Evita Tolu v. James Reid, Ph.D., James Reid, Ph.D., LLC, Jennifer Webbe Van Luven, Fitzgibbons Psychological Associates, and Elaine Pudlowski ( 2021 )

In the
Flissourt Court of Appeals
Castern District
EVITA TOLU, )
)
Appellant, ) ED109721
)
V. ) OPINION FILED:
} December 28, 2021
JAMES REID, PH.D., JAMES REID, )
PH.D., LLC, JENNIFER WEBBE VAN |) Appeal from the Circuit Court
LUVEN, FITZGIBBONS ) of the City of St. Louis
PSYCHOLOGICAL ASSOCIATES, )
AND ELAINE PUDLOWSKI, ) Hon. Steven R. Ohmer
)
Respondents. )
Before Special Division: Cynthia L. Martin, Presiding Judge, Gary W. Lynch, Judge and
W. Douglas Thomson, Judge
Evita Tolu appeals the entry of a judgment granting motions to dismiss all claims
she asserted against defendants James Reid Ph.D., James Reid, Ph.D., LLC, Jennifer
Webbe Van Luven, Fitzgibbons Psychological Associates, Inc. d/b/a West County
Psychological Associates, and Elaine Pudlowski. Finding no error, we affirm.
Factual and Procedural Background!
Evita Tolu ("Tolu") and Robert Stientjes (“Stientjes") married on April 3, 2002.
Two children were born of the marriage. Child A was born in 2002 and Child T was born
in 2004 (periodically referred to as "Children"). Tolu filed for dissolution of the marriage
in July 2016 in the Circuit Court of St. Louis County, Case No. 16SL-DR04088. The
dissolution was granted on October 4, 2016, pursuant to an agreement between the parties.
The parties were awarded joint legal and physical custody of Child A and Child T, then
ages 14 and 13, respectively.
Tolu filed a child custody modification proceeding in August 2017 in the Circuit
Court of St. Louis County, Case No. 16SL-DR04088-01.2 On August 30, 2017, the court
in the child custody modification proceeding, (hereinafter referred to as the "family court"),
appointed Elaine Pudlowski ("Pudlowski") to serve as guardian ad litem for Child A and
Child T pursuant to a written order that described in express detail the guardian ad litem's
court ordered duties and functions.
Tolu alleges that on October 3, 2017, Stientjes filed a motion asking the family court
to require Tolu to submit to a psychological evaluation. Tolu alleges that she subsequently
asked the family court to require Stientjes, Child A, and Child T to submit to psychological
evaluations. Tolu alleges that on October 26, 2017, Pudlowski asked the family court to
‘Because this appeal is from the grant of a motion to dismiss, we draw the relevant factual and procedural
history from the factual assertions in the dismissed first amended petition and the exhibits attached thereto, as we are
required to assume all facts alleged in the petition are true. G.B. v. Crossroads Acad. -Cent, St, 618 8.W.3d 581,
588 (Mo. App. W.D. 2020) (holding that in reviewing the grant of a motion to dismiss we “accept all properly
pleaded facts as true, giving the pleadings their broadest intendment, and construe all allegations favorably to the
pleader" (quoting Bromweill v, Nixon, 361 $.W.3d 393, 398 (Mo. banc 2012))); Rule 55.12 (which provides that
"(ajn exhibit to a pleading is a part thereof for all purposes").
The child custody modification proceeding is not the case from which the instant appeal has been taken.
2
appoint James Reid Ph.D. ("Dr. Reid") as an independent psychological expert to evaluate
the mental health of all of the parties.
On October 26, 2017, the family court entered a Psychological Evaluation Order
appointing Dr. Reid, a Missouri licensed psychologist, to evaluate the psychological status
of Tolu, Stientjes, Child A, and Child T. The Psychological Evaluation Order stated that
it was entered "[pjursuant to Missouri Supreme Court Rule 60.01," but did not refer to, or
purport to grant, any parties' motion seeking to require another party to submit to a mental
examination. The Psychological Evaluation Order provided that the purpose of Dr. Reid's
evaluations was “to assess any allegations or issues regarding [the] current mental health
[of Tolu, Stientjes and the Children] and the parenting ability of each parent specific to this
case bearing on the best interests of the children." The Psychological Evaluation Order
provided that Dr. Reid was being appointed as “a forensic psychological expert, not a
mediator, [sic] parenting coordinator psychotherapist," and that "[n]o psychotherapist-
patient relationship is created by this appointment," as those ordered to be evaluated "are
not patients of [Dr. Reid] and do not acquire the rights of patients by their participation in
the evaluation.” The Psychological Evaluation Order directed that should Dr. Reid's report
“not address all relevant issues before the [family court]," then “this Court retains
jurisdiction to order further evaluation to provide such additional information as the [family
court] may deem appropriate." The Psychological Evaluation Order required Dr. Reid to
give Tolu and Stientjes "a written explanation of the evaluation process and . . . a written
explanation of [his] fee policies." The Psychological Evaluation Order was signed by Tolu,
Tolu's attorney, Stientjes, Stientjes's attorney, and Pudlowski.
3
Dr. Reid provided Tolu with a written Statement of Understanding ("SOU") dated
November 7, 2017, explaining the evaluation process and his fee policies. Tolu signed the
SOU on November 10, 2017. The SOU indicated that Dr. Reid's professional services were
being provided through a limited liability company known as James D. Reid Ph.D., LLC
("Reid LLC"), Among other things, the SOU acknowledged that Dr. Reid had been
appointed by the family court pursuant to the Psychological Evaluation Order, and
provided that "unless the order from the court explicitly states otherwise, the [family] court
is to be considered the client of Dr. Reid." Tolu also signed an Informed Assent on
November 10, 2017, at Dr. Reid's request. The Informed Assent provided that Dr. Reid's
role was that of a forensic psychologist; that Dr. Reid was not Tolu's therapist or counselor;
that Tolu was not Dr. Reid's patient; that there was no guarantee Dr. Reid's report would
support Tolu's legal position; and that there is no psychologist-patient privilege or
confidentiality in a forensic psychological evaluation.
