Ghayoumi v. McMillan, No. M2005-00267-COA-R3-CV (Tenn. App. 7/14/2006)
| Decision Date | 14 July 2006 |
| Docket Number | No. M2005-00267-COA-R3-CV.,M2005-00267-COA-R3-CV. |
| Parties | ABDOL GHAYOUMI v. DAVID W. McMILLAN, Ph.D. |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Davidson County; No. 03C2225; Barbara N. Haynes, Judge.
Judgment of the Circuit Court Affirmed.
Brian Schuette, Bowling Green, Kentucky, and Larry L. Crain, Brentwood, Tennessee, for the appellant, Abdol Ghayoumi.
Don L. Smith and Samuel J. Welborn, Nashville, Tennessee, for the appellee, David W. McMillan.
Frank G. Clement, Jr., J., delivered the opinion of the court, in which William C. Koch, Jr., P.J., M.S., and William B. Cain, J., joined.
Plaintiff filed this action against a court-appointed psychologist contending the psychologist breached a confidential relationship by disclosing confidential information to Plaintiff's ex-wife. The psychologist had been appointed by a Kentucky trial court presiding over Plaintiff's divorce and post-divorce disputes to evaluate the family and make reports to the trial court regarding custody of and visitation. In this subsequent action, the psychologist filed a motion for summary judgment contending there was no disclosure of confidential information and he was entitled to immunity. The trial court summarily dismissed the action against the psychologist. We affirm.
Abdol Ghayoumi, Plaintiff, and his now ex-wife, Yvonne Chambers, married in 1978 and had four children. The family resided in Kentucky at all times material to this action. In 2000, Ms. Chambers filed for a divorce in the Circuit Court for Warren County, Kentucky. The divorce action became most contentious, particularly regarding custody and visitation issues.
To aid the court in its determination of custody and visitation, the trial court ordered Plaintiff, Ms. Chambers, and their children to meet with and be evaluated by a clinical psychologist, David W. McMillan, Ph.D. (Defendant). Pursuant to the court's Order, Defendant was to meet with the family, to counsel with and evaluate all family members, and thereafter submit a report and recommendation to the Kentucky court regarding custody and visitation. Copies of the report were to be submitted to the parties.
Pursuant to the Order, which was entered in December of 2000, Defendant conducted several family counseling sessions with the Ghayoumi-Chambers family. Most of the sessions were joint sessions, meaning several family members were in attendance and participated. In February of 2001, Defendant submitted a Custody Evaluation Report to the Circuit Court for Warren County. In May of 2001, the Circuit Court of Warren County, Kentucky entered a final decree of divorce and awarded custody of the children to Plaintiff, with Ms. Chambers being awarded visitation.
Following the divorce, the children's relationship with their mother deteriorated. One of the more significant developments was that the youngest child, who had been closest to his mother, developed a fear of her. Ms. Chambers believed this was due to Plaintiff telling the children negative things about her. As distrust and tensions between the parents grew, the family relationships deteriorated. When the court learned of the acrimony, it quickly concluded that such hostility was not in the children's best interests. Consequently, on June 11, 2002, the court issued a second Order directing Plaintiff, Ms. Chambers, and their children to return to Defendant for a second wave of counseling with and assessment by Defendant. As before, the second Order also instructed Defendant to reassess the family and submit to the court a report and recommendation to aid the court in determining whether to modify custody and visitation.
The second series of family sessions with Defendant occurred between June and September 2002. As before, most of the sessions were joint and two of the sessions included the parties' son who was experiencing difficulties with his mother.
The discussion between Defendant and Ms. Chambers at the center of this controversy occurred on August 6, 2002, following one of the sessions. As the Complaint reads, "On August 6th, 2002 Defendant telephoned Plaintiff's ex-wife and disclosed to her that he had learned in a session that Plaintiff knew of the location of her then domicile." The Complaint further states, "This call was placed after a session between Plaintiff and Defendant had concluded and referenced confidential communications between Plaintiff and Defendant in that session which Plaintiff understood to be privileged and expected to be confidential."
