        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                           ROBERTO ESTAPE,
                              Appellant,

                                      v.

           STANLEY B. SEIDMAN PH.D., individually, and
       STANLEY B. SEIDMAN, PH.D, P.A., a Florida corporation,
                          Appellees.

                              No. 4D17-3336

                              [April 24, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mily Rodriguez-Powell,; L.T. Case No. 12-25519(3).

  Max R. Price of the Law Offices of Max R. Price, P.A., Miami, for
appellant.

   John W. Mauro and Scott C. Cochran of Billing, Cochran, Lyles, Mauro
& Ramsey, P.A., Fort Lauderdale, for appellees.

WARNER, J.

    Roberto Estape appeals a summary final judgment entered on his
claims of negligence and breach of fiduciary duty against appellee, Dr.
Stanley Seidman, a psychologist. In a contested dissolution of marriage
proceeding, Estape and his wife agreed to use Dr. Seidman as a
reunification therapist for their children, and the court approved their
agreement.      Estape contends that he had a psychologist-patient
relationship with Dr. Seidman, evidenced by a document that the doctor
had him sign. He asserts that any communications between them were
required by statute to be confidential, but the doctor breached that
confidentiality, causing Estape damage. Dr. Seidman claimed that
because the communications occurred within the litigation, he was
entitled to absolute immunity based upon the litigation privilege, and the
trial court agreed. We reverse, finding that the statutory grant of
confidentiality prevails over the litigation privilege, a common law doctrine,
and there remains a question of fact as to the existence of the psychologist-
patient relationship.
    During the dissolution of marriage proceedings, Estape was prevented
from seeing his children. The children saw two psychologists, and after a
time, the psychologists concluded that reunification with the father should
occur. The parties agreed to the commencement of a visitation schedule
and that Dr. Seidman would serve as the reunification therapist. Few
instructions were included in the agreement announced in court, other
than that the children were to have two sessions with Dr. Seidman prior
to the first unsupervised visitation, which was already scheduled. In
addition, Dr. Seidman, together with the children’s psychologists, could
determine whether each child should have a vacation with their father
without the other child. The court refused to make any determination
other than to adopt the agreement of the parties. The order entered by the
trial court simply states: “The Court adopts the Agreement on temporary
children’s access issues and related issues as contained in the transcript
of the hearing on May 2, 2011, as an Order of the Court, which is attached
hereto as Exhibit ‘1.’” It does not name Dr. Seidman in the order.

   After one short session with Estape, and a session with the children,
Dr. Seidman sent an email to the children’s guardian ad litem, objecting
to the first scheduled visitation on the grounds that he had not had the
time to perform a sufficient evaluation and that the children were
apprehensive about seeing their father. He also related some information
conveyed to him by Estape during his short session with him. As a result,
the mother moved to stay the scheduled visitation, and it did not occur.
More proceedings involving visitation ensued, preventing Estape from
seeing his children.

   Estape eventually filed a complaint against Dr. Seidman, alleging
causes of action for breach of fiduciary duty and negligence. The gravamen
of the breach of fiduciary duty claim was that Dr. Seidman had
communicated to the guardian ad litem material which Estape claimed
was privileged under the psychotherapist-patient doctrine. See Gracey v.
Eaker, 837 So. 2d 348, 353-55 (Fla. 2002) (finding that the wrongful
disclosure of confidential information by a psychotherapist constitutes a
breach of a fiduciary duty). The negligence count was also based upon
Estape’s claim that Dr. Seidman communicated to the guardian ad litem
without following standard practices for psychologists.

   Dr. Seidman moved for summary judgment. He alleged that he was a
court-appointed reunification therapist and, as such, protected by
absolute immunity for statements made during the judicial proceeding.

   In response, Estape set forth evidence that he had entered into a
psychologist-patient relationship with the doctor. He pointed to a form

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that he signed when he appeared at Dr. Seidman’s office for his first
session. That form included a confidentiality statement as follows:

      Information shared with a psychologist is kept strictly
      confidential and is not disclosed without your written
      provision. However, confidentiality is not guaranteed in cases
      of (a) danger to yourself others (e.g., homicide or suicide), or
      (b) situations [in] which children are endangered (e.g., sexual
      or physical abuse or neglect).

