“MIP”) and retirement benefits under its Supplemental Executive Retirement Plan
(“SERP”). As this Court explained in Wanna I:
Two documents are at issue pertaining to the SERP plan: (1) a “Summary of Navicent Health Executive SERP” provided to Dr. Wanna while he served as an executive (the “SERP Summary”), and (2) the SERP plan document (the “SERP Plan”). The SERP Summary stated that an executive’s account vested upon, among other things, “the termination by the Executive of his or her employment for good reason (e.g., a material reduction in the Executive’s base salary, authority, duties, etc.).” In contrast, the SERP Plan did not provide for vesting upon the termination of an executive for good reason. Rather, the SERP Plan required continuous employment for five years before an executive had any vested right to SERP contributions, subject to an exception for accelerated vesting based on a “separation of service” due to death, disability, or “involuntary separation of service . . . without Cause” initiated by Navicent.
357 Ga. App. at 155 (4). The Executive Agreement also contained restrictive
covenants, including non-compete and non-solicitation provisions that applied to
Wanna during his employment and for a designated time period thereafter.
While serving in his executive position at Navicent, Dr. Wanna continued to
maintain his cardiac surgery practice, including performing cardiothoracic and
vascular surgeries at Coliseum Medical Center, another hospital located in Macon.
5 Wanna I, 357 Ga. App. at 142. In 2014, Wanna entered into a physician employment
agreement with Health Services that set out the terms of his continued work as a
surgeon (“Physician Agreement”). Pursuant to the terms of the Physician Agreement,
Wanna agreed to work as a part-time physician and cardiothoracic surgeon with
Health Services and remain a member of the active clinical staff at the Medical Center
while continuing to work as an executive at Navicent. Health Services agreed to pay
Wanna a base salary as well as productivity compensation. The initial term of the
Physician Agreement was three years, but Wanna retained the ability to terminate the
Physician Agreement “at any time upon the occurrence of a material breach of the
terms of [the] Agreement by [Health Services]” so long as the latter was afforded
notice and an opportunity to cure within 30 days of notice of such breach. The
Physician Agreement also contained a non-compete covenant. Finally, as relevant
here, effective March 2015, Wanna and Health Services executed an agreement under
which Health Services agreed to purchase the assets of the professional corporation
owned by Wanna and his partners (the “Asset Purchase Agreement”). The Asset
Purchase Agreement also contained non-compete and non-solicitation covenants
applicable to Wanna.
6 On September 1, 2015, Dr. Wanna sent a letter to Navicent’s President and
CEO, Ninfa Saunders, asserting that he was “resigning for good reason pursuant to
[Section 4 (b) (1) (i)] of [the Executive] Agreement as there ha[d] been a material
reduction in his base salary[.]” According to Wanna, Navicent’s then head of Human
Resources, Barnee Price had notified him during a meeting on August 13, 2015, that
a final decision had been made to change his job description and reduce his base salary
by approximately 30 percent. When Navicent failed to cure under the terms of the
Executive Agreement, Wanna transitioned to a full-time clinical role with Health
Services on October 1, 2015. Navicent allegedly contested Wanna’s entitlement to
certain severance, retirement, and other benefits under the Executive Agreement. On
April 15, 2016, Navicent allegedly informed Wanna that he was not going to receive
any benefits under the terms of the Executive Agreement. Wanna then initiated the
instant action on March 24, 2017.
In his complaint, as amended, Dr. Wanna asserted claims against Navicent and Health Services for breach of his employment agreements, fraud, negligent misrepresentation, violation of the Employee Retirement Income Security Act of 1974 (“ERISA”), and attorney fees and expenses under OCGA § 13-6-11. In their answer, as amended, the [D]efendants asserted counterclaims for breach of contract, breach of non-compete
7 and non-solicitation covenants, breach of the duty of loyalty, breach of fiduciary duty, and attorney fees and expenses under OCGA § 13-6-11.
Wanna I, 357 Ga. App. at 140. The parties filed cross-motions for summary judgment.
Id. at 145-146. The trial court denied Dr. Wanna’s motion in its entirety and denied
the Defendants’ motion for summary judgment on Wanna’s ERISA claim, but granted
it with respect to Wanna’s tort claims. Both parties then appealed and the ensuing
appeals were docketed in this Court as Case Nos. A20A1378 and A20A1401 (Wanna
I).
As relevant here, in Wanna I, this Court addressed Count 2 of Dr. Wanna’s
complaint (which alleged that Navicent breached the Executive Agreement in multiple
ways). First, with respect to Wanna’s allegation that Navicent was in breach by failing
to pay Wanna severance after he resigned his executive position for “Good Reason,”
this Court affirmed the trial court’s denial of the Defendants’ motion for summary
judgment, concluding “that a jury issue existed as to whether Wanna substantially
complied with the notice provision of the Executive Agreement, and thus as to
whether he satisfied the contractual requirements for resigning for ‘Good Reason.’”
Wanna I, 357 Ga. App. at 148-150 (1) (a) & (b). We also affirmed the court’s denial of
8 Navicent’s motion for summary judgment on Wanna’s claim for OCGA § 13-6-11
attorney fees associated with this claim. Id. at 156-157 (5).
Next, Dr. Wanna alleged in Count 7 of his complaint that Navicent improperly
failed to pay him his SERP benefits for 2014 and 2015, and he sought to recover those
lost benefits under ERISA, 29 USC § 1132 (a) (1) (B).1 In Wanna I, we reversed the
denial of Navicent’s motion for summary judgment, highlighting that the trial court
erred “in concluding that the conflict between the SERP Summary and [the] SERP
Plan created a genuine issue of material fact as to the terms for vesting of benefits;
rather, the terms of the SERP Plan control as a matter of law[.]” 357 Ga. App. at 156
(4). However, we remanded to the trial court to consider Wanna’s other arguments
on his ERISA claim, including whether he met the requirements for accelerated
vesting under the SERP Plan and whether he was entitled to pursue a claim for
equitable relief under ERISA. Id.
