DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ROBERTO ESTAPE,

Appellant,

v.

STANLEY B. SEIDMAN PH.D., individually, and

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

Appellees.

No. 4D17-3336

[April 24, 2019]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Mily Rodriguez-Powell,; L.T. Case No. 12-25519(3).

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

appellant.

John W. Mauro and Scott C. Cochran of Billing, Cochran, Lyles, Mauro 

& Ramsey, P.A., Fort Lauderdale, for appellees.

WARNER, J.

Roberto Estape appeals a summary final judgment entered on his 

claims of negligence and breach of fiduciary duty against appellee, Dr. 

Stanley Seidman, a psychologist. In a contested dissolution of marriage 

proceeding, Estape and his wife agreed to use Dr. Seidman as a 

reunification therapist for their children, and the court approved their 

agreement. Estape contends that he had a psychologist-patient 

relationship with Dr. Seidman, evidenced by a document that the doctor 

had him sign. He asserts that any communications between them were 

required by statute to be confidential, but the doctor breached that 

confidentiality, causing Estape damage. Dr. Seidman claimed that 

because the communications occurred within the litigation, he was 

entitled to absolute immunity based upon the litigation privilege, and the 

trial court agreed. We reverse, finding that the statutory grant of 

confidentiality prevails over the litigation privilege, a common law doctrine, 

and there remains a question of fact as to the existence of the psychologistpatient relationship.
2

During the dissolution of marriage proceedings, Estape was prevented 

from seeing his children. The children saw two psychologists, and after a 

time, the psychologists concluded that reunification with the father should 

occur. The parties agreed to the commencement of a visitation schedule 

and that Dr. Seidman would serve as the reunification therapist. Few 

instructions were included in the agreement announced in court, other 

than that the children were to have two sessions with Dr. Seidman prior 

to the first unsupervised visitation, which was already scheduled. In 

addition, Dr. Seidman, together with the children’s psychologists, could 

determine whether each child should have a vacation with their father 

without the other child. The court refused to make any determination 

other than to adopt the agreement of the parties. The order entered by the 

trial court simply states: “The Court adopts the Agreement on temporary 

children’s access issues and related issues as contained in the transcript 

of the hearing on May 2, 2011, as an Order of the Court, which is attached 

hereto as Exhibit ‘1.’” It does not name Dr. Seidman in the order.

After one short session with Estape, and a session with the children, 

Dr. Seidman sent an email to the children’s guardian ad litem, objecting 

to the first scheduled visitation on the grounds that he had not had the 

time to perform a sufficient evaluation and that the children were 

apprehensive about seeing their father. He also related some information 

conveyed to him by Estape during his short session with him. As a result, 

the mother moved to stay the scheduled visitation, and it did not occur. 

More proceedings involving visitation ensued, preventing Estape from 

seeing his children.

Estape eventually filed a complaint against Dr. Seidman, alleging 

causes of action for breach of fiduciary duty and negligence. The gravamen 

of the breach of fiduciary duty claim was that Dr. Seidman had

communicated to the guardian ad litem material which Estape claimed 

was privileged under the psychotherapist-patient doctrine. See Gracey v. 

Eaker, 837 So. 2d 348, 353-55 (Fla. 2002) (finding that the wrongful 

disclosure of confidential information by a psychotherapist constitutes a 

breach of a fiduciary duty). The negligence count was also based upon 

Estape’s claim that Dr. Seidman communicated to the guardian ad litem 

without following standard practices for psychologists.

Dr. Seidman moved for summary judgment. He alleged that he was a 

court-appointed reunification therapist and, as such, protected by 

absolute immunity for statements made during the judicial proceeding.

In response, Estape set forth evidence that he had entered into a 

psychologist-patient relationship with the doctor. He pointed to a form 
3

that he signed when he appeared at Dr. Seidman’s office for his first 

session. That form included a confidentiality statement as follows:

Information shared with a psychologist is kept strictly 

confidential and is not disclosed without your written 

provision. However, confidentiality is not guaranteed in cases 

of (a) danger to yourself others (e.g., homicide or suicide), or 

(b) situations [in] which children are endangered (e.g., sexual 

or physical abuse or neglect).

The form also provided for Informed Consent:

I have read and understood the preceding statements, have 

had the opportunity to ask questions about them, and agreed 

to begin treatment at Associates In Behavioral Counseling.

