These appeals arise out of a lease by Citrus Tower Boulevard Imaging Center, LLC (“Citrus”) to David S. Owens, MD, PC (“the PC”) of certain magnetic resonance imaging equipment and related services. The trial court granted summary judgment to the PC’s principal, Dr. David S. Owens (“Owens”)
At the outset, we note that summary judgment is appropriate when the moving party can show that there is “no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.”
So viewed, the record shows that Owens, the PC’s principal, is a radiologist whose practice focuses on reading and interpreting body-scan images made with CRT, MRI, X-Ray and other medical equipment. The PC, according to Owens, “receives and interprets film from primarily around the Southeast.”
Citrus, a Georgia limited-liability company, owned and managed a diagnostic-imaging center in Clermont, Florida. On or about December 16, 2008, Citrus and the PC entered into the Lease Agreement (the “Lease”) at issue here. And under the terms of this Lease, which the parties agreed would be governed by Georgia law, the PC leased from Citrus the use of certain imaging equipment and related services.
On or about December 15, 2008, Owens executed a “Guarantee Agreement” (the “Guaranty”), also governed by Georgia law, pursuant to which the guarantor agreed to “guarantee [ ] to [Citrus] the full and prompt payment in cash and whenever due ... all sums now or hereafter payable under the Lease ....” And while it is not disputed that Owens signed the Guaranty, the guarantor is designated as “David Owens, MD, PC” in two separate places, with Owens writing “David Owens—MD PC” on the signature line. Owens also signed his name under the signature line accompanied by what he contends to be—and Citrus does not dispute—the designation of “Managing Member.”
In October 2010, the PC announced that it was opening a satellite office in Clermont, Florida. Owens testified that the Clermont facility began “scanning real patients . . . around October of 2010,” and that the facility opened in the autumn of 2010. At this time, Owens and the PC began reading MRI scans taken at the Clermont facility.
Case No. A13A1121
1. Citrus claims that the trial court erred in granting Owens’s motion for summary judgment because Owens’s admissions in his original answer created a genuine issue of material fact as to whether he signed the Guaranty in his personal capacity. We disagree.
Paragraph 11 of Citrus’s complaint alleged, in pertinent part, that “[o]n or about December 15, 2008, Owens executed a Guaranty (the ‘Guaranty’).” And in Paragraph 12 of its complaint, Citrus maintained that “[pjursuant to the terms of the Guaranty, Owens guaranteed payment of all sums owing under the Lease, including all costs, expenses, and attorneys’ fees.” Owens and the PC filed an answer in which “Defendant Owens” admitted the allegations of Paragraphs 11 and 12 of Citrus’s complaint.
As applicable here, former OCGA § 24-3-30 provides that “[without offering the same in evidence, either party may avail himself of allegations or admissions made in the pleadings of the other.”
[although a party may withdraw or strike from the pleadings an admission in judicio by amendment and tender evidence to contravene such admission, the opposite party can tender in evidence the original admission in judicio against such party as an admission against interest. Even after its withdrawal, an opposing party undeniably has a right to use it as evidence.10
Notwithstanding the foregoing, an admission in judicio applies only to “the admission of fact and does not apply where the admission is merely the opinion or conclusion of the pleader as to law or fact.”*
In the case sub judice, Owens withdrew his admissions by amending his
As to whether Owens was obligated under the Guaranty, this Court examines the language of the contract to “determine in what capacity the representative is bound.”
In reaching this conclusion, we acknowledge that for the PC to guarantee its own obligations does not appear to be particularly meaningful to either Citrus or the PC,
2. The PC contends that the trial court erred in finding that the Lease was not ambiguous and in excluding parol evidence of the parties’ collateral agreements defining the terms “Imaging Center” and “functionally operational.” We disagree.
The construction of a contract is a three-step analytical process. The trial court must first decide if the language is clear and unambiguous, and, if it is, no construction is required,
A contract is ambiguous if the words used therein “leave the intent of the parties in question—i.e., that intent is uncertain, unclear, or is open to various interpretations.”
At issue here is the meaning of the terms “Imaging Center” and “functionally operational” as set forth in the Lease provision defining the term of the Lease. Both parties agree that although the Lease was executed in December 2008, the term of the Lease did not begin at that time. But the PC contends that conditions required for the term of the Lease to commence were never met and therefore its obligation to pay Citrus never arose. The Lease provides:
2. TERM. The term of this Lease shall commence on the first day that the Imaging Center is functionally operational (the “Effective Date”), and unless terminated as hereinafter provided, shall continue for a term of ten (10) years (the “Term”).