Dr. Reid met with Tolu, Stientjes, Child A, and Child T on several occasions. He
conducted psychological testing and interviewed persons identified as witnesses by Tolu
and Stientjes before issuing his report. Pudlowski filed a motion to limit release of Dr.
Reid's report on March 28, 2018. Dr. Reid's report was released to Pudlowski on April 3,
2018 as permitted by the Psychological Evaluation Order. On April 5, 2018, the family
court entered an order limiting further release of Dr. Reid's report. The order provided that
Dr. Reid could release his report only to Pudlowski; that Pudlowski could release Dr. Reid's
report to the attorneys of record; that the attorneys of record could only share the report
with their staff and experts retained for the custody litigation but could not further release
4
the report; that Tolu and Stientjes could view the report at the office of their attorney of
record but were not allowed to receive a copy of the report; and that no one, including Tolu
and Stientjes, could discuss the report with, or provide a copy of all or any portion of the
report to, the Children.
Tolu objected to Dr. Reid's report in part because it included child custody
recommendations. Tolu's motion to strike child custody recommendations contained in
Dr. Reid's report was granted by the family court by order dated April 24, 2018.
In that same order, the family court granted Stientjes's motion for reunification
counseling for the Children, and ordered Pudlowski to choose a therapist for that purpose.
In a later order dated May 25, 2018, the family court directed Pudlowski to "determine
whether Family Forward or other counseling agency is available at less cost for the
reunification therapy previously ordered by the Court." The family court further ordered
that Tolu and Stientjes "shall each pay fifty percent (50%) of said therapy and the therapist
shall be given Dr. Reid's report."
Pudlowski chose Jennifer Webbe Van Luven ("Van Luven") to provide the court
ordered reunification therapy for the Children. Van Luven is a licensed clinical social
worker, and was an assistant director with Fitzgibbons Psychological Associates, Inc. d/b/a
West County Psychological Associates ("WCPA").
Van Luven began reunification therapy with Child A, with Stientjes's assistance.
On August 23, 2018, at Pudlowski's request, Tolu met with Van Luven and filled out intake
forms, signed releases and a fee agreement, and signed a notice of privacy rights, so Van
Luven could begin reunification therapy with Child T. Van Luven told Tolu during this
5
meeting that she had received, but not yet read, Dr. Reid's report. Tolu told Van Luven not
to read Dr. Reid's report. Tolu shared with Van Luven specifics about findings and
conclusions in Dr. Reid's report that she contested, and told Van Luven that she had filed
several motions to secure all of Dr. Reid's records. Tolu told Van Luven that she had
retained her own expert witness who had formed the opinion that Dr. Reid did not meet the
standard of care in conducting his evaluations and documenting his findings.
Pudlowski prepared a proposed order identifying Van Luven as the reunification
therapist she had selected for Child A and Child T, though that order was not signed by the
family court. However, the family court did enter an order addressing authorized therapy
on September 17, 2018. The September 17, 2018 order provided that "[Child T] and [Child
A] shall continue to work on reestablishing their relationship by continuing to meet with
[Van Luven] for joint therapy." (Emphasis added.) The September 17, 2018 order also
provided that "[Child A] and [Tolu] shall begin therapy with Andrew M. Churcharillo or
Erika Ottolini, to be determined by [Pudlowski]," and that "[Child T] and [Stientjes] shall
begin therapy with Andrew M. Churcharillo or Erika Ottolini, to be determined by
[Pudlowski]." The order provided that "[t]he goal of the above listed therapy is primarily
to focus on reestablishing the relationship between [Child T] and [Child A]; the secondary
goal is to reestablish the relationships between the children and the parents."> The order
provided that "[a]ll parties are to sign releases to allow [Pudlowski] to speak w/ all
3In addition to the court ordered reunification therapy for the Children with Van Luven, and for each parent
and a child with whom the relationship was strained with either Andrew M. Churcharillo or Erika Ottolini, the
September 17, 2018 order authorized the parents and Children to continue individual therapy with therapists they
had selected.
6
necessary therapists & therapists to speak w/ each other." The order directed Pudlowski to
confirm her choice of a family reunification therapist as between Andrew M. Churcharillo
(“Churcharillo") or Erika Ottolini ("Ottolini") by September 19, 2018 at 5:00 p.m. Finally,
the order provided that the ordered or authorized therapy therein addressed was for the
purpose of reunifying the family and improving relationships within the family, and that
"it is the intention of the Court to not allow the family therapist(s) to testify as to the
substance of the therapy provided and for them not to be called for litigation purposes."
Pursuant to the September 17, 2018 order, Pudlowski chose Ottolini to provide
family therapy for Tolu and Child A, and family therapy for Stientjes and Child T. Tolu
verbally consented to Pudlowski's release of Dr. Reid's report to Ottolini, though she claims
she did so under duress.
Tolu became dissatisfied with Van Luven. Tolu contacted Pudlowski about her
concerns with Van Luven, but contends the concerns were not addressed.
On September 10, 2020, Tolu filed the lawsuit giving rise to this appeal against Dr.
