SUPREME COURT OF ALABAMA

REL: November 25, 2020

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.

Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,

Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections

may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA

OCTOBER TERM, 2020-2021

____________________

1190327

____________________

Dennis Borden, individually and as father and next friend of

J.B., a minor

Bobby L. Malone and B.L. Malone and Associates, Inc.

Appeal from Calhoun Circuit Court

(CV-19-900631)

MENDHEIM, Justice.

Dennis Borden, individually and as father and next friend of his son

J.B., a minor, appeals the dismissal by the Calhoun Circuit Court of his

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claims alleging defamation and negligence, wantonness, and willfulness

against Bobby L. Malone and Malone's counseling clinic, B.L. Malone and

Associates, Inc. ("the clinic"). We affirm in part, reverse in part, and

remand.

I. Facts

From 1999 to 2012 Borden was married to Kathy Smith, and during

their marriage they had one son, J.B. The complaint that precipitated

this case alleged that, during the marriage, Borden and Smith received

marriage counseling from Malone at the clinic. However, in 2010 Borden

filed for divorce from Smith. The complaint in this case alleged that in the

divorce proceedings Malone, as an employee of the clinic, "served in the

role of custody evaluator" and that Malone recommended to the court that

Smith be given sole custody of J.B. According to Borden's complaint,

instead of following Malone's recommendation, the court awarded Borden

and Smith joint custody of J.B. The divorce was finalized in 2012.

In 2019, Smith apparently filed a petition for a modification of

custody, seeking sole custody of J.B. Borden opposed the petition.

According to Borden's complaint: "In July of 2019, during the pendency

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of an adversarial custody dispute involving litigation, Defendant Malone

began seeing ... J.B. for counseling at the behest of his mother Kathy

Smith, but without Plaintiff Borden's knowledge or consent." The

complaint asserted that, even though Borden was responsible for J.B.'s

health insurance, "Malone did not file those initial counseling visits on ...

J.B.'s health insurance in an effort to conceal those counseling sessions

from ... Borden." On August 14, 2019, Malone wrote a letter addressed to

Trudie Phillips, the attorney representing Kathy Smith in the custody

dispute, that included many deeply personal statements concerning J.B.'s

relationship with Borden that J.B. had related to Malone in their

counseling sessions. The letter began: "I am writing to you to share some

of my concerns and that [J.B.] has given me permission to share with you

and the court some of his feelings." The letter ended by stating:

"This case is not about whose [sic] winning but what's in

the best interest of [J.B.]. All of the writs and threats need[]

to stop. This only heightens [J.B.'s] anxiety. This kind of

trauma can seriously affect his adolescence and other

relationships.

"... Therefore, my concern[] is for [J.B.] and his safety of

himself and others [sic]. I hope the court will not allow this

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case to drag out like other similar ones for five or six years.

The damage is being done to the child."

(Emphasis omitted.)

Borden's complaint alleged that in the letter "Malone made

numerous false, defamatory, dishonest, malicious, fraudulent, reckless

and unprofessional allegations and misrepresentations about and against

Plaintiff Borden." The complaint then detailed several of the statements

made about Borden in the letter. The complaint asserted that the letter

was "openly filed in court, [was] given to [J.B.'s] mother to openly

distribute with no discretion or oversight, and [was] distributed to

personnel at [J.B.'s] school." The complaint further alleged that the "false,

defamatory, malicious, reckless and unprofessional claims [in the letter]

... caused Plaintiff Borden to suffer worry, fear, embarrassment, severe

emotional distress and anguish and have caused damage to his reputation

in and throughout the community. These damages [sic] are likely to

continue in the future, some being permanent in nature." The complaint

similarly alleged as to J.B. that

"Malone's release, disclosure, and publication of the subject

[letter] and the numerous false, dishonest, reckless allegations

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about ... J.B., as well as the critically private information

disclosed and made public by said [letter] have and will

continue to cause ... J.B. to suffer worry, fear, embarrassment,

severe emotional distress and anguish, as well as damage to

his reputation in and throughout the community. These

damages [sic] are likely to continue in the future, some being

permanent in nature."

A week after the letter was written, on August 21, 2019, Borden

commenced an action individually and on behalf of J.B. against Malone

and the clinic in the Calhoun Circuit Court. Borden's complaint asserted

three counts based upon Malone's August 14, 2019, letter: (1) defamation,

libel, and slander; (2) negligence, wantonness, and willfulness; and (3) the

tort of outrage. With respect to the negligence/wantonness/willfulness

claims, Borden alleged, in part, that Malone had "breached and violated

numerous ethical rules and regulations by serving in multiple conflicting

capacities for Plaintiff Borden, ... J.B., and even Plaintiff's ex-wife Kathy

Smith."

On September 18, 2019, Malone and the clinic filed a motion to

dismiss or, in the alternative, for a summary judgment. In the motion,

Malone and the clinic contended that Borden had failed to state a claim

for which relief could be granted, that Borden had failed to allege facts

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that would support his tort-of-outrage claim, and that "[a]ll of the

statements in the [August 14, 2019,] letter ... were made for a judicial

proceeding which is recognize[d] by law as absolute[ly] privilege[d],

Barnett v. Mobile County Personnel Bd., 536 So. 2d 46 [(Ala. 1988)]."

Malone and the clinic attached to the motion a copy of the August 14,

2019, letter and an affidavit from Malone. Malone's affidavit included

several factual assertions regarding his role as a marriage counselor to

Borden and Smith, his role in the divorce proceeding, the nature of the

payments for J.B.'s counseling sessions, the reasons Smith engaged his

services for counseling J.B., and the circumstances surrounding his

writing of the August 14, 2019, letter that precipitated the litigation.

On November 22, 2019, Borden filed a response in opposition to the

motion from Malone and the clinic. In the response, Borden noted various

factual discrepancies between the allegations in the complaint, the

August 14, 2019, letter, and Malone's affidavit. The response also argued

that by writing and distributing the letter Malone had violated the

privilege between a licensed professional counselor and a patient codified

in § 34-8A-21, Ala. Code 1975, and that, therefore, Malone and the clinic

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were not entitled to a litigation privilege as to the letter. Borden further

asserted that the counselor-patient privilege was the reason the court

adjudicating the custody-modification dispute between Borden and Smith

had stricken the August 14, 2019, letter from evidence and had not

allowed Malone to testify as a witness in the custody-modification

proceeding. Borden's response to the motion to dismiss requested that the

August 14, 2019, letter and Malone's affidavit be stricken because, he

said, they contained private and privileged information. The response

further requested that any hearing on the motion to dismiss should be

continued pursuant to Rule 56(f), Ala. R. Civ. P., so that discovery could

be conducted; an affidavit from Borden's counsel attached to the response

contended that information from discovery "could be essential and

necessary to justify and support" opposition to the motion. Borden also

attached to his response his own affidavit that sought to refute factual

assertions Malone had made in his affidavit.

On November 25, 2019, the trial court held a hearing on the motion

filed by Malone and the clinic. At the outset of the hearing, the trial court

stated: "So we're looking at a motion to dismiss filed by the

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defense/motion for summary judgment, but right now I'm just treating it

as a motion to dismiss. We can look at [it] however." During the hearing,

Borden voluntarily dismissed the tort-of-outrage count that he had

asserted in his complaint, leaving the defamation/libel/slander and

negligence/wantonness/willfulness counts. The parties argued about the

application of the litigation privilege, as well as the assertions made in the

dueling affidavits from Malone and Borden.

On December 11, 2019, the trial court granted the motion filed by

Malone and the clinic. The order stated:

"The Court finds [Malone] has immunity covering his

actions in this case.

"Therefore, the MOTION TO DISMISS, OR IN THE

ALTERNATIVE SUMMARY JUDGMENT filed by MALONE

BOBBY L. is hereby GRANTED.

"This matter is Dismissed with Prejudice with costs

taxed as paid."

The record on appeal does not reflect that the trial court ever ruled upon

Borden's motion to strike materials submitted by Malone and the clinic.

On January 10, 2020, Borden filed a motion to alter, amend, or vacate the

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judgment. On January 17, 2020, the trial court denied the postjudgment

motion. Borden filed an appeal the same day.

On June 15, 2020, this Court entered an order noting that the trial

court's December 11, 2019, order did not appear to dispose of the claims

asserted against the clinic and remanding the case for the trial court to

make its interlocutory order final by certifying it pursuant to Rule 54(b),

Ala. R. Civ. P., or to enter a final order. The order noted that if there was

no response within 14 days, Borden's appeal would be dismissed. On

July 15, 2020, this Court entered an order dismissing the appeal. The

next day, Borden filed a motion to set aside the order dismissing the

appeal on the ground that the trial court had entered a final order on

June 23, 2020, in response to this Court's June 15, 2020, remand order,

but that Borden had failed to notify this Court of the trial court's order

because he had not received a copy of this Court's remand order. The

motion noted that the trial court had granted a motion to supplement the

record so that the trial court's final order could be included in the record

on appeal. Subsequently, a supplemental record was filed with this Court

that included the trial court's order of June 23, 2020, which provided: "In

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accordance with this Court's previous order finding Defendant Bobby

Malone had immunity covering his actions, this Court hereby dismisses

with prejudice all claims against Bobby Malone and B.L. Malone &

Associates, Inc." On August 4, 2020, this Court entered an order

reinstating Borden's appeal.

