Lasoya v. Sunay

20 Citing cases

  1. Dove v. Ty Cobb Healthcare Systems, Inc.

    305 Ga. App. 13 (Ga. Ct. App. 2010)   Cited 2 times

    Hendrix, 183 Ga. App. at 203 (2). See also Lasoya v. Sunay, 193 Ga. App. 814, 816-817 (2) ( 389 SE2d 339) (1989). "[A]n action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred."

  2. Smith v. Hilltop Pools & Spas, Inc.

    703 S.E.2d 424 (Ga. Ct. App. 2010)   Cited 1 times
    In Hilltop Pools, we said that a claim for breach of a construction contract ordinarily accrues “when construction was sufficiently completed... so that the owner could occupy the project for the use for which it was intended,” explaining that any defects in the construction usually are ascertainable by that time.

    Although Smith presented Rankin's affidavit, in which Rankin theorized that Hilltop intentionally lied to Smith when its representatives failed to explain that the unlevel appearance of the pool liner was more than an aesthetic problem, that the unlevel appearance indicated an underlying structural problem, and that Hilltop's conduct amounted to fraud, the affidavit is insufficient to create a jury issue as to whether Hilltop's representatives knew their representations were false. See McGraw v. Smith, 232 Ga. App. 513, 515 (2) ( 502 SE2d 347) (1998) ("it is well established that an expert witness may not state a legal conclusion as to the ultimate issue"); Lasoya v. Sunay, 193 Ga. App. 814, 816 (1) ( 389 SE2d 339) (1989) (holding that testimony showing the defendant should have known that performing a biopsy of the fallopian tube in the manner in which he performed it would render the plaintiff sterile-rather than her sterility being caused from the "diseased condition" of the fallopian tube as the defendant testified "only raise[d] an inference of negligence, not of fraud"). 3. Finally, Smith contends that the trial court erred by granting the motion for summary judgment as to his claims of punitive damages and expenses of litigation because the grant was based on the trial court's erroneous holdings that Smith lacked any viable underlying claims.

  3. Wilson v. Obstetrics Gynecology

    304 Ga. App. 300 (Ga. Ct. App. 2010)   Cited 10 times
    Holding that there was a question of fact as to fraud that tolled statute of limitation when parents were never told by doctors that their daughter’s death at birth resulted from injuries that were caused by medical errors

    Kane v. Shoup, 260 Ga. App. 723, 726 (2) ( 580 SE2d 555) (2003).Lasoya v. Sunay, 193 Ga. App. 814, 816 (1) ( 389 SE2d 339) (1989).Zechmann v. Thigpen, 210 Ga. App. 726, 730 (5) ( 437 SE2d 475) (1993).

  4. Rosenberg v. Falling Water

    302 Ga. App. 78 (Ga. Ct. App. 2009)   Cited 4 times
    In Rosenberg v. Falling Water, Inc., 302 Ga. App. 78 (690 SE2d 183) (2009), the Court of Appeals affirmed the trial court's grant of summary judgment to the defendant, Falling Water, Inc., in a personal injury action arising from the collapse of a deck at plaintiff Richard Rosenberg's home.

    Consequently, under the doctrine of equitable estoppel, the defendant's fraud estopped him or her from asserting the defense of the statute of ultimate repose. See, e.g., Bomba v. W. L. Belvidere, Inc., 579 F2d 1067, 1069-1071 (III) (7th Cir. 1978); Esener v. Kinsey, 240 Ga. App. 21, 23-24 ( 522 SE2d 522) (1999); Hill v. Fordham, 186 Ga. App. at 357-358 (2); see also Lasoya v. Sunay, 193 Ga. App. 814, 816-817 (1), (2) ( 389 SE2d 339) (1989) (plaintiff's injuries occurred during the liability period, but she failed to prove that the defendant committed fraud which prevented her from discovering the cause of her injuries or filing suit until after the liability period expired, so the defendant was entitled to summary judgment); cf. Canton Lutheran Church v. Sovik c., 507 FSupp. 873, 879-880 (III) (D. S. D. 1981) (the federal district court ruled that, under South Dakota law, the defendant contractor's misrepresentations to the plaintiff and his fraudulent concealment of construction defects prohibited him from asserting the statute of limitation as a defense under the doctrine of equitable estoppel). (c) In contrast, as shown in the recitation of the facts above, Rosenberg was injured when the deck collapsed in 2005, three years after the eight-year statute of repose period had expired.

