GEORGIA DERMATOLOGIC SURGERY CENTERS, P.C., et al.
DAVID B. PHARIS, et al.
McFADDEN, P. J., BRANCH and BETHEL, JJ.
Dermatologic Surgery Centers, P.C. ("GDSC") and
Mark F. Baucom (derivatively on behalf of, and as shareholder
of, GDSC) appeal two summary judgment orders, one of which
found that all of Baucom's counterclaims failed, and the
other of which found GDSC had to indemnify David B. Pharis
for his reasonable expenses incurred by Pharis'
successful defense in an earlier, separate lawsuit. GDSC and
Baucom challenge the basis for the summary judgment orders.
We affirm the court's grant of summary judgment with
respect to GDSC's indemnification of Pharis, but vacate
the court's order granting summary judgment to Pharis on
Baucom's counterclaims and remand the case for further
proceedings consistent with this opinion.
review a grant of summary judgment de novo, and we view the
evidence in a light most favorable to the nonmovant."
Georgia Dermatologic Surgery Centers, P.C. v.
Pharis, 323 Ga.App. 181, 182 (746 S.E.2d 678) (2013)
(citation omitted). So viewed, the evidence shows that Pharis
and Baucom formerly practiced together as dermatologic
surgeons in their jointly-owned medical practice, GDSC.
Baucom removed Pharis from GDSC as an employee, officer, and
director. Pharis brought suit against GDSC over the
termination, and opened his own clinic, David B. Pharis,
M.D., P.C. in early 2011. In 2012, the trial court ruled that
Pharis had been illegally terminated and ordered Pharis
reinstated at GDSC as an employee and as vice-president,
secretary, and treasurer. This Court later affirmed that
finding, holding that Baucom did not have authority to
terminate Pharis-such action had to come from GDSC's
board of directors. See Georgia Dermatologic Surgery
Centers, 323 Ga.App. at 183-84 (1). The lawsuit returned
to the lower court for a trial on damages.
Pharis continued working for his own clinic, and Baucom
conceded during a 2014 deposition in another lawsuit between
the two parties that Pharis was operating a lawful competing
practice. Baucom also conceded that he did not then consider
Pharis to be an officer or director of GDSC at that time.
Pharis demonstrated through testimony and other documents
that Baucom was listed as the only director and officer of
GDSC on its annual corporate minutes, GDSC's annual
corporate registration statement, and tax returns for the
years following the termination. However, shortly before the
trial on damages,  Baucom delivered a letter to Pharis
indicating an intention to take legal action against Pharis
for breach of fiduciary duties to GDSC, among other things.
March 23, 2015, Pharis filed suit against Baucom and GDSC
seeking: (1) a declaratory judgment as to the propriety of
Pharis continuing to practice in his own
clinic; (2) indemnification against GDSC under
OCGA § 14-2-852 for Pharis' successful defense in an
earlier, separate lawsuit; and (3) attorneys' fees and
litigation costs pursuant to OCGA §
13-6-11. GDSC and Baucom filed a counterclaim for
breach of fiduciary duties, usurpation of corporate
opportunities, civil conspiracy, and attorney fees and costs.
moved for summary judgment on all of GDSC and Baucom's
counterclaims, which the trial court granted. In its order,
the trial court found that Baucom was estopped from asserting
that Pharis is a director or officer of GDSC, and that
therefore Baucom and GDSC's derivative counterclaims
against Pharis for breach of fiduciary duties and usurpation
of corporate opportunities fail as a matter of
law.The trial court further found that the
failure of those two counterclaims also caused other
derivative counterclaims by Baucom and GDSC for civil
conspiracy and attorney fees to fail.
additionally moved for summary judgment as to his claim that
GDSC was responsible for indemnifying him for his expenses in
successfully defending against an earlier, separate lawsuit
as provided in OCGA § 14-2-852. The trial court granted
Pharis' motion and found that GDSC was responsible under
the statute for indemnifying Pharis for the reasonable
expenses incurred by his successful defense in the 2013
litigation. This appeal of both summary judgment orders
Baucom and GDSC argue that the trial court erred in granting
summary judgment in Pharis' favor because the trial court
relied on unspecified principles of equity, and because there
is a dispute of material fact with respect to each of the
elements of equitable estoppel, which also formed the basis
for the trial court's grant of summary judgment on the
counterclaims asserted against Pharis.
essential elements of equitable estoppel are: (1) a false
representation or concealment of facts; (2) within the
knowledge of the party making the one or concealing the
other; (3) the person affected thereby must be ignorant of
the truth; (4) the person seeking to influence the conduct of
the other must act intentionally for that purpose; and (5)
the person complaining shall have been induced to act by
reason of such conduct of the other. Kim v. Park,
277 Ga.App. 295, 296, 626 S.E.2d 232, 233 (2006). "There
can be no estoppel by conduct where both parties have
knowledge or equal means of knowing the truth."
Collins v. Grafton, Inc., 263 Ga. 441, 443 (2) (435
S.E.2d 37) (1993) (citation omitted).
trial court did not specify how it found each of these
elements were met, and supporting evidence does not obviously
appear from the record. Indeed, rather than defend the
equitable theory on which the trial court based its order,
Pharis instead argues that the order should be affirmed as
"right for any reason" because of the dearth of
evidence showing that he was reinstated as an officer or
director of GDSC. "Under the 'right for any
reason' rule, an appellate court will affirm a judgment
if it is correct for any reason, even if that reason is
different than the reason upon which the trial court
relied." City of Gainesville v. Dodd, 275 Ga.
834, 835 (573 S.E.2d 369) (2002). This Court applies that
principle only where "the judgment may be sustained upon
a legal basis apparent from the record and which was
fairly presented in the court below." Bullington v.
Blakely Crop Hail, Inc., 294 Ga.App. 147, 152 (3) (668
S.E.2d 732) (2008) (citation omitted) (emphasis supplied).
under these circumstances, "we have discretion either to
perform an independent de novo review of the record that was
properly before the trial court in order to determine whether
summary judgment was appropriate for another reason or to
return the case to the trial court for further
proceedings." McRae v. Hogan, 317 Ga.App. 813,
818 (4) (732 S.E.2d 853) (2012) (citing City of
Gainesville v. Dodd, 275 Ga. 834, 838-39 (573 S.E.2d
369) (2002)). Here, despite the persuasive and strong
arguments from Pharis, we do not believe the record is
sufficiently developed on these points for us to act on his
"right for any reason" theory. A review of the
facts and legal issues leads us to conclude that a remand
with respect to GDSC and Baucom's counterclaims is
Baucom and GDSC argue that the trial court should not have
found that GDSC has to indemnify Pharis for the litigation
expenses he incurred in connection with his successful
defense of claims asserted against him in the 2013
lawsuit.Rather, Baucom and GDSC argue that at a
minimum, a fact question exists as to whether Pharis was sued
as a director because Pharis was also sued as an officer in
the 2013 litigation, and therefore would have owed the same
fiduciary duties he was sued for breaching.
§ 14-2-852 provides for mandatory indemnification of
reasonable expenses incurred by a director in connection with
a proceeding where the director "who was wholly
successful, on the merits or otherwise, in the defense of any
proceeding to which he or she was a party because he or she
was a director of a corporation[.]" By its express
terms, the statute leaves no room for discretion. Crocker
v. Stephens, 210 Ga.App. 231, 239 (9) (4 ...