Citrus Tower Boulevard Imaging Ctr., LLC v. David S. Owens, MD, PC
| Decision Date | 20 November 2013 |
| Docket Number | Nos. A13A1121,A13A1122.,s. A13A1121 |
| Parties | CITRUS TOWER BOULEVARD IMAGING CENTER, LLC v. David S. OWENS, MD, PC et al. David S. Owens, MD, PC v. Citrus Tower Boulevard Imaging Center, LLC. |
| Court | Georgia Court of Appeals |
325 Ga.App. 1
752 S.E.2d 74
CITRUS TOWER BOULEVARD IMAGING CENTER, LLC
v.
David S. OWENS, MD, PC et al.
David S. Owens, MD, PC
v.
Citrus Tower Boulevard Imaging Center, LLC.
Nos. A13A1121, A13A1122.
Court of Appeals of Georgia.
Nov. 20, 2013.
[752 S.E.2d 76]
Cohen, Pollock, Merlin & Small, Gus H. Small, Jr., Gregory Kenneth Morgan, Atlanta, Garrett Henry Nye, for Appellant.
Hal Bailey Parkerson, Timothy Thomas Read, for Appellee.
DILLARD, Judge.
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”)
[752 S.E.2d 77]
in Citrus's action on a guaranty agreement executed in connection with the lease. Citrus appeals from that order in Case No. A13A1121, arguing that the admissions in Owens's answer created a genuine issue of material fact, which precluded the grant of summary judgment. In Case No. A13A1122, the PC cross-appeals from the trial court's order granting summary judgment to Citrus in its action to recover rent and other amounts owing under the lease. Specifically, the PC argues that the trial court erred because, inter alia, the lease was ambiguous and parol evidence showed that the conditions required for the commencement of the lease term never occurred. For the reasons noted infra, we affirm in both cases.
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.” 1 A movant may meet this burden when “the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff's case.” 2 And should the moving party meet this burden, “the nonmoving party cannot rest on its pleadings, but must point to specific evidence giving rise to a triable issue.” 3
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.4 The PC initially agreed to pay Citrus rent in the amount of $100,000 per month, but that amount was later increased to $150,000 per month in a January 2009 amendment to the Lease. The term of the Lease was ten years, “commenc[ing] on the first day that the Imaging Center is functionally operational.” The PC's right to use the leased equipment was on a non-exclusive basis, and the rent was payable whether or not the PC actually used the leased equipment.5
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.
[752 S.E.2d 78]
Nevertheless, the PC failed to make any rent payments under the Lease, and in April 2011, Citrus sent a demand letter to Owens and the PC requesting payment of past due rent, plus interest, from December 2010 through April 2011. And when no payments were forthcoming, Citrus sued the PC and Owens in the State Court of Fulton County, alleging breach of contract under both the Lease and the Guaranty. The trial court subsequently granted Owens's cross-motion for summary judgment on Citrus's claims under the Guaranty. Citrus appeals from this order in Case No. A13A1121. But the trial court granted Citrus's motion for summary judgment against the PC as to Citrus's claims on the Lease. In Case No. A13A1122, the PC cross-appeals from this order.
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 “[p]ursuant 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.6 In an amended answer, Owens later denied the allegations of Paragraphs 11 and 12 of the complaint.
As applicable here, former OCGA § 24–3–30 provides that “[w]ithout offering the same in evidence, either party may avail himself of allegations or admissions made in the pleadings of the other.” 7 For an admitting party to contravene its admission, “the party must first amend the pleading to withdraw the admission in judicio before such evidence may be submitted.” 8 Even so, the other party may rely on the original admission as evidence.9 In other words,
[a]lthough 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.” 11 Thus, where the admission is simply “an opinion on the part of the party making it as to the legal effect of a paper,” 12 the withdrawn admission is not a fact that can be taken advantage of by the opposing party. 13
In the case sub judice, Owens withdrew his admissions by amending his
[752 S.E.2d 79]
answer,14 and so the relevant issue is whether the withdrawn admissions were nevertheless evidence of a fact that precluded the trial court's grant of summary judgment to Owens. And in our view, the withdrawn admissions do not constitute such evidence. Owens's admission that he “executed” the Guaranty may demonstrate that he signed the Guaranty, but that fact is undisputed and in itself does not create a genuine issue of material fact as to whether Owens was personally bound thereby.15 And Owens's admission that “[p]ursuant to the terms of the Guaranty, [he] guaranteed payment of all sums owing under the Lease” is only an opinion or conclusion as to the legal effect of that instrument. Although Citrus argues that this is evidence of the “fact” of Owens's guaranty of the Lease obligations, the admission was made in reference to the “terms of the Guaranty,” which is the controlling legal instrument. And it is well established that construction of a contract is a question of law for the court “based on the intent of the parties as set forth in the contract.” 16 To be sure, if this admission remained in the answer, Citrus may have been entitled to take advantage of such admission “as a consent ... that the case might be determined upon that theory without reference to what was the correct interpretation of the [Guaranty].” 17 But the admission was in fact withdrawn, and barring exceptions such as ambiguity or prejudice, “it is immaterial what may have been said by one of the parties ... as to what the [Guaranty] meant.” 18
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.” 19 Further, contracts of surety or guarantee are “strictly construed and are statutorily barred from extension by interpretation or implication.” 20 As noted supra, the guarantor under the Guaranty is specifically designated as the PC. Not once, but twice. Indeed, the name of the PC is clearly written on the signature line along with Owens's signature, under which is Owens's signature again, and which is then followed by an indication that he is signing in a representative rather than a personal capacity.21 The express and unambiguous language of the Guaranty establishes
[752 S.E.2d 80]
that the guarantor is the PC, not Owens.22
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,23 absent a future assignment of the Lease—which would then, perhaps, provide Citrus with a certain degree of belt-and-suspenders assurance that the PC remains liable for any and all obligations under the Lease. But regardless of whether the Guaranty actually provides Citrus with...
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