author: Andrews, Judge. Birdsong, Presiding Judge,

text:
    A93A0763.
    JONES v. ABEL et al.
    (434 SE2d 822)
   Andrews, Judge.

Jones, a pseudonym used by the plaintiff/appellant, sued his former psychiatrist Abel and his clinic Behavioral Medicine Institute as the result of Abel’s forwarding Jones’ file to the attorney for Smith, a former employee of Jones involved in litigation with him. The file was sent pursuant to a request for production in that litigation to which Jones had not yet objected. The jury reached a verdict for the defendants and the court denied Jones’ motion for j.n.o.v. Jones appeals, pro se.

The sole enumeration of error is that the trial court erred in denying Jones’ motion for directed verdict at the conclusion of the evidence and his subsequent motion for j.n.o.v.

1. First, before considering the issue of the psychiatrist-patient privilege and the concomitant issues of discovery and waiver, the nature of the claim made by Jones against the defendants must be kept in view. In the pre-trial order, four claims were asserted against Abel and his clinic as the result of the release of the psychiatrist’s records: 1) breach of the contract between the psychiatrist and his patient that a confidential and fiduciary relationship would be maintained; 2) public disclosure of private facts; 3) abandonment of the patient; and 4) failure “to apply to the treatment of Jones that degree of care and skill as, under similar conditions and like circumstances, is ordinarily employed by those members of the medical profession practicing as psychiatrists.”

At the pre-trial conference, Jones, represented at trial by counsel, abandoned his breach of contract claim, opting to proceed in tort under the medical malpractice claim. Further, after the close of the evidence, the abandonment claim was withdrawn. The only two claims which were presented to the jury and upon which the jury was charged were the invasion of privacy claim and the malpractice claim.

In defense of these claims, Dr. Abel contended that his actions were in compliance with the requirements of Georgia law, specifically OCGA § 9-11-34 (c) (2) and the standard of care of psychiatrists in the same or similar circumstances and that Jones was not damaged by the release of the records in any event.

2. Considering the issue of the motions for a directed verdict as to the liability of the defendants and j.n.o.v., the record reflects that, after the presentation of the defendants’ case, counsel for Jones made a motion for directed verdict on the ground that the “defendant here had a responsibility to keep certain information private. . . . First, under the psychiatrist-patient privilege it is a matter of law in this state that that responsibility is absolute, without waiver or consent. Now, there is no consent for disclosure. And I submit. . . that there is no evidence here that amounts to a waiver of the psychiatrist-patient privilege as a matter of law. The Sims v. State[, 251 Ga. 877, 880 (5) (311 SE2d 161) (1984)] case . . . states basically that the psychiatrist-patient privilege cannot be waived, absent some express intentional act to do so. So I submit that the — even if [Jones] failed to file an objection, there was no waiver.” The motion was further premised on the contention that the privilege is absolute and that OCGA § 9-11-34 may not require the production of privileged material, since it is by definition under OCGA § 9-11-26 (b) not discoverable.

The jury was charged under OCGA § 24-9-21 (5) that communications between psychiatrist and patient are privileged. Further, the jury was charged that “only the patient can waive the privilege, and that the . . . privilege prohibits a psychiatrist from disclosing patient communications to anyone without the patient’s express permission or waiver of the privilege” and that waiver was,the “intentional or voluntary relinquishment of a known right, benefit or advantage. . . .”

“ ‘A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict.’ [Cit.] Even ‘slight’ evidence was regarded as sufficient to prevent the devastations of a directed verdict, in Worth v. Ga. Farm &c. Ins. Co., [174 Ga. App. 194 (330 SE2d 1) (1985)]. Where there is ‘some evidence,’ or ‘any evidence’ supporting the respondent’s assertions, disputed issues are created which are for the jury’s resolution.” Grabowski v. Radiology Assoc., 181 Ga. App. 298, 301 (3) (352 SE2d 185) (1986). The same standard applies when considering the denial of a j.n.o.v. Brandvain v. Ridgeview Institute, 188 Ga. App. 106, 112 (1a) (372 SE2d 265) (1988), aff’d 259 Ga. 376 (382 SE2d 597) (1989); Ostroff v. Coyner, 187 Ga. App. 109, 115 (3b) (369 SE2d 298) (1988).

So viewed, the evidence was that Jones, a certified public accountant and small businessman, had, as a teenager, been admitted to Anneewakee Institute by his mother and had entered into sexual relations with Poetter, the director of the facility. This abuse occurred during the late 1960s and early 1970s. Jones was thereafter admitted to Georgia Tech where he started his business of renting appliances to students. When he was 19 or 20 years old, in 1973, Jones voluntarily returned to Anneewakee as a counselor for a couple of years. During this period, while a counselor, he again engaged in sexual activity with Poetter. He later worked for DHR, went to night school and obtained an MBA and passed the CPA exam. He practiced accounting from 1977 until 1982, as well as continuing to conduct his rental business. He did not reveal his earlier abuse to anyone nor did he seek any psychiatric or psychological treatment during this period. After 1982, he gave up his accounting practice to focus on his businesses.

He hired Smith for the rental business in 1985 and they mutually agreed to part ways in 1987. In December 1988, Smith sued Jones, contending that he was owed commissions and expense reimbursement. Attorney Bynum was counsel for Smith in that litigation and Jones was initially represented by counsel.

In late 1986 and 1987, the Anneewakee scandal began to surface, resulting in a criminal investigation conducted by the local authorities and the Georgia Bureau of Investigation. In connection with this investigation, Jones was interviewed by the GBI concerning his involvement. He denied any involvement with Poetter or any students under his care while he was a counselor. In early 1987, Jones contacted another attorney for the purpose of representing him in attempting to keep his name out of the criminal investigation. The attorney spoke to the local district attorney and was able to keep Jones from being subpoenaed to the grand jury or testifying in the criminal prosecution. Jones never admitted to the district attorney his involvement with Poetter. Because of his anxiety over the situation, his attorney recommended that Jones seek counseling. Although contacted concerning joining the civil suit against Anneewakee, Jones declined, again not wanting to become involved.

On March 5, 1987, in response to his attorney’s suggestion, Jones went to Dr. Abel, a psychiatrist. During that visit, Jones requested that the doctor falsify an insurance claim, which Dr. Abel refused to do. Jones saw Dr. Abel again on March 17 and then not again until December 1987. During these 1987 visits, the concern expressed by Jones to Dr. Abel was that he would be charged in the prosecution because of his involvement with Poetter and his role as a counselor. He told Dr. Abel that he had engaged in inappropriate acts with male students as well as Poetter while he was a counselor. Dr. Abel’s diagnosis at that time was major depression. From December 1987 until March 1989, Dr. Abel did not see Jones. On March 7, 1989, Jones returned to Dr. Abel. At that time, Dr. Abel involved Ms. Bachand, a nurse who did assertiveness training and behavior modification, to assist in the treatment of Jones regarding his inability to relate to women.

The treatment continued with Dr. Abel, who diagnosed Jones as suffering from post-traumatic stress syndrome resulting from his involvement with the criminal investigation; major depression; paranoid personality; and dysthymia (lesser depression).

