Beasley, Judge.
Appellant Jacobsen’s employment with a North Carolina business was terminated in January 1983. At that time, appellee Drake Beam Morin, Inc. (DBM) orally contracted with appellant’s former employer to assist it with respect to the termination of appellant’s employment, including providing appellant with job counseling services at the DBM Atlanta office. Appellant made several trips to the DBM Atlanta office, where she was assigned appellee Muller, a psychologist, as a job counselor. Thereafter, an intimate, personal relationship developed between appellant and appellee Muller. After the termination of the relationship, appellant brought suit against DBM and Muller, seeking compensatory and punitive damages for an alleged breach of contract and malpractice as a psychologist. This appeal follows the grant of summary judgment to both appellees.
1. Appellees’ motion to dismiss the appeal is denied.
2. Citing OCGA § 9-11-56 (c) and Premium Distrib. Co. v. Nat. Distrib. Co., 157 Ga. App. 666 (278 SE2d 468) (1981), appellant contends the trial court committed reversible error by allegedly granting the motions for summary judgment without providing appellant with an oral hearing or prior notice of the date of ruling.
Appellees’ motions, made on July 19, 1985, and granted on September 3, 1985, were decided under the procedural auspices of the Uniform Superior Court Rules (Rules). Under the new Rules, a party opposing a motion has 30 days after service of the motion to file a response (Rule 6.2), and a motion will be decided without benefit of an oral hearing unless a written request is made therefor (Rule 6.3). Contrary to appellant’s assertions, the Rules do not deprive the op[383]*383posing party of the opportunity to be heard, since he is given 30 days after service of the motion in which to file a response to the motion. A respondent is “heard” when he files a response, since “hearing” does not necessitate an oral hearing but “contemplates notice to the respondent that the matter will be heard and taken under advisement as of a certain day.” Ferguson v. Miller, 160 Ga. App. 436, 437 (287 SE2d 363) (1981). Thus, appellant was given an opportunity to be heard and chose not to avail herself of that opportunity. If she had wished to present oral argument, she need only have made a written request therefor and it would have been permitted. Rule 6.3; Spikes v. Citizens State Bank, 179 Ga. App. 479 (347 SE2d 310) (1986). The Rules also put to rest appellant’s allegation that she received no prior notice of the date of ruling on the motions for summary judgment. Under the Rules, service of a motion on an opposing party serves as notice to that party that the court will take the matter under advisement after 30 days (the time during which the opposing party may file a response to the motion) after service of the motion has passed.
3. Appellant next contends that summary judgment for appellees was inappropriate because appellees’ motions were “defective.” Attached as exhibits to DBM’s motion, adopted by Muller, were excerpts from three depositions of appellant, as well as DBM’s interrogatories to appellant and her responses thereto. Appellant maintains that the trial court’s consideration of the uncertified photocopies of the excerpts and pleadings was improper because the discovery material was not filed. We disagree.
“Depositions and other discovery material otherwise required to be filed with the court under this chapter shall not be required to be so filed unless: ... (5) Such material ... is necessary to a pretrial . . . motion and said material has not previously been filed under some other provision of this chapter, in which event the portions to be used shall be filed with the clerk of the court ... at the filing of the motion . . .” OCGA § 9-11-29.1 (a) (5). (Emphasis supplied.) Thus, filing those portions of discovery material necessary to the motions for summary judgment was not error. Nor was it error that the excerpts so filed were not certified copies. OCGA § 9-11-29.1 (a) (5) does not make certification a prerequisite to the use of discovery material in support of a motion. Rather, it is OCGA § 9-11-56 (e) which requires sworn or certified copies of all papers or parts thereof referred to in an affidavit filed in support of or in opposition to a motion for summary judgment. Jones v. Rodzewicz, 165 Ga. App. 635 (302 SE2d 402) (1983), and Bush v. Legum, 176 Ga. App. 395 (336 SE2d 284) (1985), cited by appellant, are not applicable to the case before us since they are concerned with material referred to in affidavits filed in support of or against a motion for summary judgment.
4. Appellant also argues that the grant of summary judgment to [384]*384appellees was improper.
On motion for summary judgment, the burden is on the movant, regardless of which party would have the burden of proof at trial, to show there is no genuine issue of material fact. All evidence is to be construed most strongly against the movant, and the party opposing the motion is given the benefit of all reasonable doubts and all favorable inferences that can be drawn from the evidence. Fiumefreddo v. Scudder, 252 Ga. 279, 282 (313 SE2d 683) (1984). See also Ga. Intl. Life Ins. Co. v. Huckabee, 175 Ga. App. 343, 345 (333 SE2d 618) (1985). On motion for summary judgment, the movant must negate every theory of recovery which the non-moving party might have. Reid v. Reid, 246 Ga. 592 (2) (272 SE2d 685) (1980).