II. Standard of Review

To apply the proper standard of review, we must first determine

whether the trial court considered matters outside the pleadings in

granting the motion to dismiss, i.e., whether we are reviewing a ruling on

a motion to dismiss or a summary judgment. Rule 12(b), Ala. R. Civ. P.,

provides, in part:

"If, on a motion asserting the defense numbered (6) to dismiss

for failure of the pleading to state a claim upon which relief

can be granted, matters outside the pleading are presented to

and not excluded by the court, the motion shall be treated as

one for summary judgment and disposed of as provided in

Rule 56, and all parties shall be given reasonable opportunity

to present all material made pertinent to such a motion by

Rule 56."

Concerning this portion of Rule 12(b), this Court has observed:

"Whether additional materials attached to a Rule 12(b)(6)

motion will be considered is within the trial court's discretion.

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If an appellate court's review automatically converts a motion

to dismiss supported by additional materials to a motion for a

summary judgment, the discretion provided the trial court to

determine whether to exclude matters outside the pleadings

would be constrained."

Ex parte Price, 244 So. 3d 949, 955 (Ala. 2017). In other words, this Court

no longer assumes that a motion to dismiss must be converted to a motion

for summary judgment when a trial court fails to affirmatively state that

it did not consider matters outside the pleadings in ruling upon such a

motion.

In this case, matters outside the pleadings were submitted to the

trial court in the form of affidavits from Borden and Malone, along with

the August 14, 2019, letter written by Malone. With respect to the letter,

we note that

" ' " 'if a plaintiff does not incorporate by reference or attach a

document to its complaint, but the document is referred to in

the complaint and is central to the plaintiff's claim, a

defendant may submit an indisputably authentic copy to the

court to be considered on a motion to dismiss.' " ' "

Bell v. Smith, 281 So. 3d 1247, 1252 (Ala. 2019) (quoting Donoghue v.

American Nat'l Ins. Co., 838 So. 2d 1032, 1035 (Ala. 2002), quoting in turn

Wilson v. First Union Nat'l Bank of Georgia, 716 So. 2d 722, 726 (Ala. Civ.

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App. 1998), quoting in turn GFF Corp. v. Associated Wholesale Grocers,

Inc., 130 F.3d 1381, 1384–85 (10th Cir. 1997)). The August 14, 2019,

letter is central to this action, and it was repeatedly referenced

throughout Borden's complaint. Therefore, the attachment of the letter

to the motion to dismiss did not alone convert the motion to dismiss to a

motion for a summary judgment.

The affidavits submitted by Malone and Borden clearly are matters

outside the pleadings, consideration of which would require conversion of

the motion. However, the trial court's only statement on this subject -- in

the hearing on the motion -- indicated that it was going to consider the

motion as a motion to dismiss rather than a motion for a summary

judgment. The trial court's December 19, 2019, order granted the motion

based on "immunity covering [Malone's] actions in this case," a principle

that, as we shall discuss at more length in Part III of this opinion, is more

traditionally referred to as "the litigation privilege" or "absolute

privilege."

"Alabama courts treat the litigation privilege as an affirmative

defense. See, e.g., Webster [v. Byrd], 494 So. 2d [31,] 32 [(Ala.

1986)]. Nevertheless, a court may dismiss a complaint for

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failure to state a claim based on an affirmative defense when

the allegations of the complaint, on their face, show that the

defense bars recovery. Douglas v. Yates, 535 F.3d 1316, 1321

(11th Cir. 2008). 'Thus, a court may dismiss claims based on

the litigation privilege where the allegations in the complaint

establish that the defendant's conduct occurred under

circumstances that amounted to a privileged setting.' Tolar v.

[Bradley Arant Boult] Cummings, [No. 2:13-cv-00132-JEO]

(N.D. Ala. Aug. 11, 2014 [not selected for publication in Fed.

Supp.] ..."

July v. Terminix Int'l Co., Ltd. P'ship, 387 F. Supp. 3d 1306, 1315 (S.D.

Ala. 2019). The complaint specifically noted that the August 14, 2019,

letter was written "during the pendency of an adversarial custody dispute

involving litigation," that it was "addressed to the attorney for

Kathy Smith," and that it was "being openly filed in court." The

August 14, 2019, letter began with the statement: "I am writing to you to

share some of my concerns and that [J.B.] has given me permission to

share with you and the court some of his feelings." (Emphasis added.)

Therefore, the trial court may have deemed it possible to determine that

the litigation privilege applied based solely upon the complaint and the

letter. Accordingly, in line with Price, we conclude that the correct

standard of review is that applicable to the denial of a motion to dismiss.

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" 'The appropriate standard of review of a trial court's

denial of a motion to dismiss is whether "when the allegations

of the complaint are viewed most strongly in the pleader's

favor, it appears that the pleader could prove any set of

circumstances that would entitle [the pleader] to relief."

Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993); Raley v.

Citibanc of Alabama/Andalusia, 474 So. 2d 640, 641 (Ala.

1985). This Court does not consider whether the plaintiff will

ultimately prevail, but only whether the plaintiff may possibly

prevail. Nance, 622 So. 2d at 299. A "dismissal is proper only

when it appears beyond doubt that the plaintiff can prove no

set of facts in support of the claim that would entitle the

plaintiff to relief." Nance, 622 So. 2d at 299; Garrett v.

Hadden, 495 So. 2d 616, 617 (Ala. 1986); Hill v. Kraft, Inc., 496

So. 2d 768, 769 (Ala. 1986).' "

BT Sec. Corp. v. W.R. Huff Asset Mgmt. Co., 891 So. 2d 310, 313 (Ala.

2004) (quoting Lyons v. River Road Constr., Inc., 858 So. 2d 257, 260 (Ala.

2003)).

Under the foregoing standard, the only facts before this Court are

those alleged in the complaint and in the August 14, 2019, letter written

by Malone. Borden contends on appeal, as he did before the trial court,

that the August 14, 2019, letter and Malone's affidavit, which largely

seeks to defend Malone's writing of the letter, should be stricken because,

he says, they contain information that is privileged under the counselor-

patient privilege. Our determination as to the appropriate standard of

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review eliminates any need to strike Malone's affidavit because the

affidavit cannot be considered in reviewing a ruling on a motion to

dismiss. As for the August 14, 2019, letter, it is central to all the claims

asserted by Borden on behalf of himself and J.B. Borden cannot use the

August 14, 2019, letter as the basis for this action and simultaneously

assert that this Court cannot consider the letter in assessing the viability

of his claims. Accordingly, Borden's motion to strike is denied.

III. Analysis

As we have already observed, the trial court granted Malone and the

clinic's motion to dismiss on the ground that they were entitled to

"immunity covering [their] actions in this case." The only "immunity"

asserted by Malone and the clinic is the litigation privilege, also referred

to in our cases as absolute privilege.

"This Court has recognized that a party that has published

allegedly defamatory matter in the course of a judicial

proceeding may claim, as a defense to a defamation action

based on that publication, the absolute privilege described in

the Restatement (Second) of Torts § 587 (1977). See Walker v.

Majors, 496 So. 2d 726, 729–30 (Ala. 1986)."

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Hollander v. Nichols, 19 So. 3d 184, 195 (Ala. 2009). Concerning the

decision in Walker v. Majors, 496 So. 2d 726 (Ala. 1986), this Court has

explained:

"In Walker, the owner of a parcel of land brought a defamation

action against a real estate broker for allegedly defamatory

remarks in a letter that the broker had written to some

prospective purchasers of the land. The broker wrote these

letters after the owners refused to sell the property and pay

him his commission. In his letters, the broker stated: ' "I am

filing suit against the Walkers for the breach of their contract

with me and to recover for the damages I have suffered as a

result of their fraudulent conduct." ' (Emphasis added in

Walker.) Shortly after writing these letters, the broker filed

suit against the Walkers for breach of contract and fraud.

"In affirming the summary judgment for the broker, we

adopted the Restatement (Second) of Torts, § 587 (1977), as

the appropriate standard when determining whether

defamatory matter is absolutely privileged by virtue of its

connection with a judicial proceeding:

" 'A party to a private litigation or a private

prosecutor or defendant in a criminal prosecution

is absolutely privileged to publish defamatory

matter concerning another in communications

preliminary to a proposed judicial proceeding, or in

the institution of or during the course and as a part

of, a judicial proceeding in which he participates, if

the matter has some relation to the proceeding.'