The Smith litigation continued in 1989 and Smith’s attorney noticed Jones’ deposition at least three times. Jones, whose attorneys withdrew from representing him in April 1989 because of a fee dispute, was representing himself. Jones did not appear for his deposition and Smith’s attorney obtained a court order directing that Jones appear for his deposition on September 1, 1989. Instead of appearing pursuant to this court order, Jones asked Dr. Abel to evaluate his psychiatric condition and determine if he should be subject to the deposition. In response, Dr. Abel wrote a letter dated September 1, 1989, showing as the addressee the trial judge in the Smith litigation, stating that Jones had been under his care for the past 18 months, “being treated for depression. This problem is ongoing and presently my patient is under extreme amounts of stress. It would be contra-productive for him to appear in court for a deposition at this time.” Dr. Abel did not mail the letter, but handed it to Jones for his use.

Jones then went to the scheduled deposition and presented Dr. Abel’s letter and a handwritten note from himself. The deposition was not taken. In response, on September 7, 1989, attorney Bynum served upon Dr. Abel the request for production of “[a]ny and all reports, notes, memoranda, correspondence, writings, documents, or physical tangible objects with respect to [Jones] which show: (a) Date or dates seen for treatment; (b) Diagnosis; and (c) Prognosis.” Jones was served with a copy of the request and acknowledges that he received it in the mail on September 11 or 12, 1989. Jones attempted to reach Dr. Abel, was unsuccessful, and decided to wait until his next appointment to discuss the request.

On September 22, 1989, 15 days after receipt of the request and having received no contact from Jones concerning it, Dr. Abel forwarded to attorney Bynum 21 pages of his file, including notes of his and Bachand’s conferences with Jones.

On October 10, 1989, 33 days after service of the request, Jones filed his pro se objection to the request, stating that the “[r]equest seeks information and documents which are not obtainable due to the psychiatrist-patient privilege. Kimble v. Kimble, 240 Ga. 100 (239 SE2d 676) (1977).” Jones was aware that a party or the provider could object to the production of such privileged material, but believed that he had thirty days, plus three days added if pleadings are served by mail, in which to file his objection. OCGA § 9-11-34 (b) (2) provides that a written response is to be filed within 30 days after service, stating whether inspection will be permitted as requested “unless the request is objected to, in which event the reasons for objection shall be stated.” Jones acknowledged that OCGA § 9-11-34 (c) (2), applying to a nonparty, states that “[i]f no objection is filed within ten days of the request, the nonparty shall promptly comply therewith.”

Dr. Abel was aware that, pursuant to that section, the nonparty “may file an objection with the court” and that, if the nonparty received an objection from the party, he “shall not furnish the requested materials until further order of the court. ...” Dr. Abel said it was his practice not to object unless the patient was incapable of objection due to mental illness or other reasons. He did not believe that Jones was so disabled, since Jones spent a good deal of his time in therapy discussing his numerous legal entanglements and his knowledge of the law.

Jones testified that, after filing his objection, which was done October 10, he visited attorney Bynum to discuss settlement of the Smith litigation. At that time, Jones expressed his displeasure to the attorney, stating that the request was harassment. Jones said Bynum advised him that his objection was untimely and that, in any event, he had already received copies of the records. Bynum testified that he recalled a telephone call with Jones after the objection was filed 33 days after the notice. During this call, he and Jones discussed whether the objection was required to be made thirteen or thirty-three days after the request and Jones seemed very proud of his knowledge of the somewhat obscure three-day-for-mail service rule.

Jones went to the office of Dr. Abel on October 18, 1989 to determine what had been released. He talked to Dr. Abel and, at his request, Dr. Abel called attorney Bynum and advised him that the records had been mistakenly forwarded. Dr. Abel also sent a letter to the attorney stating that he had “mistakenly advanced you some privileged information from my office.” He requested the return of the files; that no copies be made; and that the contents of the documents not be discussed with anyone.

On October 19, 1989, Jones returned to Dr. Abel with an affidavit which Jones had drafted for the doctor’s signature, again stating that the documents were privileged and “are not releasable.” Jones told the doctor to meet him at federal court that afternoon at 4:00 p.m. to assist in obtaining a temporary restraining order regarding the return of the documents. Although Dr. Abel cleared his calendar in order to attend that hearing, he was later advised by Jones that he decided not to do that.

On October 25, 1989, Dr. Abel received from Smith’s attorney a letter dated October 24, “returning to you the original documents which you had previously provided. . . . The documents are the subject matter of an untimely objection filed pro se by [Jones]. We will allow the objection to be heard prior to requiring further compliance with the Request. . . .”

Attorney Bynum made one copy of the documents for his files. He placed them in an envelope and sealed it. They remained there until he received a discovery request from Jones in his suit against Dr. Abel. Bynum was deposed in this suit in February 1991. Prior to that, he did not show the copies to his client, Smith, or anyone else nor did he discuss their contents with anyone. Jones was not aware of anyone who had seen or heard about the contents of the file or his experience at Anneewakee, except his girl friend whom he married in 1990, whom he told after the documents were sent to attorney Bynum.

On October 26, 1989, Dr. Abel, again at Jones’ request, wrote a second letter to attorney Bynum acknowledging receipt of the originals, again requesting that any copies be returned to him, that he advise if any copies had been made, and notifying the attorney and his client “not to communicate the contents of the documents to anyone, including from you to your client.’ The attorney did not respond to this letter. Dr. Abel, that same day, wrote to the judge in the Smith litigation, explaining what had happened, and “recommend[ing] that a private, closed hearing be held immediately to consider an order to return all copies . . . and order all parties not to publicize or disclose the contents in any manner.” A copy of his previously prepared affidavit was enclosed. No action was taken by Jones to pursue any such hearing.

Because of Jones’ refusal to comply with the court’s order regarding his deposition and in the absence of any protective order entered by the court, Smith’s motion to strike Jones’ defensive pleadings in that suit was granted.

Jones continued to be treated by Dr. Abel after these events, including visits of October 31, 1989, November 7, 1989, and November 16, 1989.

Jones testified that, after receipt of the request, he visited Bachand before meeting with Smith’s attorney and gave her a copy of the request with a handwritten notation not to comply with it. Bachand remembered seeing something addressed to Jones, not Dr. Abel, which Jones gave to her and asked her to give to Dr. Abel. She could not remember the date.

Dr. Abel denied having any contact with Jones regarding compliance with the request before he forwarded the records. Dr. Abel stated that, on July 11, 1989, Jones had an appointment with Bachand, after which Dr. Abel met with Bachand. Progress notes of this meeting reflect that Bachand met with Jones. Dr. Abel’s note indicates that he discussed Jones with Bachand on that date. While not indicated in the medical notes, Dr. Abel recalled that Bachand did present him with a note from Jones attempting to entangle the doctor in his court case “in some way that was either illegal or unethical.” He directed her to destroy the document and she did.

3. Pretermitting the question of whether, as a question of law, the privilege provided by OCGA § 24-9-21 (5) is ever subject to waiver or is an “absolute” privilege, and accepting, without deciding, that Dr. Abel violated these legal prohibitions, Jones still has failed to show his entitlement to a directed verdict or j.n.o.v.

