*1 382 had intro- appellant and of the law
wаs an incorrect statement decreased value be- property that the involved duced evidence fronts, road on which it we access to the cause lose direct it would for reversal. find error to be cause J., Deen, Beasley, concur in the J., P.
Judgment reversed. judgment only. 3, December Decided
Rehearing 19, denied December Whelchel,
J. Thomas Durham, Fendig, Jr., appellee. B. James Albert et 72463. v. MULLER al. JACOBSEN Judge. Beasley,
Appellant Jacobsen’s with a North Carolina busi- time, January appellee ness At that Drake was terminated 1983. (DBM) Morin, orally appellant’s former Beam Inc. contracted respeсt appellant’s the termination of employer to assist with ser- employment, including providing appellant trips vices office. made several Appellant at the DBM Atlanta office, appellee assigned psy- DBM she was Atlanta where intimate, Thereafter, chologist, counselor. an rela- developed appellee After tionship between Muller. relationship, appellant brought termination suit DBM Muller, seeking compensatory punitive damages for an al- leged malpractice as a This рsychologist. breach of contract and peal grant appellees. follows the to both 1. is Appellees’ appeal to dismiss denied. motion (c) 2. Premium Co. v. Citing OCGA 9-11-56 Distrib. Nat. (1981), appellant Distrib. con- tends allegedly granting the trial court committed reversible error for summary judgment providing appellant motions without hearing prior an oral notice of date of ruling. motions,
Appellees’ July granted Sep- made on 3, 1985, procedural auspices tember under the decided (Rules). Rules, Superior Uniform Court Rules Under new days opрosing a motion has 30 after service the motion file a (Rule 6.2), response decided and a motion will be without benefit of (Rule 6.3). hearing request an oral written is made therefor unless a assertions, deprive do Contrary op- the Rules not days posing party opportunity given heard, to be since he is response A after service of the motion in which respondent file a to motion. response, “hearing” he since “heard” when files a does hearing “contemplates necessitate an oral notice to the spondent matter be advisement heard taken under Ferguson day.” Miller, as of a certain opportunity given Thus, an *2 opportunity. heard not of that If and chose to avail herself present argument, only wished to request oral she need have made a written permitted. Spikes 6.3; therefor and it would have been Rule (347 310) (1986). App. Bank, State Citizens 179 Ga. 479 SE2d put prior allegation Rules also to rest she received no summary ruling judgment. notice Under the of of date on the motions for opposing party Rules, the service of motion on an servеs party notice to that ment after 30 file a court take the matter under advise- (the days may during opposing party time which the motion) response passed. to the after service of the motion has Appellant summary judgment 3. next for contends that inappropriate appellees’ was because were At- motions “defective.” adopted by motion, tached as exhibits to DBM’s cerpts ex- were depositions appellant, interrog- from of three as well as DBM’s responses Appellant atories to and her thereto. maintains photocopies that the trial court’s consideration of the uncertified of excerpts pleadings improper discovery because the mate- disagree. rial was not We filed.
