SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
July 11, 2012
In the Court of Appeals of Georgia A12A0100. CHAUDHURI v. FANNIN REGIONAL HOSPITAL
BARNES, Presiding Judge.
Swapan Chaudhuri, M. D., sued Fannin Regional Hospital, Inc., for breach of
his physician’s services contract, seeking payment for services rendered and for
services he would have rendered if the hospital had scheduled him to work during the
60 days between his termination notice and the end of the contract. The hospital
counterclaimed, seeking the return of money it had already paid Dr. Chaudhuri “for
shifts that were not performed in accordance with the Agreement.”
After discovery ended, the hospital moved for summary judgment on both the
complaint and counterclaim. The trial court granted summary judgment to the hospital
on Dr. Chaudhuri’s complaint but denied it on the hospital’s counterclaim, although
the court also set off money due to Chaudhuri against money the hospital had already paid him. Three months after the trial court ruled, the hospital dismissed its
counterclaim, and Dr. Chaudhuri appealed. For the reasons that follow, we reverse.
A trial court properly grants summary judgment when there is no issue of
material fact and the record demonstrates that the moving party is entitled to
judgment as a matter of law. Holcim (US) v. AMDG, 265 Ga. App. 818 (596 SE2d
197) (2004) “On appeal, we review the trial court’s grant of summary judgment de
novo to determine whether the evidence of record, viewed in a light most favorable
to the nonmoving party, demonstrates any genuine issue of material fact.” (Citation
and punctuation omitted.) Id.
1. In his first and second enumerations of error, Dr. Chaudhuri argues that the
trial court erred in construing the contract as prohibiting him from working elsewhere
while on call, and in concluding that he was not entitled to be paid for the on-call
hours he had already worked.
In this State,
the construction of contracts involves three steps. At least initially, construction is a matter of law for the court. First, the trial court must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning. Next, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to
2 resolve the ambiguity. Finally, if the 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. (Cit.)
Schwartz v. Harris Waste Mgmt. Group, 237 Ga. App. 656, 660 (2) (516 SE2d 371
(1999). The existence or nonexistence of an ambiguity is a question of law for the
court. Southeast Atlantic Cargo Operators v. First State Ins., 197 Ga. App. 371, 372
(398 SE2d 264) (1990). If the court determines that an ambiguity exists, however, a
jury question does not automatically arise, but rather the court must first attempt to
resolve the ambiguity by applying the rules of contract construction set forth in
OCGA § 13-2-2. Id.
The physician services agreement provided that Dr. Chaudhuri would serve as
the Director of Hospitalist Services for the defendant Fannin Regional Hospital from
February 1, 2007 to January 31, 2010.1 Dr. Chaudhuri had been the director of a
similar program in Alabama and wanted to help develop the new program at Fannin
Regional. The agreement provided that, as the Director, he was required to participate
in necessary administrative functions, supervise, manage, and oversee the Service,
1 A hospitalist is a physician who treats only hospitalized patients, substituting as their primary care doctor until they are discharged.
3 arrange for in-service training, and assist the hospital in obtaining and maintaining
accreditation and licenses, among other things. Dr. Chaudhuri was also required to
provide inpatient hospitalist coverage, not to exceed a rolling average of fifteen 24-
hour shifts per month. If not present at the hospital during his shift, he was required
to be on call and to return to the facility within 45 minutes, if necessary. According
to Dr. Chaudhuri, Fannin Regional’s CEO, Mike Huff, knew that Dr. Chaudhuri
worked nights at Northside Hospital Cherokee and lived in Canton, 55 to 60 miles
from Fannin Regional. When Dr. Chaudhuri expressed reservations about being able
to reach the hospital fast enough to respond to an emergency, he testified, Huff
assured him that the distance was no problem, because the emergency room doctors
at Fannin Regional would handle any emergencies that arose.