Dr. Abel presented expert testimony from Dr. Davis, a psychiatrist licensed to practice and practicing in Georgia. His testimony was that Dr. Abel’s actions in responding to the request for production were in compliance with the standard of care in the psychiatric profession in Georgia in dealing with requests for production of records. It was his practice and that of the profession to wait 13 days after receipt of the request and, if no objection is received from the patient, to forward the records because it was his understanding that not to do so would break the law and the standard of care never required that. Dr. Davis had examined all of Dr. Abel’s records and concluded that his treatment was in compliance with the standard of care and in no way contributed to Jones’ condition.

Jones presented only the testimony of Dr. Rollins, a psychiatrist licensed in another state. He had never been served with a request for production under Georgia law and was unfamiliar with such a proceeding. He had not examined Jones nor his records. His opinion, in response to a hypothetical question, was that disclosure was inappropriate when considered against the standard of care practiced by psychiatrists generally. He acknowledged that “[t]he patient can waive the privilege and sign permission and give that to the doctor.”

“As to the physician [psychiatrist], the duty is that inherent in the doctor-patient relationship, which, if breached by failure to exercise the requisite degree of skill and care, with that failure being the proximate cause of the injury, will result in liability. OCGA § 51-1-27; [cits.].” Brandvain, supra at 112 (2).

Here, even assuming the duty of the doctor not to release the records under any circumstances and a breach of that duty, there was conflicting evidence as to whether Jones had suffered any harm attributable to the disclosure to the attorney. He contended that he was distracted from his business by this, but the evidence was that he was having severe cash flow problems before this happened and was already entangled in numerous lawsuits relating to former employees and other matters. He also contended that he was depressed by the release and suffered psychologically. The evidence of both Dr. Abel and Dr. Davis, however, was that he was suffering from major depression as a result of the Anneewakee investigation before the release of the documents. Therefore, the issue of proximate cause and damage to Jones were for the jury under these facts. Id. at 116 (3b).

4. Another issue precluding directed verdict or j.n.o.v. was that of the contributory negligence of Jones in not filing a timely objection to the request, which he was aware he could do, intended to do, but erroneously believed he had 33 days to do. This issue, again, was for the jury. Id. at 116 (3c).

5. There were serious conflicts as to facts, including the credibility of Dr. Abel and Jones with regard to these events, OCGA § 24-9-80, which precluded both a motion for directed verdict or a j.n.o.v.

Judgment affirmed.

Pope, C. J., Cooper and Smith, JJ., concur. Beasley, P. J., concurs in the judgment only. Birdsong, P. J., McMurray, P. J., and Blackburn, J., dissent. Johnson, J., not participating.

Birdsong, Presiding Judge,

dissenting.

In spite of every safeguard the law has placed on privileged communications, although the law says a privilege is absolute and not subject to discovery, according to the majority, anybody can discover his legal adversary’s secret information simply by sending a discovery request. In fact, anybody can likely discover anybody’s secret information simply by filing a lawsuit on some grounds and then making a discovery demand under OCGA § 9-11-34. The person thus exposed dare not complain, or his lawyer or his psychiatrist, as the case may be, will bring all his secret information to court and use it against him, either to confuse the court and the jury as to the law of privilege, or to discredit his former client or patient.

Under the majority’s opinion, no person’s private information is privileged. It is within the ordinary scope of discovery and the burden to keep it secret is on the confider. The counselor is under no duty to keep it secret when he receives a discovery request, if the patient or client files no objection with the court within ten days; and this is true even if the client or patient specifically instructs the counselor not to release the information.

According to the majority, no person’s secret matter is privileged in the face of a discovery request by his adversary. The counselor is compelled hy law to reveal his client or patient’s most intimate, damaging secrets unless the confiding party, by filing an objection in court, acts to stop him. And although we presume the person who consults a lawyer or a psychiatrist or other counselor belabors under some physical, mental, emotional or legal disability or ignorance of the law, the majority’s opinion puts the burden on the patient or the client to ensure the counselor keeps his secrets.

This was never in the minds of the legislature when it enacted OCGA § 9-11-34. So greatly did the legislature fear misimpression or abuse of certain privileges that it added a special subsection to the statute to insure the confidentiality of mental health patients, at least. To no avail, it seems.

The majority states that before considering the issue of the psychiatrist-patient privilege and the issues of discovery and waiver, the nature of Jones’ claims against Dr. Abel must be kept in view, and then recites the claims at length, but I fail to see what a “view” of his claims has to do with whether OCGA § 9-11-34 includes privileged material within the scope of discovery of a third party. This “view” simply confuses the analysis. The majority then recites a mass of evidence in the case, revealing as well as possible all Jones’ secret information, which confuses the analysis even more.

The majority has the idea that Jones made some sort of waiver. But OCGA § 9-11-34 expressly, by reference to OCGA § 9-11-26, states privileged material is not within the scope of discovery in the first place, and it expressly provides in subsection (d) that the statute does not breach the confidentiality of a mental health patient’s records. So there can be no discovery of this material under the statute, and therefore no “waiver.”

Jones sued psychiatrist Dr. Abel and his clinic for damages for disclosure of Jones’ psychiatric records. He sought treatment in March 1987, from Dr. Abel in connection with having been abused at Anneewakee Institute when he was 15. Jones contends he felt shame and degradation about being sexually abused; he was deeply despondent for fear of public disclosure and when Anneewakee Institute came under criminal investigation he sought psychiatric help. Then Jones’ former employee sued him in a money dispute. In September 1989, the adversary’s attorney sent Dr. Abel a request for production of documents to a nonparty under OCGA § 9-11-34 (c). Jones received the same request, took it to Dr. Abel’s office and instructed Dr. Abel’s employee not to provide any information.

Dr. Abel produced Jones’ entire therapy file to the attorney. Dr. Abel executed an affidavit in October 1989, swearing that before he disclosed Jones’ confidential records, Jones notified him not to do so; that the requested documents were privileged but by mistake Jones’ entire therapy file was provided; that the papers were extremely confidential, were not related to the litigation, and contained communications of highly embarrassing events in which Jones was victimized.

After Jones filed this suit, however, Dr. Abel repudiated his own sworn affidavit and said he had relied on OCGA § 9-11-34 (c) (2) in giving Jones’ private matter to Jones’ adversary’s attorney because Jones did not file an objection in ten days.

Defendants in opening argument to the jury revealed the embarrassing secrets and private feelings Jones had confided in Dr. Abel. They argued that before Jones consulted Dr. Abel he was severely psychiatrically damaged (and fully described the details); that his business was in trouble (and gave the details); and that when Jones was 15 he was involved in homosexual relationships at Anneewakee; that in March 1989, he was over $500,000 in debt; that this “successful” Georgia Tech businessman had a lot of problems; that he is very litigious; and on and on. In short, everything Jones had sought to keep private by confiding in his psychiatrist was revealed by the psychiatrist to the jury to justify his disclosure of those secrets to Jones’ adversary in a lawsuit. It had very little relevance to the damages caused Jones by this revelation, and none of it had any relevance to the question of privilege.