Reid, Reid LLC, Van Luven, WCPA, and Pudlowski in the Circuit Court of St. Louis
County. In a first amended petition filed on December 4, 2020, Tolu alleged claims for
breach of the standard of care against Dr. Reid and Reid LLC (Count D; for breach of
contract against Dr. Reid and Reid LLC (Count ID; for constructive fraud and/or breach of
fiduciary duty against Pudlowski (Count ITI); for breach of the standard of care against Van
Luven and WCPA (Count IV); for constructive fraud and/or breach of fiduciary duty
against Van Luven and WCPA (Count V); and for violation of the Missouri Merchandising
Practices Act ("MMPA")* against all of the defendants (Count VI). All of Tolu's claims
arise out of alleged acts or omissions of the defendants in the child custody modification
proceeding.°
The defendants each filed motions to dismiss the claims asserted against them.
After a hearing on the motions to dismiss, the trial court entered its order and judgment
dated June 4, 2021 ("Judgment") granting the defendants’ motions to dismiss the first
amended petition.
Tolu files this timely appeal.
I.
Finality of the Judgment for Purposes of Appeal
"This Court has an obligation, acting sua sponte if necessary, to determine its
authority to hear the appeals that come before it." First Nat'l Bank of Dieterich v. Pointe
Royale Prop. Owners’ Ass'n Inc., 515 S.W.3d 219, 221 (Mo. banc 2017) (citation omitted).
"A final judgment is a prerequisite to appellate review." Ndegwa v. KSSO, LLC, 371
S.W.3d 798, 801 (Mo. banc 2012).
"The general rule is that '[a] dismissal failing to indicate that it is with prejudice is
deemed to be without prejudice.” Jennings v. SSM Health Care St. Louis, 355 S.W.3d |
526, 530 (Mo. App. E.D. 2011) (quoting Atkins v. Jester, 309 S.W.3d 418, 422-23 (Mo.
App. 8.D. 2010)). The Judgment failed to indicate whether dismissal of Tolu's first
‘Chapter 407. For reasons explained in this Opinion, all references to the MMPA are to the version in
effect after amendments in 2020.
‘Although the disposition of Tolu's child custody modification proceeding is not addressed in Tolu's
amended petition, Tolu's counsel advised at oral argument that the case was resolved by consent, resulting in the
entry of an agreed upon judgment.
8
amended petition was with or without prejudice. Thus, the dismissal is deemed to be
without prejudice.
"The general rule is that a dismissal without prejudice is not a final judgment and,
therefore, not appealable." Siebert v. Peoples Bank, 632 S.W.3d 461, 465 (Mo. App. 8.D.
2021) (quoting Doe v. Visionaire Corp., 13 S.W.3d 674, 676 (Mo. App. E.D. 2000)). A
recognized exception to this general rule exists, however, "[w]hen the effect of the trial
court's ruling is to dismiss a plaintiffs action and not merely the pleading." Jd. (citing
Mahoney v. Doerhoff Surgical Servs., Inc., 807 $.W.2d 503, 506 (Mo. banc 1991)). In
other words, "if the dismissal was such that refiling of the petition at that time would have
been a futile act, then the order of dismissal is appealable." Jd. (citing Nicholson v.
Nicholson, 685 8.W.2d 588, 589 (Mo. App. E.D, 1985)).
As we explain in this Opinion, the Judgment dismissed the amended petition on
grounds that cannot be addressed by refiling and repleading Tolu's claims. Therefore, the
Judgment is final and appealable. Jd. at 465-66. "Accordingly, we address the merits of
[Tolu's] appeal." Jd, at 466.
Il.
Standard of Review
"The standard of review for a trial court's grant of a motion to dismiss is de novo.
Lang v. Goldsworthy, 470 8.W.3d 748, 750 (Mo. banc 2015) (citing Lynch v. Lynch, 260
S.W.3d 834, 836 (Mo. banc 2008)). "In determining the appropriateness of the trial court's
dismissal of a petition, an appellate court reviews the grounds raised in the defendant's
motion to dismiss." Jd. (citation omitted). "If the motion to dismiss cannot be sustained
9
on any ground alleged in the motion, the trial court's ruling will be reversed." /d. (citation
omitted),
We "“review[] the petition to determine whether the facts alleged by the plaintiff
meet the elements of a recognized cause of action or of a cause of action that might be
adopted in that case." In re Estate of Austin, 389 S.W.3d 168, 171 (Mo. banc 2013)
uM
(citation omitted). We "review[] the petition 'in an almost academic manner." Foster v.
State, 352 8.W.3d 357, 359 (Mo. banc 2011) (quoting City of Lake Saint Louis v. City of
O'Fallon, 324 8.W.3d 756, 759 (Mo. banc 2010)). We “accept all properly pleaded facts
as true, giving the pleadings their broadest intendment, and construe ail allegations
favorable to the pleader." G.B. v. Crossroads Acad.-Cent. St., 618 S.W.3d 581, 588 (Mo,
App. W.D. 2020) (quoting Bromwell v. Nixon, 361 S.W.3d 393, 398 (Mo. bane 2012)).
We "disregard conclusory allegations of fact and legal conclusions, neither of which can
be considered by an appellate court in determining whether" a motion to dismiss was
properly sustained. Siebert, 632 S.W.3d at 466. That is because "Missouri rules of civil
procedure demand more than mere conclusions that the pleader alleges without supporting
facts." Hall v. Podleski, 355 S.W.3d 570, 578 (Mo. App. 8.D. 2011) (quotation omitted).
An appellate court will "consider exhibits attached to the petition as a part of the
allegations" when it reviews a trial court’s grant of a motion to dismiss. Siebert, 632
S.W.3d at 466 (citation omitted). See Rule 55.12 ("[aln exhibit to a pleading is a part
thereof for all purposes"). However, an appellate court "will not consider matters outside
the pleadings." City of Lake Saint Louis, 324 8.W.3d at 759 (citation omitted).
