Fisher v. Toombs County Nursing Home

• Decision Date: 05 December 1996
• Docket Number: No. A96A1289,A96A1289
• Citation: 479 S.E.2d 180,223 Ga. App. 842
• Parties: , 96 FCDR 4403 FISHER et al. v. TOOMBS COUNTY NURSING HOME.
• Court: Georgia Court of Appeals

Page 180

479 S.E.2d 180

223 Ga.App. 842, 96 FCDR 4403

FISHER et al. v.TOOMBS COUNTY NURSING HOME.

No. A96A1289.

Court of Appeals of Georgia.

Dec. 5, 1996.

Lecora Bowen, College Park, for appellants.

M. Scott Barksdale, Atlanta, for appellee.

PER CURIAM.

Mildred Fisher(hereinafter referred to by her maiden name of Stewart) appeals the trial court's grant of summary judgment to the Toombs County Nursing Home(Nursing Home) on various claims concerning its care and its discharge of T.C. Fisher, allegedly her husband, who was a patient.

On October 31, 1980, Fisher married Stewart in West Palm Beach, Florida.Several years after their marriage, Fisher's health deteriorated, and he was ultimately placed in the Nursing Home in order to be closer to his extended family.Undisputed evidence indicates that Fisher was competent at the time he entered the facility, and he subsequently signed an admissions agreement with the Nursing Home.Stewart agreed to be financially responsible for all expenses Fisher incurred at the Nursing Home that were not covered by Medicaid or other sources.She continued to live in Florida but visited Fisher at the Nursing Home every two weeks until his discharge.

In 1989, Jonathan Fisher, Fisher's son from a former marriage, received court appointment from the Toombs County Probate Court to oversee his father's affairs.The wrong probate court form was used, and the form order named Fisher as the temporary administrator of his father's estate rather than as his guardian.Immediately after permanent letters of administration were issued, Stewart notified the Nursing Home that she disputed the son's assertion that he was properly appointed as his father's guardian.She filed a petition contesting the appointment, and the appointment was declared a nullity in May 1993.

In February 1992, Fisher broke his elbow when he was dropped by one of the Nursing Home's orderlies, who was transferring Fisher from his wheelchair to his bed.Thereafter, Fisher was discharged and released to his son's care.The Nursing Home did so without informing Stewart.Fisher was moved to a facility in Michigan near his son's home.

Stewart filed the underlying action in four counts: negligence and loss of consortium based upon the injuries Fisher sustained in his fall, breach of contract, and intentional infliction of emotional distress resulting from Fisher's release from the facility without Stewart's knowledge or consent.

The Nursing Home moved to dismiss all counts based, in part, on the assertion that Fisher and Stewart had never been validly married due to an unresolved prior marriage so that she lacked standing to assert the claims of negligence and loss of consortium.The trial court transformed the motion to dismiss into a motion for summary judgment and granted it, based largely on the court's determination that, as a matter of law, the marriage of Fisher and Stewart was invalid.

1.First, Stewart asserts that the trial court erred in determining that her marriage was invalid, thus precluding her standing to pursue the negligence and loss of consortium claims.In addition to other evidence, the Nursing Home filed the affidavit of Louvern Allen Fisher averring that she had married Fisher in June 1950 in Dade County, Florida, and that she"had never undertaken to obtain a divorce" from him.In response, Stewart produced a certified copy of her marriage certificate.Other evidence reflects that Stewart and Fisher considered themselves to be married, e.g., they cohabitated as husband and wife subsequent to their marriage ceremony, and Fisher was insured under Stewart's policy as her spouse.

Marriage being considered a civil contract, ¹ its validity will be judged by the law of the forum in which it was made, in this case Florida.Gen. Elec. Credit Corp. v. Home Indem. Co., 168 Ga.App. 344, 349, 309 S.E.2d 152(1983)(under the rule of lex loci contractus, the validity, nature, construction, and interpretation of a contract are governed by the substantive law of the state where the contract was made).

Under Florida law, when one spouse is alleged to have married a second individual while still married to someone else, the subsequent marriage is presumed to be valid."The presumption in favor of the validity of the subsequent marriage formally entered into is so great that in the absence of competent proof to the contrary it is to be assumed that the previous marriage has been dissolved either by death or legal action."Grace v. Grace, 162 So.2d 314, 317(Fla. 1st DCA1964).This presumption in favor of the second spouse is "one of the strongest presumptions known to the law" and "[w]hile the [party attacking the marriage] is not required to eliminate every remote possibility that a divorce might have been secured by [the spouse in question], it is necessary that [the party attacking the second marriage] tender evidence which when weighed collectively establishes the absence of a reasonable probability that [the spouse in question] actually secured the divorce."Teel v. Nolen Brown Motors, 93 So.2d 874, 876(Fla.1957).

