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Sewell v. Cancel

Court of Appeals of Georgia

March 30, 2015

SEWELL et al.
v.
CANCEL et al. FAULK et al.
v.
CANCEL et al

Page 389

Fraud, etc. Bibb Superior Court. Before Judge Brown.

Holland & Knight, Alfred B. Adams III, Cynthia G. Burnside, Heather A. Calhoun, Leland H. Kynes, for Sewell et al.

McGriff & Associates, George W. McGriff, Eric E. Wyatt, Nicholas G. Dumich, for Cancel et al.

Conley Griggs Partin, Ranse M. Partin, King & Spalding, W. Ray Persons, for Faulk et al.

OPINION

Page 390

Phipps, Chief Judge.

After the anesthesiology department of a hospital underwent a restructuring, four anesthesiologists who had been working there under their practice group were not selected for continued employment. Alleging that they had been wrongfully terminated because they had voiced concerns of fraudulent billing practices by fellow anesthesiologists, the four anesthesiologists -- Angel Cancel, M.D., Pravin Jain, M.D., Grace Duque-Dizon, M.D., and Monajna Sanjeev, M.D. -- filed suit. Included amongst the defendants they named, as have since been grouped by the litigating parties, were: (a) Alvin Sewell, M.D., Sanjiwan Tarabadkar, M.D., and Miles H. McDonald, M.D.; and (b) Louis Goolsby, M.D., A. Donald Faulk, and The Medical Center of Central Georgia, Inc. (" The Medical Center" ).

In our decision at Cancel v. Sewell,[1] we reviewed several rulings on various defendants' motions for summary judgment.[2] And for reasons explained therein, we affirmed the judgment in Case No. A12A1950; we reversed in part the judgment in Case No. A12A1951, while dismissing that case in part; and we dismissed Case No. A12A1952.[3] The dismissals were based on our determination that this court lacked jurisdiction of an order that had been entered after the filing of the original notice of appeal.[4] In Sewell v. Cancel,[5] the Supreme Court of Georgia concluded that jurisdiction had been perfected as to that order, and thus reversed our decision otherwise and remanded Case Nos. A12A1951 and A12A1952 to us for further proceedings.[6] Accordingly, we vacate Divisions 7 and 9 of our decision at Cancel v. Sewell,[7] which divisions pertained to Case Nos. A12A1951 and A12A1952. Because the remainder of our opinion at Cancel v. Sewell is not inconsistent with the Supreme Court's decision, it stands unchanged. Therefore, much of the factual and procedural background detailed in that opinion need not be repeated here.

In the order at issue at this juncture, the trial court denied two joint motions for summary judgment. In both motions, the respective [331 Ga.App. 688] defendants had challenged claims

Page 391

that sought to hold them liable on theories of breach of fiduciary duty and fraud. Disposing of those motions, the trial court summarily stated in its order that " there are genuine issues of material facts as to whether the ... Plaintiffs are entitled to relief for their fraud, breach of fiduciary duty, and aiding and abetting breach of fiduciary duty claims." For reasons explained below, we reverse the judgment in Case No. A12A1951 and vacate the judgment in Case No. A12A1952 and remand that case to the trial court.

Case No. A12A1951

Sewell, Tarabadkar, and McDonald challenge the denial of their joint motion for summary judgment on Counts 4 and 5 of the amended complaint, concerning allegations of breach of fiduciary duty and fraud. Countering that challenge, the plaintiffs recite an allegation of their amended complaint:

Defendants Goolsby, Faulk, and [The Medical Center] engaged in a conspiracy along with Defendants Sewell, Tarabadkar and McDonald which resulted in the constructive dissolution of CGAS and the termination of [Central Georgia Anesthesia Services, P.C. (CGAS)] contractual relations for anesthesiology services with [The Medical Center], and the establishment of a new group of anesthesiologists providing services to [The Medical Center] under the name of The Nexus Medical Group, LLC, which excluded the Plaintiffs.[8]

1. Conspiracy.

As a preliminary matter, we note that " Georgia law does not recognize an independent tort of 'conspiracy.' " [9] As the Supreme Court of Georgia has espoused:

A conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means. Accurately speaking, there is no such thing as a civil action for conspiracy. There is an action for damages caused by acts pursuant to a formed conspiracy, but none for the conspiracy alone.[10]

[331 Ga.App. 689] Therefore, " [i]f no cause of action is otherwise alleged, the addition of allegations concerning conspiracy will not make one; but, where a cause of action is alleged, the fact of conspiracy, if proved, makes any actionable deed by one of the conspirators chargeable to all." [11]

In their appellate briefs, the plaintiffs maintain that they adduced evidence of the torts of breach of fiduciary duty and fraud.

2. Breach of Fiduciary Duty.

The plaintiffs claim, " There was a breach of fiduciary duty by Sewell, Tarabadkar, and McDonald because they appropriated the assets of CGAS for the benefit of NEXUS, to the exclusion of Plaintiffs."

The gravamen of the plaintiffs' claim is that Sewell, Tarabadkar, and McDonald breached their fiduciary duties and usurped CGAS's corporate opportunities available through CGAS's contract with The Medical Center, whereby only CGAS would provide anesthesiology services to The Medical Center's hospital in Macon. Each of the four plaintiffs was a director and shareholder of CGAS; each of the four plaintiffs had an employment agreement with CGAS, and thereby practiced medicine at The Medical Center's hospital. However, the contract between CGAS and The Medical Center required that all CGAS physicians voluntarily resign from the medical staff of The Medical Center upon termination of that ...


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