10
NII.
Summary of the Grounds Relied on by the Trial Court to Grant the Motions to
Dismiss
The Judgment dismissed Count I against Dr. Reid and Reid LLC (breach of the
standard of care) on the basis of quasi-judicial immunity.® The Judgment dismissed Count
II against Dr. Reid and Reid LLC (breach of contract) because “it is clear from the face of
the petition that [Tolu] did not bargain for any services with Dr. Reid and Dr. Reid did not
obligate himself to provide any services to [Tolu]," in part because the SOU plainly stated
that "the court is to be considered the client of Dr. Reid in this contract for his independent
professional judgments." Alternatively, the Judgment dismissed Count II (breach of
contract) because the amended petition alleged that Dr. Reid had an obligation "to act
within the standard of care of a forensic psychologist," a claim that sounds in malpractice
and is duplicative of Count I, which was dismissed on the basis of quasi-judicial immunity.
The Judgment dismissed Count III against Pudlowski (constructive fraud/breach of
fiduciary duty) on the basis of quasi-judicial immunity, and because Pudlowski owed no
fiduciary duty to Tolu.
SQuasi-judicial immunity has its origin, as we explain, infra, in the doctrine of judicial immunity. Judicial
immunity is an affirmative defense, Stalnacker v. Dolan, 631 S.W.3d 658, 660 (Mo. App. 8.D. 2021). Ordinarily,
an “affirmative defense is a defendant's assertion raising new facts and arguments that, if true, will defeat the
plaintiff's .. . claim, even if all the allegations in the complaint are true." Gredlner vy. Foremost Signature Ins. Co.,
291 S.W.3d 351, 353 (Mo. App. E.D. 2009) (citation and internal quotation marks omitted). Notwithstanding, "a
defendant may properly file a motion to dismiss ... when it appears from the face of the petition that an affirmative
defense is applicable." Evans v. Empire Dist, Elec. Co., 346 8.W.3d 313,317 (Mo. App. W.D, 2011) (citation
omitted), Common examples of affirmative defenses raised and properly considered in a motion to dismiss because
the defense is irrefutably established by the face of the petition include the statute of limitations and statutory or
other immunities. See, e.g., City of Lake Saint Louts, 324 S.W 3d at 764 (statute of limitations); Allen v. Titan
Propane, LLC, 484 $.W.3d 902, 905 (Mo. App. 8.D. 2016) (immunity).
1]
The Judgment dismissed Count IV against Van Luven (breach of the standard of
care) on the basis of quasi-judicial immunity. The Judgment dismissed Count V against
Van Luven (constructive fraud/breach of fiduciary duty) because Tolu was not Van Luven's
client or patient, and because Tolu alleged no facts supporting the finding of a fiduciary
relationship. In addition, the Judgment found that Count V was merely a recharacterization
of Count IV, which was dismissed on the basis of quasi-judicial immunity, because "a party
may not clothe a medical malpractice claim as a claim of breach of fiduciary duty." The
Judgment dismissed Counts [V and V against WCPA for the same reasons it dismissed
said claims against Van Luven.
The Judgment dismissed Count VI (MMPA) against Dr. Reid, Reid LLC, Van
Luven and WCPA because "[t]he 2020 amendments to the MMPA, which were in affect
[sic] when [Tolu] filed her initial Petition in this matter, specifically prohibit plaintiffs from
using the MMPA as a vehicle to bring claims that should be filed under Missouri's
malpractice statute." The Judgment also dismissed Count VI against all of the defendants -
because the trial court found that Tolu did "not allege that the Defendants' unlawful
practices caused her to enter into the transactions at issue. In fact, she alleges she was
ordered by the Court to use the Defendants' services. ‘The Court finds that the MMPA does
not apply to [Tolu's] transactions with Defendants."
IV.
Summary of Tolu's Points on Appeal
12
Tolu raises six points on appeal alleging error in the dismissal of her amended
petition.” Point One addresses the dismissal of claims against Pudlowski. Points Two and
Three address the dismissal of claims against Dr. Reid. Points Four and Five address the
dismissal of claims against Van Luven. Point Six addresses the dismissal of the MMPA
claim against Pudlowski, Dr. Reid, and Van Luven.®
The trial court's dismissal of Count III against Pudlowski, Counts I and II against
Dr. Reid, and Counts IV and V against Van Luvern, relied in part on the doctrine of quasi-
judicial immunity. We therefore collectively address Points One through Five by first
determining whether dismissal of Counts I, II, IH, [V and V of the amended petition was
supported by the doctrine of quasi-judicial immunity, and if not, by an alternative basis
? Tolu's points relied on fail "to comply with Rule 84.04(d), which requires a point relied on to: (1) identify
the ruling or action being challenged; (2) concisely state the legal reasons for the claim of reversible error; and (3)
explain why, in the context of the case, those legal reasons support the claim of reversible error." Estate of Allen,
615 S.W.3d 851, 854 (Mo. App. E.D. 2020). Tolu's points relied on "fail to explain why the legal reasons for her
claims of reversible error support her claims." Jd. In addition, Tolu's points are multifarious. "Multifarious points
relied on violate Rule 84.04(d) and preserve nothing for review." Id. (citation omitted).
The purpose of compliant points relied on is to "give notice to the opposing party of the precise matters
which must be contended with and to inform the court of the issues presented for review." Hiner y, Hiner, 573
5.W.3d 732, 735-36 (Mo. App. W.D. 2019) (citation and internal quotation marks omitted), Despite Tolu's
noncompliant points relied on, we have elected, ex gratia, to review plainly discernible legal arguments raised in the
points, See Burgan v. Newman, 618 S.W.3d 712, 714 (Mo. App. E.D. 2021) (holding that points on appeal that are
not compliant with mandatory rules can be reviewed ex gratia when the "gist of an appellant's arguments” can be
ascertained (citation and internal quotation marks omitted)).