"(Emphasis added.) We continued, in the Walker case, to

examine the rationale behind this privilege:

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" ' " 'There is another

c l a s s o f p r i v i l e g e d

communications where the

privilege is absolute. They

are defined in Hastings v.

Lusk, 22 Wend. [N.Y.] 410,

34 Am. Dec. 330 [(1839)]. In

this class are included

slanderous statements made

by parties, counsel, or

witnesses in the course of

judicial proceedings, and ...

l i b e l o u s c h a r g e s i n

pleadings, affidavits, or

other papers used in the

course of the prosecution or

defense of an action. In

questions falling within this

absolute privilege the

question of malice has no

place. However malicious

the intent, or however false

the charge may have been,

the law, from considerations

of public policy, and to

secure the unembarrassed

and efficient administration

of justice, denies to the

defamed party any remedy

through an action for libel

or slander. This privilege,

however, is not a license

which protects every

slanderous publication or

statement made in the

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c o u r s e o f j u d i c i a l

proceedings. It extends only

to such matters as are

relevant or material to the

litigation, or, at least, it

does not protect slanderous

i m p u t a t i o n s p l a i n l y

irrelevant and impertinent,

voluntarily made, and which

the party making them

could not reasonably have

supposed to be relevant.' "

" ' O'Barr v. Feist, 292 Ala. [440] at 446, 296 So. 2d

[152] at 157 [1974], quoting Moore v.

Manufacturers' National Bank, 123 N.Y. 420, 25

N.E. 1048, 1049 (1890).

" 'Comment (e) to Restatement § 587

(regarding statements made preliminary to trial)

states:

" ' "As to communications preliminary to

the proposed judicial proceeding, the

rule stated in this section applies only

when the communication has some

relation to a proceeding that is

contemplated in good faith and under

serious consideration. The bare

possibility that the proceeding might be

instituted is not to be used as a cloak to

provide immunity for a defamation

when the possibility is not seriously

considered." '

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"496 So. 2d at 729.

"... While the 'issue of the relevancy of the

communication is a matter for the determination of the court,

... the adjudicated cases have established a liberal view in the

interpretation of the language used, and all doubts are

resolved in favor of its relevancy or pertinence' to the judicial

proceeding in question. Walker, supra, 496 So. 2d at 730,

citing O'Barr v. Feist, 292 Ala. 440, 296 So. 2d 152 (1974).

"We acknowledge that the circumstances of this

particular case may delineate the limits of the area in which

we would be willing to recognize the existence of an absolute

privilege for communications preliminary to a judicial

proceeding. We recognize, as did the court in Brown v. Collins,

402 F.2d 209 (D.C. Cir. 1968), the need for caution in the

granting of absolute privilege to preliminary statements:

" 'The doctrine of absolute immunity for statements

in judicial proceedings reflects a judgment that the

need for completely free speech for litigants is

dominant, and that this freedom is not to be

endangered by subjecting parties to the burden of

defending their motives in subsequent slander

litigation, or to the risk that juries may

misapprehend those motives. Such special

immunity is not lightly conferred, however, as it

protects deliberate lies told with intent to destroy

reputation. Where dealing with preliminary

statements other than witness briefings,

settlement discussions and the like, there is need

for particularly close attention to the factual

circumstances, recognizing that unlike statements

made in court, these communications are not

cabined by a litigant's recognition that contempt of

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a court may follow if they are outrageously

unnecessary and intemperate, even though more or

less relevant.

" '... Business conversations are not

absolutely privileged merely because they deal

with matters likely to end up in court in the

future.... Although the Restatement standard of

"relation" to the proceedings is broad, and does not

require legal relevance, even that liberal standard

is not met merely by showing that the defamatory

comments were triggered by some pending lawsuit

or the facts involved therein.... [T]he mere mention

of the possibility of suing the communicant [does

not] automatically convert the entire conversation

to one "related" to a proposed judicial proceeding.'

"402 F.2d at 213–14. (Footnotes omitted.)"

Barnett v. Mobile Cnty. Pers. Bd., 536 So. 2d 46, 51–52 (Ala. 1988).

In the present case, Malone and the clinic argue that the August 14,

2019, letter clearly falls within the parameters of the litigation privilege

because, they say, it was written during the pendency of a custody-

modification proceeding for the purpose of communicating to the court the

attitudes and feelings of J.B. about his father, Borden. In short, they

contend that, because the letter was triggered by pending litigation and

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because its content was relevant to the dispute before the court, the

litigation privilege bars any action against them based on the letter.

Borden counters that Malone's letter should not qualify for the

litigation privilege because, he says, Malone was not, in fact, a witness in

the custody dispute; to the contrary, Borden contends, Malone voluntarily

wrote the letter to Smith's attorney, and the trial court in the custody-

modification proceeding struck the letter from the record and did not allow

Malone to testify. Borden contends that, because Malone did not

"participate" in judicial proceedings, the alleged disparagements of him

and J.B. in the letter are not protected by the litigation privilege. See

Borden's appellate brief, pp. 23-24. Borden further argues that Malone's

statements in the letter were "unquestionably, 'irrelevant and

impertinent' as to Borden." Id. at 25. Finally, Borden contends that

Malone's violation of the counselor-patient privilege is not protected by

the litigation privilege.

Our cases do not support Borden's first argument that the litigation

privilege is inapplicable because Malone did not testify in the custody-

modification proceeding. In Walker, the Court -- relying on Restatement

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(Second) of Torts § 587 (1977) -- concluded that communications directly

related to a contemplated judicial proceeding were absolutely privileged.

See Walker, 496 So. 2d at 730. The letters at issue in Walker were

written before any lawsuit had been filed, but the Court concluded that

because the letters directly referenced a contemplated judicial proceeding

they constituted communications directly related to a judicial proceeding

and that, therefore, they were protected by the litigation privilege.

Similarly, in Barnett the Court determined that a letter that the

then director of the Mobile County Personnel Board wrote to the town

council of Mount Vernon, Alabama, which allegedly contained defamatory

statements about the Mount Vernon town clerk, was absolutely privileged

because the letter was "clearly relevant" to a "proposed [judicial]

proceeding" that was actually filed a few weeks after publication of the

letter. Barnett, 536 So. 2d at 52. The lawsuit subsequently filed by the

Personnel Board and the director against the town clerk to recover payroll

overpayments was dismissed based on a lack of standing. Thus, even

though the letter was never submitted in a judicial proceeding and the

personnel-board director never testified in a judicial proceeding, the Court

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concluded that the "allegedly defamatory letter was absolutely privileged

due to its clear relevance to a judicial proceeding that was 'contemplated

in good faith and under serious consideration.' Restatement (Second) of

Torts, § 587, comment (e) (1977)." 536 So. 2d at 52.

In Cutts v. American United Life Insurance Co., 505 So. 2d 1211

(Ala. 1987), two companies provided an assistant district attorney for

Mobile County inaccurate information about a contract they were involved

in with a company owned by William Cutts. Based on the information,

the district attorney's office obtained grand-jury indictments against

Cutts. After Cutts provided the district attorney's office with correct

information about the transaction in question, the district attorney's office

nol-prossed the indictments and discontinued its investigation. Cutts

sued the two companies, asserting, among other things, a defamation

claim based on a letter the two companies had provided to the district

attorney's office. This Court concluded that the defamation claim was due

to be dismissed because "an absolute privilege exists in favor of those

involved in judicial proceedings, including judges, lawyers, jurors, and

witnesses, shielding them from an action for defamation." Cutts, 505 So.

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2d at 1215. Thus, in Cutts, although the judicial proceeding was only in

the investigatory stage when the companies provided information to the

district attorney's office, the criminal case against Cutts was never taken

to trial, and the two companies were not parties to the criminal case, the

Court concluded that the litigation privilege applied to the communication

in question.

The decisions in Walker, Barnett, and Cutts illustrate that, for the

litigation privilege to apply, an allegedly defamatory communication need

not occur during a judicial proceeding and one accused of defamation need

not actually participate in the judicial proceeding. It is enough that the

communication is directly related and clearly relevant to a judicial

proceeding that was " 'contemplated in good faith and under serious

consideration.' " Barnett, 536 So. 2d at 52 (quoting Restatement § 587

Comment (e)). On August 14, 2019, Malone wrote the letter to the

attorney for Borden's ex-wife purportedly for the court's consideration in

the custody-modification proceeding. Therefore, the facts that the letter

was ultimately excluded from evidence in the custody-modification

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proceeding and that Malone was not permitted to testify in that

proceeding do not prevent the application of the litigation privilege.

