                               FIRST DIVISION
                                BARNES, P. J.,
                           MCMILLIAN and REESE, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                    October 26, 2018




In the Court of Appeals of Georgia
 A18A1154. HUDDLE et al. v. HEINDEL.

      REESE, Judge.

      The Appellants, Mark and Elizabeth Huddle, challenge the trial court’s grant

of summary judgment to the Appellee, S. Clark Heindel, on Elizabeth Huddle’s

claims for professional negligence, negligent infliction of emotional distress, and

breach of fiduciary duty, and the dismissal of Mark Huddle’s loss of consortium

claim. For the reasons set forth infra, we affirm in part and reverse in part.

      Viewed in the light most favorable to the non-movants,1 Elizabeth Huddle

(“Huddle”) married Mark Huddle in 2005 and they had two daughters. In January

2010, Elizabeth Huddle (“Huddle”) sought therapy from the Appellee for assistance


      1
       Ussery v. Children’s Healthcare of Atlanta, 289 Ga. App. 255, 258 (656 SE2d
882) (2008) (citation and footnote omitted).
with emotional attachment issues. Huddle testified at her deposition that she “was an

addict and had substance abuse problems,” and had a history of “[b]orderline

personality disorder, acute anxiety disorder, agoraphobia, and severe depression.” She

sought treatment from the Appellee, a licensed psychologist,2 because she wanted to

raise her two daughters as “healthy and happy children.”

      Huddle saw the Appellee at his office from January 2010 through March 2012

for counseling. During that time, Huddle never brought her children to the counseling

sessions, and the only phone calls she received from the Appellee were for

appointment reminders. Also, from 2010 through 2012, Huddle and the Appellee did

not communicate through text or Facebook messages. The last time Huddle saw the

Appellee in his office was in March 2012.

      Huddle testified that she and the Appellee became “Facebook friends” in

August or September of 2013 and exchanged multiple messages. Around that time,

she sent a “private” Facebook message to the Appellee seeking his “therapeutic

advice” because her daughter was having “body issues[.]” The Appellee testified that

he responded to her message, telling her that body image issues were common in


      2
       During his deposition taken in 2016, the Appellee testified that he no longer
had an active license to practice psychology in Georgia.

                                          2
young girls and to “[m]onitor it[, and] [i]f it [got] worse, refer [the daughter] to

somebody.”

      Huddle and the Appellee continued to correspond with each other through

Facebook, and then unexpectedly encountered each other at a clothing store in April

2014. In May 2014, Huddle and the Appellee met for lunch. Shortly thereafter, they

began a sexual relationship.3 During the course of their sexual relationship, Huddle

and the Appellee also communicated through cell phone text messages and Kik (a

message application). Huddle testified that she and her husband had erased the

Facebook, text and Kik messages after her husband discovered them.

      In June 2014, Huddle’s husband met with the Appellee over lunch and told him

that “[the Appellee had] created the perception at least of engaging in predatory

behavior” with his wife which needed to stop. Huddle’s husband filed complaint

dated June 27, 2014 against the Appellee to the “Composite Board” (“Board”).

Huddle wrote a separate, undated letter to the Board, alleging that the Appellee had

engaged in “unprofessional and unethical behavior.”




      3
       During the course of their sexual relationship, the Appellee provided Huddle
with marijuana and the two consumed alcohol together.

                                         3
       In September 2014, Huddle began seeing a new therapist, Dr. Kennedy. Huddle

filled out an intake form for Dr. Kennedy and identified her chief concern as needing,

“[s]upport and help with depression and ‘pain’ after an affair with a former therapist.”

       The Appellee testified that the Appellants told him that they had an “open

marriage” and “invited” him into it. Further, the Appellee testified that Huddle was

no longer his patient during the time of their sexual relationship, and that he had no

intention of resuming the “psychologist-patient relationship” with Huddle at the time

she questioned him about her daughter’s body image issues.