However, we will not afford ex gratia review for arguments raised in the argument portion of Tolu's Brief
that are not captured in the points relied on. See Rule 84.04(e} (requiring that the argument be limited to the errors
included in the points relied on); Campbell v. Union Pac. R.R. Co., 616 S.W.3d 451, 461 (Mo. App. W.D. 2020)
(holding that claims of error raised in the argument portion of a brief but not encompassed in the associated point
relied on will not be reviewed).
’None of Tolu's points on appeal claim error in the Judgment's dismissal of claims against Reid LLC or
WCPA. Tolu has therefore failed to preserve any claim of error associated with dismissal of these corporate
defendants. We recognize that Tolu’s Statement of Jurisdiction in her Brief suggests that references to "Van Luven"
refer to both Van Luven and WCPA, and that references to "Reid" refer to both Dr. Reid and Reid LLC. That is not
sufficient to comply with Rule 84.04(d). The Judgment is therefore affirmed with respect to dismissal of all claims
asserted in the first amended petition against Reid LLC and WCPA. We would reach the same conclusion even if
Tolu's points on appeal were generously construed to include reference to Reid LLC and WCPA. Because Dr. Reid
and Van Luven were properly dismissed, claims against their purported corporate employers were also properly
dismissed,
13
relied on in the Judgment or raised in the motions to dismiss. We then address Point Six
challenging dismissal of the MMPA claim.
V.
The Doctrine of Quasi-Judicial Immunity
tt
"Missouri has long recognized the doctrine of judicial immunity." Stalnacker v.
Dolan, 631 S.W.3d 658, 661 (Mo. App. 8.D. 2021) (citing Howe v. Brouse, 427 8.W.2d
467, 468 (Mo. 1968)). "The doctrine of judicial immunity was 'solidly established at
common law," [and] adopted by the Supreme Court of the United States in Bradley v.
Fisher," 80 U.S. 335 (1871). Howe, 427 S.W.2d at 468.
[I]t is a general principle of the highest importance to the proper
administration of justice that a judicial officer, in exercising the authority
vested in him, shall be free to act upon his own convictions, without
apprehension of personal consequences to himself. Liability to answer to
every one [sic] who might feel himself aggrieved by the action of the judge,
would be inconsistent with the possession of this freedom, and would destroy
that independence without which no judiciary can be either respectable or
useful... .
The principle ... which exempts judges of courts . . . from liability in a civil
action for acts done by them in the exercise of their judicial functions, obtains
in all countries where there is any wellordered [sic] system of jurisprudence.
Nor can this exemption of the judges from civil liability be affected by the
motives with which their judicial acts are performed. The purity of their
motives cannot in this way be the subject of judicial inquiry. ...
Bradley, 80 U.S. at 347.
In its effect, judicial immunity operates to protect the exercise of judicial functions,
and not the office. Westfall v. Erwin, 484 U.S. 292, 296 n.3 (1988) ("[T]his Court[] has
long favored a ‘functional’ inquiry-—immunity attaches to particular official functions, not
14
to particular offices."). The Missouri Supreme Court reinforced this point in State ex rel.
Raack vy. Kohn, 720 8.W.2d 941, 944 (Mo. banc 1986) by observing that "[j]udicial
immunity exists ‘not for the protection or benefit of a malicious or corrupt judge, but for
the benefit of the public, [in] whose interest it is that the judges should be at liberty to
exercise their functions with independence and without fear of consequences." (quoting
Pierson v. Ray, 386 U.S. 547, 554 (1967)). Thus, the parameters of judicial immunity do
not encompass every act by a judge, and extend only to the exercise of judicial functions.
See, e.g., Stalnacker, 631 $.W.3d at 661-62 (observing a distinction between a judge's act
in excess of authority but within the court's subject matter jurisdiction, and a judge's act
wholly without subject matter jurisdiction, with only the former category being subject to
judicial immunity) (citing Howe, 427 S.W.2d at 467); Nelson v. McDaniel, 865 5.W.2d
747, 748 (Mo. App. W.D. 1993) (holding that "a judge with subject matter jurisdiction has
judicial immunity from all actions taken, even when acting in excess of his [authority]");
Forrester v. White, 484 U.S. 219, 232 (1988) (holding that a judge's termination of a
probation officer pursuant to state statute was an administrative act and not a judicial
function, and was outside the scope of judicial immunity); Allsberry v. Flynn, 628 8.W.3d
392, 398 (Mo. banc 2021) (holding that judicial immunity attaches to a judge's acts that
constitute judicial or adjudicative functions but not to acts undertaken in a judge's
administrative capacity).
Because judicial immunity attaches to the function, and not to the office, the United
States Supreme Court has "extend[ed| absolute [judicial] immunity to various individuals
whose adjudicatory functions or other involvement with the judicial process have been
15
deemed to warrant protection from harassment, intimidation or other interference with
impartial decision making." State ex rel. Bird v. Weinstock, 864 S.W.2d 376, 382 (Mo.
App. E.D. 1993) (citing Briscoe v. LaHue, 460 U.S. 325 (1983); Butz v. Economou, 438
U.S. 478, 512-14 (1978); Imbler v. Pachtman, 424 U.S. 409 (1976)). As such,
"[e|mploying [a] functional analysis, a number of federal and state courts have held various
participants in judicial proceedings . . . absolutely immune from liability for the actions
undertaken in performance of their roles as integral parts of the judicial process." Jd.