The form also provided for Informed Consent:

      I have read and understood the preceding statements, have
      had the opportunity to ask questions about them, and agreed
      to begin treatment at Associates In Behavioral Counseling.

(emphasis added). 1 The court granted the motion for summary judgment,
and after denying a motion for rehearing, it entered final judgment in favor
of the doctor, which prompted this appeal.

    We review a final summary judgment de novo, recognizing that it
should be granted only when there is a complete absence of genuine issues
of material fact and the moving party is entitled to judgment as a matter
of law. Fini v. Glascoe, 936 So. 2d 52, 54 (Fla. 4th DCA 2006). Whether
the absolute immunity privilege applies is a question of law to be decided
by the court. See Ball v. D’Lites Enters., Inc., 65 So. 3d 637, 638 (Fla. 4th
DCA 2011).

    “The law in Florida has long been that defamatory statements made in
the course of judicial proceedings are absolutely privileged, and no cause
of action for damages will lie, regardless of how false or malicious the
statements may be, so long as the statements are relevant to the subject
of inquiry.” Fridovich v. Fridovich, 598 So. 2d 65, 66 (Fla. 1992). “The
immunity afforded to statements made during the course of a judicial
proceeding extends not only to the parties in a proceeding but to judges,
witnesses, and counsel as well.” Levin, Middlebrooks, Mabie, Thomas,
Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994).
As noted in Myers v. Hodges, 44 So. 357, 360 (Fla. 1907), however, the
absolute immunity for statements in judicial proceedings arose from the
common law of England. By statute, the common law is the law of this

1
  In addition, both parties referenced a deposition of Dr. Seidman, but the
deposition was not made part of the record.


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state, but only to the extent that it is not inconsistent with the acts of the
legislature. See § 2.01, Fla. Stat. (2016).

   Section 490.0147, Florida Statutes (2012), provides that
communications between a psychotherapist and patient are confidential,
but the statute establishes circumstances where the privilege may be
waived:

      Any communication between any person licensed under this
      chapter and her or his patient or client shall be confidential.
      This privilege may be waived under the following conditions:

      (1) When the person licensed under this chapter is a party
      defendant to a civil, criminal, or disciplinary action arising
      from a complaint filed by the patient or client, in which case
      the waiver shall be limited to that action.

      (2) When the patient or client agrees to the waiver, in writing,
      or when more than one person in a family is receiving therapy,
      when each family member agrees to the waiver, in writing.

      (3) When there is a clear and immediate probability of physical
      harm to the patient or client, to other individuals, or to society
      and the person licensed under this chapter communicates the
      information only to the potential victim, appropriate family
      member, or law enforcement or other appropriate authorities.

The first principle of statutory interpretation is that statutes must be
interpreted in accordance with their plain meaning. See Acosta v. Richter,
671 So. 2d 149, 153 (Fla. 1996). Here, it is clear that the statute
establishes the confidentiality of psychotherapist communications and
very limited means of waiving that privilege. This is also consistent with
the legislative intent expressed in section 490.002, Florida Statutes, that
“in order to preserve the health, safety, and welfare of the public, the
Legislature must provide privileged communication for members of the
public or those acting on their behalf to encourage needed or desired
psychological services to be sought out.”

   None of the grounds for waiver set forth in the statute apply to the
communications made by Dr. Seidman in the dissolution case. The first
section does not apply because he was not a party in that proceeding.
Second, Estape provided no written waiver, nor was any waiver provided
by any of the other family members. Finally, there is no evidence in this
record of the potential for physical harm to any persons. Therefore, if

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Estape was a patient of Dr. Seidman, his communications with him were
entitled to confidentiality according to the statute.

    The assertion of a right to disclose communications pursuant to a
litigation privilege would add another exception to the statutory grant of
confidentiality, which would be inconsistent with the plain meaning of the
statute. Therefore, the common law privilege must give way. See § 2.01,
Fla. Stat. We hold that absolute immunity for communications during
judicial proceedings does not provide immunity to a psychotherapist for
revealing communications regarding a patient contrary to section
490.0147.

   There remains the question of whether Estape was a patient of Dr.
Seidman, so that psychotherapist-patient confidentiality applies. Estape
points to the document provided by Dr. Seidman and signed by Estape,
agreeing to treatment by Dr. Seidman and stating that his communications
would be kept confidential. Dr. Seidman, on the other hand, contends
that he was appointed by the court and did not have a psychotherapist-
patient relationship. A very material question of fact remains.

