Bethune v. Bethune

• Decision Date: 11 March 2022
• Docket Number: A21A1659
• Citation: 363 Ga.App. 273,870 S.E.2d 827
• Parties: BETHUNE v. BETHUNE.
• Court: Georgia Court of Appeals

363 Ga.App. 273

870 S.E.2d 827

BETHUNE

v.BETHUNE.

A21A1659

Court of Appeals of Georgia.

March 11, 2022

Dwight T. Feemster, Savannah, for Appellant.

James Philip Gerard, Savannah, Robert Benjamin Lingle, for Appellee.

McFadden, Presiding Judge.

This interlocutory appeal concerns a discovery dispute in a proceeding under the Georgia Power of Attorney Act. The trial court was called upon "to construe a power of attorney[,] review the agent's conduct, and grant appropriate relief[.]" OCGA § 10-6B-16 (a). The principal under the power of attorney is Mary Jewell Bethune (hereinafter "the principal"). The agent is appellee Donald Bethune (hereinafter "the agent"), one of the principal's sons. The petitioner is appellant Richard Bethune (hereinafter "the petitioner"), who is also the principal's son.

The discovery at issue falls into two categories: (1) information and documents related to the principal's and the agent's bank accounts during periods before the power of attorney went into effect, and (2) the principal's last will and testament. The trial court granted the agent's motions for protective orders and to quash subpoenas related to that discovery. Among other things, the trial court held that the requested information and documents were not relevant to the proceeding and that the will was subject to attorney-client privilege.

As detailed below, the trial court clearly abused his discretion in holding that the requested information and documents were irrelevant. So as to the banking records, we vacate the order and remand the case for the trial court to reconsider whether to permit discovery of those records. But we affirm the order as to the will because, as the trial court correctly held, the will was subject to attorney-client privilege.

1. Procedural history.

On October 27, 2020, petitioner Richard Bethune filed an action seeking relief under the Georgia Power of Attorney Act, OCGA § 10-6B-1 et seq. He asserted in his petition that, under a general power of attorney executed on November 14, 2019, Donald Bethune was acting as the agent for the parties’ 89-year-old mother.

The petition raised several concerns about the agent's handling of the principal's financial affairs, many specifically centered on the agent's actions in connection with the principal's bank accounts. For example, the petitioner asserted that the agent had taken certain funds out of the principal's bank account and placed them in an account that was only in the agent's name. In his answer, the agent denied or contested the petitioner's characterization of his actions in connection with the bank accounts. The agent also asserted a defense that referred to financial dealings between the principal and the agent predating the power of attorney:

Respondent's authority to manage the funds about which Petitioner has concerns in his Section 10-6B-16 Petition was not derived from, or governed by, the November 14, 2019, General Power of Attorney, but emanates from the fact that such funds were held for the last several years in bank accounts designating Respondent and Mary Jewell Bethune as the joint titleholders thereof.

(Emphasis supplied.)

As the case progressed, the agent challenged some of the petitioner's discovery requests directed to himself and to third party banks. He sought a protective order regarding and sought to quash in part subpoenas for depositions that the petitioner issued to the banks under OCGA § 9-11-30 (b) (6), in which the petitioner sought records from January 1, 2016, forward of bank accounts belonging to the agent or the principal. And he sought a protective order regarding the petitioner's request that he produce copies of checking account statements and canceled checks for any accounts holding funds belonging to the principal or being held on her behalf, without date restriction, and that he produce the principal's last will and testament.

After hearing argument from the parties, the trial court granted the agent's motions to quash and for protective orders. The trial court prohibited discovery of any banking records predating November 14, 2019 (the effective date of the power of attorney), finding among other things that those records were "neither relevant nor material to any alleged actions pursuant to the power of attorney." And the trial court held that the agent was not required to produce the principal's will, because the request was "improper for the same reasons as are the requests for the banking records which predate the power of attorney" and because the will was "protected by [the principal's] attorney-client privilege, [which had] not been compromised through disclosure to [the agent]."

We granted the petitioner's request for interlocutory review of these rulings.

2. Analysis.

Georgia's Civil Practice Act provides for broad discovery into all matters that are relevant and not privileged. See OCGA § 9-11-26 (b) (1). See also Hickey v. RREF BB SBL Acquisitions , 336 Ga. App. 411, 414 (2) (a), 785 S.E.2d 72 (2016) ("The only requirements placed by the Georgia legislature on discovery requested from nonparties is that the documents must be relevant and nonprivileged.") (citation and punctuation omitted).