“Depositions discovery required and other material otherwise chapter required be filed with the court this not be under shall (5) necessary pretrial so filed unless: ... Such ... material previously .. . motion and said material has been filed under provision chapter, portions other of which event the filing be used shall be filed with clerk ... court at the (a) (5). (Emphasis supplied.) § the Thus, . . .” OCGA motion 9-11-29.1 filing discovery portions necessary those mo- material summary judgment tions was not error. was it Nor error that excerpts copies. (a) § so filed were not certified OCGA 9-11-29.1 prerequisite discovery does not make certification a to the use of ma- (e) support Rather, terial of motion. it is OCGA which requires copies papers parts sworn or certified all thereof support opposition to in an filed of or in mo- to a ferred affidavit summary judgment. Aрp. Rodzewicz, tion for Jones v. 165 Ga. (302 402) (1983), (336 Legum, SE2d Bush 176 Ga. applicable SE2d cited are not to the case they before us since are concerned with material referred to affida- support summary judgment. vits filed in of or a motion for Appellant argues grant summary judgment 4. also that the improper. appellees movant, on the the burden is summary judgment, motion for
On trial, to proof have the burden of party would regardless of which is to be All evidence material fact. issue of genuine there is no show movant, opposing and the strongly against construed most and all doubts of all reasonable the benefit given the motion is Fi from the evidence. can be drawn inferences favorable See Scudder, Ga. umefreddo also Ga. Huckabee, Co. v. Intl. Ins. Life movant (1985). summary judgment, On motion for non-moving party recovery which the every theory of negate must Reid, 246 have. Reid v. might was warranted opinion
We are of the contract, any, the breach plaintiff reason that condoned tort, if Muller deviated any, committed when the risk of the assumed counselor used acсepted professional from standards rela- an illicit professional relationship to and foster create tionship with the client. such, not at be- complaint issue allegations pretrial or- were somewhat altered plaintiff’s
cause contentions “ issues superseded der. and constitute pleadings It [d] *3 it, complaint, con- in case.” Therefore rather than the tried Kennedy, v. (b); Gaul trols the nature of the action. OCGA § (1980). (1) 196) (271 290, 291 246 Ga. SE2d profes- rather malpractice Plaintiff medical did contend con- malpractice. the service sional Defendants’ evidence shows This includes counseling employees. for to terminated job tracted testing interviewing, testing, vocational feedback for discussion sults, objectives identifying in and focusing upon assistance career client, marketing the job” “the ideal for the and advice on client’s A is em- prospective employee. psychologist himself or herself as a tests, in this the and ployed guidance DBM to review vocational in the numer- job case it was who also served the counselor a provided job counseling. for the He was ous sessions which were portions from psychologist, clinical it is clear those licensed record, plaintiff’s with her an- depositions together which are submitted, interrogatories other evidence swers the methods, in tests, techniques, and theories psychology Muller used is, job counseling process. That there is least in practiced applied psychology, recognized that he the sense (2), job service providing counseling OCGA 43-39-1 the extensive in this case.
There Muller is also some evidence that misused personal role professional relationship role and to manufacture a relationship. questions and develop and to The interview
385 to, given, commingled advice and assistance as testified effect both to some degree.
However, disputing plaintiff there is no the fact that knew that personal relationship beyond scope which was fostered was counselor, a job yet responded positively. Muller’s duties as partici- She legal condoned whatever breaches were committed pated up rejected the time that he her. She does not contend that personal relationship necessary she was led to believe that ingredient fact, anyone In job counseling. she never told at the it, very DBM office about and she testified that “John was concerned that no one find out.”
Consequently, she complain, has cause to either for breach concerned, contract insofar v. Eaves counseling service is (4) (169 519) Georgian (1933); 47 Ga. 38 SE White (2) Assn., 398) First S Fed. & L Ga. App. SE2d (1981), Boleman, professiоnal malpractice. Myers a tort of App. 506, (3) (260 (1979); Ga. Southland Butane Blackwell, Gas Co. Banke, J., Judgment Deen, J., Birdsong, J., C. P. P. affirmed.