We are of the opinion that summary judgment was warranted for the reason that plaintiff condoned the breach of contract, if any, and assumed the risk of the tort, if any, committed when Muller deviated from accepted professional standards of a job counselor and used the professional relationship to create and foster an illicit personal relationship with the client.
The allegations of the complaint were not at issue as such, because plaintiff’s contentions were somewhat altered in the pretrial order. It superseded the pleadings and “ constitute [d] the only issues to be tried in this case.” Therefore it, rather than the complaint, controls the nature of the action. OCGA § 9-11-16 (b); Gaul v. Kennedy, 246 Ga. 290, 291 (1) (271 SE2d 196) (1980).
Plaintiff did not contend medical malpractice but rather professional malpractice. Defendants’ evidence shows that the service contracted for was job counseling to terminated employees. This includes interviewing, vocational testing, feedback for discussion of testing results, assistance in focusing upon career objectives and identifying “the ideal job” for the client, and advice on the client’s marketing himself or herself as a prospective employee. A psychologist is employed by DBM to review the vocational guidance tests, and in this case it was Muller, who also served as the job counselor in the numerous sessions which were provided for the job counseling.
Free access — add to your briefcase to read the full text and ask questions with AI
Beasley, Judge.
Appellant Jacobsen’s employment with a North Carolina business was terminated in January 1983. At that time, appellee Drake Beam Morin, Inc. (DBM) orally contracted with appellant’s former employer to assist it with respect to the termination of appellant’s employment, including providing appellant with job counseling services at the DBM Atlanta office. Appellant made several trips to the DBM Atlanta office, where she was assigned appellee Muller, a psychologist, as a job counselor. Thereafter, an intimate, personal relationship developed between appellant and appellee Muller. After the termination of the relationship, appellant brought suit against DBM and Muller, seeking compensatory and punitive damages for an alleged breach of contract and malpractice as a psychologist. This appeal follows the grant of summary judgment to both appellees.
1. Appellees’ motion to dismiss the appeal is denied.
2. Citing OCGA § 9-11-56 (c) and Premium Distrib. Co. v. Nat. Distrib. Co., 157 Ga. App. 666 (278 SE2d 468) (1981), appellant contends the trial court committed reversible error by allegedly granting the motions for summary judgment without providing appellant with an oral hearing or prior notice of the date of ruling.
Appellees’ motions, made on July 19, 1985, and granted on September 3, 1985, were decided under the procedural auspices of the Uniform Superior Court Rules (Rules). Under the new Rules, a party opposing a motion has 30 days after service of the motion to file a response (Rule 6.2), and a motion will be decided without benefit of an oral hearing unless a written request is made therefor (Rule 6.3). Contrary to appellant’s assertions, the Rules do not deprive the op[383]*383posing party of the opportunity to be heard, since he is given 30 days after service of the motion in which to file a response to the motion. A respondent is “heard” when he files a response, since “hearing” does not necessitate an oral hearing but “contemplates notice to the respondent that the matter will be heard and taken under advisement as of a certain day.” Ferguson v. Miller, 160 Ga. App. 436, 437 (287 SE2d 363) (1981). Thus, appellant was given an opportunity to be heard and chose not to avail herself of that opportunity. If she had wished to present oral argument, she need only have made a written request therefor and it would have been permitted. Rule 6.3; Spikes v. Citizens State Bank, 179 Ga. App. 479 (347 SE2d 310) (1986). The Rules also put to rest appellant’s allegation that she received no prior notice of the date of ruling on the motions for summary judgment. Under the Rules, service of a motion on an opposing party serves as notice to that party that the court will take the matter under advisement after 30 days (the time during which the opposing party may file a response to the motion) after service of the motion has passed.
3. Appellant next contends that summary judgment for appellees was inappropriate because appellees’ motions were “defective.” Attached as exhibits to DBM’s motion, adopted by Muller, were excerpts from three depositions of appellant, as well as DBM’s interrogatories to appellant and her responses thereto. Appellant maintains that the trial court’s consideration of the uncertified photocopies of the excerpts and pleadings was improper because the discovery material was not filed. We disagree.