On September 25, 2002, six weeks after the above referenced phone call, Ms. Chambers filed an affidavit in the Kentucky court stating Defendant phoned her on August 6, 2002 and informed her that her husband knew where she was living. The affidavit was filed in support of Ms. Chambers' petition for an Emergency Protective Order (EPO) and a Domestic Violence Order (DVO) against Plaintiff.1 She stated in her affidavit that Defendant notified her that Plaintiff knew where she lived, and she was in fear for her safety. The Kentucky court issued an EPO, ex parte, on the filing of the Petition. Plaintiff was given notice of the EPO, and a hearing was conducted on November 7, 2002, to determine whether to issue a DVO. Plaintiff and his counsel appeared and resisted the DVO. After hearing from the parties, the Kentucky court decided to dismiss the EPO and to not issue a DVO.
Thereafter, Plaintiff filed this action, contending he had a psychologist-patient relationship with Defendant, and that Defendant breached his duty to keep communications between Plaintiff and Defendant confidential. Defendant denied having a psychologist-patient relationship with Plaintiff and denied disclosing any confidential information. Specifically, Defendant contended his services were limited to performing an evaluation of the family and making a report and recommendation that was to be disclosed to the Court and parties.
In the Complaint, Plaintiff contended that Defendant breached a confidential relationship with him by telling Ms. Chambers that Plaintiff knew where she lived. During discovery, however, Plaintiff denied ever telling Defendant he knew where she lived. Following discovery, Defendant filed a motion for summary judgment asserting two contentions. One, he contended there was no disclosure of confidential information because, as Plaintiff insisted in his deposition, Plaintiff did not tell Defendant he knew where Ms. Chambers lived, thus, the disclosure attributed to Defendant could not constitute a breach of confidential information. Two, Defendant contended he was entitled to immunity as a court-appointed psychologist. The trial court granted Defendant's motion for summary judgment without stating a basis. This appeal followed.
The issues were resolved in the trial court upon summary judgment. Summary judgments do not enjoy a presumption of correctness on appeal. BellSouth Adver. & Publ'g Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn. 2003). This court must make a fresh determination that the requirements of Tenn. R. Civ. P. 56 have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997). We consider the evidence in the light most favorable to the non-moving party and resolve all inferences in that party's favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002). When reviewing the evidence, we first determine whether factual disputes exist. If a factual dispute exists, we then determine whether the fact is material to the claim or defense upon which the summary judgment is predicated and whether the disputed fact creates a genuine issue for trial. Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993); Rutherford v. Polar Tank Trailer, Inc., 978 S.W.2d 102, 104 (Tenn. Ct. App. 1998).
Summary judgments are proper in virtually all civil cases that can be resolved on the basis of legal issues alone, Byrd, 847 S.W.2d at 210; Pendleton v. Mills, 73 S.W.3d 115, 121 (Tenn. Ct. App. 2001); however, they are not appropriate when genuine disputes regarding material facts exist. Tenn. R. Civ. P. 56.04. The party seeking a summary judgment bears the burden of demonstrating that no genuine disputes of material fact exist and that party is entitled to judgment as a matter of law. Godfrey, 90 S.W.3d at 695. Summary judgment should be granted at the trial court level when the undisputed facts, and the inferences reasonably drawn from the undisputed facts, support one conclusion, which is the party seeking the summary judgment is entitled to a judgment as a matter of law. Pero's Steak & Spaghetti House v. Lee, 90 S.W.3d 614, 620 (Tenn. 2002); Webber v. State Farm Mut. Auto. Ins. Co., 49 S.W.3d 265, 269 (Tenn. 2001). The court must take the strongest legitimate view of the evidence in favor of the non-moving party, allow all reasonable inferences in favor of that party, discard all countervailing evidence, and, if there is a dispute as to any material fact or if there is any doubt as to the existence of a material fact, summary judgment cannot be granted. Byrd, 847 S.W.2d at 210; EVCO Corp. v. Ross, 528 S.W.2d 20 (Tenn. 1975). To be entitled to summary judgment, the moving party must affirmatively negate an essential element of the non-moving party's claim or establish an affirmative defense that conclusively defeats the non-moving party's claim. Cherry v. Williams, 36 S.W.3d 78, 82-83 (Tenn. Ct. App. 2000).
The singular issue Plaintiff presents in his brief is "[w]hether a treating psychologist is entitled to quasi-judicial immunity for a claim arising out of a breach of psychologist-client privilege, simply because the counseling was court-ordered." We find the issue as framed to be without merit because there is no genuine, material evidence of a pre-existing psychologist-client relationship between Plaintiff and Defendant. We also find Defendant is...
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