McCombs v. Southern Regional Med. Center, A98A0211.

• Decision Date: 16 July 1998
• Docket Number: No. A98A0211.,A98A0211.
• Parties: McCOMBS v. SOUTHERN REGIONAL MEDICAL CENTER, INC. et al.
• Court: Georgia Court of Appeals

504 S.E.2d 747

233 Ga. App. 676

McCOMBS v. SOUTHERN REGIONAL MEDICAL CENTER, INC. et al.

No. A98A0211.

Court of Appeals of Georgia.

July 16, 1998.

Certiorari Denied November 20, 1998.

Martin C. Jones, Jonesboro, Sharon S. Whitwell, Locust Grove, for appellant.

Alston & Bird, Dow N. Kirkpatrick II, Lori G. Baer, Angela T. Burnette, Kilpatrick Stockton, Susan A. Cahoon, Alan R. Perry, Jr., Atlanta, for appellees.

JOHNSON, Presiding Judge.

Following the grant of her application for interlocutory appeal, Linda McCombs appealed the order of the trial court denying her motion for default judgment against Synthes, Inc., Synthes North America, Inc. and Synthes Ltd., U.S.A. and granting a motion to dismiss filed by Southern Regional Medical Center, Inc. and its parent corporation, Georgia MedCorp, Inc.

Linda McCombs underwent spinal surgery at Southern Regional Medical Center, Inc., a hospital facility owned by Georgia MedCorp, Inc. The surgical procedure involved, inter alia, the installation of a plate device to stabilize her spine. The surgeon installed a plate system manufactured by Synthes (U.S.A.). After experiencing problems with the plate, which she contends was fractured, Linda McCombs brought a product liability suit against Synthes, Inc., Synthes North America, Inc., Synthes Ltd., U.S.A., Synthes Spine Company, L.P., a/k/a Synthes Spine Company L.P., and Synthes (U.S.A.), a/k/a Synthes, U.S.A., alleging strict liability and negligent design, manufacture and testing of the plate system. She also sued all Synthes defendants, Southern Regional Medical Center, Inc., and Georgia MedCorp, Inc., under the Georgia Commercial Code (OCGA §§ 11-2-314 and 11-2-315) and the Magnuson-Moss Act (15 USC § 2301 et seq.) asserting that these seven defendants had breached implied warranties of merchantability and fitness of the product for a particular purpose. Synthes Spine Company, L.P. was served on November 27, 1996, and the remaining Synthes defendants were served on December 9, 1996.

1. The trial court did not err in dismissing the breach of warranty claims against Southern Regional Medical Center, Inc. and Georgia MedCorp, Inc. Neither did the trial court err in dismissing McCombs' claim under the Magnuson-Moss Act. We will not reverse the correct judgment of a trial court regardless of the reason given therefor. Shapiro v. Lipman, 259 Ga. 85, 86, 377 S.E.2d 673 (1989).

(a) Magnuson-Moss Act. As appellant has failed to cite authority or to argue in her brief that the trial court erred in dismissing the Magnuson-Moss Act breach of implied warranty claims, this issue has been abandoned. Court of Appeals Rule 27(c); compare Manderson & Assoc. v. Gore, 193 Ga. App. 723, 733(8), 389 S.E.2d 251 (1989).

Furthermore, the Magnuson-Moss Act, 15 USC § 2311(b)(2), pertinently provides: "nothing in this title shall ... impose liability on[ ] any person for personal injury." See Santarelli v. BP America, 913 F.Supp. 324 (M.D.Pa.1996) (Magnuson-Moss Act does not create a private independent cause of action for personal injuries that are otherwise state law claims for breach of warranty). The trial court did not err in dismissing the Magnuson-Moss Act claims. OCGA § 9-11-12(b)(6).

(b) Dismissal of Breach of Warranty Claims. The trial court did not err in dismissing the breach of warranty claims against Southern Regional Medical Center, Inc. and Georgia MedCorp, Inc. The two implied warranties at issue arise, if at all, by operation of OCGA §§ 11-2-314 and 11-2-315. However, Article 2 of the Georgia Uniform Commercial Code (UCC) applies to the sale of consumer goods, not to the provision of services. OCGA § 11-2-102. In a hybrid contract for both goods and services, where the predominant element is the furnishing of services, the Georgia UCC is inapplicable. Mail Concepts v. Foote & Davies, Inc., 200 Ga.App. 778, 779(1), 409 S.E.2d 567 (1991).

In this case, McCombs did not go to Southern Regional to purchase a cervical plate but to have her spinal problem surgically repaired. Southern Regional furnished its facility for use by her surgeon, and it supplied the requisite underlying support services, including the recovery room, laboratory, pharmacy support, and nursing care, to help facilitate the surgery and her recovery from it. Thus, the transaction at issue was one involving "services and labor with an incidental furnishing of equipment and materials." (Punctuation omitted.) J. Lee Gregory, Inc. v. Scandinavian House, 209 Ga.App. 285, 288(1), 433 S.E.2d 687 (1993). As such, the Georgia UCC has no application. Id.; see OMAC, Inc. v. Southwestern Machine, etc., 189 Ga.App. 42, 374 S.E.2d 829 (1988).