“Depositions and other discovery material otherwise required to be filed with the court under this chapter shall not be required to be so filed unless: ... (5) Such material ... is necessary to a pretrial . . . motion and said material has not previously been filed under some other provision of this chapter, in which event the portions to be used shall be filed with the clerk of the court ... at the filing of the motion . . .” OCGA § 9-11-29.1 (a) (5). (Emphasis supplied.) Thus, filing those portions of discovery material necessary to the motions for summary judgment was not error. Nor was it error that the excerpts so filed were not certified copies. OCGA § 9-11-29.1 (a) (5) does not make certification a prerequisite to the use of discovery material in support of a motion. Rather, it is OCGA § 9-11-56 (e) which requires sworn or certified copies of all papers or parts thereof referred to in an affidavit filed in support of or in opposition to a motion for summary judgment. Jones v. Rodzewicz, 165 Ga. App. 635 (302 SE2d 402) (1983), and Bush v. Legum, 176 Ga. App. 395 (336 SE2d 284) (1985), cited by appellant, are not applicable to the case before us since they are concerned with material referred to in affidavits filed in support of or against a motion for summary judgment.
4. Appellant also argues that the grant of summary judgment to [384]*384appellees was improper.
On motion for summary judgment, the burden is on the movant, regardless of which party would have the burden of proof at trial, to show there is no genuine issue of material fact. All evidence is to be construed most strongly against the movant, and the party opposing the motion is given the benefit of all reasonable doubts and all favorable inferences that can be drawn from the evidence. Fiumefreddo v. Scudder, 252 Ga. 279, 282 (313 SE2d 683) (1984). See also Ga. Intl. Life Ins. Co. v. Huckabee, 175 Ga. App. 343, 345 (333 SE2d 618) (1985). On motion for summary judgment, the movant must negate every theory of recovery which the non-moving party might have. Reid v. Reid, 246 Ga. 592 (2) (272 SE2d 685) (1980).
We are of the opinion that summary judgment was warranted for the reason that plaintiff condoned the breach of contract, if any, and assumed the risk of the tort, if any, committed when Muller deviated from accepted professional standards of a job counselor and used the professional relationship to create and foster an illicit personal relationship with the client.
The allegations of the complaint were not at issue as such, because plaintiff’s contentions were somewhat altered in the pretrial order. It superseded the pleadings and “ constitute [d] the only issues to be tried in this case.” Therefore it, rather than the complaint, controls the nature of the action. OCGA § 9-11-16 (b); Gaul v. Kennedy, 246 Ga. 290, 291 (1) (271 SE2d 196) (1980).
Plaintiff did not contend medical malpractice but rather professional malpractice. Defendants’ evidence shows that the service contracted for was job counseling to terminated employees. This includes interviewing, vocational testing, feedback for discussion of testing results, assistance in focusing upon career objectives and identifying “the ideal job” for the client, and advice on the client’s marketing himself or herself as a prospective employee. A psychologist is employed by DBM to review the vocational guidance tests, and in this case it was Muller, who also served as the job counselor in the numerous sessions which were provided for the job counseling. He was a licensed clinical psychologist, and it is clear from those portions of plaintiff’s depositions which are in the record, together with her answers to interrogatories and the other evidence submitted, that Muller used psychology techniques, methods, tests, and theories in the job counseling process. That is, there is at least some evidence that he practiced applied psychology, in the sense recognized in OCGA § 43-39-1 (2), in providing the extensive job counseling service in this case.
There is also some evidence that Muller misused the professional role and the professional relationship to manufacture a personal role and to develop a personal relationship. The interview questions and [385]*385the advice and assistance given, as testified to, in effect commingled both to some degree.
However, there is no disputing the fact that plaintiff knew that the personal relationship which was fostered was beyond the scope of Muller’s duties as a job counselor, and yet she responded positively. She condoned whatever legal breaches were committed and participated up to the time that he rejected her. She does not contend that she was led to believe that the personal relationship was a necessary ingredient of the job counseling. In fact, she never told anyone at the DBM office about it, and she testified that “John was very concerned that no one find out.”
Consequently, she has no cause to complain, either for breach of contract insofar as the job counseling service is concerned, Eaves v. Georgian Co., 47 Ga. App. 37, 38 (4) (169 SE 519) (1933); White v. First Fed. S & L Assn., 158 Ga. App. 373, 374 (2) (280 SE2d 398) (1981), or for a tort of professional malpractice. Myers v. Boleman, 151 Ga. App. 506, 509 (3) (260 SE2d 359) (1979); Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 668 (88 SE2d 6) (1955).
Judgment affirmed.
Banke, C. J., Deen, P. J., Birdsong, P. J., Sognier, and Pope, JJ., concur. McMurray, P. J., and Carley, J., concur in judgment only. Deen, P. J., also concurs specially. Ben-ham, J., concurs in part and dissents in part.