Over objection, Dr. Abel’s counsel was also allowed to argue the law to the jury. Defendants’ lawyers were allowed to instruct the jury that OCGA § 9-11-34 provides that if a request for production of documents is sent to a doctor, the patient has ten days to object or the doctor must release the documents. This is not the law.

The trial court charged the jury that the law provides that either Dr. Abel or Jones could file an objection, and that the jury could find Jones waived his privilege. This is not the law. Jones was entitled to a directed verdict and a j.n.o.v. The legal errors, including allowing defendants’ counsel to argue their imaginary version of OCGA § 9-11-34 to the jury, so infected the trial that this verdict should be reversed.

1. The psychiatrist-patient privilege given by OCGA § 24-9-21 (5) is “absolute, and [privileged matter] is not discoverable.” Atlantic Coast Line R. Co. v. Daugherty, 111 Ga. App. 144, 149 (141 SE2d 112). Discovery laws do not encroach on the privilege, for the “fsfcope of discovery” is expressly limited to matters “not privileged.” (Emphasis supplied.) OCGA § 9-11-26 (b) (1).

OCGA § 9-11-34 (a) (1) on its face limits the scope of discovery of a nonparty to “matters within the scope of [OCGA § 9-11-26 (b)],” i.e., matters not privileged.

Nothing in OCGA § 9-11-34 (c) (2) puts the burden on the patient to object to a discovery request. Subsection (c) (2) provides: “The nonparty or any party may file an objection with the court.” This means that if the patient does not object, the nonparty (doctor) may still object. If the doctor thinks he may violate his patient’s privilege, he may object, and he should object. Therefore, the fact that Jones did not object to the request did not compel Dr. Abel to release any of Jones’ records. Even Dr. Abel’s failure to object did not compel him to release the records, for they were privileged and not within the scope of discovery.

Since privileged material is not within the scope of discovery in the first place, nothing, even a total failure to object, authorized Dr. Abel to release Jones’ privileged records.

Therefore, on the face of OCGA § 9-11-34 (a) (1) and (c) (2), Dr. Abel could not reasonably or in good faith believe he was required to hand over his patient’s privileged matter at a lawyer’s discovery request. Ignorance of the law is no excuse for violating the law; it is presumed Dr. Abel knew the correct law. OCGA § 1-3-6; see King v. Green, 189 Ga. App. 105, 107 (375 SE2d 53); Bowman v. State, 186 Ga. App. 544 (2) (368 SE2d 143).

2. There is an independent reason this case should not have gone to trial. If the psychiatrist relied on OCGA § 9-11-34 (c) (2) as he says, he would have noticed this cynosure: subsection (d) provides: “Confidentiality. The provisions of this Code section shall not be deemed to repeal the confidentiality provided by Code Section [ ] 37-3-166 concerning mental illness.” OCGA § 37-3-166 applies to private psychiatrists and clinics. See Mrozinski v. Pogue, 205 Ga. App. 731 (423 SE2d 405); Annandale at Suwanee v. Weatherly, 194 Ga. App. 803 (392 SE2d 27).

OCGA § 37-3-166 provides “no part of [a mental health patient’s clinical records] shall be released except” in specified instances, none of which includes a discovery request by an attorney. Other than certain instances involving the patient’s treatment, his “clinical records” (see OCGA § 37-3-1 (2)) may be released only: to an entity designated in writing by the patient or legal guardian (OCGA § 37-3-166 (2)); to the patient’s attorney if the attorney requests and the patient consents (id. at (5)); or in response to a valid subpoena or court order, “except for matters privileged under the laws of this state.” (Emphasis supplied.) Id. at (8).

The latter provision may mean these privileged records were not discoverable even in the face of an order to compel discovery in a civil suit. As to the “rare” instances in which a court order may override the privilege, see Bobo v. State, 256 Ga. 357, 360 (349 SE2d 690) and Aetna Cas. &c. Co. v. Ridgeview Institute, 194 Ga. App. 805, 806 (392 SE2d 286).

3. Defendants are not immune from suit under OCGA § 24-9-44, because Dr. Abel’s release of Jones’ records was not made “pursuant to laws requiring disclosure or pursuant to limited consent to disclosure.”

4. As a matter of law Jones did not waive his privilege. No waiver can be inferred from failure to object to a discovery request because privileged material is expressly outside the scope of discovery in the first place. OCGA § 9-11-34 (c) (2) and (d). Further, psychiatrists are expressly excepted from OCGA § 24-9-40, which permits a physician to release information “on written authorization or other waiver by the patient” and which provides for waiver to the extent the patient places his treatment or injuries at issue in any civil or criminal proceeding. See Wilson v. Bonner, 166 Ga. App. 9, 17 (303 SE2d 134), citing OCGA § 24-9-40 as an affirmative adjuration.

5.1 view it as unfortunate that this psychiatric patient was forced to pursue this litigation to protect his privilege because of Dr. Abel’s insistence that he relied on law which does not exist. This trial was the more unwarranted because Dr. Abel’s defense contradicted his sworn affidavit that he released the records accidentally. This trial and the verdict were the result of manufactured confusion about a statute as to which there is no room for debate, but as to which the trial court allowed defendants to argue to the jury their own version of it. The trial court should have granted appellant’s motion in limine on waiver, and it should have recognized that privileged matter is expressly outside the scope of discovery. OCGA §§ 9-11-34 (a) (1) and (c); 9-11-26 (b). The jury should not have been allowed to entertain the psychiatrist’s assertions that OCGA § 9-11-34 compelled him to send his patient’s privileged files to an opposing attorney.

Moreover, it was prima facie unreasonable for Dr. Abel to assume his patient had no objection to the release of his most intimate communications to a party whose interests, as Dr. Abel knew, were inconsistent with his patient’s interests.

Dr. Abel’s violation of his duty to protect Jones’ privacy gives right to damages. Orr v. Sievert, 162 Ga. App. 677 (292 SE2d 548); see Roberts v. Chaple, 187 Ga. App. 123 (369 SE2d 482). The majority’s assertion that there was conflicting evidence as to whether Jones was harmed by these disclosures is beside the point: he was entitled to a verdict and j.n.o.v. as to liability.

Decided July 16, 1993 —

Reconsideration denied July 30, 1993 —

John Jones, pro se.

Sullivan, Hall, Booth & Smith, John E. Hall, Jr., Roger S. Sumrall, for appellees.

I would reverse the judgment of the trial court.

I am authorized to state that Presiding Judge McMurray and Judge Blackburn join in this dissent.

       I vigorously disagree with the dissent’s implication that silence by a party in the face of a request for production triggers any duty on the part of the nonparty to object. The statute says “may” regarding the nonparty’s obligation to object and “may” means “may,” not “must.”

       These attorneys filed a fourth mortgage against Jones’ home and were attempting to foreclose on it and evict him from April 1989 until December 1989. Jones sued these attorneys, pro se, in July 1990, claiming they had failed to timely file a counterclaim against Smith alleging that his actions had ruined Jones’ business.

       Even when communications are privileged, the fact of employment of and treatment by a psychiatrist is not privileged. National Stop Smoking Clinic-Atlanta v. Dean, 190 Ga. App. 289 (378 SE2d 901) (1989).

