Lavit v. Superior Court In and For County of Maricopa, No. 1

• Court: Court of Appeals of Arizona
• Writing for the Court: GERBER; JACOBSON; TAYLOR
• Citation: 173 Ariz. 96,839 P.2d 1141
• Decision Date: 01 October 1992
• Docket Number: No. 1,CA-SA
• Parties: Ronn LAVIT and Ann Lavit, husband and wife, Petitioners, v. SUPERIOR COURT of the State of Arizona, in and for the COUNTY OF MARICOPA, the Honorable Edward C. Rapp, a judge thereof, Respondent Judge, Duane E. OKKEN, a single person; Joseph C. Richter and Jane Doe Richter, husband and wife; Friedl, Richter & Buri, an Arizona partnership; William J. Friedl and Carol A. Friedl, husband and wife; Charles E. Buri and Susan L. Buri, husband and wife, Real Parties In Interest. 92-0015.

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839 P.2d 1141 173 Ariz. 96 Ronn LAVIT and Ann Lavit, husband and wife, Petitioners,
v.
SUPERIOR COURT of the State of Arizona, in and for the COUNTY OF MARICOPA, the Honorable Edward C. Rapp, a judge thereof, Respondent Judge,
Duane E. OKKEN, a single person; Joseph C. Richter and Jane Doe Richter, husband and wife; Friedl, Richter & Buri, an Arizona partnership; William J. Friedl and Carol A. Friedl, husband and wife; Charles E. Buri and Susan L. Buri, husband and wife, Real Parties In Interest. No. 1 CA-SA 92-0015. Court of Appeals of Arizona,
Division 1, Department D. Oct. 1, 1992.

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[173 Ariz. 97] Renaud, Cook, Videan, Geiger & Drury, P.A. by Steven G. Mesaros and Thaine M. Crown, Jr., Phoenix, for petitioners.

Duane E. Okken, in pro. per.

Gallagher & Kennedy by Stephen H. Scott, Phoenix, for remaining real parties in interest.

Stevens & Liebow, P.C. by Howard P. Leibow, Phoenix, for amicus curiae Arizona Psychological Ass'n.

OPINION

GERBER, Judge.

This special action arises from the trial court's denial of petitioners' motion for summary judgment. The sole legal issue is whether Ronn Lavit's (Lavit) psychologist role in a dissolution proceeding provides him with absolute judicial immunity. When we accepted jurisdiction we granted relief and indicated that an opinion would follow. This is that opinion. For reasons which follow, we conclude that absolute judicial immunity protects the role in question.

SPECIAL ACTION JURISDICTION

We first explain why we take this case. A trial court's denial of a motion for summary judgment is a non-appealable, interlocutory order. See Henke v. Superior Court, 161 Ariz. 96, 98, 775 P.2d 1160, 1162 (App.1989); Scottsdale Publishing, Inc., v. Superior Court, 159 Ariz. 72, 74, 764 P.2d 1131, 1133 (App.1988). The sole remedy from this interlocutory order is special action. Henke, 161 Ariz. at 98, 775 P.2d at 1162. Except in very unusual cases, denial of summary judgment is not appropriate for special action jurisdiction. Ft. Lowell-NSS Ltd. Partnership v. Kelly, 166 Ariz. 96, 99-100, 800 P.2d 962, 965-66 (1990); United States v. Superior Court, 144 Ariz. 265, 269, 697 P.2d 658, 662 (1985). There are exceptions to this general rule. The special nature of judicial immunity prompts us to take this case in its present posture. Henke, 161 Ariz. at 98-99, 775 P.2d at 1162-63 (court of appeals accepted special action jurisdiction from the trial court's denial of a motion to dismiss based on the doctrine of qualified immunity); see also Maricopa County v. Superior Court, 170 Ariz. 248, 823 P.2d 696 (App.1991) (court of appeals deviated from the general rule and accepted jurisdiction from a denial of a motion to dismiss). As Henke observed, there is no way short of special action to review the denial of immunity before the primary benefit of immunity is lost, that is, immunity from suit as well as liability. 161 Ariz. at 99, 775 P.2d at 1163. More practically, absolute judicial immunity defeats a suit at the outset. Even if Lavit were to be successful at trial, the benefit of immunity would be lost in the process of defending himself. Therefore, he has no adequate, plain and speedy remedy by direct appeal after trial. Ariz.R.P. Special Action 1.

Policy arguments in the amicus curiae brief of the Arizona Psychological Association also support our decision to accept jurisdiction. This case involves an issue of statewide importance for court-appointed psychologists and other professionals who perform quasi-judicial functions in helping courts decide cases. See University of Ariz. Health Sciences Center v. Superior Court, 136 Ariz. 579, 581, 667 P.2d 1294, 1296 (1983); Matera v. Superior Court, 170 Ariz. 446, 825 P.2d 971 (App.1992).

