John v. Faitak

          APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72CV-16-106] HONORABLE JOHN C. THREET, JUDGE

          Cullen & Co., PLLC, by: Tim Cullen, for appellant.

          Dover Dixon Horne PLLC, by: Todd Wooten, Trey Cooper, and Monte D. Estes, for appellee.

          WAYMONDM.BROWN, JUDGE

         Appellant appeals from the circuit court's order granting summary judgment in favor of appellee. On appeal, appellant's sole argument is that appellee is not entitled to immunity for acts that exceed the scope of his appointment. We affirm.

         Appellant and Megan Bolinder conceived I.J. out of wedlock and he was born on March 12, 2010. The parties ended their relationship a couple of months later in May 2010. Thereafter, their less-than-stellar co-parenting relationship led them to litigation over custody of I.J. Bolinder was awarded custody of I.J., subject to appellant's visitation, in the circuit court's February 9, 2012 order. In its October 9, 2013 temporary order, the circuit court ordered both appellant and Bolinder to undergo a psychological examination by appellee at their own expense. In its February 27, 2014 order, the circuit court ordered appellant and Bolinder to submit themselves to monthly mediation sessions with appellee "to work toward the goal of learning how to have reasonable and respectful communications and the establishment of trust between the parties." Appellee was also referred to as a "counselor" in the order and the sessions were referred to as "counseling."

         During a session on May 29, 2014, in response to appellant's question of why Bolinder is the better custodial parent, appellee answered "[b]ecause you have a narcissistic personality disorder. I'm withdrawing the schizoid and going with narcissistic." This statement was made in Bolinder's presence. Appellant notified appellee by email that appellant had filed a complaint against appellee with the Arkansas Psychology Board (APB) on June 27, 2014.^[1] Though there had been email correspondence between Bolinder and appellee regarding appellant's interactions with IJ. prior to June 27, 2014, there began to be email correspondence between Bolinder's attorney, Kristin Pawlik, and appellee thereafter. Pawlik and appellee's email correspondence dealt with the effect of appellant's complaint on the sessions and whether the sessions "[had] accomplished anything."

         According to one October 16, 2015 email from appellee to Pawlik, the APB "[had] warned [him] to have no further involvement" with the case, appellant, or Bolinder. Appellee further informed Pawlik that "[w]hile [the APB had] not substantiated any of [appellant's] accusations against [appellee], they have determined that [appellee] was engaged in a 'multiple relationship' by acting as an evaluator and then a therapist. [He was] supposed to be one or another, not both." Appellee advised that further contact could result in suspension of his license, which he could not afford, so he would not be able to testify at the upcoming hearing.

         On January 6, 2016, a consent agreement with letters of reprimand from the APB was filed against appellee. It found that

[Appellee] did admittedly engage in violations of [American Psychological Association (APA)] Ethical Standard 3.10(d) [(Informed Consent)] and 10.01(a)[(Informed Consent to Therapy)]. [Appellee] has not admitted violating APA Ethical standard 3.05(a) [(Multiple Relationships)]. The admitted actions constituted violations of the forgoing enumerated Statutory, Regulatory, and APA Ethical Standards. The Board agrees to treatment of the allegation of an APA Ethical Standard 3.05(a) as a non-admission by the [appellee] even though it believed there was also probable cause for a finding of a violation of that 3.05(a) Standard.

         Appellee was then sanctioned with a letter of reprimand for the admitted violations; a fine of $2, 000.00; and six hours of face-to-face continuing education "pertaining to psychological ethics with particular incorporation of issues involving Multiple Relationships and Informed Consents."

         Appellant filed a complaint in circuit court against appellee on January 14, 2016, seeking damages for medical negligence, breach of fiduciary duty, breach of contract, and breach of confidentiality. Appellee answered on February 11, 2016. He admitted that the circuit court "clearly explained the role of [appellee] in carrying out" its orders, that "any 'position' [appellee] took was a direct result of a fair and impartial review of the information provided by [appellant] and Bolinder during [appellee's] four meetings with [appellant] and Bolinder"; that he "did not have documentation of informed consent or a treatment plan with [appellant]"; and that he owed appellant a fiduciary duty as well as a duty of confidentiality, though he denied breaching those duties. He invoked the doctrine of comparative fault. While he specifically sought to have appellant's claims barred through the doctrines of waiver, estoppel or statute of limitations, or to be dismissed for failure to state a claim, he only generally stated that he "assert[ed] each and every affirmative defense set forth in [Arkansas Rule of Civil Procedure] 8." Immunity was not raised in appellee's answer.

         Appellant filed his first amended complaint on September 27, 2016, in which he added causes of action for the tort of outrage, deceit, defamation, invasion of privacy, and civil conspiracy. Appellee answered on October 19, 2016, denying all material allegations therein.

         Appellee filed his amended motion for summary judgment on May 11, 2017. Outlining the four factors listed in Chambers v. Stern (Chambers I), ^[2] all of which he asserted he met, he argued that he was entitled to summary judgment because he was entitled to judicial immunity.^[3] Furthermore, he expressly stated that appellant knew the joint sessions with Bolinder and his report were not confidential because appellee so informed appellant. Appellant responded in opposition to appellee's motion and amended motion on May 24, 2017. On the same date, he also filed his response to appellee's statement of undisputed facts and filed his own statement of facts in support of his response to appellee's motion for summary judgment and amended motion for summary judgment.

         Appellee filed his reply to appellant's response to his amended motion for summary judgment and his response to appellant's statement of facts in support of his response on June 14, 2017. A hearing on appellee's motion for summary judgment was held on July 18, 2017, at the conclusion of which the circuit court made the following oral findings:

[Appellee's] interactions with [appellant] were directly related to or during the court-ordered joint therapy sessions and evaluation, acting as a psychologist at all times. He was officially appointed by the Benton County Circuit Court and the acts that are being complained over were carried out within the scope of the ...