Carter v. VistaCare, LLC.

• Decision Date: 09 February 2016
• Docket Number: A16A0303.,Nos. A15A1773,s. A15A1773
• Citation: 782 S.E.2d 678,335 Ga. App. 616
• Parties: CARTER v. VISTACARE, LLC. Carter v. VistaCare, LLC.
• Court: Georgia Court of Appeals

335 Ga.App. 616

782 S.E.2d 678

CARTER

v.VISTACARE, LLC.

Carter

v.VistaCare, LLC.

Nos. A15A1773

A16A0303.

Court of Appeals of Georgia.

Feb. 9, 2016.

Robert Lee Mack Jr., Jonesboro, for Appellant.

MS Mary Claire Smith, Atlanta, for Appellee.

McMILLIAN, Judge.

In Case No. A15A1773, Regina A. Carter("Carter"), as administrator of the Estate of Mildred Irene Cantrell("Cantrell"), appeals the trial court's order granting judgment in favor of VistaCare, LLC, d/b/a VistaCare Hospice ("VistaCare") on Carter's claims for battery and negligence arising out of VistaCare's provision of hospice care to Cantrell.In Case No. A16A0303, Carter appeals the trial court's order granting summary judgment on her claim of fraud against VistaCare in the same action.For the reasons set forth below, we affirm the trial court's judgment in Case No. A15A1773, and reverse and remand in Case No. A16A0303.

Cantrell first filed a lawsuit against VistaCare on September 6, 2011(the "2011 Complaint"), alleging claims for negligence and fraud in connection with hospice services VistaCare provided her in 2010(the "First Litigation").¹Cantrell passed away at some point during the course of that lawsuit, and Carter was substituted as the plaintiff.Later, on May 28, 2014, after jury selection began at trial, Carter voluntarily dismissed the 2011 Complaint.

Approximately six months later, on November 25, 2014, Carter filed the complaint in this case(the "2014 Complaint"), asserting claims for fraudulent inducement, battery, and negligence.The 2014 Complaint alleged that in 2009 and 2010, Cantrell's primary treating physician wrote orders certifying her for Medicare-covered home healthcare services.However, Carter alleged that on or about February 6, 2010, VistaCare "took it upon itself" to change the doctor's orders to home hospice services and to place Cantrell in hospice care even though she did not qualify for such services.Carter further alleged that the hospice care Cantrell received from VistaCare, including the administration of morphine, damaged Cantrell's health, and resulted in her hospitalization.

VistaCare moved to dismiss Carter's claims, and the trial court issued an order granting VistaCare's motion as to both the battery and negligence claims but denying the motion as to the fraud claim (the "First Order").²VistaCare subsequently moved for summary judgment on the fraud claim, and the trial court granted the motion in its final order in the case(the " Final Order").Carter appeals both these orders.

Case No. A15A1773

In the First Order, the trial court found that because Carter did not assert a battery claim in the 2011 Complaint, the battery claim in the 2014 complaint was time-barred.The court also found that Carter had asserted only professional negligence claims and because she failed to file an expert affidavit with the 2014 Complaint, her negligence claim failed to comply with OCGA § 9–11–9.1

1.Carter first argues that the trial court erred in converting VistaCare's motion to dismiss Carter's battery claim into a motion for summary judgment by considering matters outside the pleadings without giving Carter notice and opportunity to present any materials in opposition.

This Court has previously found that the trial court considered matters outside the pleadings, thereby converting the motion to dismiss into a motion for summary judgment,³ and that finding is binding in all subsequent proceedings in this case.⁴OCGA § 9–11–60(h)("any ruling by ... the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in ... the Court of Appeals").And Carter is correct that when a trial court considers matters outside the pleadings on a motion to dismiss, the court has the burden of informing the party opposing the motion that it will consider such matters "and that, if the opposing party so desires, the party has no less than 30 days to submit evidence in response to the motion for summary judgment."(Citation omitted.)Brooks v. Multibank 2009–1 RES–ADC Venture, LLC,317 Ga.App. 264, 268(2), 730 S.E.2d 509(2012).See alsoOCGA § 9–11–12(a).However, "the party opposing the motion may waive the right to the 30–day notice by acquiescing in the movant's submission of evidence in support of the motion to dismiss."Morrell v. Wellstar Health System, Inc.,280 Ga.App. 1, 2(1), 633 S.E.2d 68(2006).Moreover, "deficient notice is not reversible [error] absent a showing of harm."(Citation omitted.)Bynum v. Horizon Staffing,266 Ga.App. 337, 339(1), 596 S.E.2d 648(2004).

