But the parties do not challenge on appeal the probate court's ruling that the fee agreement “expressly contemplate[s] an hourly rate for services.” Nonetheless, given our de novo standard of review, see Reichman v. Southern Ear, Nose & Throat Surgeons, 266 Ga.App. 696, 699(1), 598 S.E.2d 12 (2004), and the dissent's discussion of the issue, we address whether the fee agreement provided for a flat fee or an hourly rate. The Fee Agreement and Contract for Representation provides in pertinent part:

” (punctuation omitted)).Reichman v. Southern Ear, Nose & Throat Surgeons, P.C., 266 Ga.App. 696, 699–700(1), 598 S.E.2d 12 (2004); see also OCGA § 13–2–2(5) (“If the construction is doubtful, that which goes most strongly against the party executing the instrument or undertaking the obligation is generally to be preferred[.]”); Hertz Equip. Rental Corp. v. Evans, 260 Ga. 532, 533, 397 S.E.2d 692 (1990) (citing to OCGA § 13–2–2(5) for the proposition that “if a contract is capable of being construed two ways, it will be construed against the preparer and in favor of the non-preparer”).In the case sub judice, Winterboer left a checkmark to indicate that she was signing the form because it was impractical for the patient, her adult son, “to execute the document because [the] patient's mental or physical condition [was] such that [the] patient should not be asked to transact business.

But in DJ's favor, another rule of contract construction provides that ambiguities generally are to be construed against the drafter of the contract, which in this case was the bank. Reichman v. Southern Ear, Nose & Throat Surgeons, 266 Ga.App. 696, 699–700(1), 598 S.E.2d 12 (2004). The structure of the 2009 loan agreement suggests, contrary to the bank's argument, that the provisions regarding the recording of assignments are not central to the agreement's purpose.

But in DJ's favor, another rule of contract construction provides that ambiguities generally are to be construed against the drafter of the contract, which in this case was the bank. Reichman v. Southern Ear, Nose & Throat Surgeons, 266 Ga. App. 696, 699-700 (1) (598 SE2d 12) (2004). The structure of the 2009 loan agreement suggests, contrary to the bank's argument, that the provisions regarding the recording of assignments are not central to the agreement's purpose.

But in DJ's favor, another rule of contract construction provides that ambiguities generally are to be construed against the drafter of the contract, which in this case was the bank. Reichman v. Southern Ear, Nose & Throat Surgeons, 266 Ga.App. 696, 699–700(1), 598 S.E.2d 12 (2004).The structure of the 2009 loan agreement suggests, contrary to the bank's argument, that the provisions regarding the recording of assignments are not central to the agreement's purpose.

The trial court erred in granting summary judgment to R C and failing to grant summary judgment to J E. Reichman v. Southern Ear c. Surgeons, 266 Ga. App. 696, 699-700 (1) ( 598 SE2d 12) (2004). 2.

See Aliabadi v. McCar Dev. Corp., 249 Ga.App. 309, 313-314 (2) ( 547 SE2d 607) (2001); Paden v. Murray, 240 Ga. App. 487, 488-489 (1) ( 523 SE2d 75) (1999), overruled in part, Browning v. Stocks, 265 Ga. App. 803 ( 595 SE2d 642) (2004). See Reichman v. Southern Ear, Nose Throat Surgeons, 266 Ga. App. 696, 700 (2) ( 598 SE2d 12) (2004) ("[A] plaintiff must elect to affirm the contract and sue for breach or rescind the contract and sue for fraud."). Nevertheless, continued performance under a contract may waive a claim for breach.

(Citation omitted.) Reichman v. Southern Ear, Nose Throat Surgeons, 266 Ga. App. 696, 699 (1) ( 598 SE2d 12) (2004).Caswell v. Anderson, 241 Ga. App. 703 ( 527 SE2d 582) (2000).

(Citation omitted.) Reichman v. Southern Ear c. Surgeons, 266 Ga. App. 696, 699 (1) ( 598 SE2d 12) (2004).Caswell v. Anderson, 241 Ga. App. 703 ( 527 SE2d 582) (2000).

Under Georgia law, if a contract contains a merger clause that specifically bars reliance on any representations not set forth in the contract, the party claiming fraud is barred from reliance on any other representations. Reichman v. Southern Ear, Nose Throat Surgeons, P.C., 266 Ga. App. 696, 598 S.E.2d 12, 16 (2004) ("If the contract has a merger clause and the party has affirmed the contract, the merger clause generally precludes any fraud action for oral misrepresentations not included in the agreement"). Furthermore, if the party claiming fraud does not seek to rescind the contract and to restore anything of value obtained thereunder, the merger clause in the contract is determinative.