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Henderson v. Gandy

Georgia's Fair Business Practices Act does not apply to private transactions.

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Claire M. Henderson, individually and in her capacity as the representative of the Estate of Herbert Henderson collectively “Henderson”, appeals the grant of summary judgment to Winston Gandy, Jr., individually, and Atlanta Cardiology Group, P.C. collectively “Gandy”, in her attempt to amend her medical malpractice complaint against Gandy to assert a cause of action under the Fair Business Practices Act “FBPA”. See OCGA § 10-1-390 et seq. She contends the trial court erred by finding that the FBPA did not apply because the transaction she complains of did not occur “within the public consumer marketplace” and by finding that the FBPA and her fraud claims did not relate back to the filing of her original complaint. We disagree, and affirm. 1. Although Court of Appeals Rule 27 a 1 and c 111 require that parties cite to the record by specific volume of the record and page number, counsel for both parties have failed to comply with these requirements. Instead, counsel have merely cited to record as “R. __,” or to pages of individual depositions, without regard to the specific volume number of the record in which the page might be found. This may have made counsels’ task easier, but counsels’ actions have made it infinitely more difficult for this court to decide the case. If, as a result, we have not located some evidence in the record, the responsibility rests with counsel.

2. In Georgia, the standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins , 261 Ga. 491 405 SE2d 474 1991. When a trial court rules on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. On appeal of the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence. Overton Apparel v. Russell Corporation , 264 Ga. App. 306, 307 1 590 SE2d 260 2003.

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