Although “Imaging Center” is capitalized, the term is not defined in the Lease. However, within the context of the Lease, the Imaging Center can only refer to Citrus’s facility in Clermont, Florida. For example, the Lease, in another provision, speaks of the “Imaging Center facility.”
Similarly, the term “functionally operational” is not defined in the Lease itself. But looking first to its plain and ordinary meaning, “functionally” is defined as “in a functional manner.”
Relying on Owens’s affidavit, the PC maintains that Owens and Citrus’s representative
(i) adequate patient referral flow agreements;
(ii) insurance contracts in place which would permit claims for images from the imaging center to be processed and reimbursed at rates assured by Citrus;
(iii) imaging equipment certified by ACR
(iv) adequately trained personnel to provide professional services to operate the imaging equipment;
(v) a fully stocked “crash cart” for patient safety; and
(vi) completion of finished space in the office building suitable for occupancy and use.
It is true, of course, that extrinsic evidence is admissible to explain an ambiguity contained within a contract.
Contending that the Lease is nevertheless “incomplete on its face,” the PC argues that extrinsic evidence should be admitted to determine when the Lease became effective. Specifically, the PC argues that “[i]f the writing appears on its face to be an incomplete contract and if the parol evidence offered is consistent with and not contradictory of the terms of the written instrument, then the parol evidence is admissible to complete the agreement between the parties.”
Furthermore, because the Lease was not to be performed within one year of its making, it falls squarely within the Statute of Frauds.
As discussed supra, Owens posits in his affidavit the alleged collateral agreements as to the elements of a functionally operational Imaging Center. He then ultimately avers that “[mjany, but not all” of those elements were never provided by Citrus. Indeed, Owens specifically avers that Citrus still has not (1) “put in place adequate contracts with insurance companies”; (2) “put in place the referral contracts necessary to make the imaging center functionally operational with a meaningful volume of patients”; (3) “obtained] all the necessary certifications and maintenance of the magnetic resonance (MR) imagery equipment so that it could be deemed functionally operational”; and (4) “fully completed the build out of space agreed to be part of the Imaging Center.” But the record shows that Owens testified during his deposition that the Clermont facility was open and “began scanning real patients . . . around October of 2010.” Owens also produced numerous documents showing that the PC began practicing out of the Clermont facility in October 2010. Moreover, MRI scans read by the PC were performed at the facility in the autumn of 2010, and Owens indicated that the PC generated revenue at the Clermont facility beginning in 2010. And records produced by Owens also showed that hundreds of MRI scans were performed at the Imaging Center beginning in the autumn of 2010. Given the undisputed facts regarding the PC’s use of the Imaging Center, the trial court did not err in finding that there was no genuine issue of material fact as to whether the Imaging Center was functionally operational by December 2010, the time from which Citrus demanded rent from the PC.
4. The PC further asserts that the trial court erred in failing to rule on and sustain the evidentiary objections of the PC and Owens as to the affidavit of Citrus’s managing member, George Overend, which was submitted in support of Citrus’s motion for summary judgment. Again, we disagree.
The PC filed a motion to strike Overend’s affidavit, in which he avers that the Imaging Center became operable in December 2010. And in its summary-judgment order, the trial court noted that the parties agreed at the hearing that it need not rule on the PC and Owens’s objection to Overend’s affidavit. The PC asserts, and Citrus does not dispute, that there was never any agreement by the parties that the trial court need not rule on the objection in the event that, as ultimately occurred, the trial court granted Citrus’s motion for summary judgment. But even if Overend’s affidavit had been struck, the evidence—-particularly Owens’s deposition testimony—still demands the grant of summary judgment to Citrus as to its claims against the PC. Accordingly, even if the trial court erred in failing to address the objection to Overend’s affidavit, the error was harmless.
5. The PC further argues that its affirmative defense of fraud in the inducement precluded the entry of summary judgment for Citrus. Once again, we disagree.
The elements of fraud, according to the PC, were established by Owens’s averment that Citrus’s representative, Franklin Trell, made false representations to Owens, which Owens then relied upon in causing the PC to enter into the Lease, Guaranty, and the amendment to the Lease.