With respect to Dr. Wanna’s tort claims, we vacated the trial court’s grant of
Navicent’s motion for summary judgment and remanded “for the court to consider
1 29 USC § 1132 (a) (1) (B) provides: “A civil action may be brought . . . by a participant or beneficiary . . . to recover benefits due to him under the terms of his plan[.]” 9 whether summary judgment is appropriate on Dr. Wanna’s fraud and negligent
misrepresentation claims under the proper legal analysis.” Wanna I, 357 Ga. App. at
158 (6). Specifically, we highlighted that “[t]he trial court focused solely on whether
Dr. Wanna alleged the same damages for lost compensation and benefits for his fraud,
negligent misrepresentation, and breach-of-contract claims instead of on whether Dr.
Wanna alleged the violation of any duties independent of the duties imposed upon
Navicent by the Executive Agreement.”2 Id.
The Defendants also raised counterclaims against Dr. Wanna for breach of the
non-compete covenants contained in the Physician Agreement, the Executive
Agreement, and the Asset Purchase Agreement. In Wanna I, we affirmed the trial
court’s denial of Wanna’s motion for summary judgment, finding that genuine issues
of material fact remained on whether: (1) Wanna was entitled to provide on call
coverage at Coliseum under the “private practice” exception to the covenants
contained in the Physician Agreement and the Asset Purchase Agreement; and
(2) Health Services lacked a legitimate business interest justifying a restriction on him
2 We noted that on remand, “the trial court also may consider the alternative arguments regarding summary judgment on the fraud and negligent misrepresentation claims that were raised by the parties in the proceedings below but were not addressed by the trial court[.]” Wanna I, 357 Ga. App. at 158 (6). 10 providing on call coverage at Coliseum. 357 Ga. App. at 159-162 (7) (a) & (b). We also
affirmed the trial court’s denial of summary judgment on the Defendants’
counterclaims for breach of the non-compete and non-solicitation covenants in the
parties’ agreements, breach of the duty of loyalty, and breach of fiduciary duty, finding
no merit to Wanna’s contention that lost profits were an essential element of these
counterclaims. Id. at 162-163 (8). And we held that the trial court properly denied
Wanna’s motion for summary judgment against the Defendants’ counterclaim for
attorney fees and expenses under OCGA § 13-6-11, finding that there remained
genuine issues of material fact as to whether Wanna acted in bad faith.3 Id. at 164-165
(9).
The opinion in Wanna I issued on October 15, 2020, and the remittitur was filed
in the trial court on November 17, 2020. On remand, the trial court denied the
Defendants’ remaining summary judgment grounds.4 As to Dr. Wanna’s tort claims,
3 We also affirmed the trial court’s denial of Dr. Wanna’s motion to compel certain discovery. Wanna I, 357 Ga. App. at 165-166 (10). 4 On December 2, 2019, the Defendants filed a motion for partial summary judgment and motion to strike with respect to Dr. Wanna’s Final Consolidated Complaint in which he restated and consolidated the claims listed in his complaint, as amended. The trial court did not rule on the December 2, 2019 motion prior to the appeal in Wanna I. 11 the trial court concluded that there remained a factual dispute as to whether Price
made a misrepresentation to Dr. Wanna during the August 13, 2015 meeting before
Wanna tendered his resignation letter, explaining:
Price stated in his deposition that when he met with Dr. Wanna on August 13, 2015, the decision to reduce Dr. Wanna’s salary by over 30 [percent] had not been made. Yet, Dr. Wanna testified in his deposition that Price told Dr. Wanna at the August 13, 2015 [meeting] that the discussion to reduce his salary was not something still in discussion; it was a final decision . . . . [G]iven that Dr. Wanna subsequently cited the reduction in his salary when he resigned his position, there is at least enough evidence to present a jury issue as to whether there was a false statement and whether that statement amounted to negligent and/or fraudulent misrepresentation.
The court also found that there was conflicting evidence for a jury to decide whether
Martin Plevak (CEO of Health Services) negligently made a false statement to Dr.
Wanna regarding whether Wanna’s working at Coliseum constituted an outside
activity under the terms of the 2014 Physician Agreement. Finally, with respect to
Wanna’s ERISA claim, the trial court found that (1) there was at least some evidence
to present a jury issue as to whether Wanna’s voluntary separation constitutes an
involuntary separation sufficient to entitle him to accelerated vesting under the terms
12 of the SERP Plan; and (2) a question of fact remained as to whether the SERP
Summary that the Defendants provided to Wanna listed terms that differed from
those of the SERP Plan, thereby entitling him to equitable relief.
The Defendants filed a motion in limine to exclude certain evidence that they
contended was not relevant to the remaining claims, and they also moved to bifurcate
the trial if the trial court permitted Dr. Wanna’s request for attorney fees and punitive
damages to proceed. As relevant here, the Defendants sought to prevent Wanna from
introducing e-mails from 2016 between Robert DiRenzo, M.D.5 and Navicent
executives containing the language “kick [Wanna’s] butt out” and “[h]e’s a cancer
that is metastasizing.” The trial court found that the e-mails were relevant and
admissible to show intent as to Wanna’s fraudulent misrepresentation claim and that
while they were prejudicial, the court found that the e-mails “[did] not pose any risk
of being unfairly prejudicial.”