FACTS AND PROCEDURAL HISTORY

After Ms. Okken filed for dissolution of her marriage with Duane Okken (Okken), her attorney Joseph C. Richter suggested to Okken that the parties contact a psychologist to assist in resolving child custody. The parties mutually agreed on Lavit. They entered into a "Stipulation for Entry of Temporary Order" which was submitted to the trial judge in the case. Its relevant portion is as follows:

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173 Ariz. 98] That Ronn Lavit, Ph.D. shall conduct a psychological examination of both Petitioner and Respondent at the earliest opportunity. In conducting such examination, and as a part thereof, Dr. Lavit may require either or both parties to submit to such psychological testing as he, in his sole discretion, may direct. Further, Dr. Lavit may have access to all records regarding either party in the possession of any mental health professional and/or hospital or care facility in this State or any other State. Each party also agrees that Dr. Lavit may consult with any such mental health professional. Each party hereby expressly waives any physician/patient privilege, psychologist/patient privilege or any like privilege conferred by the law of this State or any other state to the extent necessary for Dr. Lavit to obtain and review records or to consult with such mental health professional. Each party shall, upon the request of Dr. Lavit, execute and deliver to him an authorization or release in a form satisfactory to Dr. Lavit and the mental health professional and/or hospital or care facility to whom it is directed for the release of records or information and/or for consultation. The parties agree that Dr. Lavit, if called as a witness in these proceedings, including any further hearing for temporary orders, or at trial, may give testimony as an expert witness. The parties further agree that upon completion of his examination, Dr. Lavit shall prepare a written report and deliver a copy to counsel for each party. It is further mutually agreed between the parties that subsequent to the receipt of Dr. Lavit's report, either party may petition the Court for a review and/or modification of the custody status of the minor child. The parties agree that the entry of this order regarding the custody of the minor child is without prejudice to the right of either party to seek a subsequent modification after the receipt of Dr. Lavit's report

(Emphasis added).

The trial court adopted the stipulation as its own and signed the order:

The Court has read and considered the foregoing stipulation of the parties for the entry of temporary order and good cause appearing therefor,

IT IS ORDERED that the foregoing stipulation of the parties for the entry of temporary orders is adopted in its entirety as the order of this Court; ...

Lavit then conducted a psychological examination of both parties and issued a written report. The Okkens later stipulated to his child-custody recommendations. The trial court eventually incorporated the stipulated recommendations into the decree of dissolution. Lavit did not testify.

Okken later filed a thirteen-count complaint against petitioners. The essence of his complaint was that Attorney Richter, who represented Ms. Okken, had ten years previously represented Lavit in a personal matter which Lavit failed to disclose to Okken. Despite his stipulation to accept Lavit's recommendations, Okken alleged that Lavit's involvement with Richter resulted in Lavit making a biased custody evaluation favoring Ms. Okken.

The trial court dismissed eight counts of the complaint. One count was voluntarily withdrawn. Petitioners filed a motion for summary judgment on the remaining counts of intentional infliction of emotional distress, common law fraud and negligent misrepresentation. Petitioners' motion argued that judicial immunity protected Lavit in his role as a court-appointed psychologist. The trial court denied the motion without comment. This special action followed.

DISCUSSION

Okken contends that Lavit is not entitled to such immunity. In his view, Lavit was privately employed by the parties merely to conduct a psychological examination to help them determine child custody. Petitioners respond that Lavit's psychological examination was performed pursuant to a court order and that it aided the trial court to reach its decision regarding

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[173 Ariz. 99] custody. Petitioners conclude that Lavit is entitled to absolute immunity.

Whether judicial immunity exists is a question of law for the court. See Acevedo v. Pima County Adult Probation Dept., 142 Ariz. 319, 690 P.2d 38 (1984); Green Acres Trust v. London, 141 Ariz. 609, 613, 688 P.2d 617, 621 (1984). Petitioners properly raised the doctrine in their motion for summary judgment, so it is squarely before us.

Under the doctrine of absolute judicial immunity, judges avoid liability for judicial acts, even acts in excess of their jurisdiction or done with malice. Acevedo, 142 Ariz. at 321, 690 P.2d at 40; Evans v. Copins, 26 Ariz.App. 96, 546 P.2d 365 (1976) (city magistrate cloaked in judicial immunity for judicial acts erroneously carried out). The Arizona Supreme Court has extended absolute immunity to certain other court officials who perform functions integral to the judicial process. Acevedo, 142 Ariz. at 321, 690 P.2d at 40 (citing Ashbrook v. Hoffman, 617 F.2d 474, 476 (7th Cir.1980) (commissioners appointed by the court to conduct a partition sale were sufficiently related to the judicial process to entitle them to absolute immunity); Robichaud v. Ronan, 351 F.2d 533, 536 (9th Cir.1965) (absolute immunity did not extend to a county attorney and deputy for unlawful acts which were not an integral part of the judicial process)).

Judicial immunity protects both the finality of judgments and judicial...