Here, however, the PC continued to utilize the services provided by Citrus’s Clermont facility even after it realized that the alleged representations were false, and it opted not to formally rescind the Lease even, according to Owens, “with the lawsuit coming on.” And as we have previously explained, “[i]t is incumbent upon a party who attempts to rescind a contract for fraud to repudiate it promptly on discovery of the fraud.”
6. Lastly, the PC contends that the trial court erred in granting summary judgment to Citrus because there was a genuine issue of material fact as to its affirmative defense of lack of consideration.
The PC contends that there was a failure of consideration because Citrus never provided it with a functionally operational Imaging Center. But, as discussed supra, the evidence shows that Citrus did provide the PC with a functionally operational Imaging Center. It follows, then, that there is no genuine issue of material fact remaining as to the PC’s claim of a failure of consideration.
Judgments affirmed.
Notes
Bd. of Comm’rs v. Barefoot,
Id. (punctuation omitted).
Id. (punctuation omitted).
Under the schedule of equipment use the PC was afforded “200 MRI scans/CPT Codes per month,” and these scans could be scheduled on an as needed basis. By the January 2009 amendment to the Lease, the number of “leased MRI scans” per month was increased to 300.
The Lease also contemplated that the PC would have the right to use a medical office suite and the services of necessary personnel to operate the Imaging Center facility.
Pursuant to the Lease, the rent was payable “whether or not the Equipment is actually used by Lessee during all of the Scheduled Time.”
The answer, which was submitted by Owens’s attorney, set forth defined terms for both the PC (“Owens PC”) and Owens individually (“Owens”), and the answer shows that it was Owens, in his individual capacity, who admitted the paragraphs of the complaint at issue.
This provision is now codified at OCGA § 24-8-821, and it is virtually identical to the predecessor statute (“Without offering the same in evidence, either party may avail himself or herself of allegations or admissions made in the pleadings of the other”).
Wahnschaff v. Erdman,
Id. at 78-79 (1).
Georgia-Pacific, LLC v. Fields,
Howell Mill/Collier Assoc. v. Pennypacker’s, Inc.,
McElmurray v. Blodgett,
McElmurray,
See Georgia-Pacific,
See generally Elwell v. Keefe,
Deep Six, Inc. v. Abernathy,
McElmurray,
Id. We note that this principle also applies to Owens’s affidavit to the extent he offered statements as to his intent in entering into the Guaranty. Indeed, because the Guaranty is unambiguous, “parol evidence is neither admissible nor probative.” Dennisson v. Lakeway Publishers, Inc.,
Grot v. Capital One Bank (USA), N.A.,
Elwell,
See Groth v. Ace Cash Express, Inc.,
See Porter Coatings v. Stein Steel,
See, e.g., NW Parkway, LLC v. Lemser,
See PlayNation Play Systems, Inc. v. Jackson,
See Caves,
See Keane v.Annice Heygood Trevitt Support Trust,
Compare Keane,
Gen. Steel, Inc. v. Delta Bldg. Sys., Inc.,
Id.
Id.
Id.
Coleman v. Arrington Auto Sales & Rentals,
Id. (punctuation omitted).
Further, the lessor is the “Citrus Tower Boulevard Imaging Center, LLC,” and the PC is afforded the right to use a medical office suite at “Citrus Tower Blvd” in Clermont.
The Compact Oxford English Dictionary 649 (2d ed. 1991). See generally Akron Pest Control v. Radar Exterminating Co.,
The Compact Oxford English Dictionary 1217 (2d ed. 1991).
See Archer W. Contractors, Ltd. v. Estate of Mack Pitts,
When Owens’s affidavit is read in conjunction with his deposition, it appears that “ACR” refers to the American College of Radiology.
See OCGA § 13-2-2 (1).
Quality Foods, Inc. v. Smithberg,
Preferred Risk Mut. Ins. Co. v. Jones,
Preferred Risk Mut. Ins. Co.,
OCGA § 13-5-30 (5).
See Jaraysi v. Sebastian,
See, e.g., Grot,
See Griffin v. State Bank,
See id. at 91 (1) (a) (noting that “claims of fraud arising from a representation of a future event made with knowledge that it is false or intention not to perform may be actionable” (punctuation omitted)).
Browning v. Powell,
See Novare Group, Inc. a. Sarif,
See First Data POS, Inc. v. Willis,
See Novare Group,
See OCGA §§ 13-3-40 (a) (consideration is essential to an enforceable contract); 13-5-9 (total or partial failure of consideration may be pleaded as a defense to enforcement of a promise); Han v. Han,