       That this issue is not clear cut is reflected by review of, e.g., Emory Clinic v. Houston, 258 Ga. 434 (369 SE2d 913) (1988); Bobo v. State, 256 Ga. 357, 358 (2) (349 SE2d 690) (1986); Kimble v. Kimble, supra; McCord v. McCord, 140 Ga. 170 (78 SE 833) (1913); Dynin v. Hall, 207 Ga. App. 337 (428 SE2d 89) (1993); Mrozinski v. Pogue, 205 Ga. App. 731 (423 SE2d 405) (1992); Brown v. State, 199 Ga. App. 188, 189 (1) (404 SE2d 469) (1991); Freeman v. State, 196 Ga. App. 343 (1) (396 SE2d 69) (1990); Annandale &c. v. Weatherly, 194 Ga. App. 803 (392 SE2d 27) (1990); Gilmore v. State, 175 Ga. App. 376 (333 SE2d 210) (1985); Wilson v. Bonner, 166 Ga. App. 9 (303 SE2d 134) (1983); Atlantic Coast Line R. Co. v. Daugherty, 111 Ga. App. 144 (1) (141 SE2d 112) (1965). Jones testified that he was aware that the privilege belonged to the patient and that only the patient could waive the privilege.
      The dissent’s position that there can never be discovery of communications between psychiatrist and patient would seem to leave the patient hamstrung in a malpractice claim against the psychiatrist. Jacobsen v. Boyle, 196 Ga. App. 411, 413 (397 SE2d 1) (1990) (evidence of abuse of transference phenomenon relevant in malpractice claim against psychologist); see Roberts v. Greenway, 233 Ga. 473, 477 (3) (211 SE2d 764) (1975) (habeas corpus petitioner cannot allege deprivation of constitutional rights and then invoke the shield of attorney-client privilege to prevent evaluation of the claim); Peppers v. Balkcom, 218 Ga. 749, 751 (d) (130 SE2d 709) (1963) (allegation of attorney’s professional misconduct waived privilege).


source: Caselaw Access Project

author:
Blackburn, Judge. Beasley, Presiding Judge,
      Andrews, Judge, Smith, Judge,

license: Public Domain

text:
    A93A0777.
    MIMS v. THE STATE.
    (434 SE2d 832)
   Blackburn, Judge.

The appellant, Arnold Mims, was tried before a jury and convicted of molesting his 13-year-old cousin. On appeal, he contends that the trial court erred in failing to give certain requested jury instructions.

At trial, the 13-year-old victim testified that around midnight on June 27, 1992, she was in her mother’s bedroom watching television. Her cousin, the defendant, entered the room, sat down in front of the television, and annoyed her by repeatedly hitting her on the back. As the victim attempted to move away, the defendant grabbed both of her hands and held them behind her back, and covered her mouth with one of his hands. He then put his tongue in her mouth and “kept on kissing” her. When the defendant eventually released her hands, the victim immediately started hitting him in the face. In response, the defendant forced his hand inside the victim’s shorts and stuck one finger in her vagina. The victim continued to strike the defendant, finally managed to push away from him, and ran out of the room.

The victim immediately told her brother what happened, and also told her stepfather who was awakened by the commotion. The defendant subsequently gave a custodial statement in which he remembered touching the victim, but not how he had touched her. He also explained the presence of a scratch under his left eye, as occurring while he was trying to hold the victim down. Other evidence adduced at trial showed that the defendant had been drinking on the night in question, and that the victim was upset and the defendant was crying when the police arrived.

1. The testimony of the victim in this case was sufficient to authorize a rational trier of fact to find Mims guilty of child molestation beyond a reasonable doubt. Saunders v. State, 195 Ga. App. 810 (1) (395 SE2d 53) (1990). In view of this evidence, the trial court did not err in failing to give Mims’s requested charge on simple battery as a lesser-included offense of the crime of child molestation. “Under this testimony, [Mims] either committed an act of child molestation or he did not. His testimony would not show that he had merely made physical contact of an insulting or provoking nature with the victim rather than fondling her with the intent to arouse or satisfy his sexual desires. [Cit.] Accordingly, it was not error to refuse to give [this] requested instruction, [cits.]” Brooks v. State, 197 Ga. App. 194, 195 (1) (397 SE2d 622) (1990). See also Freeman v. State, 202 Ga. App. 185, 186 (2) (413 SE2d 774) (1991).

2. Based upon the above evidence, almost all of which constituted direct evidence, the defendant requested a jury charge on the general law of circumstantial evidence as codified at OCGA § 24-4-6. That Code section provides that “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” (Emphasis supplied.) This statute represents a codification of the rule requiring a charge on circumstantial evidence where the state’s case depends entirely upon circumstantial evidence, derived from Martin v. State, 38 Ga. 293 (1868); Carter v. State, 46 Ga. 637 (1872); and Simmons v. State, 85 Ga. 224 (11 SE 555) (1890),' which were such cases.

Based upon the three cases from which OCGA § 24-4-6 and its predecessor statutes were derived, it was originally intended to apply only to those cases that were based entirely upon circumstantial evidence. Subject to certain exceptions, subsequent cases held that the general rule is that unless the evidence relied upon for the conviction is entirely circumstantial, a jury charge under OCGA § 24-4-6 is not required. “Where, as here, there is some direct evidence against the defendant, it is not error to fail to charge on circumstantial evidence.” Terrell v. State, 258 Ga. 722 (373 SE2d 751) (1988).

However, the Supreme Court has held that “if the only direct evidence comes from a witness who has been impeached, it is reversible error to fail to charge on circumstantial evidence upon request.” (Emphasis in original.) Whittington v. State, 252 Ga. 168, 176 (313 SE2d 73) (1984); Horne v. State, 93 Ga. App. 345 (4) (91 SE2d 824) (1956). The theory underlying this rule was that where both direct and circumstantial evidence of the defendant’s guilt is admitted, and the jury is authorized to find that all the direct evidence in the form of witness testimony, has been impeached, the jury is left to determine the guilt or innocence of the defendant based solely on the circumstantial evidence, and therefore must have some guidance on the quantum of circumstantial evidence which will authorize a conviction. See Green v. State, 167 Ga. App. 548 (306 SE2d 354) (1983).

The Supreme Court noted in Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991), that it was impossible to determine whether the jury found the state’s witnesses had not been impeached and thus based its verdict on the direct evidence, or whether the jury found that the state’s witnesses had been impeached and thus based its verdict on circumstantial evidence (giving rise to a need for a jury charge on circumstantial evidence). To avoid such problems in the future, the Supreme Court devised the following rule: “[W]here the state’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request. This rule will apply whether or not the jury is authorized to find that the direct evidence presented by witness testimony has been impeached.” (Emphasis supplied.) Id. at 699-700.

The questions which must be answered in applying Robinson, are: what is the meaning of the word “depends” as used therein, and what charge on circumstantial evidence must be given, where a charge is required? It is only where the state’s case “depends” upon circumstantial evidence that such a jury charge becomes necessary. The state’s case “depends” upon circumstantial evidence only where such evidence is necessary to prove one of the essential elements of the offense for which the defendant is on trial. See Rash v. State, 207 Ga. App. 585 (5) (428 SE2d 799) (1993).