       On December 28, 2015, the Appellants filed suit against the Appellee, asserting

claims for professional negligence, breach of fiduciary duty, negligent infliction of

emotional distress, and loss of consortium, and seeking punitive damages in addition

to attorney fees and expenses. The Appellants attached to the complaint an expert

affidavit of Dr. Andrew Gothard, a licensed psychologist, pursuant to OCGA § 9-11-

9.1.

       The Appellee filed a motion for summary judgment, alleging that the

professional negligence and breach of fiduciary duty claims were barred by the two-

year statute of limitation; the negligent infliction of emotional distress claim lacked

a showing of physical impact or pecuniary loss; and there was no “clear liability” by

                                           4
the Appellee as to the other claims. The Appellee also filed a motion to dismiss Mark

Huddle’s loss of consortium claim, alleging that his claim was actually for adultery

and/or alienation of affection, both of which had been abolished in Georgia.4

      After a hearing,5 the trial court granted the Appellee’s motions. This appeal

followed with the Appellant excluding the “transcript of evidence and proceedings”

and “sealed medical records” from the appellate record.

      On appeal, the Appellants argue that the trial court erred in granting the

Appellee’s motion for summary judgment as to the claims of professional negligence,

breach of fiduciary duty, and negligent infliction of emotional distress; and the

motion to dismiss Mark Huddle’s loss of consortium claim.

              On summary judgment, [the] movant has the burden to show there
      is no genuine issue as to any material fact and that he is entitled to a
      judgment as a matter of law. In ruling on a motion for summary
      judgment, the opposing party should be given the benefit of all
      reasonable doubt, and the court should construe the evidence and all


      4
          See OCGA § 51-1-17.
      5
         The record shows that the hearing was to address several of the Appellee’s
motions including the motion for summary judgment. The hearing transcript is not
part of the appellate record. According to the Appellee’s brief, the court reporter lost
her notes and her audio-recording of the hearing. The Appellants’ brief is silent on
this issue and the Appellants did not file a reply brief.

                                           5
      inferences and conclusions arising therefrom most favorably toward the
      party opposing the motion.6


With these guiding principles in mind, we turn now to the Appellants’ claims of error.

      1. The Appellants argue that the trial court erred in granting the Appellee’s

motion for summary judgment as to Huddle’s claim for professional negligence.

Specifically, the Appellants contend that Huddle and the Appellee consented to a

physician-patient relationship through July 2014 and thus her professional negligence

claim was filed within the statutory two-year period. We disagree.

      Generally, an action for professional negligence must be brought within two

years after the injury, arising from negligence, or wrongful act occurred.7 Thus,

because the Appellants filed suit on December 28, 2014, they must show that their

claims arose on or after December 28, 2012.

      “Georgia law is clear that physician-patient privity is an absolute requirement

for the maintenance of a professional malpractice action.”8 Physician-patient privity


      6
       Williams v. Food Lion, 213 Ga. App. 865 (1) (446 SE2d 221) (1994) (citation
omitted).
      7
          See OCGA § 9-3-71 (a).
      8
       Schrader v. Kohout, 239 Ga. App. 134, 135 (522 SE2d 19) (1999); accord
Ussery v. Children’s Healthcare of Atlanta, 289 Ga. App. 255, 271 (6) (656 SE2d

                                          6
is the result of “a consensual transaction that establishes the legal duty to conform to

a standard of conduct. The relationship is considered consensual where the patient

knowingly seeks the assistance of the physician and the physician knowingly accepts

[her] as a patient.”9 Further, a physician-patient relationship can by inferred from the

physician’s notes and conversations with the parties that showed the physician agreed

to continue to “act as the [patient’s] physician[.]”10

      Here, it is undisputed that Huddle and the Appellee maintained a psychologist-

patient relationship from January 2010 through March 2012. Huddle stated in her

affidavit that she “took a break from formal treatment with [the Appellee] from April

2012 until the fall of 2013[,] did not see any other therapists [during that time,] and

did not terminate [the Appellee] as [her] therapist.” However, it is undisputed that the

Appellants erased all of the social media communications including pictures, text

messages, Facebook communications and Kik messages between Huddle and the



882) (2008).
      9
          Schrader, 239 Ga. App. at 136 (citations and punctuation omitted).
      10
         See Ussery, 289 Ga. App. 257-258 (Affirmed the denial of summary
judgment to the physician when evidence of the doctor’s notes and conversations with
the minor patient’s mother demonstrated that he would continue to “act as the child’s
physician” after she was transferred to an intensive care unit.).