Borden's second contention -- that Malone's statements in the

August 14, 2019, letter were not relevant to the matter at issue in the

custody-modification proceeding -- overlooks the fact that this Court has

repeatedly stated that "the issue of the relevancy of the communication is

a matter for the determination of the court, and the adjudicated cases

have established a liberal view in the interpretation of the language used,

and all doubts are resolved in favor of its relevancy or pertinence."

Walker, 496 So. 2d at 730 (citing O'Barr v. Feist, 292 Ala. 440, 445, 296

So.2d 152, 156 (1974), and Adams v. Alabama Lime & Stone Corp., 225

Ala. 174, 176–77, 142 So. 424, 425 (1932)). It is certainly understandable

why Borden would view some of the statements about him in the letter as

gratuitous, but, viewed broadly, Malone's statements were relevant to the

determination of whether Borden should retain joint custody of J.B.

Based on the foregoing, we conclude that the trial court correctly

applied the litigation privilege to Borden's defamation claims in the

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context of the custody-modification proceeding. However, this Court has

noted:

"Such absolutely privileged communications ... must not

be published outside the circle of those who must have

knowledge of them pursuant to the decision-making process.

The recipient of a communication made outside the judicial or

quasi-judicial proceeding must have a direct or close

relationship to that proceeding or the absolute privilege is

lost."

Webster v. Byrd, 494 So. 2d 31, 35 (Ala. 1986). In his complaint, Borden

expressly alleged that Malone and the clinic "maliciously and falsely

wrote, typed, printed and/or published a letter or 'report' dated August 14,

2019, to various persons, agencies and/or institutions concerning

Plaintiff[] Borden and J.B., which maliciously and falsely accused

Plaintiff[] of wrongful conduct as previously set forth above and herein."

More specifically, Borden alleged that the letter had been "distributed to

personnel at [J.B.'s] school," and he suggested that it had been "openly

distributed with no discretion" to others, such that the defamatory

statements had done "damage to [Borden's and J.B.'s] reputation[s] in and

throughout the community." In short, the allegations in the complaint are

broad enough to include the possibility that Malone and the clinic bore

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some culpability for disseminating the contents of the August 14, 2019,

letter beyond Kathy Smith and her attorney, i.e., those who had a direct

or close relationship to the custody-modification proceeding. In Webster,

the Court concluded:

"Thus, although we have decided that as a matter of law

the letter of termination was a communication made in the

course of a quasi-judicial proceeding, and was therefore

cloaked by an absolute privilege, a question of fact remains as

to whether the privilege was lost by its being published outside

the confines of the quasi-judicial proceeding."

Webster, 494 So. 2d at 35. Likewise, in this case, although we have

determined that the August 14, 2019, letter was a communication made

in the course of the custody-modification proceeding and was therefore

cloaked by the litigation privilege, it remains possible that Borden could

prove a set of facts under which the litigation privilege would be lost,

depending on what role Malone and the clinic played in disseminating the

letter outside the litigation context. Therefore, the trial court erred in

dismissing Borden's defamation claims.

Borden's second count alleging negligence, wantonness, and

willfulness requires further analysis because, at its core, that count is

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based upon the allegation that Malone breached the counselor-patient

privilege belonging to J.B. Communications between "licensed

psychologists, licensed psychiatrists, [and] licensed psychological

technicians and their clients" are protected under § 34-26-2, Ala. Code

1975, a statutory privilege our courts have addressed many times.

However, we have no evidence indicating or allegations regarding whether

Malone is a licensed psychologist, a licensed psychiatrist, or a licensed

psychological technician. Rather, the allegations contend that Malone is

a "professional counselor." Communications between a licensed

professional counselor and a client are protected by § 34-8A-21, Ala. Code

1975, which provides:

"For the purpose of this chapter, the confidential

relations and communications between licensed professional

counselor or certified counselor associate and client are placed

upon the same basis as those provided by law between

attorney and client, and nothing in this chapter shall be

construed to require any such privileged communication to be

disclosed."

In Ex parte Holm, 283 So. 3d 776 (Ala. Civ. App. 2019), the Court of

Civil Appeals concluded that a father's right to access medical records of

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his minor child under § 30-3-154, Ala. Code 1975,

did not negate the

privilege afforded to his child for the communications between the child

and a licensed professional counselor under § 34-8A-21. In the course of

evaluating that issue, the Court of Civil Appeals noted that "[t]his court's

research has not revealed any caselaw discussing the privilege between

a licensed professional counselor and his or her client pursuant to

§ 34-8A-21" but that "[t]he privilege afforded a licensed professional

counselor and his or her client pursuant to § 34-8A-21 is the same as that

afforded under § 34-26-2." Holm, 283 So. 3d at 779, 778. Accordingly, the

Court of Civil Appeals applied the reasoning from cases applying § 34-26-2

to address the issue presented to it concerning § 34-8A-21. We will do the

same.

Section 30-3-154 provides:

"Unless otherwise prohibited by court order or statute,

all records and information pertaining to the child, including,

but not limited to, medical, physiological, dental, scholastic,

athletic, extracurricular, and law enforcement, shall be equally

available to both parents, in all types of custody

arrangements."

Holm was decided on March 29, 2019, several months before Borden

filed his complaint in this case.

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"We [have] stated that the psychotherapist-patient privilege

rested on the need to

" 'inspire confidence in the patient and encourage

him in making a full disclosure to the physician as

to his symptoms and condition, by preventing the

physician from making public information that

would result in humiliation, embarrassment, or

disgrace to the patient, and [is] thus designed to

promote the efficacy of the physician's advice or

treatment. The exclusion of the evidence rests in

the public policy and is for the general interest of

the community.' "

Ex parte University of South Alabama, 183 So. 3d 915, 921 (Ala. 2015)

(quoting Ex parte Rudder, 507 So. 2d 411, 413 (Ala. 1987)). "The strength

of the public policy on which the statutory psychotherapist-patient

privilege is based has been well recognized by this Court. It follows that

the privilege is not easily outweighed by competing interests." Ex parte

United Serv. Stations, Inc., 628 So. 2d 501, 504 (Ala. 1993). The same is

true for the nearly identical counselor-patient privilege.

"Alabama recognizes causes of action for breach of fiduciary duty and

breach of implied contract resulting from a physician's unauthorized

disclosure of information acquired during the physician-patient

relationship, Horne v. Patton, 291 Ala. 701, 287 So. 2d 824 (1973)." Mull

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v. String, 448 So. 2d 952, 953 (Ala. 1984). We assume for the purpose of

evaluating the applicability of the litigation privilege asserted by Malone

and the clinic in their motion to dismiss that a cause of action likewise

exists for a counselor's unauthorized disclosure of confidential

information.

"[L]ike the attorney-client privilege on which it was modeled,

the psychotherapist-patient privilege is personal to the

patient, and only the patient may waive it. Watson v. State,

504 So. 2d 339 (Ala. 1986). See Swain v. Terry, 454 So. 2d 948

(Ala. 1984). In order to impliedly waive a testimonial

privilege, the holder of the privilege must objectively manifest

a clear intent not to rely upon the privilege. Jordan v. State,

607 So. 2d 333, 336 (Ala. Crim. App. 1992)."

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Ex parte United Serv. Stations, Inc., 628 So. 2d at 505.

In the August 14,

2019, letter, Malone asserts that J.B. waived his right to keep private

what he had related to Malone in counseling sessions. In the complaint,

Borden alleges on behalf of J.B. that J.B. did not waive his right to

confidentiality. In short, the record before us on the motion to dismiss

does not demonstrate a clear intent by J.B. to waive the privilege for the

purpose of the custody-modification proceeding. It is true that when a

party has placed his or her mental state in issue in a judicial proceeding,

the party is deemed to have waived any confidentiality privilege. See,

e.g., Mull, 448 So. 2d at 954. However, the Holm court noted:

We recognize that J.B. is a minor. Our caselaw indicates that "[a]

child, the child's parent, or the child's psychotherapist may assert the

psychotherapist-patient privilege, but only the child may waive the

privilege." Ex parte Sims, 246 So. 3d 155, 157 (Ala. Civ. App. 2017). See

also Ex parte T.O., 898 So. 2d 706, 711 (Ala. 2004) ("Even though T.O.'s

psychotherapist-patient privilege could be claimed for him by the

psychiatrist Dr. Kahn, the patient T.O., the mother E.O., or the father

J.O., ... only the patient T.O. could waive the privilege .... Since T.O.'s

mother was not the patient, she lacked standing to waive T.O.'s

psychotherapist-patient privilege."); Ex parte Johnson, 219 So. 3d 655, 657

(Ala. Civ. App. 2016) (citing T.O. for the proposition that the

psychotherapist-patient privilege "belongs to the child and only he may

waive it").