(citations omitted). When applied to individuals who are not judges, but who are providing
a service that is tantamount to a judicial function, the common law doctrine of judicial
immunity is referred to as quasi-judicial immunity.°
Extension of the common law doctrine of judicial immunity doctrine to non-judges
is thus necessarily gauged against promotion of the policy rationale underlying the
immunity. As such, common law quasi-judicial immunity should only be extended to those
who are performing a judicial function, and whose "conduct of their official duties may
adversely affect a wide variety of individuals, each of whom may be a potential source of
future controversy," in order "to forestall an atmosphere of intimidation that would conflict
with their resolve to perform their functions in a principled fashion.” /d. at 383 (citations
°The Missouri Supreme Court tacitly recognized the common law doctrine of quasi-judicial immunity,
albeit in a case noting that the absolute common law immunity is “subject to legislative modification." Edwards v,
Gerstein, 237 8.W.3d 580, 381-82 (Mo, bane 2007) (holding that absolute quasi-judicial immunity was superseded
by section 331,100.5, which extends qualified immunity to members of the Missouri Board of Chiropractic
Examiners); see also Avidan vy. Transit Cas. Co., 20 S.W.3d 521, 524-25 (Mo, banc 2000) (addressing statutory
judicial iramunity for court appointed receivers).
16
omitted). Even then, quasi-judicial immunity only protects conduct within the scope of the
judicial functions assigned. Id. at 386.
With this framework in mind, we turn to whether the doctrine of quasi-judicial
immunity supports dismissal of the claims asserted against Pudlowski, Dr. Reid, and Van
Luven, which is a question of law. 48A C.J.S. section 215 ("A determination of whether
judicial immunity exists is a question of law.").
A.
The claims asserted against Pudiowski were appropriately dismissed based on the
doctrine of quasi-judicial immunity
In Bird, the Eastern District addressed as a matter of first impression "whether the
common law doctrine of judicial immunity may be invoked by individuais who are not
judges." 864 S8.W.2d at 382. After considering the important policies served by the
doctrine of judicial immunity, and after engaging in the functional analysis endorsed by
the United States Supreme Court, the Eastern District concluded "that the same policies
that led the Missouri Supreme Court to recognize judicial immunity in State ex rel. Raack
v. Kohn compel the extension of quasi-judicial immunity to statutorily mandated guardians
ad litem in child custody proceedings." Jd. at 385-86 (emphasis added). The court's
rationale, which was borrowed from federal precedent, was as follows:
Indeed, the need for an independent guardian ad litem is particularly
compelling in custody disputes. Often, parents are pitted against one another
in an intensely personal and militant clash. Innocent children may be pawns
in the conflict. To safeguard the best interests of the children, however, the
guardian's judgment must remain impartial, unaltered by the intimidating
wrath and litigious penchant of disgruntied parents. Fear of liability to one
of the parents can warp judgment that is crucial to vigilant loyalty for what
17
is best for the child; the guardian's focus must not be diverted to appeasement
of antagonistic parents.
Id. at 386 (quoting Short by Oosterhous v. Short, 730 F. Supp. 1037, 1039 (D. Colo. 1990)).
Thus, although guardians ad litem in custody matters are technically appointed to
serve as legal representatives to a child (see section 452.423,3), in fact "Missouri courts
have consistently adhered to the traditional view that the guardian's principal allegiance is
to the court. Although the best interests of the child are always paramount, the guardian's
relationship to the child is not strictly that of attorney and client." /d. at 385. As such, "the
guardian ad litem has traditionally been viewed as functioning as an agent or arm of the
court, to which it owes its principal duty of allegiance." Jd. at 384.
In essence, the guardian ad litem role fills a void inherent in the procedures
required for the adjudication of custody disputes. Absent the assistance of a
guardian ad litem, the trial court, charged with rendering a decision in the
"best interests of the child," has no practical or effective means to assure itself
that all of the requisite information bearing on the question will be brought
before it untainted by the parochial interests of the parents. Unhampered by
the ex parte and other restrictions that prevent the court from conducting its
own investigation of the facts, the guardian ad litem essentially functions as
the court's investigative agent, charged with the same ultimate standard that
must ultimately govern the court's decision—.e., the "best interests of the
child."
Id.Tolu's first point on appeal alleges that it was error to dismiss claims against
Pudlowski based on quasi-judicial immunity. Tolu does not challenge that Pudlowski is
protected by quasi-judicial immunity as a court appointed guardian ad litem. Instead, Tolu
argues that quasi-judicial immunity only attaches to conduct within the scope of a guardian
ad litem's duties, and that a breach of fiduciary duty resulting from the release of protected
18
healthcare information ("PHI") is not within that scope.'? Specifically, Tolu complains in
the argument portion of her Brief that Pudlowski was not authorized to release Dr. Reid's
report to Van Luven,'! and that by releasing the report to Van Luven without authorization
from Tolu or the trial court, Pudlowski breached a fiduciary duty, resulting in damages.
Tolu's amended petition identifies several family court orders addressing the release
of Dr. Reid's report. Though Tolu contends that Pudiowski violated one or more of these
family court orders, that allegation does not alter the fact that distribution of Dr. Reid's
report was within the scope of Pudlowski's court ordered judicial functions, all of which
were subject to the family court's "exclusive responsibility and authority to supervise and
remove guardians ad litem [as] contemplated by sections 452.423.3 and 210.160.3." /d. at
386. Pudlowski's alleged failure to protect Dr. Reid's report from disclosure is not beyond
the scope of her official duties. To the contrary:
{Ijin Missouri, permitting suits against guardians ad litem would be
incompatible with the court's exclusive power of removal. The filing of the
suit, irrespective of the merits of the contentions advanced, would instantly
create a conflict of interest between the guardian and the child, thus
necessitating withdrawal.... Thus, assuming standing exists, either parent
or the child could accomplish indirectly what we have previously held they
cannot accomplish directly—i.e., removal of a guardian whose views of the
child's best interests do not coincide with their own.
id. (citation omitted).