Our Evidence Code defines "relevant evidence" as that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." OCGA § 24-4-401. "This is a binary question — evidence is either relevant or it is not." Moon v. State , 312 Ga. 31, 51 (3) (a), 860 S.E.2d 519 (2021) (citation and punctuation omitted). "In the context of discovery, courts should and ordinarily do interpret ‘relevant’ very broadly to mean matter that is relevant to anything that is or may become an issue in the litigation." Hickey , 336 Ga. App. at 414 (2) (a), 785 S.E.2d 72 (citation and punctuation omitted). "The discovery procedure is to be given a liberal construction in favor of supplying a party with the facts without reference to whether the facts sought are admissible upon the trial of the action." Clayton County Bd. of Tax Assessors v. Lake Spivey Golf Club , 207 Ga. App. 693, 696 (2), 428 S.E.2d 687 (1993) (citation and punctuation omitted).

"The term ‘not privileged’ [in OCGA § 9-11-26 (b) (1) ] refers to the concept of ‘privileges’ as that term is used in the law of evidence." Hill, Kertscher & Wharton, LLP v. Moody , 308 Ga. 74, 78 (2) n. 2, 839 S.E.2d 535 (2020). Under our Evidence Code, "[c]ommunications between attorney and client" are privileged. OCGA § 24-5-501 (a) (2).¹

"A trial court has wide discretion in entering orders to prevent the use of discovery directed to irrelevant or immaterial matter." Atlanta Journal-Constitution v. Jewell , 251 Ga. App. 808, 812 (2), 555 S.E.2d 175 (2001). But although that discretion is wide, it can be abused. See, e.g., RTA Strategy v. Silver Comet Terminal Partners , 347 Ga. App. 266, 268-269, 817 S.E.2d 720 (2018) (trial court erred in granting motion to compel discovery that was neither relevant to the subject matter of the underlying dispute nor reasonably calculated to lead to the discovery of admissible evidence); Clayton County Bd. of Tax Assessors , 207 Ga. App. at 695-696 (2), 428 S.E.2d 687 (trial court erred in limiting discovery of documents that appeared reasonably calculated to lead to the discovery of admissible evidence, where the party opposing the discovery failed to show that the party seeking the documents was motivated by bad faith or harassment in requesting them). We "will not interfere with [the trial court's discovery] decisions absent a clear abuse [of discretion]." Simon v. Murphy , 350 Ga. App. 291, 296 (2), 829 S.E.2d 380 (2019) (citation and punctuation omitted).

With these principles in mind, we turn to the specific discovery disputes in this case.

(a) Banking records predating the effective date of the power of attorney.

The trial court held that the banking records predating the power of attorney were not discoverable because, among other things, they were irrelevant to this action. The trial court abused his discretion in so ruling.

The fact that the records predated the power of attorney does not alone determine their relevance. As discussed above, evidence is relevant if it has any tendency to make the existence of a "fact of consequence" to the action more or less probable. OCGA § 24-4-401. This proceeding under the Georgia Power of Attorney Act involves a review of the agent's conduct in connection with his duties to the principal. See OCGA § 10-6B-16 (a). The Georgia Power of Attorney Act requires an agent, among other things, to "[a]ct loyally for the principal's benefit[,]" OCGA § 10-6B-14 (b) (1), to "[a]ct so as not to create a conflict of interest that impairs the agent's ability to act impartially in the principal's best interest[,]" OCGA § 10-6B-14 (b) (2), and to "[a]ct with the care, competence, and diligence ordinarily exercised by agents in similar circumstances[.]" OCGA § 10-6B-14 (b) (3). The interrelationship between the finances of the agent and the principal, both before and after the power of attorney became effective, pertains to issues such as the agent's loyalty to the principal, the existence of conflicts of interest between the two, and the circumstances under which ordinary diligence is assessed. Our Supreme Court recognized that point in LeCraw v. LeCraw , 261 Ga. 98, 99-100, 401 S.E.2d 697 (1991), affirming the trial court's ruling that a power of attorney authorized the agents to make certain monetary gifts because those gifts continued the principal's earlier practice. Similarly, in this case the agent argues that actions he took in connection with the principal's bank accounts or funds simply continued an earlier practice between the two; indeed, in his answer the agent points to this earlier practice as the source of his authority to act as he did after the power of attorney went into effect. Under these...