Cornelius v. Hutto

Citation558 S.E.2d 36,252 Ga. App. 879
Decision Date20 November 2001
Docket NumberNo. A01A1510.,A01A1510.
PartiesCORNELIUS v. HUTTO et al.
CourtUnited States Court of Appeals (Georgia)

OPINION TEXT STARTS HERE

Michael M. Calabro, Atlanta, for appellant.

Love, Willingham, Peters, Gilleland & Monyak, Randolph P. Powell, Jr., Ashley R. House, Atlanta, for appellees.

BARNES, Judge.

Frank Cornelius sued psychiatrist Mark Hutto, alleging that Dr. Hutto violated the psychiatrist-patient privilege and invaded his privacy by giving an affidavit during divorce proceedings regarding custody of his son. After the close of evidence at trial, the trial court denied Mr. Cornelius' motion for directed verdict on breach of confidentiality and granted Dr. Hutto's motion for directed verdict on the invasion of privacy claim.

The jury returned a defense verdict, and Mr. Cornelius appeals, contending the trial court erred in denying his motion for directed verdict, in failing to charge the jury on contradictory testimony, and in granting Dr. Hutto's motion on the invasion of privacy claim. Because the contradictory testimony rule set out in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 343 S.E.2d 680 (1986), does not apply in this case, we affirm the jury's verdict on the breach of confidentiality claim. For the reasons that follow, however, we reverse the trial court's grant of a directed verdict on the invasion of privacy claim.

We affirm the denial of motions for directed verdict and new trial if at trial the evidence conflicted and some evidence supported the verdict. Pulte Home Corp. v. Woodland Nursery &c., 230 Ga.App. 455, 456(2), 496 S.E.2d 546 (1998); Gwinnett Commercial Bank v. Flake, 151 Ga.App. 578, 583(10), 260 S.E.2d 523 (1979). In considering this issue, we view the evidence most favorably to the party who secured the verdict. Stone v. Cook, 190 Ga.App. 11, 12(1), 378 S.E.2d 142 (1989).

Viewed in that light, the evidence at trial showed that Dr. Hutto had treated both Mr. and Mrs. Cornelius, Mr. Cornelius briefly in 1995 and Mrs. Cornelius for several years. In August 1997, Mrs. Cornelius' divorce lawyer asked her to identify those people who were most familiar with her parenting skills, and she named Dr. Hutto. The lawyer sent Dr. Hutto a proposed affidavit to support his client's claim for temporary custody of the couple's minor son, assuring him that the affidavit revealed no privileged information. Dr. Hutto signed it after making some revisions. The affidavit was filed, but the trial court never considered it because the parties reached an agreement regarding temporary custody and visitation and did not have a hearing. The trial court later issued a consent order granting the Corneliuses' motion to withdraw the affidavit, expunging it from the court record before the final custody determination.

Mr. Cornelius subsequently sued Dr. Hutto, asserting five theories of recovery, including breach of confidentiality and invasion of privacy. The trial court bifurcated the trial as to liability and damages and then after the close of evidence denied Mr. Cornelius' motion for directed verdict on breach of confidentiality and granted Dr. Hutto's motion for directed verdict on the invasion of privacy claim. The jury concluded that Dr. Hutto did not violate any duty owed to Mr. Cornelius on the remaining theories, and the trial court entered judgment for Dr. Hutto.

1. Mr. Cornelius argues on appeal that the trial court erred in denying his motion for a directed verdict on his breach of confidentiality claim. He contends that Dr. Hutto's testimony asserting he acquired none of the information in the affidavit from his treatment of Mr. Cornelius is contradicted by the affidavit itself, and thus that testimony must be construed most strongly against him pursuant to Prophecy Corp., supra, 256 Ga. 27, 343 S.E.2d 680, and its progeny. Mr. Cornelius contends that after eliminating this contradictory testimony, he is entitled to a verdict as a matter of law.