Robinson by no means requires a jury charge on the law of circumstantial evidence in every case in which some circumstantial evidence is adduced. See, e.g., Berry v. State, 262 Ga. 614 (422 SE2d 861) (1992), wherein the Supreme Court, citing Robinson, found no error in the trial court’s refusal to give a requested jury charge on circumstantial evidence that was not properly adjusted to the evidence in the case.

If the state had depended on a mixture of direct and circumstantial evidence to prove essential elements of the offense, no charge on circumstantial evidence would have been required absent a proper request to charge the law on circumstantial evidence adjusted to the facts of the case. There was no independent duty on the court to create and give a proper charge on circumstantial evidence, adjusted to the evidence of the case. It is only where the state relies wholly on circumstantial evidence that a charge on circumstantial evidence must be given without request. Gentry v. State, 208 Ga. 370 (66 SE2d 913) (1951); Campbell v. State, 202 Ga. 705 (44 SE2d 903) (1947). This rule has not been changed by Robinson.

Inasmuch as OCGA § 24-4-6, as written, applies only to cases in which the state depends entirely upon circumstantial evidence and the subject case involves a mixture of direct and circumstantial evidence, it was not error for the court to refuse to charge said Code section. Indeed, to have done so, would have misled the jury as OCGA § 24-4-6 provides, in part, “[t]o warrant a conviction on circumstantial evidence, . . .” (emphasis supplied) while the direct evidence in the instant case was sufficient to convict the defendant. Thus, the charge requested by the defendant was not adjusted to the evidence of this case (a mixture of direct and circumstantial evidence) and the court properly refused to give same. “If any portion of a requested charge is inapt, incorrect, misleading, confusing, not adequately adjusted or tailored, or not reasonably raised or authorized by the evidence, denial of the charge request is proper.” Harris v. State, 202 Ga. App. 618 (414 SE2d 919) (1992); Hill v. State, 259 Ga. 557 (3b) (385 SE2d 404) (1989).

Under OCGA § 16-6-4 (a), “[a] person commits the offense of child molestation when he does any immoral or indecent act to or in the presence of or with any child under the age of 14 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” In the instant case, the victim’s testimony and the defendant’s custodial statement constituted direct evidence which, standing alone, was sufficient to establish the defendant’s commission of this offense beyond a reasonable doubt. The circumstantial evidence presented in the case corroborated that direct evidence, but the state did not depend thereon to prove any of the essential elements of the offense of child molestation. Where the direct evidence alone suffices to establish the charged offense, and any circumstantial evidence is merely cumulative, no jury charge on circumstantial evidence is required even under Robinson. Rash v. State, supra.

In summary, the rule regarding a jury charge on circumstantial evidence set forth in Robinson v. State, supra, applies only where the state relies upon such evidence to prove one of the essential elements of the offense for which the defendant is on trial. The limited quantity of circumstantial evidence adduced in the instant case was not used or needed for that purpose, and thus no jury charge on circumstantial evidence was required under Robinson v. State, supra.

The current status of the law concerning charging the jury on circumstantial evidence can be stated as follows: (1) Where the state relies wholly on circumstantial evidence to prove its case a charge on circumstantial evidence as provided by OCGA § 24-4-6 is required, without request from the defendant; (2) Where the state relies on a mixture of direct and circumstantial evidence to prove essential elements of the charged offense, a proper charge on circumstantial evidence adjusted to the fact of there being mixed direct and circumstantial evidence is required, upon proper request, without regard to whether or not the state’s witnesses may have been impeached.

Moreover, as this court noted in Rash v. State, supra at 587, “there is yet another reason for not reversing this case for failure to charge the law of circumstantial evidence. That is, no other reasonable hypothesis save that of the guilt of the accused has been suggested. Should the case be retried so a jury can hear those words when no other reasonable hypothesis has been offered? Our answer is in the negative.” (Citations and punctuation omitted.)

Taken to its logical conclusion, in arguing that the rule set forth in Robinson v. State, supra, must always be applied when the state uses circumstantial evidence to establish criminal intent, the dissent’s position would require instructing the jury on the law of circumstantial evidence in every criminal case in which the defendant does not admit criminal intent. Proof of criminal intent, by its nature, must rely “upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the . act for which the accused is prosecuted.” OCGA § 16-2-6. “ ‘Sometimes the intention can be proved, sometimes it can only be inferred or presumed. . . .’” Mallette v. State, 119 Ga. App. 24, 27 (165 SE2d 870) (1969).

However, “[w]hen the facts from which the inference of guilt or innocence is to be drawn are all established by direct proof, and only the intent with which the alleged criminal act was committed, or the degree of criminality, must be inferred, the trial judge, in the absence of a timely request, is not required to give in charge to the jury the usual rule applicable to circumstantial evidence, to the effect that if the proved facts are consistent with innocence, the defendant should be acquitted; this for the reason that every one is presumed to intend the natural and legitimate consequences of his acts.” Reddick v. State, 11 Ga. App. 150 (3) (74 SE 901) (1912); Hester v. State, 32 Ga. App. 81 (2) (122 SE 721) (1924).

Reddick and Hester indicate that the focus should be on the nature of the evidence used to show criminal intent. Where criminal intent may be demonstrated by direct evidence of the defendant’s commission of an offense, rather than by purely circumstantial evidence of such, there is no requirement to give the standard jury charge on circumstantial evidence codified at OCGA § 24-4-6. This is consistent with the long-standing rule that where there is some direct evidence against the defendant, it is not error to fail to charge on circumstantial evidence. See Terrell v. State, supra.

This court has already decided this issue, contrary to the dissent’s position, in Rash v. State, supra, wherein the defendant contended that the trial court erred in not giving a requested charge on circumstantial evidence because such (in the form of proof of his commission of a prior act of child molestation) was used to prove his criminal intent in his present prosecution. In response to that contention, we held that “even assuming that to be true, the ‘prior offense’ evidence was merely cumulative. The direct evidence, standing alone, was sufficient to prove appellant’s commission of a prohibited act with the requisite intent.” Id. at 587.

In Johnson v. State, 209 Ga. App. 632 (434 SE2d 169) (1993), we rejected the defendant’s contention that the trial court erred in failing to give a requested charge on the law of circumstantial evidence, which was used to show criminal intent. This court’s basis for rejecting that contention in Johnson was that the trial court’s standard jury charge on criminal intent, coupled with the instructions on presumption of innocence and the state’s burden of proof, substantially covered the same principle contained in OCGA § 24-4-6.

Review of the record in the instant case reveals that the trial court instructed the jury that “[i]ntent is an essential element of any crime and must be proved by the state beyond a reasonable doubt. A person will not be presumed to act with criminal intent but the jury may find such intention or the absence thereof upon a consideration of words, conduct, demeanor, motive and other circumstances connected with the act for which the accused is being prosecuted.” This is essentially the same charge on criminal intent as given in Johnson. Inasmuch as the trial court in the instant case also gave the standard jury charges on presumption of innocence and the state’s burden of proof, the same combination of jury charges exists in this case as in Johnson, and we conclude that the trial court’s jury charge in this case also substantially covered the same principle contained in OCGA § 24-4-6.