Under “Schedule of Services Required from Contractor,” the contract provided:
“The Service shall be conducted during those days and times which Facility
determines to be necessary in order to properly address patient needs and effectively
coordinate with other Services.” Of several possible options, including ones that
would have specified the number of hours per day and days per week to be worked
in-house and on call, Dr. Chaudhuri agreed to provide service “[o]n an as-needed
4 basis as scheduled by the Facility.” The following terms are hand-written in the
“Billing and Compensation” section of the contract:
Each scheduled 24 hour shift shall be paid accordingly: 8 hours in-house coverage at $125 per hour and 16 hours on-call coverage at $25 per hour[,] not to exceed a rolling average of fifteen (15) shifts per month.
Finally, the contract included an “Official Time Record” form for Dr. Chaudhuri to
complete and return to Fannin Regional periodically.
Dr. Chaudhuri testified that Huff told him in an August 2007 meeting to get
someone else to cover nights at Fannin Regional,2 but he was unable to find anyone
to do so and the hospital scheduled him to work on call in September. While on call,
Dr. Chaudhuri testified, he was being paid to respond to his beeper, typically 40 to
50 times per shift, and was being paid one-sixth less than when he worked in-house.
After Dr. Chaudhuri worked his regular shifts in September 2007 as scheduled,
the hospital refused to pay him for his on-call time. In September 2007, Dr.
Chaudhuri returned his reimbursement check for hours worked during the week of
2 While Fannin Regional cites to a document in the record titled “Minutes from Hospitalist Meeting” on August 9, 2007, as support for certain factual contentions, the minutes are hearsay, the veracity of which Dr. Chaudhuri disputes.
5 September 9 because it did not include payment for the time he was on-call during his
shifts. On September 27, 2007, the hospital sent Dr. Chaudhuri a letter informing him
that it was terminating his contract in 60 days under Section 3.2 of the Physician
Services Agreement, effective on November 26, 2007.3 The hospital also asked Dr.
Chaudhuri to send in completed time sheets differentiating between his on-call and
in-house hours, and noted that the on-call provision of his contract required him to
return to the facility within 45 minutes of being called. Dr.
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SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
July 11, 2012
In the Court of Appeals of Georgia A12A0100. CHAUDHURI v. FANNIN REGIONAL HOSPITAL
BARNES, Presiding Judge.
Swapan Chaudhuri, M. D., sued Fannin Regional Hospital, Inc., for breach of
his physician’s services contract, seeking payment for services rendered and for
services he would have rendered if the hospital had scheduled him to work during the
60 days between his termination notice and the end of the contract. The hospital
counterclaimed, seeking the return of money it had already paid Dr. Chaudhuri “for
shifts that were not performed in accordance with the Agreement.”
After discovery ended, the hospital moved for summary judgment on both the
complaint and counterclaim. The trial court granted summary judgment to the hospital
on Dr. Chaudhuri’s complaint but denied it on the hospital’s counterclaim, although
the court also set off money due to Chaudhuri against money the hospital had already paid him. Three months after the trial court ruled, the hospital dismissed its
counterclaim, and Dr. Chaudhuri appealed. For the reasons that follow, we reverse.
A trial court properly grants summary judgment when there is no issue of
material fact and the record demonstrates that the moving party is entitled to
judgment as a matter of law. Holcim (US) v. AMDG, 265 Ga. App. 818 (596 SE2d
197) (2004) “On appeal, we review the trial court’s grant of summary judgment de
novo to determine whether the evidence of record, viewed in a light most favorable
to the nonmoving party, demonstrates any genuine issue of material fact.” (Citation
and punctuation omitted.) Id.
1. In his first and second enumerations of error, Dr. Chaudhuri argues that the
trial court erred in construing the contract as prohibiting him from working elsewhere
while on call, and in concluding that he was not entitled to be paid for the on-call
hours he had already worked.
In this State,
the construction of contracts involves three steps. At least initially, construction is a matter of law for the court. First, the trial court must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning. Next, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to
2 resolve the ambiguity. Finally, if the 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. (Cit.)