The trial court granted the Defendants’ request to bifurcate the trial for
evidence concerning (1) what amount of punitive damages would be sufficient under
5 Dr. DiRenzo replaced Dr. Wanna as Chief Clinical Officer of Navicent. 13 OCGA § 51-12-5.1 (d) (2); (2) the amount of attorney’s fees (as requested by the
parties); (3) “bad faith” evidence; and (4) the conduct of the parties during litigation.6
The first phase of the trial commenced on March 20, 2023, and lasted over
three weeks. Dr. Wanna testified that he met with Saunders (Navicent’s CEO) in
early August 2015 for his annual performance review, during which Saunders allegedly
told him that she was restructuring the organization and “was going to demote [him]”
and “[his] salary [was] going to be cut[.]” As to his salary, Wanna described that
Saunders stated that she did not know the exact amount of the proposed reduction,
but Price would follow up with further details. Wanna described that Price then met
with him on August 13, 2015, and provided him with a document concerning details
on a new executive role, and “told [him] that . . . [his] salary would be cut by 32
[percent].” The document, which included a “Proposed New Base Hourly Rate,”
was entered into evidence. Wanna testified that Price “did not present [him] with a
proposal and offer,” but rather “told [him] it was a fait accompli, it was a done deal,
6 The trial court denied the Defendants’ motion to bifurcate as to Dr. Wanna’s request for attorney fees to the extent that Dr. Wanna failed to produce sufficient fee documentation. The court highlighted that after the Defendants filed their request to bifurcate, but before the court issued its order, the parties exchanged fee documentation. 14 they’ve already made the decision” and “[his] pay will be cut by 32 percent.” Two
weeks later, on September 1, 2015, Wanna, through his counsel, sent the letter to
Saunders, explaining that he was “resigning for good reason” pursuant to Section 4
(b) (1) (i) of the Executive Agreement due to the proposed salary reduction.
Saunders testified that she had grown increasingly concerned about Dr.
Wanna’s commitment to his executive responsibilities based on his availability and
presence at critical pre-arranged executive meetings. She described that she repeatedly
had to remind Wanna that if he was going to be “second in command in the
organization . . . he needed to be there.” Saunders eventually told Wanna that there
needed to be a change either to the scope of his executive role or a renewed
commitment to his executive responsibilities, and it was “about him making a choice
as to what it [was] that he wanted to do[.]”
Price testified that when he met with Dr. Wanna on August 13, 2015, he
intended to discuss one of several potential revised executive roles and proposed
salaries for Wanna based on advice from a third party consulting group. Price stressed
that the revised job description and compensation for Wanna were just “proposed”
changes and there had “been no decision made relative to the salary that was going to
15 be offered with this particular opportunity.” Price further stated that following the
August 13 meeting, “it was left with Dr. Wanna to go back to Dr. Saunders and
discuss . . . the potential of him assuming that role at a salary which had yet to be
determined.” Price maintained that (1) he did not communicate to Wanna that a final
decision had been made on any potential change in role or salary; (2) he did not
believe that he said anything untruthful to Wanna; and (3) he was not trying to mislead
or deceive Wanna in any way and he had no reason to do so.
After Dr. Wanna finished presenting his case and again at the close of all
evidence, the Defendants moved for a directed verdict on Wanna’s substantive claims
for breach of contract, negligent misrepresentation, fraud, ERISA, and attorney fees.
The trial court denied the Defendants’ motion on both occasions.
The jury found in favor of Dr. Wanna on all of his claims, including for breach
of contract, tort, and ERISA. The jury further awarded Wanna punitive damages on
his fraud claims, as well as attorney fees and expenses. The jury found in favor of the
Defendants only with respect to their counterclaim for breach of contract, finding that
Wanna breached the non-compete restriction as an executive or the employment non-
16 solicitation restriction of the Executive Agreement and awarded the Defendants
$185,630.
Thereafter, in the second phase of the trial, the jury heard evidence on the
amount of punitive damages and fees and expenses. The Defendants later moved for
a directed verdict, arguing that Dr. Wanna failed to produce sufficient billing records
by counsel or other documentary evidence to prove the amount of the attorney fees
sought. The trial court denied the Defendants’ motion. The jury returned a verdict
awarding Wanna $2.82 million in punitive damages and $1.5 million in OCGA § 13-6-
11 attorney fees and expenses. After Wanna made certain elections as to his remedies,
the trial court entered a final judgment, awarding $5,096,812 to Wanna, and $185,630
to Navicent on its sole prevailing counterclaim.
The Defendants filed a notice of appeal from the trial court’s entry of judgment
after the jury verdict and that appeal has been docketed in this Court as Case No.
A24A0909. Dr. Wanna filed a cross-appeal, which has been docketed in this Court as
Case No. A24A0910.
Case No. A24A0909
17 1. The Defendants argue that the judgment must be vacated because the jury’s
verdict was inconsistent and thus void. They contend that “Wanna tried two sets of
claims which relied on opposite, mutually exclusive factual premises about whether
he had ‘Good Reason’ to resign from his executive position at Navicent when he did
so.” Even though Dr. Wanna presented inconsistent theories, the Defendants assert
that “the jury gave Wanna exactly what he asked for, finding [the] Defendants liable
on all counts pertaining to his Executive Agreement benefits[.]”