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"[I]n the context of the similar privilege afforded a psychologist

and his or her client under § 34-26-2, this court has held that,

in a custody-modification action, the psychotherapy records for

the child that is the subject of the modification action remain

privileged and are not required to be disclosed. Ex parte

Johnson, 219 So. 3d 655, 657-58 (Ala. Civ. App. 2016)."

283 So. 3d at 779. The Holm court reasoned that a child is not considered

to be a party to a custody-modification action and that, therefore, the child

cannot be said to have willingly placed his or her mental state in issue for

such a proceeding, which would impliedly waive the privilege.

All of this serves as background to the consideration of whether the

litigation privilege bars Borden's second count insofar as it is asserted on

behalf of J.B. The litigation privilege arises from the common law. See,

e.g., Hollander, 19 So. 3d at 195 (stating that " [t]his Court has recognized

that a party that has published allegedly defamatory matter in the course

of a judicial proceeding may claim, as a defense to a defamation action

based on that publication, the absolute privilege described in the

Regardless of the reason for the trial court's exclusion of Malone's

letter and his exclusion as a witness in the custody-modification

proceeding, we do not intend to preclude the possibility that further

development of the facts could show that J.B. did, in fact, waive the

counselor-patient privilege.

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Restatement (Second) of Torts § 587 (1977)" (emphasis added)); Surrency

v. Harbison, 489 So. 2d 1097, 1104 (Ala. 1986) (discussing the litigation

privilege and observing that " [w]e have found no cases or rationale

providing a privilege as to violence in the labor setting, so we specifically

exempt the assault and battery claim from the purview of privileged

matters" (emphasis added)). At common law, the litigation privilege

applied solely to defamation claims. See, e.g., Lawson v. Hicks, 38 Ala.

279, 285 (1862) ("Words, calumnious in their nature, may be deprived of

their actionable quality by the occasion of their utterance or publication.

When this is the case, they are called in the law of defamation privileged

communications." (emphasis added)); Franklin Collection Serv., Inc. v.

Kyle, 955 So. 2d 284, 292 (Miss. 2007) (examining the history of the

litigation privilege and concluding that "the litigation privilege at common

law was only applicable to claims for defamation, such as libel and

slander"); Simms v. Seaman, 308 Conn. 523, 531-36, 69 A.3d 880, 885–87

(2013) (recounting the common-law origins of the litigation privilege and

explaining that it "developed in the context of defamation claims"). In

Butler v. Town of Argo, 871 So. 2d 1, 24 (Ala. 2003), this Court admitted

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that "this absolute privilege is rooted in defamation law," but, citing

Restatement (Second) of Torts § 652F (1977),

the Court expanded the

privilege so that it "also applies to the publication of any matter that

amounts to an invasion of privacy." However, counselor-patient

confidentiality is statutory in its origin. See § 34-8A-21, Ala. Code 1975.

The common law is the law of Alabama unless it is repealed by statute.

See § 1-3-1, Ala. Code 1975 ("The common law of England, so far as it is

not inconsistent with the Constitution, laws and institutions of this state,

shall, together with such institutions and laws, be the rule of decisions,

and shall continue in force, except as from time to time it may be altered

or repealed by the Legislature."). Section 34-8A-21 does not contain an

express exception to the counselor-patient privilege based on the litigation

privilege. Therefore, the common-law litigation privilege must give way

to the statutory right of confidentiality. In other words, the litigation

privilege cannot insulate Malone and the clinic from a private action

Restatement (Second) of Torts § 652F (1977) provides: "The rules

on absolute privileges to publish defamatory matter stated in §§ 583 to

592A apply to the publication of any matter that is an invasion of privacy."

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based on an unauthorized disclosure of patient confidentiality. Cf. Estape

v. Seidman, 269 So. 3d 565, 569 (Fla. Dist. Ct. App. 2019) (employing

similar reasoning to conclude 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," Florida's statute establishing the

psychotherapist-patient privilege).

Based on the foregoing, we conclude that Borden's second count,

alleging negligence/wantonness/willfulness asserted on behalf of J.B.

against Malone and the clinic based on a breach of confidentiality between

Malone and J.B. is not protected by the litigation privilege.

Accordingly,

the trial court erred in dismissing those claims based on the litigation

privilege. However, the complaint contains no specific allegation that

Malone violated any confidentiality with respect to Borden. Therefore, to

the extent that Borden's second count attempts to state claims on behalf

This conclusion does not preclude the possibility that this claim as

to J.B. is subject to some other infirmity; all that is before us in this

appeal is the applicability of the litigation privilege to the claims asserted

against Malone and the clinic.

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of Borden, we fail to see a meaningful distinction between those claims

and Borden's defamation claim. Therefore, the trial court was correct in

dismissing the second count with respect to Borden.

IV. Conclusion

For the foregoing reasons, the trial court's dismissal of the

defamation claims asserted on behalf of Borden and J.B. is reversed to the

extent that it precluded Borden from maintaining his claim that Malone

and the clinic bear some culpability for the dissemination of the

August 14, 2019, letter beyond those who had a direct or close relationship

to the custody-modification proceeding. Furthermore, the trial court's

dismissal of the count alleging negligence/wantonness/willfulness is

reversed to the extent that it precluded claims based on a breach of

confidentiality on behalf of J.B., which are not foreclosed by the litigation

privilege. The trial court's dismissal of the claims asserted in that count

as to Borden is affirmed.

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MOTION TO STRIKE DENIED; AFFIRMED IN PART; REVERSED

IN PART; AND REMANDED.

Bolin, Shaw, Wise, Bryan, Sellers, and Stewart, JJ., concur.

Mendheim, J., concurs specially.

Parker, C.J., and Mitchell, J., concur in part and concur in the

result.

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MENDHEIM, Justice (concurring specially).

As the author of the main opinion, I write specially to explain why

I do not agree with Justice Mitchell's alternative rationale for why the

second count in Dennis Borden's complaint, alleging

"negligence/wantonness/willfulness" on J.B.'s behalf against Bobby L.

Malone and B.L. Malone and Associates, Inc. ("the negligence and

wantonness claims"), are not defeated by the litigation privilege, as well

as his conclusion that the main opinion "could lead to the dismissal of

meritorious claims." ___ So. 3d at ___ (Mitchell, J., concurring in part and

concurring in the result).

The majority concludes that the statutory counselor–patient

privilege, § 34-8A-21, Ala. Code 1975, takes precedence over the common-

law litigation privilege that provides immunity from liability for claims

based on relevant statements made for the purpose of a judicial

proceeding. Despite Justice Mitchell's protestations to the contrary, the

reasoning for that conclusion is simple and straightforward. It starts by

recognizing that the negligence and wantonness claims are grounded in

the counselor-patient privilege. This is patently obvious, given what

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Borden alleged in his complaint: that Malone was J.B.'s counselor; that

the letter Malone wrote to Kathy Smith's counsel divulged numerous

statements and mental impressions J.B. had shared with Malone in

counseling sessions; and specifically that "[d]efendant Malone negligently,

wantonly, or willfully breached and violated numerous ethical rules and

regulations by serving in multiple, conflicting capacities ... for ... J.B." and

that, as a result of Malone's breaches of confidence, J.B. "suffer[ed] severe

emotional distress, mental anguish, fear, humiliation, nervousness, stress,

embarrassment and other injuries and damages described above and

herein."

The majority then recognizes that the counselor-patient

I also note that, in his appellate brief to this Court, Borden

specifically argued:

"As to the portion of the [negligence and wantonness] claim on

J.B.'s behalf, Ex parte Holm, 283 So. 3d 776 [(Ala. Civ. App.

2019)], makes it clear that it would be improper and in clear

violation of privilege and privacy laws and statutes concerning

that of a child and his licensed professional counselor for

Malone to release information about J.B. unless J.B. waived

his privilege. In turn, the complaint more than sufficiently

pleaded that J.B. had not waived (and could not validly waive)

the privilege and that Malone's actions were negligent and

unprofessional."

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privilege is a privilege conferred by statute, § 34-8A-21, which did not

exist at common law.

Thus, § 34-8A-21 stands on its own, and it does not

state that the privilege can be violated if a counselor's statements are

made in contemplation of a judicial proceeding. It follows that the

Borden's appellate brief, p. 27. As the majority opinion explains, Ex parte

Holm, 283 So. 3d 776 (Ala. Civ. App. 2019), concluded that the counselor-

patient privilege took precedence over a father's right to access medical

records of his minor child under § 30-3-154, Ala. Code 1975. Thus, Borden

plainly alleged and argued that the litigation privilege did not protect

Malone and the clinic from liability for Malone's violations of the

counselor-patient privilege held by J.B.