Schwartz v. Harris Waste Mgmt. Group, 237 Ga. App. 656, 660 (2) (516 SE2d 371
(1999). The existence or nonexistence of an ambiguity is a question of law for the
court. Southeast Atlantic Cargo Operators v. First State Ins., 197 Ga. App. 371, 372
(398 SE2d 264) (1990). If the court determines that an ambiguity exists, however, a
jury question does not automatically arise, but rather the court must first attempt to
resolve the ambiguity by applying the rules of contract construction set forth in
OCGA § 13-2-2. Id.
The physician services agreement provided that Dr. Chaudhuri would serve as
the Director of Hospitalist Services for the defendant Fannin Regional Hospital from
February 1, 2007 to January 31, 2010.1 Dr. Chaudhuri had been the director of a
similar program in Alabama and wanted to help develop the new program at Fannin
Regional. The agreement provided that, as the Director, he was required to participate
in necessary administrative functions, supervise, manage, and oversee the Service,
1 A hospitalist is a physician who treats only hospitalized patients, substituting as their primary care doctor until they are discharged.
3 arrange for in-service training, and assist the hospital in obtaining and maintaining
accreditation and licenses, among other things. Dr. Chaudhuri was also required to
provide inpatient hospitalist coverage, not to exceed a rolling average of fifteen 24-
hour shifts per month. If not present at the hospital during his shift, he was required
to be on call and to return to the facility within 45 minutes, if necessary. According
to Dr. Chaudhuri, Fannin Regional’s CEO, Mike Huff, knew that Dr. Chaudhuri
worked nights at Northside Hospital Cherokee and lived in Canton, 55 to 60 miles
from Fannin Regional. When Dr. Chaudhuri expressed reservations about being able
to reach the hospital fast enough to respond to an emergency, he testified, Huff
assured him that the distance was no problem, because the emergency room doctors
at Fannin Regional would handle any emergencies that arose.
Under “Schedule of Services Required from Contractor,” the contract provided:
“The Service shall be conducted during those days and times which Facility
determines to be necessary in order to properly address patient needs and effectively
coordinate with other Services.” Of several possible options, including ones that
would have specified the number of hours per day and days per week to be worked
in-house and on call, Dr. Chaudhuri agreed to provide service “[o]n an as-needed
4 basis as scheduled by the Facility.” The following terms are hand-written in the
“Billing and Compensation” section of the contract:
Each scheduled 24 hour shift shall be paid accordingly: 8 hours in-house coverage at $125 per hour and 16 hours on-call coverage at $25 per hour[,] not to exceed a rolling average of fifteen (15) shifts per month.
Finally, the contract included an “Official Time Record” form for Dr. Chaudhuri to
complete and return to Fannin Regional periodically.
Dr. Chaudhuri testified that Huff told him in an August 2007 meeting to get
someone else to cover nights at Fannin Regional,2 but he was unable to find anyone
to do so and the hospital scheduled him to work on call in September. While on call,
Dr. Chaudhuri testified, he was being paid to respond to his beeper, typically 40 to
50 times per shift, and was being paid one-sixth less than when he worked in-house.
After Dr. Chaudhuri worked his regular shifts in September 2007 as scheduled,
the hospital refused to pay him for his on-call time. In September 2007, Dr.
Chaudhuri returned his reimbursement check for hours worked during the week of
2 While Fannin Regional cites to a document in the record titled “Minutes from Hospitalist Meeting” on August 9, 2007, as support for certain factual contentions, the minutes are hearsay, the veracity of which Dr. Chaudhuri disputes.
5 September 9 because it did not include payment for the time he was on-call during his
shifts. On September 27, 2007, the hospital sent Dr. Chaudhuri a letter informing him
that it was terminating his contract in 60 days under Section 3.2 of the Physician
Services Agreement, effective on November 26, 2007.3 The hospital also asked Dr.
Chaudhuri to send in completed time sheets differentiating between his on-call and
in-house hours, and noted that the on-call provision of his contract required him to
return to the facility within 45 minutes of being called. Dr. Chaudhuri returned the
completed time sheets as requested.