“In a civil case, a verdict that is contradictory and repugnant is void, and no
valid judgment can be entered thereon. A judgment entered on such a verdict will be
set aside.” Anthony v. Gator Cochran Constr., 288 Ga. 79, 79 (702 SE2d 139) (2010)
(citation and punctuation omitted). Nevertheless, under OCGA § 9-12-4, “[v]erdicts
shall have a reasonable intendment and shall receive a reasonable construction. They
shall not be avoided unless from necessity.” “Thus, the presumptions are in favor of
the validity of verdicts, and if possible a construction will be given which will uphold
them. Even if the verdict is ambiguous and susceptible of two constructions, one of
which would uphold it and one of which would defeat it, that which would uphold it
is to be applied.” Anthony, 288 Ga. at 80-81 (citations and punctuation omitted);
18 Rockdale Hosp. v. Evans, 306 Ga. 847, 851 (2) (a) (834 SE2d 77) (2019) (“[T]he trial
court’s approval of the verdict creates a presumption of correctness which is not to
be disturbed absent compelling evidence.”) (citation and punctuation omitted). “The
burden is upon the party attacking a verdict to show its invalidity.” Zurich American
Ins. Co. of Illinois v. Bruce, 193 Ga. App. 804, 804 (1) (388 SE2d 923) (1989) (citation
and punctuation omitted).
Here, under his breach-of-contract (Count 2) and ERISA (Count 7) claims, Dr.
Wanna asserted that Navicent breached the Executive Agreement and the SERP
Summary by denying him his accrued severance, retirement, and related benefits. The
Executive Agreement outlined that Wanna could “resign for Good Reason at any
time,” and clarified that a “Good Reason” included “any material reduction in
[Wanna’s] Salary.” Similarly, the SERP Summary provided that his retirement
benefits would vest among other things upon “the termination by [Wanna] of his . . .
employment for good reason (e.g., a material reduction in [Wanna’s] base salary,
authority, duties, etc.)[.]” Regarding their inconsistent verdict claim, the Defendants
argue that (with respect to his claims in Counts 2 and 7) on the one hand, Wanna
asserted that he resigned after a final decision by Navicent had been made to reduce
19 his salary. Therefore, he was entitled to his benefits because he resigned with “Good
Reason.”7
On the other hand, the Defendants highlight that Dr. Wanna’s negligent
misrepresentation and tort claims were premised on a completely different theory —
the assumption that “Good Reason” did not yet exist when he resigned. Under this
theory, Wanna claimed that he prematurely tendered his resignation on September 1,
2015, based on Price’s allegedly misleading statement that a final decision had been
made to reduce Wanna’s salary, even though the salary cut was still a
recommendation at that point.8
7 At trial, during opening statements, Wanna told the jury that the “evidence w[ould] show he resigned the Chief Clinical Officer and Chief Medical Officer position for good reason and he’s entitled to [his] benefits.” Wanna later testified about meeting with Price on August 13, 2015, where Price allegedly told him that the 32 percent reduction to his salary was not “a proposal and offer”; rather it was “a fait accompli, it was a done deal[.]” During closing arguments, Wanna also argued that his resignation for “Good Reason” entitled him to his retirement benefits under the language of the SERP Summary. 8 In his closing argument, Wanna’s counsel argued that “had [Wanna] not been lied to and misled and made to believe that it was [a] final decision to cut his pay by 32 percent, he wouldn’t have resigned,” and thus would not have lost his entitlement to retirement and severance benefits. 20 The Defendants’ contention of an inconsistent verdict is misplaced. In the first
instance, Dr. Wanna picked fraud as his remedy when asked by the trial court to make
an election (at Navicent’s request) between the breach-of-contract and fraud verdicts
at the start of the second phase of the trial. See Carnett’s, Inc. v. Hammond, 279 Ga.
125, 130 (6) (610 SE2d 529) (2005) (“A party cannot complain of a judgment, order,
or ruling that his own conduct produced or aided in causing.”) (citation and
punctuation omitted). To the extent that the Defendants argue that the trial court
erred by not questioning the jury about the alleged inconsistency between the fraud
and breach-of-contract verdicts, there is no indication in the record that the
Defendants ever moved the trial court to submit any questions to the jury on this
issue. See Cordial Endeavor Concessions of Atlanta, LLC v. Gebo Law, LLC, 370 Ga.
App. 528, 530-531 (2) (898 SE2d 259) (2024) (“An argument not raised in the trial
court is waived and cannot be raised for the first time on appeal.”) (citation and
punctuation omitted).
In any event, the Defendants misconstrue the language of the Executive
Agreement, which provided that “Good Reason” for Dr. Wanna’s resignation “shall
not exist” unless and until Wanna gave Navicent a detailed written statement for his
21 belief that “Good Reason” existed and provided Navicent with 30 days to cure the
basis for such belief. On September 1, 2015, Wanna delivered to Navicent a written
statement of the basis for his belief that Good Reason existed (based on Price’s
representation at the August 2015 meeting that Wanna’s salary would be reduced by
32 percent), and gave Navicent an opportunity to cure. It was only after the expiration
of the 30-day period, on October 1, 2015, after Navicent failed to cure, that Wanna’s
resignation became effective.
To support their allegation of inconsistent verdicts, the Defendants rely on non-
binding case law from other jurisdictions. We find these cases readily distinguishable.
For example, in U. S. Fidelity & Guaranty Co. v. McKinnon, after the jury found in
favor of the plaintiff for both breach of contract and fraudulent misrepresentation with
respect to an insurance contract, the Supreme Court of Alabama found that the
theories of recovery were “factually inconsistent” and “self contradictory.” 356 So2d
600, 607-608 (III) (Ala. 1978). Specifically, the court explained that the jury could not
find “breach of an existing contract and at the same time” also find “fraud for
representing that there was a contract when, in fact, there was none[.]” Id. at 608
(III). See also Alph C. Kaufman, Inc. v. Cornerstone Indus. Corp., 540 SW3d 803, 815-
22 816 (B) (Ky. Ct. App. 2017) (finding verdicts inconsistent where breach-of-contract
count was based on the existence of a non-compete agreement while fraud count
premised on the non-existence of the same contract).