Unlike the attorney-client privilege, which "is a creature of the

common law," Advisory Committee's Notes to Rule 502, Ala. R. Evid., the

psychotherapist-patient privilege, which was created in 1963 with the

enactment of § 34-26-2, Ala. Code 1975, and the counselor-patient

privilege, which was created in 1979 with the enactment of § 34-8A-21,

were new confidentiality privileges in the law. See, e.g., Deirdre M.

Smith, An Uncertain Privilege: Implied Waiver and the Evisceration of

the Psychotherapist-Patient Privilege in the Federal Courts, 58 DePaul

L. Rev. 79, 91 (2008) (noting that "[f]ew evidentiary privileges were

recognized at common law and, therefore, state legislatures took the lead

in establishing new privileges from the nineteenth century to the present"

and that "many privileges -- including the psychotherapist-patient

privilege -- came about by intensive lobbying efforts by professionals

seeking special status for their communications"). Despite its lack of

common-law pedigree, the psychotherapist-patient privilege at least

"represents a nationally recognized privilege principle," whereas the

counselor-patient privilege "is generally not found in the primary body of

evidence law nationally." Advisory Committee's Notes to Rule 503A, Ala.

R. Evid.

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common-law litigation privilege does not provide protection against claims

seeking liability for breaches of the counselor-patient privilege. Cf.

Palmer v. Bice, 28 Ala. 430, 431 (1856) (observing that "[a]s the right is

the creature of the statute, its extent must be determined by the statute").

In his special writing, Justice Mitchell employs a canon of

construction that provides that there is a presumption against changes in

the common law to argue that the legislature in enacting § 34-8A-21 had

to expressly state that the counselor-patient privilege takes precedence

over the common law in order for a claim based on that privilege not to be

covered by the litigation privilege. Aside from the fact that neither

Borden nor Malone and the clinic mention this canon in their arguments,

it simply does not belong in the analysis of this issue. The presumption

against changes in the common law becomes relevant when a statute

alters or contravenes a common-law claim or rule. All the statutes Justice

Mitchell cites as examples that expressly state that they supersede the

common law do so precisely because the legislature was altering or

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abolishing a common-law rule.

However, when the legislature invents

something new, be it a cause of action, a right, or a privilege, that did not

exist in the common law, this presumption canon necessarily does not

apply because it is plain that the legislature intends not to follow the

common law when it creates something wholly new.

If a reliance on canons of construction is necessary in this case -- and

I do not believe that it is -- then we should employ the most fundamental

principle of statutory construction: that we apply the plain meaning of the

text of the law at issue. See, e.g., Mobile Infirmary Med. Ctr. v. Hodgen,

884 So. 2d 801, 814 (Ala. 2003) ("The fundamental principle of statutory

construction is that words in a statute must be given their plain

meaning."). Section 34-8A-21 provides:

Section 35-4A-8, Ala. Code 1975, is part of Alabama's Uniform

Statutory Rule Against Perpetuities; § 8-27-6, Ala. Code 1975, is part of

the Alabama Trade Secrets Act; and § 34-27-87, Ala. Code 1975, is part of

the Alabama Real Estate Consumer's Agency and Disclosure Act, and it

speaks to alterations in the common law of agency.

Legions of examples could be cited, but one should suffice. The

Dram Shop Act, § 6-5-71, Ala. Code 1975, created a cause of action that

did not exist at common law. The statute does not state that it supersedes

the common law because, quite obviously, there was no need to do so when

no such cause of action existed at common law.

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"For the purpose of this chapter, the confidential

relations and communications between licensed professional

counselor or certified counselor associate and client are placed

upon the same basis as those provided by law between

attorney and client, and nothing in this chapter shall be

construed to require any such privileged communication to be

disclosed."

Nothing in the text of § 34-8A-21 itself indicates that the litigation

privilege constitutes an exception to the protection that statute affords to

the confidential communications described therein.

The majority opinion notes that the reasoning from cases involving

the psychotherapist-patient privilege can be used to address issues

involving the counselor-patient privilege because the two privileges are

closely aligned. ___ So. 3d at ___.

"This Court has stated that 'the Alabama legislature did not

limit the [psychotherapist-patient] privilege with specific

exceptions,' [Ex parte United Serv. Stations, Inc.,] 628 So. 2d

[501,] 504 [(Ala. 1993)], but that that 'privilege, however, is

subject to certain judicially created exceptions,' Id. (citing

cases in which this Court has recognized exceptions to the

privilege)....

____________________

Rule 503(d), Ala. R. Evid., also contains a list of

judicially created exceptions."

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Ex parte Pepper, 794 So. 2d 340, 343 (Ala. 2001). Similarly, the only

stated exceptions to the counselor-patient privilege are listed in

Rule 503A(d), Ala. R. Evid. Those exceptions are:

"(1) Proceedings for Hospitalization. In proceedings to

hospitalize the client for mental illness, there is no privilege

under this rule for communications relevant to an issue in

those proceedings if the counselor or counselor associate has

determined, in the course of counseling, that the client is in

need of hospitalization.

"(2) Examination by Order of Court. If the court orders

an examination of the mental or emotional condition of a

client, whether a party or a witness, communications made in

the course thereof are not privileged under this rule with

respect to the particular purpose for which the examination is

ordered, unless the court orders otherwise.

[11]

"(3) When the Client's Condition Is an Element of a

Claim or a Defense. There is no privilege under this rule as to

a communication relevant to an issue regarding the mental or

emotional condition of the client, in any proceeding in which

the client relies upon the condition as an element of the client's

claim or defense, or, after the client's death, in any proceeding

in which any party relies upon the condition as an element of

the party's claim or defense.

Obviously, the evaluation of the negligence and wantonness claims

would be different if the trial court in the custody-modification proceeding

had ordered Malone to examine J.B. and to testify on the basis of that

examination.

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"(4) Breach of Duty Arising Out of the Counselor-Client

Relationship. There is no privilege under this rule as to an

issue of breach of duty by the counselor, counselor associate,

or victim counselor to the client or by the client to the

counselor, counselor associate, or victim counselor.

"(5) Victim Counseling in Civil Cases. There is no

privilege under this rule in civil cases as to a communication

made to facilitate victim counseling when the person

conducting the counseling is neither a licensed professional

counselor nor a counselor associate, except that under no

circumstances may a victim counselor or a victim be compelled

to provide testimony in any proceeding that would identify the

name, address, location, or telephone number of a 'safe house,'

abuse shelter, or other facility that provided temporary

emergency shelter to the victim of the offense or transaction

that is the subject of the proceeding, unless the facility is a

party to the proceeding."

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Rule 503A(d), Ala. R. Evid.

The Advisory Committee Notes to Rule 503A

indicate that the rule and its exceptions were derived from §§ 15-23-40

to -46

and §§ 34-8A-1 to -21, Ala. Code 1975, as well as from exceptions

that already existed for the psychotherapist-patient privilege listed in

Rule 503(d), Ala. R. Evid. There is no indication from this list of

I cite Rule 503A(d), Ala. R. Evid., as additional support for the

reasoning employed in the majority opinion, but, as its absence from the

majority opinion shows, the rule is not necessary to reach the conclusion

that the litigation privilege does not shield a defendant from a claim based

on the counselor-patient privilege.

Justice Mitchell makes much of the fact that the litigation privilege

is an immunity defense, whereas, "[t]he counselor-patient privilege ... is

a rule of evidence." ___ So. 3d at ___ (Mitchell, J., concurring in part and

concurring in the result). I certainly grant that distinction. See, e.g.,

Eileen A. Scallen, Relational and Informational Privileges and the Case

of the Mysterious Mediation Privilege, 38 Loy. L.A. L. Rev. 537, 595 n.4

(2004) ("Evidentiary privileges are different from substantive privileges.

Substantive privileges partly or completely shield the holder from liability

for certain claims. ... Evidentiary privileges, however, only shield the

holder from providing certain evidence."). But I fail to see its relevance

here because Borden did not cite the counselor-patient privilege to exclude

testimony in this case; instead, it serves as the underlying basis for the

negligence and wantonness claims.

Sections 15-23-40 to -46, Ala. Code 1975, concern the privilege for

communications between the victim of sexual assault or family violence

and a victim counselor.

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exceptions that other exceptions to the counselor-patient privilege are

available to defeat liability for a breach of such confidentiality.

The majority notes that the public policy behind the psychotherapist-

patient privilege, upon which the counselor-patient privilege is modeled,

is to

" ' "inspire confidence in the patient and

encourage him in making a full

disclosure to the physician as to his

symptoms and condition, by preventing

the physician from making public

information that would result in

humiliation, embarrassment, or

disgrace to the patient, and [is] thus

designed to promote the efficacy of the

physician's advice or treatment. The

exclusion of the evidence rests in the

public policy and is for the general

interest of the community." ' "

___ So. 3d at ___ (quoting Ex parte University of South Alabama, 183

So. 3d 915, 921 (Ala. 2015), quoting in turn Ex parte Rudder, 507 So. 2d

This conclusion follows from the negative-implication canon, i.e.,

" 'expressio unius est exclusio alterius,' (the expression of one thing is the

exclusion of another). Under this maxim, if a statute specifies one

exception to a general rule, there are no other exceptions to the rule."

