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Carter v. Vistacare LLC

The plaintiff waived the requirement of formal notice from the trial court that it would consider the defendant's motion to dismiss as one for summary judgment when she responded to the motion and did not object to the trial court's consideration of the documents the defendant attached to its brief in support of the motion to dismiss and, in fact, relied upon those documents herself.

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In Case No. A15A1773, Regina A. Carter Carter, as administrator of the Estate of Mildred Irene Cantrell Cantrell, appeals the trial court’s order granting judgment in favor of VistaCare, LLC, d/b/a VistaCare Hospice VistaCare on Carter’s claims for battery and negligence arising out of VistaCare’s provision of hospice care to Cantrell. In Case No. A16A0303, Carter appeals the trial court’s order granting summary judgment on her claim of fraud against VistaCare in the same action. For the reasons set forth below, we affirm the trial court’s judgment in Case No. A15A1773, and reverse and remand in Case No. A16A0303.

Cantrell first filed a lawsuit against VistaCare on September 6, 2011 the 2011 Complaint, alleging claims for negligence and fraud in connection with hospice services VistaCare provided her in 2010 the First Litigation.1 Cantrell passed away at some point during the course of that lawsuit, and Carter was substituted as the plaintiff. Later, on May 28, 2014, after jury selection began at trial, Carter voluntarily dismissed the 2011 Complaint.

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