In these circumstances the trial court did not err in dismissing these counts as a matter of law. OCGA § 9-11-12(b)(6). We will not reverse the correct ruling of a trial court regardless of the reason given therefor. See Vaughan v. Vaughan, 253 Ga. 76, 77, 317 S.E.2d 201 (1984); Tony v. Pollard, 248 Ga. 86, 88(1), 281 S.E.2d 557 (1981).

2. Denial of Motion for Entry of Default. McCombs asserts the trial court erred in denying her motion for entry of default against three of the Synthes defendants, because they failed to timely file an answer. We agree.

McCombs alleged breach of warranty against the following seven defendants: Southern Regional Medical Center, Inc., Georgia MedCorp, Inc., Synthes, Inc., Synthes North America, Inc., Synthes, Ltd., U.S.A., Synthes Spine Company, L.P., and Synthes (U.S.A.). There apparently is no dispute on appeal that each named defendant is a separate legal entity. Plaintiff therefore is entitled to have each defendant respond to each separate averment of her complaint relating to that particular defendant. See generally OCGA §§ 9-11-10(b); 9-11-12. The answer "is primarily a vehicle for denial"; but under the Civil Practice Act it also can incorporate defenses other than mere denial of allegations. Knickerbocker Tax Systems v. Texaco, 130 Ga.App. 383, 384(2), 203 S.E.2d 290 (1973), rev'd on other grounds, Eckles v. Atlanta Technology Group, 267 Ga. 801, 806, 485 S.E.2d 22 (1997). "The purpose of [the] answer is to formulate issues by means of defenses addressed to the allegations of the complaint.... [I]t is required that an answer contain a statement of facts sufficiently definite so that the plaintiffs will be informed of the defense they must be prepared to meet." (Punctuation omitted.) Knickerbocker Tax Systems, supra at 385(2), 203 S.E.2d 290 "If in any case an answer has not been filed within the time required by [the Civil Practice Act], the case shall automatically become in default unless the time for filing the answer has been extended as provided by law." OCGA § 9-11-55(a).

Pleadings are to be construed to do substantial justice. OCGA § 9-11-8(f). However, justice is not obtained when a pleading is so liberally construed as to circumvent its true intent, especially when the opposing party is thereby deprived of a significant statutory right—as in this case, of having default entered. See generally OCGA § 9-11-55(a). Averments in a pleading are required to be "simple, concise, and direct." OCGA § 9-11-8(e)(1). A principal purpose of this requirement is to minimize the risk that an opposing party will be misled either as to the nature or scope of the pleading. When pleadings are unnecessarily complex, confusing as to their scope, or are worded in such a manner as to identify only indirectly issues and parties, litigants are misled and justice thwarted. This type of procedural practice cannot be condoned.

This suit was filed in state court. With certain limited exceptions, the Uniform Rules of Superior Courts are applicable in state courts. Uniform State Court Rules, p. 4-3. Uniform Superior Court Rule 4.2(2) pertinently provides: "No attorney shall appear in that capacity before a superior[/state] court until the attorney has entered an appearance by filing a signed entry of appearance form or by filing a signed pleading in a pending action. An entry of appearance and all pleadings shall state: (2) the identity of the party for whom the appearance is made.... The filing of any pleading shall contain the information required by this paragraph." And, this information must be averred in a simple, concise, and direct manner. OCGA § 9-11-8(e)(1). Moreover, "[e]very pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name." OCGA § 9-11-11.

In Cato Oil, etc., Co. v. Lewis, 250 Ga. 24, 26(3), 295 S.E.2d 527 ( 1982), the defendant contended that it was not in default because its motion to strike, in effect, was an answer within the contemplation of the Civil Practice Act. In rejecting this argument and concluding that the parenthetical address of a factual contention in the pleading was insufficient to alter its "basic character" as a motion to strike, the Supreme Court observed: "It is usually informative, in determining what a pleading is, to look at what the pleader says it is." Id. Using this guidance, we analyze the answer at issue.

The answer is captioned as "Answer of Defendant Synthes Spine Company L.P." This caption reflects that the answer is that of one and only one defendant, Synthes Spine Company, L.P. The opening paragraph of the answer again refers to a single defendant, Synthes Spine Company, L.P. and states that it files this "its" (not their) answer to plaintiff's complaint. Synthes Spine Company, L.P. also avers in that same paragraph that it has improperly been named as "Synthes, [(]U.S.A.[)], Synthes, Inc.[,] Synthes North America, Inc. and Synthes Ltd., U.S.A." In paragraph 1, first defense, Synthes Spine Company, L.P., avers, "upon information and belief" that "Synthes, [(]U.S.A.[) ], Synthes, Inc.[,] Synthes North America, Inc. and Synthes Ltd., U.S.A." do not market, manufacture or distribute the product at issue and that the complaint should be dismissed as to those...