3. Mims’ remaining enumeration of error is without merit.

Judgment affirmed.

Pope, C. J., Beasley, P. J., Cooper and Johnson, JJ., concur. McMurray, P. J., Birdsong, P. J., and Andrews, J., concur specially. Beasley, P. J., also concurs specially. Smith, J., dissents.

Beasley, Presiding Judge,

concurring specially.

I fully concur in Divisions 1 and 3. As to Division 2,1 agree that the court did not err in refusing to give the requested charge on circumstantial evidence. It was not adjusted to the evidence in this case, which was dependent on both direct and circumstantial evidence, the latter to corroborate and strengthen the direct evidence. The court did charge on the definitions of direct and circumstantial evidence and illustrated both. The charge as requested conveyed the notion that all of the evidence was circumstantial, which was not accurate. The court was not required to reframe the requested charge to accommodate the actual body of evidence.

It is for that reason that I concur in the holding that the rejection of the requested charge was not error. Harris v. State, 202 Ga. App. 618 (414 SE2d 919) (1992). I do not join in the majority’s additional discussion of this issue.

Andrews, Judge,

concurring specially.

The State’s case was based on direct and circumstantial evidence. Accordingly, under Robinson v. State, 261 Ga. 698, 699 (410 SE2d 116) (1991), “a charge on the law of circumstantial evidence must be given on request.” The requested charge on circumstantial evidence, which the trial court refused to give, properly stated the law, was adequately adjusted to the evidence, and should have been given by the trial court. Nevertheless, I believe the error was harmless because, given the direct eyewitness testimony of the victim, and Mims’ incriminating statement to the investigator, compared with the secondary weight of the remaining circumstantial evidence, it is highly probable the erroneous refusal to give the charge did not contribute to the jury’s guilty verdict. Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976); Rash v. State, 207 Ga. App. 585, 587-588 (428 SE2d 799) (1993); compare McGuire v. State, 209 Ga. App. 813 (434 SE2d 802) (1993).

I am unable to join in the plurality’s conclusion that the circumstantial evidence charge need only be given under Robinson, supra, where the State “depends” on circumstantial evidence as necessary to prove one of the essential elements of the offenses. In my view, this is just another way of saying that no charge on circumstantial evidence is required where the circumstantial evidence, by itself, would not be sufficient to authorize a conviction under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). This argument was considered and rejected in Robinson, supra. Put simply, I believe Robinson requires the charge at issue be given in every criminal case upon request. If this is not our Supreme Court’s intent in announcing the Robinson black letter rule, it should so declare.

I fully concur in Division 3 of the plurality opinion.

I am authorized to state that Presiding Judge McMurray and Presiding Judge Birdsong join in this special concurrence.

Smith, Judge,

dissenting.

I respectfully dissent.

OCGA § 24-4-6 provides as follows: “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” And “where the state’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request.” Robinson v. State, 261 Ga. 698, 699 (410 SE2d 116) (1991). Mims enumerates as error the refusal of the trial court to give his timely submitted written request to charge the law as provided by OCGA § 24-4-6.

Although the testimony of the victim as to the act done is direct evidence, as is testimony relating Mims’ incriminating statement to the investigator that he touched the victim, the state also adduced on direct examination the following circumstantial evidence that Mims committed the act charged: (1) Mims had been drinking that night; (2) the child made an immediate outcry to her brother; (3) her general demeanor immediately after the alleged incident was one of excitement and hysteria; (4) Mims had a recent scratch or bruise under his eye; and (5) Mims was weeping when the police arrived.

Decided July 16, 1993 —

Reconsideration denied July 30, 1993 —

Lloyd J. Matthews, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

In this case, the state’s case depended in part upon circumstantial evidence that appellant committed an act in violation of a state statute and that he did so with the requisite criminal intent. The trial court erred in refusing Mims’ timely written request to charge on the law of circumstantial evidence as required by Robinson v. State, supra. I cannot agree that this error was harmless, and therefore, in light of Robinson, a new trial must be had. Russ v. State, 204 Ga. App. 689 (1) (420 SE2d 373) (1992).


author: McMurray, Presiding Judge. Beasley, Presiding Judge,

text:
    A93A0206.
    ATLANTA CLASSIC CARS, INC. v. CHIH HUNG USA AUTO CORPORATION.
   McMurray, Presiding Judge.

Chih Hung USA Auto Corporation (“Chih Hung”) filed an action against Atlanta Classic Cars, Inc. (“ACC”), alleging conversion (Count 1), breach of trust (Count 2) and seeking attorney fees pursuant to OCGA § 13-6-11 (Count 3). Chih Hung later filed an amended complaint and alleged negligence (Count 4). The case was tried before a jury and the evidence revealed the following:

Chih Hung is a California corporation in the business of purchasing automobiles in the United States and exporting them to Taiwan. In 1988, Richard Carruthers contacted Chih Hung’s purchasing agent, Paul Lia, in California and informed Lia that he is an automobile broker with “a pretty good relationship with Atlanta Classic Cars so he can get a better deal compared to any dealer.” Thereafter, Chih Hung began purchasing a large percentage of its inventory from ACC through Carruthers, paying Carruthers commissions of about $500 per car. (Carruthers’ duties involved negotiating the deal; financing was between Chih Hung and ACC via letter of credit and wire transfer.)

During July 1989, Carruthers negotiated the purchase of five new Mercedes-Benz automobiles, apparently for his own use. The deal was closed on August 2, 1989, but Carruthers was then unable to pay $92,910 of the purchase price. Consequently, ACC held the five automobiles and pressured Carruthers for the remaining balance.

On August 28, 1989, Carruthers received a $90,000 check from Chih Hung payable to ACC for deposit on 18 new Mercedes-Benz automobiles. (The face of the check indicates “CHIH HUNG USA AUTO CORP” and includes the notation, “order fo[r] M-Benz 300 SEL.”) Carruthers telefaxed Chih Hung a receipt bearing the logo, “ATLANTA CLASSIC CARS,” and indicating credit for a $90,000 deposit on 18 automobiles.

On August 29, 1989, Carruthers contacted ACC and informed Kym Schumacher, ACC’s comptroller, that he had the money to pay for the five cars. Schumacher gave Carruthers ACC’s account number and authorized him to deposit the money directly into ACC’s account. Carruthers made the deposit and later sent ACC a receipt indicating a deposit of $92,910. ACC then credited Carruthers for the balance owing on the five cars.

About five months later, Paul Lia telephoned ACC’s sales manager, John Johnson, regarding the whereabouts of Chih Hung’s 18 automobiles. Johnson informed Lia that ACC did not receive a deposit from Chih Hung for 18 new cars. Lia responded by sending Johnson telefax copies of the $90,000 ACC receipt and the $90,000 cancelled check. Notwithstanding, Johnson insisted that ACC did not receive the deposit and later discovered that the receipt had been forged.

During the next several weeks, Lia was unable to contact Carruthers, so he telephoned Johnson who then promised that Carruthers would return the $90,000. About two hours later, Carruthers telephoned Lia and explained the disposition of the money. Carruthers later reimbursed Chih Hung $30,000.