Contrary to the Defendants’ contention, the jury’s verdicts with respect to the
breach–of-contract and fraud claims were not necessarily inconsistent. The jury found
that Price committed fraud during the August 13, 2015 meeting when he represented
to Wanna that a final decision had been made to reduce Wanna’s salary by 32 percent.9
But it was not until October 1, 2015, after Navicent did not cure Wanna’s written
notice, that “Good Reason” existed for Wanna’s resignation. Put another way, a
finding of fraud is not inconsistent with the existence of “Good Reason” under the
Executive Agreement, which was dependent on whether Navicent exercised its right
to cure. We therefore find no merit to the Defendants’ contention that the trial court
erred in accepting an inconsistent verdict.
2. The Defendants contend that the trial court erred by admitting two e-mails
sent by Navicent personnel because these communications were legally irrelevant and
9 In Wanna I, this Court found that genuine issues of material fact remained as to whether the 32 percent reduction in Dr. Wanna’s salary was a final decision or a mere proposal. 357 Ga. App. at 148-149 (1) (a). 23 highly prejudicial as they were of “no consequence” to whether Price made any false
statements during the August 2015 meeting. The Defendants maintain that the e-
mails, sent six months after the August 2015 meeting, “inflame[d] the jury” and
resulted in the jury awarding Wanna “a damages sum almost [ten] times the amount
of the contract benefits he claimed he was entitled.”
“All relevant evidence shall be admissible, except as limited by constitutional
requirements or as otherwise provided by law or by other rules. . . . Evidence which
is not relevant shall not be admissible.” OCGA § 24-4-402. “[T]he term ‘relevant
evidence’ means evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” OCGA § 24-4-401. “[E]vidence having a
tendency to establish facts in issue is relevant and admissible, and no matter how slight
the probative value, our law favors admission of relevant evidence.” City of Atlanta
v. Bennett, 322 Ga. App. 726, 728 (1) (746 SE2d 198) (2013) (citation and punctuation
omitted). “Admission of evidence is a matter resting within the sound discretion of
the trial court, and appellate courts will not disturb the exercise of that discretion
24 absent evidence of its abuse.” Arnold v. Liggins, 368 Ga. App. 544, 545 (1) (890 SE2d
446) (2023) (citation and punctuation omitted).
The Defendants maintain that Dr. DiRenzo’s e-mails are legally irrelevant
because they have no bearing on what Price told Dr. Wanna in August 2015 with
respect to whether a final compensation decision had been made. However, taken in
a broader context, the 2016 e-mail exchange between DiRenzo and Navicent
executives, including CEO Saunders, occurred during the time period when Dr.
Wanna contends that the Defendants falsely reassured him that he would be paid all
the executive benefits he was entitled to, even though they had no intention of paying
him the benefits. This evidence is relevant to Wanna’s overall claim that Price had
falsely told him in August 2015 that the decision to cut his salary was a final decision
in order to induce Wanna to resign and forfeit his executive benefits. See Wilson v.
State, 315 Ga. 728, 738 (8) (883 SE2d 802) (2023) (“The standard for relevance is a
liberal one, and relevant evidence is admissible even if it has only slight probative
value.”) (citation and punctuation omitted).
The Defendants assert that even if the e-mails “were tangentially relevant,” the
trial court erred by failing to acknowledge the “highly inflammatory” nature of this
25 evidence. Relevant evidence may be excluded “if its probative value is substantially
outweighed by the danger of unfair prejudice[.]” OCGA § 24-4-403. The Defendants
highlight that Dr. Wanna repeatedly relied on the e-mails during trial. For example,
during closing arguments, Wanna’s counsel told the jury that DiRenzo and Saunders
“wanted to kick [Wanna’s] butt out.” Counsel also stated:
To refer to another human being as a metastasizing cancer is disgusting enough alone. For a medical professional, who has individuals dying in their hospital from metastasizing cancer, and that’s how you’re going to refer to your . . . number one cardiothoracic surgeon? I literally get chills. That is disgusting, but that’s what [Wanna] was dealing with.
The Defendants maintain that Wanna’s constant reference to the e-mails throughout
trial was “nothing but a transparent effort to evoke prejudicial emotion by the jury
directed toward Navicent[.]”
During trial, the Defendants had an opportunity to explain the content of the
e-mails (as well as support their counterclaim for breach of fiduciary duty).
Specifically, the Defendants alleged that Dr. Wanna began working with Coliseum’s
executive management as early as February 2016, while still employed by Health
26 Services, to promote Coliseum’s cardiothoracic surgery program. In his deposition,
DiRenzo explained that his e-mail
was an emotional response and a bit unprofessional, but it was a reaction to the potential that we could lose our - - our cardiovascular - - our cardiothoracic line if indeed this was true, that there were discussions going on with Coliseum hospital . . . our competitor institution. And it was upsetting that if - - again, if it were true, that one of our employed physicians would be having those kinds of discussions.
During closing arguments, Navicent argued to the jury that “Dr. Wanna was not being
loyal to his employer. He was working in secret without telling his employer, while
still collecting a big paycheck, ignoring his legal duty, to help move over employees
and to help build the program over at Coliseum.”
Here, based on the totality of the circumstances as described above, we find that
the trial court did not abuse its broad discretion in determining that the evidence was
not overly prejudicial pursuant to OCGA § 24-4-403. See Suzuki Motor of America,
Inc. v. Johns, 351 Ga. App. 186, 196 (3) (a) (830 SE2d 549) (2019) (“(e)xclusion of
evidence under Rule 403 is an extraordinary remedy that should be used only sparingly
to prohibit matter of scant or cumulative probative force, dragged in by the heels for
the sake of its prejudicial effect”) (citation and punctuation omitted).