Sognier, JJ., J., J., Pope, McMurray, concur. P. and Carley, judgment Deen, J., concur only. P. also specially. concurs Ben- ham, J., part concurs part. and dissents in
Deen, Presiding Judge, concurring specially. concurring
While fully majority opinion as far as it goes, I also specially concur to offer some additional observations concern- ing propriety granting summary judgment appellees. for the
In Mitchell, St. Paul Fire &c. Ins. Co. v. malpractice medical sought declaratory insurer duty it had no to defend an action commenced sought woman who had who, treatment frigidity for sexual (1) turn, fell prey treating psychiatrist’s mishandling of the controversial Freudian1 phenomenon,” “transference had sexual psychiatrist, relations consequently baby. had a This court held that the insurer did duty have the to defend because the plaintiff’s allegations claim, resolution, asserted a for jury valid fit *4 tortious rendition of services. case,
In the instant although maintain that despite being a licensed clinical psychologist, nothing was more than a counselor, career deposition testimony sufficed to religion guide “A new secular and scientific for an elite which was to mankind ... as, psychoanalysis developed into, quasi- have tried to show that was conceived and further religious theory psychological implemented by psychotherapy.” movement based on and Mission, Sigmund Analysis Fromm, Personality Freud’s An and Erich. His Influence. paper job professed not duties Muller’s demonstrate on explained put practice. According Muller to the those he assessing analyzing as- her assets and and her that hе would assist psycholog- concentrating by certaining her direction and career emphasized make-up. confidential, trust relation- their Muller ical proceeded anything ship, encouraged he back as hold not to her any particular inquire every life, “life- of her little into detail experiences. influencing” also recounted and traumatic counseling psychological his desired own intimation that he Muller’s thing practice, next best was the his DBM but that practice profession. This his able to he at least was bеcause would seem to pist-patient any finding preclude no thera- matter law that as existed. therapist-patient psychological relation- Nevertheless, if even liability appears malpractice ship follow could exploited exist, did by fiduciary relationship was that this it were shown deprive patient gaining her as so trust and confidence (see 16-2-4), intimacy the sexual of her free will2 connected OCGA plan in St. situation of treatment. That was the light Reviewing Paul, not instant the evidence but case. unhappy appellant, it is still obvious that her most favorable to the way personal relationship ei- with Muller was in connected “therapy.” Accordingly, counseling” his or his ther “career appropriate. for the was reprehensible Notwithstanding of Muller’s role nature facts of drama, to recover under the human allow quixotic endorse a view this case would the virtue women must be defended whether effect have this court It it exists or not. attempt guard “[c]ourts men should be remembered that against do folly, them as free their own rashnеss and leave protect Dyar agents Walton, Whann & themselves.” applies principle as to women 469-470 The latter stated seeking equitable protection coming men, court well and one into do hands.3 satisfaction must so with clean contrary Anything Adams, to the held by Initially this court. should overruled designing plan stronger of treatment to im Had the facts in this case been toward social, sexual, services, prove her life instead limited to subdued, subsequently sexually jury her free had she been issues would exist as whether surrendered, putty submerged, his so in his hands will was and subordinated to overpowering by professionally his free will to acts resist. here, by apparently under made their consented to two adults choices acts fornication, adultery, will, possible free criminal criminal as well own amount at least counselor-therapist being paid improper professional who for services conduct rendered. *5 case,
in objectives providing job the instant career direc- tion were both honorable legal, although illegal promis- an act resulted, cuity providing criminal fornication with this court remedy fortiori, goals or relief to the victim. A as in original where the Long promiscuity folly are fooling and the rashness and around fornication, with criminal herpes, syphillis, and where gonorrhea, or result, might parties AIDS assume the risks of their own indiscretion in walking The parties dark. courts must these as recognize agents protect themselves,” “free to and leave them where we find them remedy without relief their rashness and ruin. should overruled, hereby be disapproved and as it would be unconscionable to initially case, withhold aid to the yet innocent the instant Long. the initially promiscuous ward (1) disparages position dissent this writer’s as applying century “turn-of-the principles industrial revolution to the realities of world,” present as canonizing approach a “laissez-faire to justice.” Regarding observation, it is suggested that more frequent modern application vintage might principles render the “realities present world” Age less bleak. does not necessa- rily Further, translate into obsolescence. the only laissez-faire prоach anything to in this appears dissent, case to be that with regard possibly canonizing social mores and morals. This writer’s position accurately more compared would be to the doctrine of caveat emptor. applying Even negligence principles, plain pal- this is a pable case equal negligence. least
Benham, Judge, concurring part and dissenting part. fully While I 1, 2, concur majority Divisions agree grant cannot summary appropriate. summary
On motion for
judgment,
movant,
the burden is on the
regardlеss
party
trial,
of which
would have the burden of proof at
genuine
show there is no
issue
All
of material fact.
evidence is to be
movant,
construed
strongly against
most
and the
opposing
the motion is given the benefit of all reasonable doubts and all
favorable inferences
that can be drawn from the
Fi
evidence.
Scudder,
683) (1984).
See
umefreddo
Huckabee,
also Ga. Intl.
Ins. Co.
Life
618) (1985).
On motion for
judgment,
the movant
negate every theory
must
of recovery which the non-moving party
Reid,
might have.