                                           7
Appellee prior to filing their lawsuit. Further, the Appellants have not produced any

notes, medical records or billings showing that a psychologist-patient relationship

existed between Huddle and the Appellee after March 2012.

      In contrast, the Appellee testified that he did not consider Huddle his patient

during the time of their sexual relationship. The record shows that the Appellee did

not bill Huddle or her insurance carrier for professional services or maintain any

notes or medical records regarding Huddle after March 2012.

      Also, the appellate record does not contain the sealed medical records of

Huddle that were filed with the trial court nor is there a transcript of the motions

hearing.11 The record does not show that either party sought to reconstruct the

motions hearing.12




      11
         Under OCGA § 5-6-41 (c),
      In all civil cases tried in the superior and city courts and in any other
      court, the judgments of which are subject to review by the Supreme
      Court or the Court of Appeals, the trial judge thereof may require the
      parties to have the proceedings and evidence reported by a court
      reporter, the costs thereof to be borne equally between them; and, where
      an appeal is taken which draws in question the transcript of the evidence
      and proceedings, it shall be the duty of the appellant to have the
      transcript prepared at the appellant’s expense.
      12
           See OCGA § 5-6-41 (g), (i).

                                         8
      Based on the foregoing, the Appellants did not “point to specific evidence

giving rise to a triable issue[]” as to whether a psychologist-patient relationship

existed after March 2012 between Huddle and the Appellee.13 Thus, the trial court did

not err in granting summary judgment on behalf of the Appellee as to Huddle’s

professional negligence claim.

      2. The Appellants argue that the trial court erred in granting summary judgment

on Huddle’s claim that the Appellee breached a fiduciary duty to Huddle by engaging

in a sexual relationship with her. We agree.

      “Georgia has no specific statute of limitation for breach of fiduciary duty

claims. Instead, [courts] examine the injury alleged and the conduct giving rise to the

claim to determine the appropriate statute of limitation. . . . In applying the limitation

period, [courts] must also remain mindful that ‘the statute of limitation for a cause of

action for breach of fiduciary duty is triggered by a wrongful act accompanied by any

appreciable damage.’”14

      13
           Lau’s Corp. v. Haskins, 261 Ga. 491, 493 (1) (405 SE2d 474) (1991).
      14
          Godwin v. Mizpah Farms, 330 Ga. App. 31, 38-39 (3) (b) (766 SE2d 497)
(2014) (citations and punctuation omitted); see also Reaugh v. Inner Harbour Hosp.,
214 Ga. App. 259, 260 (1) (447 SE2d 617) (1994) (The statute of limitation as to the
plaintiff’s breach of fiduciary duty claim against the defendant hospital was
determined by “the nature of the injury sustained, rather than by the legal theory

                                            9
      Here, Huddle sought to recover under a breach of fiduciary duty theory15 based

upon alleged conduct that the Appellee misused confidential information, e.g. that he

“used the intimate knowledge of [Huddle’s] history of addiction to his advantage to

lower her inhibitions and entice her to have sex with him.”16

      When the Appellee sought summary judgment on this claim, he asserted that

the breach of fiduciary duty claim was “no more than a renaming of a professional

negligence claim,” and that the two-year statute of limitations period set forth in