The affidavit read as follows:

Personally appeared before the undersigned officer duly authorized to administer oaths came MARK C. HUTTO, M.D., who states under oath the following:
1.
I am a psychiatrist licensed by the State of Georgia....
2.
I had the opportunity to observe both Mr. and Mrs. Cornelius clinically. I was made aware by Mrs. Cornelius that the parties were considering divorce and that the custody of their son Carlton would be contested.
3.
Based on my personal observations and experience with Mr. & Mrs. Cornelius and the information obtained from my clinical observation and treatment of Mr. & Mrs. Cornelius, I concluded that the marriage of these parties was likely to fail. I also concluded that the minor child of the parties, Carlton Cornelius, would best be served if these parties separated.
4.
I advised Mrs. Cornelius that based on my own observations, both she and her son would best be served by living separate and apart from Mr. Cornelius. I also advised Mrs. Cornelius that Carlton would best be served by having limited contact with his father, even if that meant moving to another state.
5.
It is my opinion, based upon the information available to me, that Mrs. Linda Cornelius is the more psychological[ly] fit and nurturing parent to Carlton and that Carlton would best be served if custody were awarded to his mother.

Mr. Cornelius' expert testified that Dr. Hutto did not violate the psychiatrist-patient privilege in paragraphs two and three, but that paragraphs four and five do violate the privilege if they were based in any part on information Dr. Hutto received from Mr. Cornelius. The expert also admitted on cross-examination that he was aware of no information that Dr. Hutto obtained from Mr. Cornelius showing he would be an unfit father in 1997, and that paragraphs four and five would not violate any privilege if they were based only on information received from Mrs. Cornelius.

Dr. Hutto's expert agreed that paragraphs two and three violated no psychiatrist-patient privilege. He further testified that if the opinions contained in paragraphs four and five were derived from information obtained solely from Mrs. Cornelius, then Dr. Hutto violated no privilege. Based on his review of the information in the medical records for Mr. Cornelius, the divorce lawyer's deposition, the initial and subsequent versions of the affidavit, and information in Mrs. Cornelius' extensive medical records, the expert thought that the information in paragraphs four and five was derived only from Mrs. Cornelius, and thus the affidavit did not violate any rules of confidentiality or privilege. Finally, Dr. Hutto himself testified that he based the opinions in the affidavit solely on information he received from Mrs. Cornelius, and not on anything he learned from Mr. Cornelius.

Mr. Cornelius argues on appeal, as he did below, that he is entitled to judgment as a matter of law based on the affidavit itself. He contends that paragraphs two and three imply that the opinions in paragraphs four and five are based on the treatment of both Mr. and Mrs. Cornelius, and any testimony by Dr. Hutto explaining otherwise should not be considered because it contradicts the affidavit.

The rule in Georgia is that the testimony of a party who offers himself as a witness in his own behalf at trial is to be construed most strongly against him when it is self-contradictory, vague or equivocal. Where the favorable portion of a party's self-contradictory testimony is the only evidence of his right to recover or of his defense, the opposing party is entitled to a directed verdict.

(Citations and punctuation omitted.) Prophecy Corp., supra, 256 Ga. at 28(1), 343 S.E.2d 680. The first issue to consider, then, is whether Dr. Hutto's testimony is contradictory and should be excluded. If so, the next issue is whether the excluded testimony is the only evidence of Dr. Hutto's defense, thus entitling Mr. Cornelius to a directed verdict.

"[T]o `contradict' is `to assert the contrary.'" Prophecy Corp., sup...

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  • Smithwick v. Campbell
    • United States
    • United States Court of Appeals (Georgia)
    • October 18, 2021
    ...only evidence of ... his defense, the opposing party is entitled to a directed verdict." (Citation omitted.) Cornelius v. Hutto , 252 Ga. App. 879, 881 (1), 558 S.E.2d 36 (2001). "To ‘contradict’ is ‘to assert the contrary.’ " (Citation and punctuation omitted.) Id. at 882 (1), 558 S.E.2d 3......
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    • United States Court of Appeals (Georgia)
    • November 20, 2001
  • King v. Zakaria
    • United States
    • United States Court of Appeals (Georgia)
    • July 5, 2006
    ...only when the party who gave the contradictory testimony is the sole witness testifying on his behalf. Cornelius v. Hutto, 252 Ga.App. 879, 882(2), 558 S.E.2d 36 (2001). Accordingly, the jury was not required to construe the allegedly contradictory evidence against Dr. Zakaria. There was no......
  • Ingles Mkts., Inc. v. Seymour
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    • United States Court of Appeals (Georgia)
    • October 5, 2020
    ...not directly contradict his statement that he was not distracted while walking to the trash can and back. See Cornelius v. Hutto , 252 Ga. App. 879, 882 (1), 558 S.E.2d 36 (2001) (recognizing that "to contradict" means "to assert the contrary" and holding that testimony that simply provided......
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