Reid
Appellant’s pre-trial order contained (b)), OCGA were: had breached their contractual fiduciary obligations by totally failing in ob- assist taining employment, provide proper psy- and had failed negligently had testing; appellees counseling services and chological counseling and had psychological provide failed standards accepted comply generally outrageously failed so entitled to exem- appellant care that providing psychological scope of acting while within the appellee plary damages; and capacity psycholo- professional in his employment and his DBM a sexual malpractice by entering into gist, committed only the last alle- addresses majority relationship with *6 of contract appellant’s breach failing altogether to address gation, claims. necessarily upon based of claims are
Appellant’s breach contract provide part ap- to obligations on DBM’s the existence of contractual provide and to her pellant obtaining employment with assistanсe appellant’s its with Through services. oral contract psychological with job services appellant counseling DBM offered employer, former identify a career ob- testing, of efforts to which consisted vocational marketing to aid in one’s self. jective, and instruction and advice negates appellant’s which it presented any DBM has up duty to to its contractual to aid that DBM had failed live assertion Thus, appears question a finding employment. appellant to provide job counseling DBM its cоntract mains whether breached inap- on this issue was appellant, judgment services to propriately granted.
A analysis applies appellant’s similar to contention provide to her. psychological a contractual services duty breached affidavit, on of By means of the officer who behalf an uncontroverted appellant’s employer provide appel- DBM with former contracted services, job counseling including services stated that no medical lant treatment, offered, care, requested, or psychological diagnosis, However, an vice-president contracted. of DBM executed affidavit employed psychologist, in which he DBM acknowledged that Muller, appellee purpose reviewing case “for the of vocational sole guidance tests in the event that a client chose to take such tests.” Thus, very psychological limited service was offered job counseling receiving. within the she If scope DBM, Muller, improp- acting through employee can establish thаt its results, erly guidance reviewed or failed to review her vocational test may involving the limited be able establish a breach contract she was under the contract psychological service to which entitled provide job Again, negating appellant’s no evidence asser- counseling. Therefore, summary is tion contained record. on pellant’s inappropriate. breach of contract claim was
Appellant appellees negligently pro- next contends that failed psycholоgical counseling outrageously vide with and so failed to comply generally accepted providing psychological standards restricting
care as to entitle her to exemplary damages. Again, am scope allegation of psychological the limited area provided contract, by appellees pursuant counseling aid is, expertise solely that Muller’s psychologist as a used to review voca- tional guidance appellant may tests have taken. There no evidence thе record to appellant’s allegation refute did not provide Furthermore, psychological the limited service review. of test refuting provide there is no evidence her assertion that failure to limited psychological service within the service is a accepted breach of the generally providing standard for psychological again care. I summary judgment reach the appel- conclusion that inappropriate lees was negligent provide ap- the issue of failure to pеllant with the psychological limited service to which she was enti- tled, well as on the provide issue whether failure to the service was a breach of generally accepted providing psycho- standard for logical care.
Appellant’s final contention is appellee acting while scope within the of his professional with DBM and in his capacity as a psychologist position power “abused his and trust” and entered relationship into sexual appellant, thereby com- mitting malpractice. viсe-presi- The affidavit DBM’s dent establishes that Muller was psychologist aspect used as a in one i.e., DBM’s contractual as a reviewer of *7 guidance Therefore, vocational professional tests. a relationship be- (albeit role) tween Muller as a psychologist very a limited ap- pellant existed. While both argue DBM and Muller that diagnosis the of treatment psychological problems any of of DBM’s clients was not offered DBM and Muller perform any was not authorized to service, I such am not focusing diagnostic on the and treatment roles a psychologist. I am looking at the which DBM has role ad- psychologist mitted a plays its service. The record any does not contain negating allegation the that Muller en- in a gaged relationship sexual appellant his within limited role as a psychologist employ DBM. The record contains no refuta- tion of the allegation that a sexual relationship with a DBM client whose guidance Muller, vocational test results were reviewed act- as ing parameters a psychologist, wаs within the employ. Muller’s In the appellees’ absence of negation appellant’s allegations, light role, limited, of the fact played though that Muller a a psy- as chologist appellant, vis-a-vis summary judgment appellees for was not warranted.