27 3. The Defendants contend that the trial court erred in denying their motion for
a directed verdict as the evidence presented at trial was legally insufficient to support
Dr. Wanna’s negligent misrepresentation and fraud claims. We discern no error.
A directed verdict is authorized only where there is no conflict in the evidence, and the evidence and all reasonable deductions therefrom demand a certain verdict (OCGA § 9–11–50(a)); when the jury has rendered a verdict and a complaint on appeal is addressed to the sufficiency of the evidence, the appellate court does not weigh the evidence but only determines whether there is any evidence to support the verdict.
Dick ‘N Dale Systems, Inc. v. Danwil Intl. Trading Co., 199 Ga. App. 840, 841 (406
SE2d 270) (1991) (emphasis omitted).
“The elements of fraud are a false representation by a defendant, scienter,
intention to induce the plaintiff to act or refrain from acting, justifiable reliance by
plaintiff, and damage to plaintiff.” J. E. Black Constr. Co., Inc. v. Ferguson Enterprises,
Inc., 284 Ga. App. 345, 347 (1) (643 SE2d 852) (2007) (citation and punctuation
omitted). “The essential elements [of a negligent misrepresentation claim] are (1) the
defendant’s negligent supply of false information to foreseeable persons, known or
unknown; (2) such persons’ reasonable reliance upon that false information; and
28 (3) economic injury proximately resulting from such reliance.” Id. at 348 (2) (citation
With respect to the tort claims, the Defendants assert that Dr. Wanna failed to
show that Price intended to induce Wanna to resign following their August 2015
meeting. This argument essentially invites us to reweigh the evidence presented at
trial. “However, an appellate court can only review the evidence to determine if there
is any evidence to support the verdict. This (C)ourt does not reweigh the evidence,
as the finder of fact, in this case the jury, is the final arbiter of the weight of the
evidence and the credibility of witnesses.” Golden Isles Cruise Lines, Inc. v. Lowie, 350
Ga. App. 1, 10 (2) (827 SE2d 703) (2019) (citation and punctuation omitted). Here,
by finding in favor of Wanna, the jury found his testimony and evidence more credible
than that offered by the Defendants and we have no basis to disturb the verdict.
The Defendants also contend that Dr. Wanna failed to show that he exercised
due diligence to verify the accuracy of Price’s representations about his salary
reduction. Specifically, they contend that Wanna resigned before he confirmed the
alleged change to his salary and position with someone at Navicent with “decision-
making authority,” such as Saunders.
29 The crux of Dr. Wanna’s argument with respect to his tort claims is that
Navicent executives affirmatively concealed information through his meetings with
them about the potential change in his position and salary with the intent to induce
Wanna to resign and forfeit his benefits under the terms of the Executive Agreement.
As a result, contrary to the Defendants’ assertion, information about Wanna’s
proposed salary cut was not “a matter equally open to the observation of all parties[.]”
Rainey v. GAFVT Motors, Inc., 269 Ga. App. 479, 481 (1) (a) (604 SE2d 840) (2004)
(citation and punctuation omitted). See also Educap, Inc. v. Haggard, 341 Ga. App.
684, 687 (801 SE2d 611) (2017) (“fraud cannot be the basis of an action if it appears
that the party alleging the fraud had equal and ample opportunity to prevent it and yet
made it possible through the failure to exercise due diligence”) (citation and
punctuation omitted). Here, the jury heard the evidence at trial and was authorized
to credit Wanna’s testimony and find in his favor on his tort claims. See Nebo
Ventures, LLC v. NovaPro Risk Solutions, L.P., 324 Ga. App. 836, 840 (1) (d) (752
SE2d 18) (2013) (apart from “plain and indisputable cases, questions of fraud and
whether a plaintiff could have protected himself through the exercise of ordinary
diligence are questions for a jury”) (citation and punctuation omitted).
30 4. The Defendants argue that the trial court erred by failing to grant their
motion for a directed verdict on the jury’s award of attorney fees and expenses
because Dr. Wanna failed to put forth “legally sufficient evidence” to support the
amounts claimed. Wanna sought approximately $1.4 million in attorney fees and
expenses. In closing arguments, the Defendants argued this amount should be reduced
by 50 percent and the jury should award Wanna $747,847. The jury ultimately
awarded Wanna $1.5 million in attorney fees and expenses.
“Attorney fees are recoverable under OCGA § 13-6-11 when a party has acted
in bad faith, has been stubbornly litigious, or has subjected the other party to
unnecessary trouble and expense.” City of Lilburn v. Astra Group, Inc., 286 Ga. App.
568, 570 (649 SE2d 813) (2007) (citation and punctuation omitted).
The issue of attorney fees under OCGA § 13-6-11 is a question for the jury, and an award will be upheld if any evidence is presented to support the award. However, a plaintiff is entitled to recover attorney fees only for that portion of the fees which are allocable to the attorney’s efforts to prosecute a successful claim against a defendant.
Premier Cabinets, Inc. v. Bulat, 261 Ga. App. 578, 582 (5) (583 SE2d 235) (2003).