Glencoe Paving Co. v. Graves, 266 Ala. 154, 157, 94 So. 2d 872, 875 (1957).

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411, 413 (Ala. 1987)). That public policy also counsels against further

exceptions than those already listed. Cf. Deatherage v. State of

Washington, Examining Bd. of Psychology, 134 Wash. 2d 131, 136, 948

P.2d 828, 830 (1997) (noting that "[t]he privilege of absolute witness

immunity creates an 'extraordinary breadth' of protection and should not

be extended absent the existence of compelling public policy

justifications"). Indeed,

"this Court in Ex parte Pepper, 794 So. 2d 340, 343 (Ala. 2001),

refused to create 'an exception to the [psychotherapist-patient]

privilege applicable when a party seeks information relevant

to the issue of the proximate cause of another party's injuries.'

In Ex parte Northwest Alabama Mental Health Center, 68 So.

3d 792, 799 (Ala. 2011), this Court refused to create 'an

exception to the privilege that would narrow those parameters

by making the privilege inapplicable when a plaintiff

establishes that privileged information is "necessary" to

proving a cause of action.' "

Ex parte University of South Alabama, 183 So. 3d at 921. In reaching its

conclusion in Ex parte Northwest Alabama Mental Health Center, 68

So. 3d 792 (Ala. 2011), the Court reasoned, in part:

"Northwest and Newman argue that the Alabama Rules

o f E v i d e n c e s t a t e f i v e e x c e p t i o n s t o t h e

psychotherapist-patient privilege, see Rule 503(d), and that

the situation presented here falls into none of those five

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exceptions. In the face of those five exceptions, we decline to

use our adjudicatory authority over an individual case such as

this to create an additional exception in the interest of 'public

policy.' ' " 'The term "public policy" is inherently not subject to

precise definition.... "Public policy is a vague expression, and

few cases can arise in which its application may not be

disputed...." ' " ... Such creations are best left to the

legislature.' Hinrichs v. Tranquilaire Hosp., 352 So. 2d 1130,

1131 (Ala. 1977) (quoting Petermann v. International

Brotherhood of Teamsters, 174 Cal. App. 2d 184, 188, 344 P.2d

25, 27 (1959)). We agree that such creations are best left to

the legislature, or perhaps to the normal rule-making

authority of this Court. See 25 Charles Alan Wright &

Kenneth W. Graham, Jr., Federal Practice & Procedure:

Evidence § 5542 (1989) ('If there is not an applicable exception

to a statutory patient's privilege, courts have no power to

create exceptions by judicial decision.').

"....

"The legislature has established parameters for the

psychotherapist-patient privilege, namely, that 'the

confidential relations and communications between licensed

psychologists, licensed psychiatrists, or licensed psychological

technicians and their clients are placed upon the same basis as

those provided by law between attorney and client.' Ala. Code

1975, § 34–26–2. ...

"Having concluded that none of the recognized exceptions

to the privilege apply here and that this Court should not in

this proceeding create a new exception to the privilege, the

only remaining question is whether Johnson waived that

privilege."

68 So. 3d at 798–800 (emphasis added).

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The fact that the litigation privilege is not a "new" principle does not

alter the applicability of the foregoing reasoning. Indeed, the fact that the

litigation privilege has existed for so long makes its absence from the

listed exceptions to the attorney-client privilege in Rule 502(d), Ala. R.

Evid., to the psychotherapist-patient privilege in Rule 503(d), Ala. R.

Evid., and to the counselor-patient privilege in Rule 503A(d), Ala. R. Evid.,

as well as the dearth of discussion concerning the litigation privilege in

cases concerning those confidentiality privileges, all the more conspicuous.

In short, the statutory language, the public policy behind the counselor-

patient privilege, and our cases addressing the very similar

psychotherapist-patient privilege all indicate that the common-law

litigation privilege is not an exception to the counselor-patient privilege.

Finally, aside from his objections to the majority's rationale, Justice

Mitchell's own rationale for reversing the dismissal of the negligence and

wantonness claims also has flaws. Justice Mitchell argues that the

negligence and wantonness claims are not covered by the litigation

privilege because they do not contain the same elements as an invasion-of-

privacy claim. However, Borden never suggested in any of his

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submissions to the trial court or in his briefs to this Court that the

litigation privilege applies solely to defamation and invasion-of-privacy

claims. I note that, absent clear statutory proscriptions, the trend

throughout the country has been for courts to apply the litigation privilege

to all civil claims based on statements made in view of a judicial

proceeding. See, e.g., Ogbin v. Fein, Such, Kahn & Shepard, P.C., 414 F.

App'x 456, 458 (3d Cir. 2011) (not selected for publication in the Federal

Reporter) (dismissing plaintiff's claims of intentional misrepresentation

and negligence because they fell "squarely within the scope of the New

Jersey litigation privilege"); Creamer v. Danks, 863 F.2d 1037, 1037 (1st

Cir. 1988) ("[T]he absolute privilege for statements made in the course of

judicial proceedings bars not only plaintiffs' defamation claim, but all the

causes of action alleged against defendant, including negligence for

professional malpractice." (applying Maine law)); McCullough v. Kubiak,

158 So. 3d 739, 741 (Fla. Dist. Ct. App. 2015) ("[T]he circuit court's proper

dismissal of the plaintiffs' defamation actions based on absolute privilege

also bars the plaintiffs' negligence actions for the same reason."); Estate

of Mayer v. Lax, Inc., 998 N.E.2d 238, 249 (Ind. Ct. App. 2013) ("Other

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torts related to defamation, or relying upon defamatory statements as

proof of wrongdoing, may also be barred by the absolute privilege."); Jones

v. Coward, 193 N.C. App. 231, 235, 666 S.E.2d 877, 880 (2008) (dismissing

plaintiff's claims of intentional infliction of emotional distress and

negligence based off allegedly false statements made during judicial

proceedings).

Justice Mitchell's rationale requires an examination of why the

litigation privilege has been consistently expanded beyond its origin in

defamation claims, including by this Court in Butler v. Town of Argo, 871

So. 2d 1 (Ala. 2003), which applied the litigation privilege to

invasion-of-privacy claims. To support its expansion of the litigation

privilege, the Butler Court cited Restatement (Second) of Torts § 652F

(1977). See 871 So. 3d at 24. The commentary to that section states in

part: "The circumstances under which there is an absolute privilege to

publish matter that is an invasion of privacy are in all respects the same

as those under which there is an absolute privilege to publish matter that

is personally defamatory." Restatement (Second) of Torts § 588 (1977)

concerns the litigation privilege for witnesses, and the commentary to that

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section states in part: "The function of witnesses is of fundamental

importance in the administration of justice. The final judgment of the

tribunal must be based upon the facts as shown by their testimony, and

it is necessary therefore that a full disclosure not be hampered by fear of

private suits for defamation." In short, the policy behind the litigation

privilege -- the need for participants in judicial proceedings to speak freely

so as to establish the true facts -- could apply just as readily to statements

made negligently or wantonly as it does to defamatory statements or

statements that implicate an invasion of privacy. To conclude simply that

the elements of a negligence claim are not the same as an invasion-of-

privacy claim does not address the crux of the issue concerning the scope

of the litigation privilege.

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PARKER, Chief Justice (concurring in part and concurring in the result).

I join Justice Mitchell's special writing except as to his suggestion

that this Court should revise its abrogation framework to hold that the

Legislature may abrogate the common law by "clear" means. I would

retain the present rule that the Legislature must expressly state that the

common law is abrogated in order to alter it.

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MITCHELL, Justice (concurring in part and concurring in the result ).

I concur with the majority concerning all of the plaintiff's claims,

except I concur only in the result with respect to the

"negligence/wantonness/willfulness" claims asserted on behalf of J.B.

("the negligence and wantonness claims"). Because I do not believe that

abrogation of the common-law litigation privilege occurred here, I write

separately to explain why I would still reverse the judgment on the

ground that the negligence and wantonness claims are not within the

scope of the litigation privilege.

The Litigation Privilege Has Not Been Abrogated Here

The majority opinion holds that the litigation privilege does not

apply to the negligence and wantonness claims because the privilege was

abrogated by the counselor-patient privilege created by § 34-8A-21, Ala.

Code 1975. ___ So. 3d at ___. Since § 34-8A-21 does not include an

express exception for the litigation privilege, the majority concludes that

the litigation privilege "must give way" to the statutory right of

confidentiality. ___ So. 3d at ___. I disagree.

