Ftr v. Lifetek Medical, Inc.

• Decision Date: 31 October 2006
• Docket Number: No. A06A1457.,A06A1457.
• Parties: FERTILITY TECHNOLOGY RESOURCES, INC. v. LIFETEK MEDICAL, INC.
• Court: Georgia Court of Appeals

282 Ga. App. 148

637 S.E.2d 844

FERTILITY TECHNOLOGY RESOURCES, INC. v. LIFETEK MEDICAL, INC.

No. A06A1457.

Court of Appeals of Georgia.

October 31, 2006.

Arnall, Golden & Gregory, Adam C. Gajadharsingh, Atlanta, for appellant.

Greer, Stanfield & Turner, Robert H. Stansfield, Covington, for appellee.

ELLINGTON, Judge.

Fertility Technology Resources, Inc. ("FTR") filed this action in the Superior Court of Newton County against Lifetek Medical, Inc. A jury found in favor of FTR on its claims of breach of contract and tortious interference with a contractual or business relationship.¹ In addition, the jury found in favor of FTR on its claim for litigation expenses including attorney fees, which brought the total award to $133,220. After a hearing, the trial court granted in part Lifetek's motion for judgment notwithstanding the verdict, setting aside the jury's award for tortious interference with a contractual or business relationship and attorney fees. For the following reasons, we reverse.

A motion pursuant to OCGA § 9-11-50(b) for judgment notwithstanding the verdict "may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a `one-way' verdict proper, judgment [notwithstanding the verdict] should not be awarded." (Citations and punctuation omitted.) Goggin v. Goldman, 209 Ga.App. 251, 252, 433 S.E.2d 85 (1993). In considering the motion, the trial court must view the evidence in the light most favorable to the party who secured the jury verdict and who opposed the motion for judgment notwithstanding the verdict. Id. Likewise,

[o]n appeal from a trial court's rulings on motions for directed verdict and [judgment notwithstanding the verdict], we review and resolve the evidence and any doubts or ambiguities in favor of the verdict; directed verdicts and judgments [notwithstanding the verdict] are not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.

(Citations and punctuation omitted.) Warren v. Weber & Warren Anesthesia Svcs., 272 Ga.App. 232, 235(2), 612 S.E.2d 17 (2005).

Viewed in the light most favorable to FTR, the evidence showed the following.² In early 1998, FTR was an established company owned and operated by George Ausman and C.W. Sturgeon, which did business as a distributor of medical supplies and equipment used in fertility clinics. Michael Kvalo operated Lifetek, a manufacturer of certain fertility practice equipment and supplies. Ausman approached Kvalo and proposed that FTR serve as Lifetek's exclusive distributor for its intrauterine insemination ("IUI") catheters. The two men began discussing the possibility of creating a new product to compete with the Wallace brand embryo transfer catheter. The parties eventually agreed that FTR would invest $45,000 in Lifetek and that, in exchange, Lifetek would design and manufacture an 18 centimeter long embryo transfer catheter. Under the parties' agreement, FTR owned the product, which was called the Embryo Glide, and had the exclusive right to sell the product to customers. Lifetek agreed to manufacture the product for FTR, and FTR agreed to pay Lifetek a set fee for each unit it ordered from Lifetek. The parties also discussed bringing to market a 23 centimeter version of the Embryo Glide later. After Lifetek began manufacturing the 23 centimeter version, both FTR and Lifetek claimed ownership of the product.

Three years after launching the 18 centimeter Embryo Glide, Kvalo asked Ausman and Sturgeon to invest an additional $9,500 in Lifetek. Kvalo refused to concede that FTR would also own the 23 centimeter Embryo Glide, either as a result of FTR's original $45,000 payment or as a result of the requested additional funds. FTR did not provide the $9,500 Kvalo requested. In February 2002, Kvalo notified Ausman that Lifetek would no longer manufacture the Embryo Glide, terminating the parties' production/distribution agreement.

Ausman asked that Lifetek deliver to FTR the engineering specifications, production equipment, and Federal Drug Administration ("FDA") approval, which were needed to produce the Embryo Glide, so that FTR could find another manufacturer. Lifetek provided the engineering specifications, "tipping dyes" (tools which were used in production of the catheters), and a portion of the FDA materials. Kvalo testified that he did not send the entire FDA authorization, which was necessary for FTR to be legally allowed to produce the Embryo Glide, because he did not want to spend the time required to copy the voluminous document. In addition, Kvalo flatly refused to provide a plastic injection mold Lifetek used to produce not only the Embryo Glide but also Lifetek's other products, the IUI catheter and an oocyte retrieval needle. Kvalo even refused to cooperate in the creation of a duplicate mold. When Ausman mentioned potential legal action, Kvalo told Ausman he would "drag [FTR's] case out forever" and, if ordered by a court to turn over the mold, he would "take it to the city dump and trash it before [he] ever gave it to" FTR.

Frustrated in its efforts to have the Embryo Glide manufactured at another facility, FTR started over and recruited another manufacturer to develop an embryo transfer catheter in 18 and 23 centimeter lengths and paid for the creation of engineering specifications, plastic molds and other necessary production equipment. In addition, FTR incurred expenses obtaining FDA approval of its new product. For about one year, FTR had no embryo transfer catheter to sell to its customers.

Meanwhile, Lifetek began selling embryo transfer catheters and other products directly to many of the customers who formerly bought the products from FTR and other distributors. Kvalo relabeled about 1,000 18 centimeter FTR Embryo Glides which remained in Lifetek's possession after it terminated the manufacturing/distribution agreement with FTR as "18.5 centimeter" Lifetek embryo transfer catheters. At least until ordered by the trial court to stop, Lifetek marketed the relabeled Embryo Glides to FTR's customers. In addition, Lifetek set its retail price for the 23 centimeter catheter at less than the wholesale price it charged FTR. FTR was forced to sell its new embryo transfer catheter at a lower price than it deemed reasonable due to Lifetek's competing sales of the Embryo Glide.

After hearing the evidence at the trial on FTR's action, the jury returned a verdict in which it answered a series of special questions. The jury found that FTR owned the 18 centimeter embryo transfer catheter and the FDA authorization, while Lifetek owned the 23 centimeter catheter and the plastic mold which was used to produce both sizes of the catheter. The jury found in favor of FTR on its breach of contract claim, awarding $15,500 in damages for "costs to develop new catheter." Lifetek did not challenge these portions of the verdict in its motion for judgment notwithstanding the verdict.

The jury also found in favor of FTR on its claim for tortious interference with a contractual or business relationship, awarding $12,720 in damages. As to this portion of the award, the trial court granted Lifetek's motion for judgment notwithstanding the verdict, noting there was "no direct specific testimony to show how [Lifetek] actually tortiously interfered with [FTR's] business relations."

Finally, the jury found in FTR's favor on its claim for litigation expenses and awarded attorney fees in the amount of $105,000. The trial court granted Lifetek's motion for judgment notwithstanding the verdict as to this portion of the award, finding that "there was a bona fide controversy between the parties as to the issues and the litigation" and, therefore, that FTR could not recover on the basis of stubborn litigiousness. On the alternative basis of bad faith, the trial court found that there was no evidence to support an award of attorney fees under OCGA § 13-6-11. The court inferred from the jury's response to the special questions in the...