31 Dr. Wanna had the burden of proof on the issue of attorney fees, and he was
required to segregate out the hours that were recoverable from those hours that were
unrecoverable. Premier Cabinets, Inc., 261 Ga. App. at 582 (5). Wanna sought to
recover fees for his lead counsel, Anthony Cochran, as well as several other lawyers
that worked on his case, including Franklin Gaddy (local counsel in Macon) and Anna
Bacon-Tinsley (business attorney). Wanna submitted lengthy billing statements for
each of the attorneys. During the second phase of the trial, Cochran testified and
explained that approximately 75 percent of his total fees were allocable to pursuing
successful claims, including those based on the Executive Agreement and the
Physician Agreement, as well as for fraud, negligent misrepresentation, and with
respect to retirement benefits. Cochran noted that he specifically excluded time
expended on dismissed claims, counterclaims, appellate costs, as well as time spent
on calculating the total amount of fees and expenses. He described that he calculated
this allocation by creating a spreadsheet wherein he coded every entry in his billing
statement as either recoverable or disallowed. Based on his calculations, Cochran
testified that his fees and expenses for representing Wanna totaled $731,518 and
32 $566,205, respectively (incurred with two different firms), which, when reduced by
25 percent, amounted to $548,638 and $424,654.
The Defendants counter that Dr. Wanna did not admit the spreadsheet into
evidence during the second phase of the trial. Although the Defendants had an
opportunity to cross-examine Cochran about his calculations and methodology, they
were not offered an opportunity to inspect the spreadsheet until trial. In fact, Cochran
stated that he was still working on the spreadsheet the night before trial.
Cochran also explained that he applied the same calculations that he used on
his own records to Bacon-Tinsley’s fees and expenses. However, Cochran admitted
that he did not review Bacon-Tinsley’s billing records and he simply assumed that the
breakdown of the recoverable versus unrecoverable fees for her billing statements also
was 75/25 because they worked together on the case. And Bacon-Tinsley testified that
her statements also included unrecoverable fees related to dismissed claims,
counterclaims, prior appeals, and pre-suit activities. See Emerson v. Brookmere
Homeowners Assn., Inc., 311 Ga. App. 371, 372 (715 SE2d 775) (2011) (under OCGA
§ 13-6-11, plaintiff cannot recover expenses of defending against a counterclaim).
33 Although Dr. Wanna submitted billing statements from his lawyers that
delegated various fees to different tasks performed, they were not of “sufficient
particularity to permit the [factfinder] to distinguish between time and expenses
attributable to the successful claims and time and expenses attributable to the pursuit
of the unsuccessful claims and the defense of the counterclaims.” Birch Property
Partners, LLC v. Simpson, 364 Ga. App. 315, 330 (6) (c) (874 SE2d 814) (2022)
(citation and punctuation omitted). The jury did not have access to Cochran’s
spreadsheet and thus could not view first hand how Cochran allocated the fees and
expenses in that document or confirm his calculations. Additionally, Cochran did not
undertake the same analysis of the other lawyers’ billing statements. Therefore,
“under the state of the evidence in the present case, the [factfinder] would have been
forced into a posture of pure speculation as to which fees were attributable solely to
prosecuting the successful claims.” Id. (citation and punctuation omitted).
The award of attorney fees in this case is “contrary to the law” and simply
“cannot be upheld as authorized pursuant to OCGA § 13-6-11.” Premier Cabinets,
Inc., 261 Ga. App. at 583 (5). Therefore, we reverse the trial court’s award of attorney
fees to Dr. Wanna and remand to the trial court for an evidentiary hearing to allow
34 Wanna to establish the amount of attorney fees that was attributable to his prevailing
claims with respect to each attorney. Terrell v. Pippart, 314 Ga. App. 483, 485 (2) (724
SE2d 802) (2012); Premier Cabinets, Inc., 261 Ga. App. at 583 (5); David C. Joel,
Attorney at Law, P.C. v. Chastain, 254 Ga. App. 592, 597-598 (4) (562 SE2d 746)
(2002).
Case No. A24A0910
5. In his cross-appeal, Dr. Wanna argues that the trial court erroneously
(1) overruled his objections to the admission of certain defense exhibits, which
contained summaries of surgeries performed at Coliseum; (2) denied his motion for
a directed verdict on the Defendants’ lost profits claim allegedly caused by the breach
of non-competition covenants; (3) sustained the Defendants’ objection to Wanna’s
questioning of Navicent’s CFO about Navicent’s 2023 financials even though the
Defendants questioned the CFO on direct examination about the same topic to argue
against punitive damages; and (4) granted the Defendants’ motion in limine regarding
statements made by Navicent’s CEO to Dr. Wanna and other executives at an
executive training session.
35 As Dr. Wanna concedes in his brief, these enumerations of error “become
relevant only if this [C]ourt orders a new trial[.]” As relevant here, the jury found that
Dr. Wanna did not breach the non-competition covenants in the Physician
Agreement, and therefore, did not award any lost profits to the Defendants on this
counterclaim.10 Additionally, Dr. Wanna prevailed on all of his substantive claims at
trial, including for fraud and negligent misrepresentation. As explained in Divisions
1 through 3 of Case No. A24A0909 above, we have no reason to disturb the judgment
with respect to these claims, and thus, we do not address these enumerations of error
in Wanna’s cross-appeal. See Clayton County Civil Service Bd. v. Hill, 355 Ga. App.
348, 351 (844 SE2d 220) (2020) (“To have the right of appeal, the party must be
aggrieved by the judgment complained of. Put another way, a party not aggrieved by
a decision has no standing to appeal.”); Bibbins v. State, 280 Ga. 283, 284-285 (627
SE2d 29) (2006) (“Georgia appellate courts are not authorized to render advisory
opinions as to potential error.”).
10 The jury found in the Defendants’ favor on only one of its counterclaims: that Dr. Wanna breached the non-solicitation covenant in the Executive Agreement and awarded the Defendants $185,630 in damages. Dr. Wanna is not appealing this award. 36 6. Dr. Wanna asserts that the trial court erred in granting the Defendants’
motion for a protective order and awarding attorney fees against him.