  5. Waycross Urology Clinic, P.C. v. Johnson

    279 Ga. App. 195 (Ga. Ct. App. 2006)   Cited 2 times

    (Citations and punctuation omitted.) Lasoya v. Sunay, 193 Ga. App. 814, 816 (1) ( 389 SE2d 339) (1989). Johnson contends that there is a genuine issue of material fact as to the existence of fraud in this case, asserting that Tomlinson knew he should have left the stent in for 30 days, and should have told him to return for a follow-up appointment to make sure his ureter was working properly.

  6. Trax-Fax, Inc. v. Hobba

    277 Ga. App. 464 (Ga. Ct. App. 2006)   Cited 23 times
    Concluding that defense predicated on OCGA § 34-9-245 had not been waived as untimely, where the statute in question was determined to be a statute of repose

    Hanflik v. Ratchford, 848 FSupp. 1539, 1547 (III) (B) (N.D. Ga. 1994).Lasoya v. Sunay, 193 Ga. App. 814, 815 (1) ( 389 SE2d 339) (1989).Browning v. Maytag Corp., 261 Ga. 20, 21 ( 401 SE2d 725) (1991).

  7. Osburn v. Goldman

    269 Ga. App. 303 (Ga. Ct. App. 2004)   Cited 12 times
    Explaining that application of equitable estoppel requires evidence of fraud "on which the plaintiff reasonably relied in forbearing the bringing of a lawsuit"

    (Citations and punctuation omitted.) Lasoya v. Sunay, 193 Ga. App. 814, 816 (1) ( 389 SE2d 339) (1989); see also Hutcherson v. Obstetric Gynecologic Assocs. of Columbus, 247 Ga. App. 685 ( 543 SE2d 805) (2000); compare Esener v. Kinsey, supra. 2. For the first time on appeal, Osburn also challenges the constitutionality of the medical malpractice statute of repose under the equal protection clauses of the state and federal constitutions.

  8. Hughley v. Frazier

    562 S.E.2d 821 (Ga. Ct. App. 2002)   Cited 9 times

    In limited circumstances, a plaintiff in a medical malpractice action may be able to show that a defendant committed fraud that tolled the statute of limitation until the plaintiff's discovery of the fraud. See generally Lasoya v. Sunay, 193 Ga. App. 814, 815-816 (1) ( 389 S.E.2d 339) (1989). Here, the fraud issue was not addressed in Dr. Frazier's motion for summary judgment.

  9. Miller v. Vitner

    249 Ga. App. 17 (Ga. Ct. App. 2001)   Cited 8 times

    For equitable estoppel to prevent the assertion of the statute of repose, only intentional fraud of the physician preventing the plaintiff from discovering the injury will give rise to the applicability of such doctrine. See Esener v. Kinsey, supra at 23; Beck v. Dennis, 215 Ga. App. 728, 729-730 (1) ( 452 S.E.2d 205) (1994) overruled in part on other grounds, Abend v. Klaudt, 243 Ga. App. 271, 276 (2) ( 531 S.E.2d 722) (2000); Bynum v. Gregory, 215 Ga. App. 431, 434 (2) ( 450 S.E.2d 840) (1994); Lasoya v. Sunay, 193 Ga. App. 814, 815-816 (1) ( 389 S.E.2d 339) (1989);Hill v. Fordham, supra at 358. Thus, there are no facts in this case raising an issue of fraud by Vitner to give rise to equitable estoppel to raise the defense of the statute of repose.

  10. Esener v. Kinsey

    240 Ga. App. 21 (Ga. Ct. App. 1999)   Cited 26 times
    Ruling that if the evidence shows that a defendant's fraud prevented a plaintiff from bringing a lawsuit, then the doctrine of equitable estoppel shall preclude the defendant from raising the defense of the statute of ultimate repose

    However, if the evidence of defendant's fraud or other conduct on which the plaintiff reasonably relied in forebearing the bringing of a lawsuit is found by the jury to exist, then the defendant, under the doctrine of equitable estoppel, is estopped from raising the defense of the statute of ultimate repose. Hill v. Fordham, supra at 358; accord Beck v. Dennis, 215 Ga. App. 728, 729-730 (1) ( 452 S.E.2d 205) (1994); Bynum v. Gregory, 215 Ga. App. 431, 434 (2) ( 450 S.E.2d 840) (1994); Lasoya v. Sunay, 193 Ga. App. 814, 815-816 (1) ( 389 S.E.2d 339) (1989). The statute of repose is not tolled by fraud, but fraud, instead, gives rise to the doctrine of equitable estoppel, which prevents the defendant from asserting the defense of the statute of repose, because his or her own wrongful conduct gave rise to the defense and prevented the plaintiff from exercising reasonable diligence to learn the nature and cause of the injury attributable to the defendant and from bringing suit.