Both majority opinion special recognize and the concurrence that appellee Muller professional relationship had a a psychologist concludes, however, The majority summary judg- that appellees ment for proper undisputed was because: it was that beyond scope relationship personal pellant was knew positively responded appellant job counselor; a duties as Muller’s to Muller’s (3) appellant she was led to not contend advances; did necessary ingredient relationship was a believe that appel- place, disagree. job counseling. the fact that I In the first anyone to know about in his office not want lant Muller did believed appellant relationship conclusion that mandate the does not their beyond scope professional relationship of Muller’s was knew the opposing as the It must be remembered duties. summary judgment, of all reasonable doubts the benefit is entitled to Fi- from the evidence. can be drawn inferences that and all favorable Secondly, by positively responding supra. Scudder, umefreddo Muller’s advances thereby precluding risk,” “assumed activity recovery person engaged part, with a in sexual her then doctor-patient relationship person is entitled has a with whom he/she However, be, since, in Paul Fire &c. Ins. St. that cannot to recover. recog- Mitchell, we Co. v. declaring patient risk, had nized, ability assumed without physician patient bring with whom she suit a relationship. engaged in had sexual a appel- majority’s
Finally,
agree
conclusion that
cannot
personal rela-
led
believe that the
lant does not contend she was
Appellant,
tionship
necessary ingredient
job counseling.
acting
pre-trial
alleged
appellant Muller,
order,
while
professional
scope
in his
ca-
within the
of his DBM
malpractice by
pacity
psychologist,
as a
had committed
relationship
entering
with her. Since
moved
into
sexual
affirmatively negating
summary judgment they
the burden of
acting
appellant’s allegation
malpractice
occurred when
psychologist
employment, com-
the confines of his DBM
within
appel-
malpractice by engaging in a sexual
mitted
appellant’s allegation;
The
no refutation of
lant.
record contains
inappropriate.
therefore,
special
Adams,
concurrence seeks
overrule
852) opines
special
concurrence
of this
that “to allow the
would
to recover under the facts
case
quixotic
have
view that the virtue
effect
this court endorse
having
women must
whether it exists or not.” Still not
of
spent
proach
be defended
*8
special
ap-
force,
its
concurrence counsels a laissez-faire
Dyar
justice
quoting
century-old case,
Walton,
from
(1887):
attempt
&
469-470
“Courts do not
Whann
79 Ga.
folly,
guard
men
their
rashness and
leave them
own
agents
protect
Hopefully,
have
as free
themselves.”
we
made
past century,
longer
advances in social relations
and we no
principles
turn-of-the-century
ply
revolution
to the realities
industrial
present
world.
initially
Long
After
v. Adams
stating that
should be overruled
disagrees
special concurrence,
the matters contained
special
Long
goes
say
concurrence
on to
v. Adams should be
entirety
“initially promiscu
overruled
its
because it rewards the
Long
apparent
opinion,
ous.” The wisdom of
on the face of the
Nevertheless,
necessary
restatement of those reasons is
here.
special
entirely
point
Long: Long
misses
simply
concurrence
applied
principles
neg
traditional
tort
holding a
liable for his
ligent acts, the
promiscuous
same as we have
parties
held
liable
support
9-11-14;
of the child born out of wedlock. OCGA
Cum
§
mings
Carter,
(272
SE2d
See also
Wade,
McKinsey
(1975),
which
recovery
allows
of a
behalf
minor child
tampering
killed while
cigarette
vending machine
dynamite;
which was wired with
Gardner,
Morton v.
While physical precedent serves binding not a precedent since it was a three-judge judges decision with two concur- ring judgment only, special concurrence would have this court a 180-degree take turn time, year’s less than a not because because, contained principles erroneous of law but when applied, Long may produce a result runs counter pronouncements made in special concurrence.
I respectfully dissent from Division of the majority opinion. Decided December Rehearing denied December Haldi,
Glenville Reinhardt, Daniel S. Gilbert, A. James for appellees.
72605. v. THE GORDON STATE.
Beasley, Judge. Appellant and two others were charged conspiracy to de- (OCGA (a)) fraud the state and two counts of theft