A trial court has broad discretion to control discovery, including the imposition of sanctions, and this (C)ourt will not reverse a trial court’s decision on discovery matters absent a clear abuse of discretion. This is because trial judges, through their direct involvement with the case, the parties, and the attorneys, and their familiarity with the actions of the parties in the conduct of discovery in similar cases that are properly brought to their attention, are in the best position to evaluate the parties’ conduct and to determine the appropriate level of sanctions.
Dentistry for Children of Ga. v. Foster, 362 Ga. App. 217, 218 (2) (867 SE2d 617) (2022)
(citations and punctuation omitted).
As relevant here, on August 4, 2022, Dr. Wanna filed a OCGA § 9-11-30 (b) (6)
(“Rule 30 (b) (6)”) deposition notice and OCGA § 24-13-27 notice to produce,
seeking to have a corporate representative from Navicent appear at a deposition on
September 8, 2022, to testify on a range of topics and produce certain related
documents. In response, Navicent filed an expedited motion seeking a protective
order to quash the deposition notice and notice to produce. Navicent highlighted that
discovery had closed more than three years earlier in July 2019 and trial was scheduled
37 (at that point) for November 2022. Navicent alleged that Wanna already had taken at
least one prior Rule 30 (b) (6) deposition as well as deposed numerous other Navicent
witnesses on many of the same topics included in the current notice. Navicent
maintained that Wanna’s notice was not a “trial preservation” deposition; rather it
was an improper attempt to circumvent the close of discovery. Navicent also sought
attorney fees for having to seek a protective order.
Following a hearing, the trial court granted Navicent’s motion for a protective
order and quashed Dr. Wanna’s notice of deposition and notice to produce. At the
hearing, Wanna’s counsel stated that Navicent would most likely identify Ken Banks
(corporate counsel) as its Rule 30 (b) (6) representative, and the court highlighted in
its order that Wanna already had taken Banks’s deposition during the discovery
period. There also was no indication that Wanna would be unable to subpoena Banks
or that Banks would otherwise be unavailable to testify at trial. The court was
unpersuaded by Wanna’s attempt to frame the request as a trial deposition, explaining
that Wanna essentially was attempting to depose an unfriendly witness on the eve of
trial, long after the discovery period had expired. The court acknowledged that
allowing Wanna to take a Rule 30 (b) (6) deposition, which could then be introduced
38 at trial, “would streamline the presentation of evidence and perhaps shorten the
trial[.]” However, “[Wanna] already had an opportunity to streamline the
presentation of evidence by conducting depositions during the discovery period.” The
court therefore found that Wanna’s opposition to Navicent’s protective order was not
substantially justified. The court reserved the issue of attorney fees and later awarded
the Defendants $16,044 in attorney fees.11
OCGA § 9-11-26 (c) states in relevant part as follows:
Upon motion by a party or by the person from whom discovery is sought and for good cause shown, . . . the court in which the action is pending . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.] . . . Paragraph (4) of subsection (a) of Code Section 9-11-37 applies to the award of expenses incurred in relation to the motion.
With respect to the award of expenses in the event the protective order is granted,
OCGA § 9-11-37 (a) (4) (A) provides as follows:
If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the
11 The parties represent that the final fee award is not part of the record on appeal because Dr. Wanna’s counsel personally paid this sum. 39 moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
(Emphasis supplied.)
Dr. Wanna asserts that the trial court erred in awarding attorney fees because
there is no Georgia case law directly on point on the issue of whether a Rule 30 (b) (6)
deposition can be utilized as a trial preservation deposition, and thus his opposition
to the Defendants’ motion for a protective order was substantially justified. In
support, Wanna relies on case law analyzing the award of attorney fees under OCGA
§ 9-15-14 (b), which states that a court may award attorney fees if it “finds that an
attorney or party brought . . . an action, or any part thereof, that lacked substantial
justification[.]” By contrast, as noted above, an award of fees under OCGA § 9-11-37
(a) (4) (A) mandates that a court “shall” award fees “unless the court finds that the
opposition to the motion was substantially justified or that other circumstances make
an award of expenses unjust.”
In this case, the record shows on September 11, 2018 (during the discovery
period), Dr. Wanna filed a request to take an additional Rule 30 (b) (6) discovery
40 deposition of Navicent. The trial court implicitly denied the request, stating that the
only documents relevant for trial were those already disclosed during the discovery
period. As described above, the court later found no merit to Wanna’s attempt to
recast his request for a Rule 30 (b) (6) discovery deposition as a trial preservation
deposition, which was well within its discretion. See Rogers v. Schuman-Mann Supply
Co., 197 Ga. App. 59, 60-61 (3) (397 SE2d 463) (1990) (award of reasonable attorney
fees incurred by defendant in seeking protective orders to prevent unduly burdensome
discovery requests, including production of 40 years’ worth of public records and a
second deposition of a city employee, was not abuse of discretion; discovery requests
were either unreasonable or involved work product) (physical precedent only).
Based on the foregoing, we find no abuse of discretion in the trial court’s
finding that Dr. Wanna’s opposition to the Defendants’ motion for a protective order
was not substantially justified nor in its award of attorney fees. See Kemira v. Amory,
210 Ga. App. 48, 52 (1) (435 SE2d 236) (1993) (“Since there was some evidence upon
41 which the trial court could base its ruling, we find no abuse of discretion in [the
sanction the court imposed].”).
Judgment affirmed in Case No. A24A0910. Judgment affirmed in part and reversed
in part, and case remanded in Case No. A24A0909. Barnes, P. J., and Pipkin, J., concur.