VistaCare attached copies of the 2011 Complaint, an amended version of that complaint, and excerpts from the pre-trial hearing in the First Litigation as exhibits to its brief in support of the motion to dismiss.Carter responded to the motion approximately 30 days later and raised no objection to the trial court's consideration of these documents.In fact, Carter relied upon the 2011 Complaint, quoting the allegations in that complaint extensively in support of her arguments opposing the motion.Therefore, "[a]ll the parties, in effect, treated the motion to dismiss as being converted to a motion for summary judgment, and no party was denied an opportunity to respond to evidence submitted."Morrell,280 Ga.App. at 2(1), 633 S.E.2d 68.See alsoCox Enterprises, Inc. v. Nix,273 Ga. 152, 154, 538 S.E.2d 449(2000).Thus, we find that Carter waived the requirement of formal notice from the trial court that it would consider the motion as one for summary judgment.⁵Id.

2.Carter next argues that the trial court erred in dismissing the battery claim on the ground that it was barred under the statute of limitations.The 2014 Complaint was filed within the six-month period for a renewal of the claims asserted in the 2011 Complaint under OCGA § 9–2–60(c),⁶ and Carter argues that the 2011 Complaint stated the elements for a battery claim, even if it did not expressly assert such a claim.Thus, Carter argues that the battery claim in the 2014 Complaint should relate back to the date of filing of the 2011 Complaint for purposes of the statute of limitations.

However, "[t]o be a good ‘renewal’ of an original suit, so as to suspend the running of the statute of limitations under OCGA § 9–2–61, the new petition must be substantially the same both as to the cause of action and as to the essential parties."(Citation and punctuation omitted.)

Safi–Rafiq v. Balasubramaniam,298 Ga.App. 274, 275, 679 S.E.2d 822(2009).Therefore, "[a]defendant's liability cannot be enlarged beyond that indicated by the pleadings in the first case."(Citation omitted.)Blier v. Greene,263 Ga.App. 35, 38(1)(a), 587 S.E.2d 190(2003).Although the 2011 Complaint contains similar factual allegations to those raised in the 2014 Complaint, it is undisputed that the 2011 Complaint did not assert a cause of action for battery.Thus, we agree with the trial court that the battery claim in the 2014 Complaint asserts a new cause of action and does not relate back to the date of filing of the 2011 Complaint for purposes of the statute of limitations.

Moreover, in addition to considering the allegations of the 2011 Complaint, the trial court took judicial notice of the pre-trial order from the First Litigation.In granting summary judgment on the battery claim, the trial court found that "[r]egardless of how [Carter] opts to re-cast the claims asserted in [the First Litigation], nothing in the pleadings, or more importantly the [Consolidated] Pre–Trial Order, remotely suggest that [Carter] sought to assert a battery claim" in that litigation.

Where a trial court takes judicial notice of the record of the first-filed action in considering the propriety of a renewal action, "the record or portion thereof considered by the trial court should be designated to be included in the appeal if a party wishes to enumerate error on the ruling."SeePetkas v. Grizzard,252 Ga. 104, 108, 312 S.E.2d 107(1984);Belcher v. Folsom,258 Ga.App. 191, 192, 573 S.E.2d 447(2002).In that manner, "[a]ny party may contest or argue the effect the prior record has on the case or issue being litigated and may cite to portions of the record which have been recognized or incorporated by the court."Petkas,252 Ga. at 108, 312 S.E.2d 107.Carter, as the appellant, had the burden of designating the appropriate portions of the record from the First Litigation for inclusion on appeal.Petkas,252 Ga. at 108, 312 S.E.2d 107.However, Carter failed to make such a designation and thus we do not have a copy of the pre-trial order cited by the trial court in support of its ruling."It is well established that the burden is on the party alleging error to show it by the record and that where the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm."(Citation and punctuation omitted.)Hooks v. Humphries,303 Ga.App. 264, 268(3), 692 S.E.2d 845(2010).Accordingly, we affirm the trial court's grant of summary judgment on the battery claim.

3.Carter also asserts that the trial court erred in dismissing her negligence claim for failure to file an expert affidavit in accordance with OCGA § 9–11–9.1 because the trial court misconstrued the nature of the negligence claim asserted in the 2014 Complaint.We disagree.

Carter based her negligence claim on the factual allegations that VistaCare failed to follow Cantrell's doctor's orders for home healthcare and instead placed her in hospice care, where the treatment she received, including the administration of morphine, undermined her health.In pertinent part, the 2014 Complaint, alleges that:

— On or about May 25, 2010, [Carter] noticed that [Cantrell's] condition had worsen[ed] and, after being told by Kathy, one of [VistaCare's] nurses, that [Cantrell] was dying, [Carter] called 911 and had [Cantrell] rushed to Henry General Hospital Emergency Room,

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