The jury returned a $90,000 verdict for Chih Hung, awarding $30,000 principal and $5,788 interest on the conversion claim (Count 1) and $30,000 principal and $5,788 interest on the breach of trust claim (Count 2). The jury also awarded $18,624 in attorney fees (Count 3), but returned no award for the allegation of negligence (Count 4). This appeal followed judgment on the verdict. Held:

1. ACC contends the trial court erred in denying its motion for directed verdict as to Count 1 of the complaint, arguing that ACC did not convert the property of Chih Hung.

“ ‘When one of two innocent persons must suffer by the act of a third person, he who put it in the power of the third person to inflict the injury shall bear the loss.’ OCGA § 23-1-14. This principle is applicable in conversion cases. See Dealers’ Discount Corp. v. Tram mell, 98 Ga. App. 748 (106 SE2d 850) (1958).” Benton v. Duvall Livestock Marketing, 201 Ga. App. 430 (1) (411 SE2d 307).

In the case sub judice, there is no evidence that ACC was aware of Carruthers’ scheme to dupe Chih Hung out of $90,000 and we find no evidence that ACC had reason to suspect that Carruthers misappropriated Chih Hung’s money. However, it is undisputed that Carruthers was acting as Chih Hung’s agent; that Chih Hung entrusted Carruthers with the $90,000 and that Chih Hung did not inform ACC of the order for 18 new cars or the $90,000 deposit. These circumstances are insufficient to sustain a finding that ACC was in any way responsible for the conversion of Chih Hung’s money. See Benton v. Duvall Livestock Marketing, 201 Ga. App. 430 (1), supra. Consequently, the trial court erred in denying ACC’s motion for directed verdict on Count 1 of the complaint. See Lamb v. Decatur Fed. &c. Assn., 201 Ga. App. 583, 587 (3) (411 SE2d 527).

2. ACC contends the trial court erred in denying its motion for directed verdict as to Count 2 of the complaint, arguing that there was no evidence to authorize a finding of an implied (constructive) trust.

“A constructive trust ‘is a remedial device created by a court of equity to prevent unjust enrichment.’ Lee v. Lee, 260 Ga. 356 (2) (392 SE2d 870) (1990). It will be implied if the circumstances are such that the persons ‘holding legal title to the property, either from fraud or otherwise, cannot enjoy the beneficial interest in the property without violating some established principle of equity.’ OCGA § 53-12-93 (a). ‘A promise made without a present intent to perform is a misrepresentation of a material fact and is sufficient to support a cause of action for fraud. (Cit.)’ Middlebrooks v. Lonas, 246 Ga. 720 (2) (272 SE2d 687) (1980).” Eason v. Farmer, 261 Ga. 675, 676 (2), 677 (409 SE2d 509).

In the case sub judice, there is no evidence that ACC was aware of Carruthers’ fraudulent scheme to convert Chih Hung’s $90,000. Further, we find no evidence that ACC knew or should have known that Carruthers was depositing Chih Hung’s money into its account. Carruthers simply informed ACC’s comptroller that he could pay the outstanding balance on the five cars purchased on August 2, 1989, and that he would deposit the money into ACC’s bank account. These circumstances are insufficient to authorize a verdict based on an implied (constructive) trust. See Eason v. Farmer, 261 Ga. 675, 676 (2), supra. Consequently, the trial court erred in denying ACC’s motion for directed verdict as to Count 2 of the complaint. See Decatur Fed. Savings &c. Assn., 201 Ga. App. 583, 587 (3), supra.

3. In light of Divisions 1 and 2 of this opinion, we find insufficient grounds to sustain the jury’s verdict as to attorney fees. We also find it unnecessary to address ACC’s remaining enumeration of error.

Judgment reversed.

Pope, C. J., Birdsong, P. J., Cooper, Johnson, Blackburn and Smith, JJ., concur. Beasley, P. J., and Andrews, J., concur in part and dissent in part.

Beasley, Presiding Judge,

concurring in part and dissenting in part.

1. As stated in the majority opinion, “When one of two innocent persons must suffer by the act of a third person, he who put it in the power of the third person to inflict the injury shall bear the loss.” OCGA § 23-1-14. It has also been held under this Code section that where one of two innocent parties must suffer loss through the fraud of another, the burden of the loss should be imposed upon him who most contributed to it. Braselton Bros. v. Better Maid Dairy Prods., 113 Ga. App. 382, 385 (1) (148 SE2d 71), rev’d on other grounds, 222 Ga. 472 (150 SE2d 620) (1966). The court’s jury charge in this case embodied these principles.

The jury was authorized to find that, by permitting Carruthers to deposit a check directly into its account and to designate its application to his own debt without ascertaining the identity or intention of the payor, Atlanta Classic Cars most contributed to the loss. By reposing trust, confidence, and control in Carruthers for this financial transaction, Atlanta Classic Cars appointed him its agent as to the check transaction and facilitated his perpetration of the fraud. This distinguishes Benton v. Duvall Livestock Marketing, 201 Ga. App. 430 (411 SE2d 307) (1991), cited by the majority. Since the jury by its verdict necessarily found that Atlanta Classic Cars most contributed to the loss, it follows that Atlanta Classic Cars would be unjustly enriched if allowed to retain the proceeds of the check as against Chih Hung’s claim for return of its funds from their unintended diversion. Eason v. Farmer, 261 Ga. 675 (409 SE2d 509) (1991), cited by the majority, is thus also distinguished. Consequently, the award of the $60,000 to Chih Hung, which it had not been reimbursed by Carruthers, was supported.

2. Chih Hung challenges the award of attorney fees under OCGA § 13-6-11, although it does not challenge the award of interest. I agree that the attorney fee award is unsustainable under the facts of this case. There existed a bona fide controversy between Chih Hung and Atlanta Classic Cars as to which party is legally responsible for the loss. Consequently, Atlanta Classic Cars has not been stubbornly litigious or caused Chih Hung unnecessary trouble or expense. Backus Cadillac-Pontiac v. Brown, 185 Ga. App. 746, 747 (1) (365 SE2d 540) (1988). There is no evidence that Atlanta Classic Cars had knowledge of Carruthers’ fraud, and it is therefore not chargeable with bad faith in the transaction out of which the lawsuit arose. Compare City of Atlanta v. Murphy, 194 Ga. App. 652, 653 (2) (391 SE2d 474) (1990).

Decided June 28, 1993 —

Reconsideration denied July 30, 1993 —

Freisem, Swann & Malone, John A. Swann, C. Cyrus Malone III, for appellant.

Tobin & Hoffspiegal, Valerie G. Tobin, Thomas W. Tobin, for appellee.

I would therefore reverse the award of $18,624 in attorney fees.

The transcript shows that the jury intended to award Chih Hung the $60,000 it sought, plus $30,000 in interest and attorney fees, finding in favor of Chih Hung on all counts of the complaint. Upon instructions from the court that it had to apportion its verdict, the jury returned the verdict set forth in the final judgment. Since the evidence supports the jury’s award of the $60,000 to Chih Hung, I would affirm the judgment insofar as it awards this total principal amount plus interest.

I am authorized to state that Judge Andrews joins in this opinion.