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It is true that the common law can be abrogated if it is "inconsistent

with the Constitution, laws and institutions of this state" or is "altered or

repealed by the Legislature." § 1-3-1, Ala. Code 1975. But our Court has

consistently held that the common law may be abrogated only if the

Legislature does so expressly. See, e.g., West Dauphin Ltd. P'ship v.

Callon Offshore Prod., Inc., 725 So. 2d 944, 952 (Ala. 1998) (" '[S]tatutes

are presumed not to alter the common law in any way not expressly

declared.' " (quoting Arnold v. State, 353 So. 2d 524, 526 (Ala. 1977)));

Ex parte Parish, 808 So. 2d 30, 33 (Ala. 2001) (" 'If the legislature had

intended to [abrogate the common law], that body would have made its

intention evident and unmistakable.' " (quoting Holmes v. Sanders, 729

So. 2d 314, 316–17 (Ala. 1999))); Ex parte Key, 890 So. 2d 1056, 1061 (Ala.

2003) (holding that the common-law year-and-a-day rule survived

"because the Legislature did not expressly abolish [the rule] when it

reenacted the Criminal Code").

Indeed, the Legislature has expressly abrogated the common law

numerous times in statutes. See, e.g., § 35-4A-8, Ala. Code 1975 ("This

chapter supersedes the rule of the common law known as the rule against

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perpetuities."); § 8-27-6, Ala. Code 1975 ("Those provisions of this chapter

that are inconsistent with the common law of trade secrets supersede the

common law ...."); § 34-27-87, Ala. Code 1975 ("The duties of licensees as

specified in this article ... shall supersede any duties of a licensee ... which

are based upon common law principles of agency to the extent that those

common law duties are inconsistent with the duties ... as specified in this

article."). The Legislature could have done so again when it enacted

§ 34-8A-21. But it clearly didn't.

Applying our precedent, it is obvious that no express abrogation

occurred here. Section 34-8A-21 does not expressly abrogate the common

law, and no one argues that it does. Therefore, it is inappropriate to

reverse the trial court's judgment as to the negligence and wantonness

claims on that ground.

I would be open to revising our Court's abrogation framework by

adopting what I believe is a more reasonable rule promoted by Justice

Antonin Scalia and Bryan Garner. Under their approach, "[a] statute will

be construed to alter the common law only when that disposition is clear."

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of

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Legal Texts § 52, at 318 (Thomson/West 2012). This approach accounts

for the commonsense conclusion that a legislature need not expressly state

that the common law is abrogated when it passes a law incompatible with

a common-law rule; the abrogation occurs by the very nature of the

incompatibility. Thus, a legislature could "clearly" abrogate the common

law in other ways, including by unmistakable implication.

But the majority's conclusion would not hold up even under this

more forgiving approach because there is no fundamental incompatibility

between the common-law litigation privilege and the counselor-patient

privilege. In fact, the two are different concepts serving different

purposes. The litigation privilege is a defense that governs who may

proceed with a claim, and the counselor-patient privilege is an evidentiary

rule that governs what communications are admissible.

Although repeatedly referred to as a "privilege" in our cases, the

litigation privilege is in fact a defense that is a species of immunity. See

Barnett v. Mobile Cnty. Pers. Bd., 536 So. 2d 46, 51-52 (Ala. 1988)

(referring to the litigation privilege as a "special immunity"); O'Barr v.

Feist, 292 Ala. 440, 446, 296 So. 2d 152, 157 (1974) (" ' "[The litigation

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privilege] denies to the defamed party any remedy through an action for

libel and slander." ' " (quoting Adams v. Alabama Lime & Stone Corp., 225

Ala. 174, 176, 142 So. 424, 425 (1932), quoting another case) (emphasis

added)). Where applicable, immunities serve as defenses that bar a

plaintiff from even proceeding with his claim. In that vein, the litigation

privilege serves as an absolute bar in appropriate cases unless waiver has

occurred. O'Barr, 292 Ala. at 446, 296 So. 2d at 157. Hence the existence

of its alternative name in our jurisprudence: the absolute privilege. See,

e.g., Hollander v. Nichols, 19 So. 2d 184, 195 (Ala. 2009) (referring to the

litigation privilege as the "absolute privilege").

The counselor-patient privilege, by contrast, is a rule of evidence.

The special concurrence argues -- for the first time by anyone in this case

-- that the counselor-patient privilege's manifestation in Rule 503A(d),

Ala. R. Evid., abrogates the litigation privilege because the rule lacks an

exception for it. ___ So. 3d at ___ (Mendheim, J., concurring specially).

Using the negative-implication canon, the special concurrence reasons

that the absence of the litigation privilege from the list of exclusions in

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Rule 503A(d) means that it must yield to the counselor-patient privilege.

Id. at n.14. That is not so.

The counselor-patient privilege is a rule of admissibility. Like other

rules of evidence, it governs what can and cannot be considered by a

tribunal in reaching a final judgment. Rules of evidence serve as a

filtering mechanism within matters that have already found their way

into the courthouse; immunities lock the door. Evidentiary rules and

immunities are not fundamentally incompatible concepts -- the former

deals with how a party may prove his claim, while the latter deals with

whether a party may even proceed with his claim. Because there is no

clear legislative directive to disregard the common-law litigation privilege,

I would conclude it can continue to operate alongside § 34-8A-21.

Negligence and Wantonness Are Outside

the Scope of the Litigation Privilege

All that said, I don't believe it is necessary here to consider the

complex interplay between statutes and common law. Rather, I would

send the negligence and wantonness claims back to the trial court on

narrower grounds -- by holding that those claims are not within the scope

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of the litigation privilege. As the majority observes, our cases historically

applied the litigation privilege only to defamation claims. See Lawson v.

Hicks, 38 Ala. 279, 285 (1862); Walker v. Majors, 496 So. 2d 726, 729-30

(Ala. 1986); Hollander v. Nichols, 19 So. 3d 184, 195 (Ala. 2009) ("This

Court has recognized that a party that has published allegedly defamatory

matter in the course of a judicial proceeding may claim, as a defense to a

defamation action based on that publication, the absolute privilege

described in the Restatement (Second) of Torts § 587 (1977)." (emphasis

added)). This Court expanded the application of the privilege to include

"the publication of any matter that amounts to an invasion of privacy."

Butler v. Town of Argo, 871 So. 2d 1, 24 (Ala. 2003) (emphasis added).

Thus, a party can invoke the litigation privilege if the claim against him

sounds in defamation or privacy tort.

The negligence and wantonness claims here are not defamation

claims. So the question becomes whether those claims amount to an

invasion of privacy. Alabama law recognizes four claims under the

invasion-of-privacy umbrella: (1) wrongful intrusion; (2) publication that

violates ordinary decencies; (3) false light; and (4) appropriation of some

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element of a plaintiff's personality. See Phillips v. Smalley Maint. Servs.,

435 So. 2d 705 (Ala. 1983) (wrongful intrusion); Smith v. Doss, 251 Ala.

250, 37 So. 2d 118 (1958) (indecent publication); Cottrell v. National

Collegiate Athletic Ass'n, 975 So. 2d 306 (Ala. 2007) (false light); Norris

v. Moskin Stores, Inc., 272 Ala. 174, 132 So. 2d 321 (1961) (appropriation

of image). Our menu of privacy claims closely mirrors those included in

the definition of "Invasion of Privacy" in the Restatement, which Butler

cited when broadening the scope of the litigation privilege. See

Restatement (Second) of Torts § 652A (1977). Accordingly, it appears

these are the types of claims that fall within the litigation privilege.

It is clear that the plaintiff did not plead a claim under the

invasion-of-privacy umbrella. He filed negligence and wantonness claims.

Those causes of action do not constitute an invasion of privacy -- which

means they are not covered by the litigation privilege. In my view, that

is a better way to reach the holding as to the negligence and wantonness

claims, making it unnecessary to engage with how § 34-8A-21 interacts

with the common law.

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Conclusion

By engaging in abrogation analysis, the majority opinion implies

that negligence and wantonness claims (if not abrogated by a statute like

§ 34-8A-21) may fall within the scope of the litigation privilege. We have

never expanded the reach of the privilege that far, and we should not do

so now. In my view, that portion of the majority opinion only serves to

encourage a broader-than-intended use of the privilege by future litigants,

which could lead to the dismissal of meritorious claims.

Our cases require express abrogation. That didn't happen here. And

even under Justice Scalia and Garner's formulation, which I believe is a

better approach to analyzing abrogation, the Legislature is required to act

clearly. That didn't happen either. It is far easier -- and in my view

correct -- simply to hold what we have always held: that claims other than

those alleging defamation and invasion of privacy are outside the scope of

the litigation privilege.