OCGA § 9-3-71 thus applied. But, “[a]s the Supreme Court held in Tante,17 “a claim

for breach of fiduciary duty is not one for professional malpractice because it is not




underlying the claim for relief.”) (citation omitted).
      15
          Huddle maintains on appeal that “fiduciary obligations do not end the
moment the relationship ends because fiduciaries are entrusted with confidential
information that must remain confidential beyond the existence of the relationship.”
See, e.g., Cooksey v. Landry, 295 Ga. 430 (761 SE2d 61) (2014).
      16
        See generally, Tante v. Herring, 264 Ga. 694, 696 (2) (453 SE2d 686) (1994)
(jury could find breach of duty, where attorney used his position of trust to conduct
extramarital affair with client); Brewer v. Paulk, 296 Ga. App. 26, 30 (1) (a) (673
SE2d 545) (2009) (“[A]n actionable breach of fiduciary duty may arise when a
confidential relationship is abused for purposes of sexual gratification.”) (citation and
punctuation omitted).
      17
           264 Ga. at 695-696 (2).

                                           10
based on the performance of professional services, but rather, upon a violation of the

duty of utmost good faith and loyalty.”18

      Based on the foregoing, in conjunction with Huddle’s theory underlying the

breach of fiduciary duty claim, the limitations statute governing professional

malpractice claims is not appropriate here.19 In the instant action, the breach of

fiduciary duty claim is premised on the Appellee engaging Huddle in a sexual

relationship; that such relationship began shortly after May 2014; and that this suit

was filed on December 2015. Thus, the suit was filed within two years of the alleged

breach of fiduciary duty.20

      3. The Appellants contend that the trial court erred in granting summary

judgment on Huddle’s claim for negligent infliction of emotional distress because she




      18
        Blier v. Greene, 263 Ga. App. 35, 39 (2) (587 SE2d 190) (2003) (emphasis
supplied).
      19
         See, e.g., Hendry v. Wells, 286 Ga. App. 774, 779 (1) (650 SE2d 338) (2007)
(where breach of fiduciary duty claim alleged partner made material
misrepresentations and rendered plaintiffs unable to protect their rights and preserve
their investment, employing a four-year statute of limitation applicable to injuries to
personalty).
      20
           Godwin, 330 Ga. App. at 38-39 (3) (b).

                                          11
suffered a pecuniary loss and the aggravation of an existing illness due to the

Appellee’s conduct. We disagree.

      “In a claim concerning negligent conduct, a recovery for emotional distress is

allowed only where there is some impact on the plaintiff, and that impact must be a

physical injury.”21 The three elements of the Georgia impact rule are: “(1) a physical

impact to the plaintiff; (2) the physical impact causes physical injury to the plaintiff;

and (3) the physical injury to the plaintiff causes the plaintiff’s mental suffering or

emotional distress.”22

       However, under the pecuniary loss rule, “a plaintiff may … recover damages

for emotional distress flowing from a defendant’s negligence, notwithstanding the

absence of physical injury. But these damages are recoverable only if the plaintiff has

suffered a pecuniary loss and has suffered an injury to the person, albeit not

physical.”23




      21
         Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 584 (I) (533 SE2d 82) (2000)
(citation and footnote omitted).
      22
           Id. at 586 (I) (citation omitted).
      23
        Nationwide Mut. Fire Ins. Co. v. Lam, 248 Ga. App. 134, 138 (2) (546 SE2d
283) (2001) (punctuation omitted).

                                                12
      Huddle acknowledged in her discovery responses that she did not suffer a

physical impact related to her claim for negligent infliction of emotional distress, but

asserts that she suffered a pecuniary loss and aggravation of pre-existing mental

health issues, evidenced by receiving therapy treatment and related bills from her

subsequent treating psychologist, Dr. Kennedy. The record contains only two of Dr.

Kennedy’s psychotherapy progress notes, dated July 12, 2016 and July 19, 2016, and

her billing records from September 2014 through February 2016, regarding Huddle.

The psychotherapy progress notes of Dr. Kennedy discuss a family vacation and the

stress related to her lawsuit, whereas the billing records show psychotherapy office

visits and payments, but no other details.

