Borden v. Malone

• Decision Date: 25 November 2020
• Docket Number: 1190327
• Citation: 327 So.3d 1105
• Parties: Dennis BORDEN, individually and as father and next friend of J.B., a minor v. Bobby L. MALONE and B.L. Malone and Associates, Inc.
• Court: Alabama Supreme Court

327 So.3d 1105

Dennis BORDEN, individually and as father and next friend of J.B., a minor

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

1190327

Supreme Court of Alabama.

November 25, 2020

Jarrod D. Nichols of Davenport, Lavette & Cleckler, PC, Birmingham, for appellant.

Emory Anthony, Jr., Birmingham, for appellees.

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 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 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 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 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 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 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 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 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...