The trial court erroneously determined that Fisher's marriage to Stewart was not valid based on an unresolved prior marriage.A question of fact requiring jury resolution exists as to the sufficiency of the evidence to rebut the strong presumption of validity accorded Stewart's marriage under Florida law.SeeMiller v. Miller, 258 Ga. 168, 170, n. 6, 366 S.E.2d 682(1988)(under Georgia law, a jury determines whether a presumption has been rebutted);see alsoOCGA § 24-4-20("[p]resumptions of fact are exclusively questions for the jury").Accordingly, summary judgment was not warranted on Stewart's claim of negligence and loss of consortium.

2.Second, Stewart enumerates as error the summary judgment on her claim that the Nursing Home breached its contract by discharging Fisher without first contacting her.

An agreement may consist of multiple documents.Baker v. Jellibeans, Inc., 252 Ga. 458, 460, 314 S.E.2d 874(1984).The entire agreement at issue in this case consists of (1) the agreement executed by the Nursing Home and Fisher in which he designates Stewart as the "Responsible Party," and (2) the statement of services executed by the Nursing Home administrator and Stewart as the "Responsible Party," whereby she acknowledges understanding the rules and regulations of the Nursing Home.Stewart's health benefits from her job covered Fisher's care in the Nursing Home.

Fisher had wanted to go to the Nursing Home in Toombs County to be close to his other relatives, but Stewart's employment was still in Fort Lauderdale and she maintained her residence there.

By signing this document, Stewart agreed to serve as the Responsible Party, and the Nursing Home's signature indicates its acceptance of her in this role.Stewart also impliedly agreed to abide by those rules, including the rule that she be financially responsible for Fisher's debts to the Nursing Home.Her agreement to be financially responsible provides her with the "legal interest" in the contract required by OCGA § 9-2-20(a).

She is not a third-party beneficiary under OCGA § 9-2-20(b).She is instead a promisor, i.e., the "Responsible Party," and Fisher the beneficiary of her obligations under the contract.She thus has privity and standing to sue the Nursing Home.Stewart gave consideration--her promise to be financially responsible for Fisher's care--in exchange for care of her husband and the implied right to have notice of significant actions relating to Fisher which the Nursing Home was taking.

Even if all the benefits of the contract were construed to flow to Fisher, that fact alone would not deprive Stewart of standing.Consideration need not be a benefit accruing to the promisor, but may be a benefit accruing to another.SeeOCGA § 13-3-42(d);Owens v. Svc. Fire Ins. Co., etc., 90 Ga.App. 553, 556(1), 83 S.E.2d 249(1954).

The contract implied a duty for the Nursing Home to notify Stewart of Fisher's discharge.An implied term in an agreement exists where it is reasonable and necessary to effect the full purpose of the contract and is so clearly within the contemplation of the parties that they deemed it unnecessary to state.Ellis v. Brookwood Park Venture, 161 Ga.App. 242, 243, 288 S.E.2d 308(1982).Stewart and the Nursing Home could both reasonably contemplate that she should be notified of Fisher's planned discharge inasmuch as she was both his wife and the Responsible Party under the agreement."In deciding whether to imply promises or duties to the terms of a contract, ' "(t)he introduction of an implied term into the contract of the parties ... can only be justified when the implied term is not inconsistent with some express term of the contract and where there arises from the language of the contract itself, and the circumstances under which it was entered into, an inference that it is absolutely necessary to introduce the term to effectuate the intention of the parties." '[Cits.] Consequently, though courts are generally reluctant to make contracts for the parties, they will imply promises or duties when justice, good faith, or fairness so demand."(Emphasis omitted.)Higginbottom v. Thiele Kaolin Co., 251 Ga. 148, 149(1), 304 S.E.2d 365(1983)(citing11 Williston on Contracts, 3rd ed., p. 34, § 1295;3 Corbin on Contracts, §§ 541, 561).Stewart's situation fits these criteria, and the notice requirement should accordingly be implied in this contract.

As a matter of law, this contract also imposed upon each party a duty of good faith and fair dealing in the performance and completion of their respective duties and obligations.Toncee, Inc. v. Thomas, 219 Ga.App. 539, 543(4), 466 S.E.2d 27(1995)."Good faith" is a shorthand way of saying substantial compliance with the spirit, and not merely the letter, of a contract.Crooks v. Chapman Co., 124 Ga.App. 718, 185 S.E.2d 787(1971);OCGA §...