Ultimately, the hospital declined to pay Dr. Chaudhuri for the on-call hours he
worked in September 2007, and refused to schedule him for any shifts in October and
November 2007. Dr. Chaudhuri sued Fannin Regional for breach of contract, seeking
$21,000 compensation for the 15 shifts he worked in September 2007, and $42,000
for the 30 shifts he should have been scheduled to work in October and November
2007. He also sought attorney fees and expenses of litigation under OCGA § 13-6-11.
The trial court held that Dr. Chaudhuri admitted to “double scheduling” during
his on-call shifts at Fannin and continued to “double schedule” after being told to
3 While the letter states that the termination date is effective November 26, 2008, the parties agree that the intended year was 2007.
6 stop. The trial court also found that Dr. Chaudhuri was not entitled to be paid for his
on-call time in September 2007 because he could not have returned “in a safe
manner” to Fannin Regional within 45 minutes while he was working at Northside.
The contract itself, however, did not prohibit Dr. Chaudhuri from working
elsewhere while he was on call, nor did it otherwise restrict the conditions under
which he could answer calls from Fannin Regional. It is undisputed that Dr.
Chaudhuri was always able to discharge his on-call duties to Fannin Regional by
telephone, and therefore never breached the contract provision requiring him to return
to the facility within 45 minutes.
To the extent Fannin Regional raises an anticipatory breach of contract claim,
anticipatory repudiation arises only upon an unqualified repudiation of the entire
contract.
The “anticipatory repudiation” of a contract occurs when one party thereto repudiates his contractual obligation to perform prior to the time such performance is required under the terms of the contract. Thus when one party to a bilateral contract of mutual dependent promises absolutely refuses to perform and repudiates the contract prior to the time of his performance, the innocent party is at liberty to consider himself absolved from any future performance on his part. The breach which will form the basis for an anticipatory breach of contract action is an
7 unqualified repudiation of the entire contract prior to the time for performance.
(Citation and punctuation omitted; emphasis in original) Coffee Butler Serv. v. Sacha,
258 Ga. 192, 193 (1) (366 SE2d 672) (1988). The record does not support a finding
of an anticipatory breach that would absolve Fannin Regional from performing its
obligations under the contract.
Accordingly, the trial court erred in finding that Fannin Regional was entitled
to summary judgment on Dr. Chaudhuri’s claim for unpaid compensation.
2. Dr. Chaudhuri also asserts that the trial court erred in setting off his
entitlement to $15,000 in compensation for the in-house hours he worked in
September 2007 against Fannin Regional’s counterclaim for the recovery of all sums
it paid Dr. Chaudhuri for on-call services while he was working at Northside
Cherokee.
The contract provides that “any amounts due to [Dr. Chaudhuri] by [Fannin
Regional] may be reduced by any and all monies due and owing by [Dr. Chaudhuri]
to [Fannin Regional], under this Agreement or any other agreement between the
parties, to the extent allowed by law.” The trial court found that Fannin Regional was
entitled to repayment of the money it previously paid Dr. Chaudhuri for on-call
8 services while he was working at Northside. Further, although neither party had
submitted evidence of the exact number of hours or days involved in Fannin
Regional’s counterclaim, the trial court found that the amount Dr. Chaudhuri owed
Fannin Regional exceeded the money Fannin Regional owed to Dr. Chaudhuri.
Therefore, the court concluded, neither party was entitled to recover, because the
hospital’s claim offset Dr. Chaudhuri’s claim.
As addressed in Division 1, however, the contract did not prohibit Dr.
Chaudhuri from working elsewhere while he was on call, and no evidence in the
record established that he ever breached the contract by failing to return to the
hospital in 45 minutes when needed. Accordingly, the trial court erred in finding a
set-off.
