Borden v. Malone, [Ms. 1190327, Nov. 25, 2020], ___ So. 3d ___ (Ala. 2020). The Court (Mendheim, J.; 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) reverses in part and affirms in part the Calhoun Circuit Court’s dismissal based on litigation privilege of claims against Malone, a licensed professional counselor. The complaint filed by Borden individually and as father and next friend of his minor son, J.B., alleged that in a letter addressed to counsel for Borden’s former spouse and “filed in open court” in post-judgment proceeding concerning the custody of J.B., “Malone made numerous false, defamatory, dishonest, malicious, fraudulent, reckless, and unprofessional allegations and misrepresentations about and against Plaintiff Borden.” Ms. *4.
The Court first explains that
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 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.] ...”
Ms. **12-13, quoting July v. Terminix Int’l Co., Ltd. P’ship, 387 F. Supp. 3d 1306, 1315 (S.D. Ala. 2019). While the Court holds that “the trial court correctly applied the litigation privilege to Borden’s defamation claims in the context of the custody-modification proceeding,” Ms. **25-26, the Court explains “‘[s]uch 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 must not be published outside the circle of those who must have knowledge of them pursuant to the decision-making process.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.’” Ms. *26, quoting Webster v. Byrd, 494 So. 2d 31, 35 (Ala. 1986). Citing allegations in Borden’s complaint that Malone had published the letter to personnel at J.B.’s school and to other individuals not involved in the judicial proceeding, the Court holds “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.” Ms. *27.
The Court reverses the order dismissing the negligence and wantonness claims alleging that Malone breached the counselor-patient privilege enjoyed by the minor J.B. The Court explains that “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 based on an unauthorized disclosure of patient confidentiality.” Ms. **35-36.
The Court notes that “the complaint contains no specific allegation that Malone violated any confidentiality with respect to Borden [individually],” Ms. *36, and concludes that to the extent that Borden’s negligence/wantonness count seeks to state claims on behalf of Borden individually, the circuit court properly dismissed such claims. Ms. **36-37.