(emphasis added).1 The court granted the motion for summary judgment, 

and after denying a motion for rehearing, it entered final judgment in favor 

of the doctor, which prompted this appeal.

We review a final summary judgment de novo, recognizing that it 

should be granted only when there is a complete absence of genuine issues 

of material fact and the moving party is entitled to judgment as a matter 

of law. Fini v. Glascoe, 936 So. 2d 52, 54 (Fla. 4th DCA 2006). Whether 

the absolute immunity privilege applies is a question of law to be decided 

by the court. See Ball v. D’Lites Enters., Inc., 65 So. 3d 637, 638 (Fla. 4th 

DCA 2011).

“The law in Florida has long been that defamatory statements made in 

the course of judicial proceedings are absolutely privileged, and no cause 

of action for damages will lie, regardless of how false or malicious the 

statements may be, so long as the statements are relevant to the subject 

of inquiry.” Fridovich v. Fridovich, 598 So. 2d 65, 66 (Fla. 1992). “The 

immunity afforded to statements made during the course of a judicial 

proceeding extends not only to the parties in a proceeding but to judges, 

witnesses, and counsel as well.” Levin, Middlebrooks, Mabie, Thomas, 

Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994). 

As noted in Myers v. Hodges, 44 So. 357, 360 (Fla. 1907), however, the 

absolute immunity for statements in judicial proceedings arose from the 

common law of England. By statute, the common law is the law of this 

1 In addition, both parties referenced a deposition of Dr. Seidman, but the 

deposition was not made part of the record.
4

state, but only to the extent that it is not inconsistent with the acts of the 

legislature. See § 2.01, Fla. Stat. (2016).

Section 490.0147, Florida Statutes (2012), provides that 

communications between a psychotherapist and patient are confidential,

but the statute establishes circumstances where the privilege may be 

waived:

Any communication between any person licensed under this 

chapter and her or his patient or client shall be confidential. 

This privilege may be waived under the following conditions:

(1) When the person licensed under this chapter is a party 

defendant to a civil, criminal, or disciplinary action arising 

from a complaint filed by the patient or client, in which case 

the waiver shall be limited to that action.

(2) When the patient or client agrees to the waiver, in writing, 

or when more than one person in a family is receiving therapy, 

when each family member agrees to the waiver, in writing.

(3) When there is a clear and immediate probability of physical 

harm to the patient or client, to other individuals, or to society 

and the person licensed under this chapter communicates the 

information only to the potential victim, appropriate family 

member, or law enforcement or other appropriate authorities.

The first principle of statutory interpretation is that statutes must be 

interpreted in accordance with their plain meaning. See Acosta v. Richter, 

671 So. 2d 149, 153 (Fla. 1996). Here, it is clear that the statute 

establishes the confidentiality of psychotherapist communications and 

very limited means of waiving that privilege. This is also consistent with 

the legislative intent expressed in section 490.002, Florida Statutes, that 

“in order to preserve the health, safety, and welfare of the public, the 

Legislature must provide privileged communication for members of the 

public or those acting on their behalf to encourage needed or desired 

psychological services to be sought out.”

None of the grounds for waiver set forth in the statute apply to the 

communications made by Dr. Seidman in the dissolution case. The first 

section does not apply because he was not a party in that proceeding. 

Second, Estape provided no written waiver, nor was any waiver provided 

by any of the other family members. Finally, there is no evidence in this 

record of the potential for physical harm to any persons. Therefore, if 
5

Estape was a patient of Dr. Seidman, his communications with him were 

entitled to confidentiality according to the statute. 

The assertion of a right to disclose communications pursuant to a 

litigation privilege would add another exception to the statutory grant of 

confidentiality, which would be inconsistent with the plain meaning of the 

statute. Therefore, the common law privilege must give way. See § 2.01, 

Fla. Stat. We hold that absolute immunity for communications during 

judicial proceedings does not provide immunity to a psychotherapist for 

revealing communications regarding a patient contrary to section 

490.0147.

There remains the question of whether Estape was a patient of Dr. 

Seidman, so that psychotherapist-patient confidentiality applies. Estape

points to the document provided by Dr. Seidman and signed by Estape,

agreeing to treatment by Dr. Seidman and stating that his communications 

would be kept confidential. Dr. Seidman, on the other hand, contends 

that he was appointed by the court and did not have a psychotherapistpatient relationship. A very material question of fact remains. 