    Provisions of both Chapter 61, Florida Statutes (2012), as well as
administrative regulations regarding psychotherapists, show that the
legislature did not intend that absolute immunity apply any time a court
appoints a therapist in dissolution of marriage proceedings. For instance,
under section 61.122, Florida Statutes (2012), regarding the
establishment of a parenting plan, a psychologist who is appointed to
develop a plan, including a time-sharing arrangement, is presumed to be
acting in good faith. The statute allows a parent, who desires to sue a
psychologist over the parenting plan recommendations, to petition the
court to replace the challenged psychologist, but it also provides for the
award of attorney’s fees to either the psychologist or the parents,
depending on which party prevails. A parent may have to overcome the
presumption of good faith, but the statute clearly allows litigation and does
not provide for absolute immunity for the psychologist. Furthermore,
section 61.125, Florida Statutes (2012), authorizes the appointment of a
parenting coordinator, whose purpose is to assist parents in dispute
resolution over parenting plans. Section 61.125(7) contains an express
confidentiality provision for communications between the parenting
coordinator, who could be a licensed therapist, and the parties. However,
section 61.125(9) provides for a limitation of liability for a coordinator,
unless the coordinator acts in bad faith or reckless disregard for the rights
of the parties.



                                     5
   Further, even if the therapist is court-appointed, pursuant to Rule
64B19-19.006 of the Florida Administrative Code, regarding
confidentiality with respect to psychotherapists, the psychotherapist
performing the evaluation is required to explain to the person being
evaluated the limits of confidentiality:

      (2) In cases where an evaluation is performed upon a person
      by a psychologist for use by a third party, the psychologist
      must explain to the person being evaluated the limits of
      confidentiality in that specific situation, document that such
      information was explained and understood by the person
      being evaluated, and obtain written informed consent to all
      aspects of the testing and evaluative procedures.

   As to Dr. Seidman’s appointment, we have no explanation of what his
duties as a “reunification therapist” were to be. This term is not used in
the statute. The mere designation of Seidman as a therapist by court-
approved agreement, provides little for us to evaluate in order to determine
what type of relationship was intended. Unlike a court appointment of an
expert to assist the court in evaluating custody or other matters in
dissolution proceedings, it does not appear in this record that any reports
were to be made to the court itself. Therefore, we cannot conclude as a
matter of law that Dr. Seidman had absolute immunity under the
circumstances of this case.

   Dr. Seidman points to this court’s decision in Ross v. Blank, 958 So. 2d
437 (Fla. 4th DCA 2007) as supporting his claim of absolute immunity.
Ross, however, is distinguishable, as it did not involve a psychotherapist-
patient relationship. There, in divorce proceedings, a wife and her
daughters saw Blank, a psychologist. Id. at 439. During those sessions,
Blank learned information regarding Ross, the father, which suggested to
her the potential of child sexual abuse. Id. After consulting with others,
she reported Ross to the Department of Children and Families. Id. Ross
sued Blank for defamation, both with respect to the report to DCF and
other communications made by Blank during the course of the divorce
proceedings, as well as negligence. Id. Blank moved for summary
judgment as to all claims asserted, and as to those allegedly defamatory
statements made during the divorce proceedings, Blank claimed absolute
immunity based upon the litigation privilege. Id. The trial court granted
the motion, entering judgment against Ross. Id. at 439-40. On appeal,
we agreed that the statements made by the psychologist to the court-
appointed custody evaluator, and also to the guardian ad litem, were
protected by the litigation privilege. Id. at 441. Blank, however, did not


                                     6
have a psychotherapist-patient relationship with Ross, the father.
Therefore, it is inapplicable to the issue presented in this case.

   For the foregoing reasons, we reverse the final summary judgment
entered by the trial court. There exist material issues of fact as to whether
a psychotherapist-patient relationship existed between Estape and Dr.
Seidman or whether other statutes applied which would preclude the
assertion of absolute immunity. Because the trial court’s judgment
exclusively involved the application of the litigation privilege, we do not
determine whether the statements made constituted the communication
of privileged information.

   Reversed and remanded for further proceedings.

GROSS, J., and WEISS, DALIAH, Associate Judge, concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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