BARNES, P. J., MCMILLIAN and MERCIER, JJ.
Barnes, Presiding Judge.
MacDowell filed a complaint alleging dental malpractice, and,
upon concluding that MacDowell's complaint had been filed
outside the statute of limitations, the trial court granted
summary judgment to Steven M. Gallant, D.D.S. and Steven M.
Gallant, D.D.S., P.C., the professional corporation through
which he practices. In MacDowell v. Gallant, 323
Ga.App. 61 (744 S.E.2d 836) (2013), this Court reversed the
trial court's grant of summary judgment to Dr. Gallant
and thereafter, the Supreme Court of Georgia granted his
petition for a writ of certiorari, directing the parties to
brief whether this Court "err[ed] when it held that the
statutory period of limitation was tolled even after the
plaintiff consulted with a second dentist." (Punctuation
omitted.) Gallant v. MacDowell, 295 Ga.
329, 329 (759 S.E.2d 818) (2014). In affirming this Court,
the Supreme Court concluded that
[t]he tolling statute already provides that, where the
defendant has engaged in fraud by which the plaintiff has
been debarred or deterred from bringing an action, the period
of limitation runs only from the plaintiff's discovery of
such fraud. OCGA § 9-3-96. Those cases in which the
appellate courts have held that the tolling of the period of
limitation as a result of fraud ends at the point at which a
plaintiff seeks the diagnosis of another doctor are based
upon the rationale that, at such a point, the plaintiff is no
longer deterred, by any conduct of the defendant, from
learning the true facts. . . . Where, as here, the doctor
consulted is one who has provided professional services to
the plaintiff jointly with the defendant, that rationale does
(Citations and punctuation omitted.) Id. at
Supreme Court noted "that other grounds for summary
judgment remain to be addressed by the trial court on
remand." Gallant, 295 Ga. at 333. It further
noted that the trial court had relied only on constructive
notice in granting summary judgment to appellants, and left
the issue of "whether MacDowell received actual notice
of Dr. Gallant's alleged malpractice from Dr. Winston . .
. to be addressed on remand." Id. at 332 n. 5.
Additionally, the Supreme Court noted that,
[t]he trial court has not yet found that fraud is actually
present in this case so as to toll the statute of limitation.
It simply found that even if fraud existed and the statute
was tolled, the period would run again so as to time bar the
claims asserted. The question of whether fraud exists,
therefore, remains undetermined.
Gallant, 295 Ga. at 333 n. 6.
remand, the trial court entered an order directing the
parties to file briefs addressing the issues of actual notice
and the existence of fraud in relation to the tolling of the
statute of limitation. Subsequently, the trial court entered
a final order again granting summary judgment to Dr. Gallant,
and again finding that MacDowell's claims were filed
outside the two-year statute of limitations. The trial court
determined that, although there was actual fraud by Dr.
Gallant so as to toll the statute of limitations,
MacDowell's had actual notice of the malpractice during
her consultations with Dr. Winston in November 2007 "or
at the latest January 8, 2008, " which commenced the
running of the statute of limitations.
appeal, MacDowell contends that the trial court erred in
granting Dr. Gallant's motion for summary judgment. She
asserts that, as the trial court held, Dr. Gallant's
fraud tolled the running of the statute of limitations, but
maintains that, contrary to the trial court's conclusion,
MacDowell's visits to Dr. Winston, who was involved in
the treatment, did not stop the tolling of the limitations
period. According to MacDowell, the Supreme Court in
Gallant, specifically held that the visits to Dr.
Winston did not "as a matter of law, serve to place
[her] on notice" about the problems with the implants.
For the reasons discussed below, we reverse the order of the
trial court granting summary judgment to Dr. Gallant.
To prevail at summary judgment under OCGA § 9-11-56, the
moving party must demonstrate that there is no genuine issue
of material fact and that the undisputed facts, viewed in the
light most favorable to the nonmoving party, warrant judgment
as a matter of law. On appeal of a grant of summary judgment,
this Court reviews the evidence de novo to determine whether
a genuine issue of material fact exists or whether the movant
is entitled to judgment as a matter of law.
(Citations and punctuation omitted.) Boggs v. Bosley
Medical Institute, 228 Ga.App. 598, 599 (492 S.E.2d 264)
facts, construed in favor of MacDowell as nonmovant, as set
forth in MacDowell, 323 Ga.App. at 62-63, establish
that MacDowell had a series of problems with her teeth. She
initially sought help from at least two dentists and was
referred by one to Dr. Laura Braswell. In February 2006,
Braswell examined MacDowell and identified several problems
with MacDowell's teeth. In February or March 2006,
Braswell referred MacDowell to Gallant, a general
practitioner with a specialty in prosthetics, and Dr. Mollie
Winston, an oral surgeon, for treatment. Gallant and Winston
are in different practices, and they each performed different
aspects of MacDowell's dental treatment. Gallant created