Provisions of both Chapter 61, Florida Statutes (2012), as well as 

administrative regulations regarding psychotherapists, show that the 

legislature did not intend that absolute immunity apply any time a court 

appoints a therapist in dissolution of marriage proceedings. For instance,

under section 61.122, Florida Statutes (2012), regarding the 

establishment of a parenting plan, a psychologist who is appointed to 

develop a plan, including a time-sharing arrangement, is presumed to be 

acting in good faith. The statute allows a parent, who desires to sue a 

psychologist over the parenting plan recommendations, to petition the 

court to replace the challenged psychologist, but it also provides for the 

award of attorney’s fees to either the psychologist or the parents, 

depending on which party prevails. A parent may have to overcome the 

presumption of good faith, but the statute clearly allows litigation and does 

not provide for absolute immunity for the psychologist. Furthermore, 

section 61.125, Florida Statutes (2012), authorizes the appointment of a 

parenting coordinator, whose purpose is to assist parents in dispute 

resolution over parenting plans. Section 61.125(7) contains an express 

confidentiality provision for communications between the parenting 

coordinator, who could be a licensed therapist, and the parties. However, 

section 61.125(9) provides for a limitation of liability for a coordinator,

unless the coordinator acts in bad faith or reckless disregard for the rights 

of the parties.
6

Further, even if the therapist is court-appointed, pursuant to Rule 

64B19-19.006 of the Florida Administrative Code, regarding 

confidentiality with respect to psychotherapists, the psychotherapist 

performing the evaluation is required to explain to the person being 

evaluated the limits of confidentiality:

(2) In cases where an evaluation is performed upon a person 

by a psychologist for use by a third party, the psychologist 

must explain to the person being evaluated the limits of 

confidentiality in that specific situation, document that such 

information was explained and understood by the person 

being evaluated, and obtain written informed consent to all 

aspects of the testing and evaluative procedures.

As to Dr. Seidman’s appointment, we have no explanation of what his

duties as a “reunification therapist” were to be. This term is not used in 

the statute. The mere designation of Seidman as a therapist by courtapproved agreement, provides little for us to evaluate in order to determine 

what type of relationship was intended. Unlike a court appointment of an 

expert to assist the court in evaluating custody or other matters in 

dissolution proceedings, it does not appear in this record that any reports 

were to be made to the court itself. Therefore, we cannot conclude as a 

matter of law that Dr. Seidman had absolute immunity under the 

circumstances of this case.

Dr. Seidman points to this court’s decision in Ross v. Blank, 958 So. 2d 

437 (Fla. 4th DCA 2007) as supporting his claim of absolute immunity. 

Ross, however, is distinguishable, as it did not involve a psychotherapistpatient relationship. There, in divorce proceedings, a wife and her 

daughters saw Blank, a psychologist. Id. at 439. During those sessions, 

Blank learned information regarding Ross, the father, which suggested to 

her the potential of child sexual abuse. Id. After consulting with others, 

she reported Ross to the Department of Children and Families. Id. Ross 

sued Blank for defamation, both with respect to the report to DCF and 

other communications made by Blank during the course of the divorce 

proceedings, as well as negligence. Id. Blank moved for summary 

judgment as to all claims asserted, and as to those allegedly defamatory 

statements made during the divorce proceedings, Blank claimed absolute 

immunity based upon the litigation privilege. Id. The trial court granted 

the motion, entering judgment against Ross. Id. at 439-40. On appeal, 

we agreed that the statements made by the psychologist to the courtappointed custody evaluator, and also to the guardian ad litem, were 

protected by the litigation privilege. Id. at 441. Blank, however, did not 
7

have a psychotherapist-patient relationship with Ross, the father. 

Therefore, it is inapplicable to the issue presented in this case. 

For the foregoing reasons, we reverse the final summary judgment 

entered by the trial court. There exist material issues of fact as to whether 

a psychotherapist-patient relationship existed between Estape and Dr. 

Seidman or whether other statutes applied which would preclude the 

assertion of absolute immunity. Because the trial court’s judgment 

exclusively involved the application of the litigation privilege, we do not 

determine whether the statements made constituted the communication 

of privileged information.

Reversed and remanded for further proceedings. 

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

* * *

Not final until disposition of timely filed motion for rehearing.