Shelley West sold her chiropractic practice to Matthew Diduro and Christopher Bragg hereinafter collectively “Buyers”. Buyers subsequently defaulted on the promissory note given in connection with the sale, and West sued them on the note, for breach of contract and for other claims. Buyers counterclaimed, and both parties filed motions for partial summary judgment. The trial court denied West’s motion and granted Buyers’ motion in part. Following a jury trial, judgment was entered in favor of West on her claim for conversion of certain accounts receivable; and in favor of Buyers on certain counterclaims and for attorney fees on Buyers’ counterclaim for breach of contract. West appeals from the trial court’s orders on the parties’ motions for partial summary judgment and from the judgment entered following the jury trial. For the reasons set forth below, we affirm in part and reverse in part, and we remand for further proceedings in accordance with this opinion. As to West’s challenge to the trial court’s adverse rulings on summary judgment, we apply the following standard of review: Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 c. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.1 So viewed, the record reflects that West operated a chiropractic practice incorporated as Healthsource Chiropractic of Johns Creek P.C. “Healthsource PC”, of which she was sole owner. On March 26, 2008, West sold this practice to Buyers for $185,000, pursuant to a Purchase Agreement executed by the parties that day. The Purchase Agreement provided that $135,000 of the purchase price was to be paid in cash, with the remaining $50,000 to be financed by a promissory note from Buyers to West. Upon execution of the Purchase Agreement, Buyers gave West a promissory note in the amount of $50,000 the “Note”; however, Buyers tendered at that time only $125,000 of the $135,000 remaining on the purchase price. Buyers apparently made an oral promise to pay the $10,000 shortfall at some later time. As contemplated by the Purchase Agreement, West executed a Non-Compete Agreement in favor of Buyers. When the parties executed the Purchase Agreement, Buyers did not request any stock certificates in Healthsource PC, and no stock certificates were transferred at that time. After this transaction, Buyers took over the operation of the practice but failed to make payments under the Note, which contained an acceleration clause. Buyers also failed to pay the $10,000 shortfall on the purchase price.
Two months after the sale of her business, West filed suit against Buyers, asserting claims for breach of contract based on Buyers’ default under the Note, failure to pay over certain accounts receivable collections, and failure to pay the $10,000 remaining on the purchase price; conversion, based on Buyers’ alleged fraudulent negotiation of checks made out to West; fraud, based on Buyers’ use of tax identification numbers and “approved preferred provider” status, which West alleged belonged to either Healthsource PC or West, in connection with Buyers’ billing various insurance companies; and assault and battery against Diduro, based on an incident alleged to have occurred on April 18, 2008. On July 21, 2008, Buyers answered and asserted counterclaims against West, based on breach of contract, conversion, fraud, defamation, false light, tortious interference with contract, and intentional infliction of emotional distress. On December 29, 2008, Buyers amended their answer to assert failure of consideration as a defense to West’s claim on the Note, based on West’s failure to convey the stock in Healthsource PC when the Purchase Agreement was executed.