      Pretermitting the above, “[i]t is the primary responsibility of the appropriate

parties and not this court to ensure that all documents relevant to the disposition of

an appeal be duly filed with the clerk of this court prior to the issuance of our

appellate decision.”24 As discussed in Division 1, supra, the record does not contain


      24
        McLendon v. Advertising That Works, 292 Ga. App. 677, 679 (1) (665 SE2d
370) (2008) (punctuation and footnote omitted); see also Demere Marsh Assoc., LLC
v. Boatright Roofing & Gen. Contracting, Inc., 343 Ga. App. 235, 236, n. 1 (808
SE2d 1) (2017) (“[I]t is not the duty of this Court to cull the record on a party’s behalf
to locate information or facts in support of a party.”) (citation and punctuation
omitted).

                                           13
the transcript of the motions hearing or the sealed medical rcords filed with the trial

court. Based on the foregoing and under the circumstances, the Appellants have failed

to meet their burden of showing, by the record, that the trial court erred in granting

summary judgment on behalf of the Appellee as to Huddle’s negligent infliction of

emotional distress claim.25

      4. The Appellants assert that the trial court erred in dismissing Mark Huddle’s

loss of consortium claim against the Appellee. We agree.

      The Appellants concede that a claim of loss of consortium is a “dependent

cause of action[,]” which is derivative of Huddle’s right to recover for her injuries.26

Generally, “Georgia law has long recognized the separate nature of the right of action

for loss of consortium. A suit by a husband for personal injuries, and a suit by his




      25
         See Tahamtan v. Sawnee Electric Membership, 228 Ga. App. 485 (491 SE2d
918) (1997) (“[T]he burden is on the party alleging error to show it affirmatively by
the record and . . . where the proof necessary for determination of the issues on appeal
is omitted from the record, the appellate court must assume that the judgment below
was correct and affirm.”) (citation and punctuation omitted).
      26
         Hightower v. Landrum, 109 Ga. App. 510, 514 (4) (136 SE2d 425) (1964)
(“One spouse’s right of action for the loss of the other’s society or consortium is a
derivative one, stemming from the right of the other.”).

                                          14
wife for loss of consortium, are separate and distinct claims for relief[.]”27 “When the

other spouse cannot recover from the alleged tort-feasor as a matter of law, however,

the alleged tort-feasor also is not liable for loss of consortium arising from those

injuries.”28

       “The running of limitation for a personal injury claim does not bar a derivative

loss of consortium claim.”29 Stated a different way, “the fact that the statute of

limitation has run on the underlying claim is of no consequence to the viability of the

derivative loss of consortium claim[.]”30 Based on the foregoing and in light of our

discussion in Divisions 1 and 2, supra, it was error for the trial court to grant

summary judgment as to Mark Huddle’s loss of consortium claim.31

       27
       White v. Hubbard, 203 Ga. App. 255, 256 (416 SE2d 568) (1992) (citations
and punctuation omitted).
       28
            Holloway v. Northside Hosp., 230 Ga. App. 371, 372 (496 SE2d 510) (1998).
       29
         Whitten v. Richards, 240 Ga. App. 719, 722 (2) (523 SE2d 906) (1999);
(citations omitted); accord Elwell v. Haney, 169 Ga. App. 481, 482 (313 SE2d 499)
(1984).
       30
         Beamon v. Mahadevan, 329 Ga. App. 685, 688 (2), n. 8 (766 SE2d 98)
(2014) (citation and punctuation omitted).
       31
         See generally, Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779)
(2010) (“Summary judgments enjoy no presumption of correctness on appeal, and an
appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56
(c) have been met.”) (citations omitted).

                                           15
      Judgment affirmed in part and reversed in part. Barnes, P. J., concurs.

McMillian, J., concurs fully in Division 1 and concurs in judgment only in Divisions

2, 3 and 4.*



* DIVISIONS 2, 3, AND 4 OF THIS OPINION ARE PHYSICAL PRECEDENT

ONLY. COURT OF APPEALS RULE 33.2 (a).




                                        16