“Though Tolu’s first point on appeal speaks broadly to the dismissal of all claims asserted against
Pudiowski, the argument portion of Tolu's Brief only addresses dismissal of Count III of the amended petition, the
claim asserted for constructive fraud/breach of fiduciary duty,
1 Although Tolu's first amended petition complains that Dr. Reid's report was also improperly released by
Pudiowski to Ottolini, that contention is not addressed in Tolu's first point on appeal, and is therefore abandoned.
Even if not abandoned, the contention is subject to quasi-judicial immunity for the same reasons applicable to
Pudiowski's release of Dr. Reid's report to Van Luven.
19
Tolu spends considerable time addressing whether Pudiowski violated the Missouri
Rules of Professional Conduct applicable to licensed attorneys, the Health Insurance
Portability and Accountability Act ("HIPPA"),' and Guardian ad Litem Standards
identified in the order appointing Pudiowski. Tolu's arguments miss the mark. The Rules
of Professional Conduct, and other statutory or regulatory provisions applicable to
Pudlowski's performance of her duties as a court appointed guardian ad litem, serve as
“mechanisms in place to prevent abuse and misconduct," diffusing the concern that quasi-
judicial immunity leaves non-judicial officers unaccountable for purported misconduct.
Bird, 864 S.W.2d at 386. However, violations of rules, statutes or regulations applicable
to conduct within the scope of duties subject to the immunity does not negate the
immunity. See, e.g., Christofferson v. State, Court Custody Investigator's Office, 242
P.3d 1032, 1035-36 (Alaska 2010) (holding that common law judicial immunity shields
court ordered custody investigator from civil liability based on claims that she violated
mandatory reporting duties imposed by statute); Moses v. Parwatikar, 813 F.2d 891, 892
(8th Cir. 1987) (holding that absolute immunity attendant to quasi-judicial immunity is not
affected by allegations of conspiracy). "An immunity is a freedom from suit or liability.
The underlying premise of all immunities is that 'though the defendant might be a
wrongdoer, social values of great importance require[d] that the defendant escape
?Pub, L. No, 104-191, 110 Stat. 1936 (1996) (codified primarily in Titles 18, 26, 29 and 42 of the United
States Code).
®BMoreover, we question whether an alleged violation of the Missouri Rules of Professional Conduct,
HIPPA, or Guardian ad Litem Regulations would support a private right of action for damages against a guardian ad
litem, even in the absence of quasi-judicial immunity. We need not resolve that issue, however.
20
liability." Murphy v. A.A. Mathews, a Div. of CRS Group Eng'rs, Inc., 841 8.W.2d 671,
674 (Mo. bane 1992) (quoting Prosser and Keeton on Torts 1032 (5th ed. 1984)).
Tolu's allegation that Pudlowski committed constructive fraud and/or breached a
fiduciary duty by releasing Dr. Reid's report to Van Luven "fall[s] squarely within the
scope of [Pudlowski's] duties as court appointed guardian ad litem."4 Bird, 864 S.W.2d
at 386. Pudlowski, as guardian ad litem, is absolutely immune from civil liability for the
conduct alleged in Tolu's amended petition based on the common law doctrine of quasi-
judicial immunity.
The trial court's dismissal of Count II of the amended petition on the basis of quasi-
judicial immunity is affirmed. Tolu's Point One is denied.
B.
The claims asserted against Dr. Reid were appropriately dismissed based on the
doctrine of quasi-judicial immunity even though the family court did not have the
authority to designate Dr. Reid as its independent mental health expert in a child
custody proceeding
In Tolu's second point on appeal, Tolu argues that it was error to dismiss claims
against Dr. Reid because a court-appointed forensic psychologist is not entitled to quasi-
“Though Tolu's claim that Pudlowski released Dr. Reid's report to Van Luven without authority was properly
dismissed based on quasi-judicial immunity, it is important to point out that Tolu's contention is negated by an exhibit
attached to her amended petition. The family court's May 25, 2018 order, directed Pudiowski to “determine whether
Family Forward or other counseling agency is available at less cost for the reunification therapy previously ordered
by the Court." (Emphasis added.) In the same order, the family court directed that Tolu and Stientjes “shall each pay
fifty percent (50%) of said therapy and the therapist shall be given Dr. Reid's report." (Emphasis added.) The
therapist selected by Pudlowski was Van Luven. Tolu's Brief acknowledges the family court's May 25, 2018 order,
but misrepresents that the order “allowed Pudiowski to release the [Dr.] Reid report only to Family Forward." During
oral argument, Tolu relied on State ex rel. Fennewald v. Joyce, 533 S.W.3d 220 (Mo. banc 2017), to argue that the
family court's May 25, 2018 order was not sufficiently specific to authorize the release of Dr. Reid's report to Van
Luven. But Fennewald is not relevant as it addressed whether a medical authorization signed by a party was
sufficiently specific to authorize the release of medical records. Jd. Fennewald did not impose specificity
requirements on court orders directing the release of medical reports prepared by a court-appointed independent
expert. Id.21
judicial immunity, and in any event, Dr. Reid acted outside the scope of quasi-judicial
immunity by violating court orders.»
Resolution of this point requires us to address
whether the functional analysis employed in Bird, 864 S.W.2d at 385-86 supports extension
of quasi-judicial immunity to court-appointed psychological evaluators, and whether the
family court was authorized to delegate judicial functions to Dr. Reid as the court's
independent expert.