3. Finally, Dr. Chaudhuri asserts that the trial court erred in finding that he was
not entitled to compensation during the 60-day period between the notice of
termination and the termination itself. The trial court found that Fannin Regional had
no obligation to schedule Dr. Chaudhuri to work, based on the contract provision in
which he agreed to provide services “on an as-needed basis as scheduled by the
Facility.”
9 Fannin Regional’s letter of September 22, 2007 to Dr. Chaudhuri stated that it
would “serve as his sixty (60) days prior written notice that the Facility is terminating
this agreement . . . effective November 26, 2008 [sic],” in accordance with Section
3.2 of the Physician Services Agreement. Section 3.2 provides:
Either party may terminate this Agreement, without cause, by providing not less than sixty (60) days prior written notice stating the intended date of termination. In the event that this Agreement is terminated for any reason prior to the expiration of one (1) year from the Effective Date, neither party shall enter into an agreement for similar services with the other party until after the expiration of the first year of the initial term.
In contrast, Sections 3.3 and 3.5 of the agreement provide grounds for immediately
terminating the agreement, such as, for example, an arrest, the failure to maintain
professional liability insurance, license revocation, or if the hospital closed or was
placed into bankruptcy. Section 3.4 outlines another termination provision in the
event that a party materially breaches the agreement in a manner other than those set
forth in Sections 3.3 and 3.5. In that case, the other party could have elected to
terminate the agreement by giving not less than 30 days written notice specifying the
nature of the breach, after which the breaching party had 15 days to remedy the
breach or the agreement would be terminated at the end of the 30-day notice period.
10 “The rules of construction require the court to consider the policy as a whole,
to give effect to each provision, and to interpret each provision to harmonize with
each other.” ALEA London Ltd. v. Woodcock, 286 Ga. App. 572, 576 (2) (649 SE2d
740) (2007). The court should avoid interpreting a contract in a way that renders
portions of it meaningless. Georgia Farm Bureau Mut. Ins. Co. v. Gaster, 248 Ga.
App. 198, 199 (546 SE2d 30) (2001); OCGA § 13-2-2 (4); Holloman v. D.R. Horton,
241 Ga. App. 141, 142 (1) (a) (524 SE2d 790) (1999).
Fannin Regional argues, and the trial court found, that it was not obliged to pay
Dr. Chaudhuri anything in October and November 2007, after its notice but before
the actual termination date, because the contract did not require the hospital to
schedule him for any shifts. But this interpretation of the provision that Dr. Chaudhuri
would provide services “on an as-needed basis as scheduled by the Facility” would
render meaningless the contract’s provisions distinguishing between offenses that are
grounds for immediate termination from offenses that are grounds for possible
termination if not cured, and the provisions for termination without cause, all of
which have different notice requirements. Why require a 60-day notice before a party
may terminate the contract without cause if the notice is meaningless?
11 Thus, the “as-needed” language of the contract and its termination and notice
provisions are ambiguous. “This ambiguity requires application of the usual rules of
construction. One of those rules is to consider the background of the contract and the
circumstances under which it was entered into, particularly the purpose for the
particular language to be construed.” (Citations and punctuation omitted.) Horwitz
v. Weil, 275 Ga. 467, 469 (569 SE2d 515) (2002).
The hospital had been scheduling Dr. Chaudhuri to work 15 shifts per month.
Dr. Chaudhuri testified that in October and November 2007, after giving him the 60-
day termination notice, the hospital needed him but would not schedule him to work.
Instead, the only other full-time hospitalist at the hospital was scheduled to work 25
shifts in October 2007, which was “outright dangerous from the patient care point of
view,” according to Dr. Chaudhuri, and also scheduled him to work an excessive
number of shifts in November 2007.
Applying the applicable rules of construction, considering the circumstances
and background under which the contract was created, Fannin General was obliged
to schedule Dr. Chaudhuri for 15 shifts in October and November 2007. The hospital
is therefore required to reimburse him for that amount of time.
12 Accordingly, the trial court erred in granting summary judgment to Fannin
Regional and in setting off money due to Dr. Chaudhuri.
Judgment reversed. Adams and McFadden, JJ., concur.