Decision Date09 April 2003
Docket NumberNo. A03A0600.,A03A0600.
Citation581 S.E.2d 363,260 Ga. App. 799
CourtGeorgia Court of Appeals


Shaw, Evans & Dallas, Howard R. Evans, Atlanta, for appellant.

Sowell & Sandifer, Gregory C. Sowell, Tillman M. Sandifer, Tifton, for appellees.

ADAMS, Judge.

After being terminated from her employment, Josephine Salhab sued her former employer for breach of a written employment contract and defamation. Although the trial court decided that her employer was entitled to judgment as a matter of law, we find otherwise and reverse.

On July 14, 1997, Salhab and Tift Heart Center, P.C. (THC) entered into a written employment agreement under which Salhab contracted to work as a physician's assistant at THC for 24 months. Lisa M. Dix Emperador, M.D., the president and sole stockholder of THC, executed the contract on behalf of the employer, THC. Paragraph 4.01 authorized the agreement's termination "upon the occurrence of any of the following events:"

A. By notice in writing to the other party given 90 days prior to the date of termination. B. Material breach of contract by Employee or Employer. C. Death or total disability of Employee. D. Employee conducting herself in an unprofessional, unethical or fraudulent manner, or if, in the opinion of Employer, such conduct discredits Employer or is detrimental to the reputation, character and standing of Employer.

During the seventh month of the contract, Dix-Emperador terminated Salhab's employment at THC. Thereafter, Salhab filed suit against THC, Dix-Emperador, and her husband Michael Emperador. Salhab sued THC and Dix-Emperador for breach of contract and defamation, and asserted a claim for tortious interference with contract against Emperador. In finding for the defendants, the court found no genuine issue of material fact in dispute.

1. Salhab contends that the trial court erred by construing the contested material facts in favor of the moving party. She argues that a jury should resolve the key facts in dispute and decide whether Dix-Emperador discharged her in good faith or did so for personal reasons unrelated to her job performance. We agree.

To prevail at summary judgment, the moving party must establish the absence of any genuine issue of material fact and that the undisputed facts when viewed in the light most favorable to the nonmoving party warrant judgment as matter of law. OCGA § 9-11-56(c). A defendant may demonstrate this by showing the trial court that the documents, affidavits, depositions, and other evidence in the record disclose the absence of evidence sufficient to create a jury issue on at least one essential element of the plaintiff's case. Odem v. Pace Academy, 235 Ga. App. 648, 510 S.E.2d 326 (1998). When considering an appeal from a trial court's grant of summary judgment, this Court conducts a de novo review of the evidence. Oasis Goodtime Emporium I v. Crossroads Consulting Group, 255 Ga.App. 375, 376, 565 S.E.2d 573 (2002). In doing so, we must construe the evidence and all reasonable inferences therefrom in favor of the nonmoving party. Chiaka v. Rawles, 240 Ga.App. 792, 525 S.E.2d 162 (1999).

When so considered, the evidence demonstrates the existence of unresolved issues of disputed material fact that are not susceptible to summary adjudication. See Vincent v. Bunch, 240 Ga.App. 255, 258(1), 522 S.E.2d 495 (1999). In conflicting affidavits, Dix-Emperador and Salhab offered divergent accounts of the events leading to Salhab's termination. Both sides agree that the events began with a telephone call from Salhab to Dix-Emperador at her home on the evening of February 11, 1998, but they disagree about the content of that conversation and the subsequent series of events.

The telephone call apparently involved discussion of Salhab's husband's attempts to obtain a job in Tifton, which would facilitate keeping Salhab in the area and available for employment with THC. Dix-Emperador testified that during that telephone conversation, "Ms. Salhab became hostile and verbally abusive with Affiant. Ms. Salhab was upset that her husband had not found a job in Tifton, Georgia and she blamed Affiant for not doing more to help him find a job." By Dix-Emperador's account, she and her husband and Salhab and her husband had all participated in the discussion while speaking on various telephone extensions. Dix-Emperador testified that as the conversation progressed, Salhab became increasingly hostile and "Ms. Salhab's husband began to make threats toward Affiant and her family." Dix-Emperador testified that Salhab's husband threatened to "come over to Affiant's home and put a bullet in the head of Michael Emperador, Affiant's husband." Dix-Emperador recounted that the next morning, at the office of THC, "Ms. Salhab continued to be hostile and verbally abusive toward Affiant despite Affiant's repeated requests that Ms. Salhab see heart patients that were there in the office." Dix-Emperador testified that Salhab refused to follow her direct instructions and "continued to be unapologetic and unremorseful for the telephone conversation of the previous night and demanded an apology from Affiant" because she perceived...

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  • Labor and Employment - W. Melvin Haas, Iii, William M. Clifton, Iii, and W. Jonathan Martin, Ii
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 55-1, September 2003
    • Invalid date
    ...90. 275 Ga. at 363, 565 S.E.2d at 799. 91. See Savannah Coll. of Art & Design, Inc. v. Nulph, 265 Ga. 662, 460 S.E.2d 792 (1995). 92. 260 Ga. App. 799, 581 S.E.2d 363 (2003). 93. Id. at 802, 581 S.E.2d at 365. 94. Id. at 799, 581 S.E.2d at 363-64. 95. Id., 581 S.E.2d at 364. 96. Id. 97. Id.......

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