In Tolu's third point on appeal, Tolu argues that it was error to dismiss claims against
Dr. Reid because Dr. Reid's breach of the SOU and Informed Assent provide a separate
basis for Tolu's claims. If we affirm the trial court's finding that Tolu's breach of contract
claim against Dr. Reid was essentially duplicative of the breach of the standard of care
claim, then our conclusion about the application of quasi-judicial immunity to Dr. Reid
will control the resolution of Tolu's third point on appeal.
Functional analysis supports extension of quasi-judicial immunity to court-appointed
psychological evaluators
The family court appointed Dr. Reid to serve as the court's independent forensic
evaluator, and directed Dr. Reid to "evaluate the psychological status of [Tolu] and
{Stientjes], and their minor children" for the purpose of preparing a report that would offer
opinions and recommendations intended to assist the family court in making its best interest
determinations in the child custody modification proceeding. The family court's
'SThough Tolu's second point on appeal speaks broadly to the dismissal of all claims asserted against Dr.
Reid, the argument portion of Tolu's Brief only addresses dismissal of Count I of the amended petition, the claim
asserted against Dr. Reid for breach of the standard of care.
22
Psychological Evaluation Order was purportedly entered "[p]ursuant to Missouri Supreme
Court Rule 60.01,"° The Psychological Evaluation Order expressly provided that "[t}he
Evaluator is appointed as a forensic psychological expert . . . [and] [n]o psychotherapist-
patient relationship is created by this appointment. The parties, children, household
members and witnesses who participate in this evaluation are not patients of the Evaluator
and do not acquire the rights of patients by their participation in the evaluation." The
Psychological Evaluation Order provided that "[t]he Evaluator shall exercise his/her
independent objective judgment in conducting the evaluation. The written report of the
Evaluator may be received into evidence subject to the rights of cross-examination or
motions to strike portions of the report for good cause. ... Each party ... retains the right
to argue the issue of weight, sufficiency and reliability of [hearsay statements contained in
the report]." The Psychological Evaluation Order also provided that should the Evaluator's
report "not address all relevant issues before the Court," then the "Court retains jurisdiction
to order further evaluation to provide such additional information as the Court may deem
appropriate."
The extension of quasi-judicial immunity to a court-appointed forensic psychologist
is an issue of first impression in the State of Missouri, though we are guided in our
consideration of this issue by Bird, 864 S.W.2d 376. "With virtual uniformity, courts in
other jurisdictions have granted quasi-judicial immunity to individuals who perform
6 All Rule references are to Missouri Court Rules, Vol. 1 —State, 2021 unless otherwise noted. We
address, infra, whether the family court was authorized to appoint Dr. Reid as the court's independent expert
pursuant to Rule 60.01.
23
functions analogous to those performed by [Dr. Reid] in the present case."!? Diehl v.
Danuloff, 618 N.W.2d 83, 88 (Mich. Ct. App. 2000). The rationale for extending quasi-
judicial immunity to court-appointed psychological evaluators directed to serve as neutrals
and to report their findings or recommendations to the court is essentially the same in each
of these cases, but is particularly well-captured in Parker v. Dodgion, 971 P.2d 496 (Utah
1998), where the Utah Supreme Court applied a functional analysis to conclude:
“Nave v. Feinberg, 539 S.W.3d 685, 690-91 (Ky. Ct. App. 2017) (holding that court-appointed
psychologist directed to conduct custodial evaluations in a dissolution proceeding was entitled to quasi-judicial
immunity); Christofferson v. State, Court Custody Investigator's Office, 242 P.3d 1032, 1035-36 (Alaska 2010)
(holding that a court-appointed custedy investigator charged by court with investigating and preparing a custody
report was entitled to quasi-judicial immunity); Hathcock v. Barnes, 25 P.3d 295, 297 (Okla. Civ. App, 2001)
(holding that court-appointed psychologist directed to render an evaluation and make a custodial recommendation is
performing a function integral to the judicial process and is entitled to quasi-judicial immunity); Diehl v. Danuloff,
618 N.W.2d 83, 90 (Mich. Ct. App. 2000) (holding that a "court appointed psychologist... ordered to conduct a
psychological evaluation and submit a recommendation to the trial court in a custody proceeding is entitled to
absolute quasi-judicial immunity"); Duffy, Lewis, 958 P.2d 82, 85-87 (Nev. 1998) (holding that a court-appointed
psychologist who issued a report to the trial court in a child custody proceeding enjoyed quasi-judicial immunity);
Parker v. Dodgion, 971 P.2d 496, 498-99 (Utah 1998) (holding that a psychologist appointed by the court to assist
with custodial determination essentially acts as a neutral factfinder for the court, a judicial function that warrants
extension of the doctrine of quasi-judicial immunity); Delcourt v. Silverman, 919 §.W.2d 777, 782-83 (Tex. App.
1996) (holding that court-appointed psychiatrist in child custody proceeding who was serving as officer of the court
to assist judge in protecting interests of the children and who conducted interviews and evaluations as agent of the
court was entitled to quasi-judicial immunity); Lythgoe v. Guinn, 884 P.2d 1085, 1088-89 (Alaska 1994) (holding
that psychologists appointed by a trial court to perform custody evaluations for the court are an "arm of the court"
serving an integral part of the judicial process, and are thus entitled to quasi-judicial immunity); Muzingo v. St.
Luke's Hosp., 518 N.W.2d 776, 777-78 (lowa 1994) (holding that court-appointed psychiatrist directed to evaluate
and render advisory opinion regarding a person's mental condition is acting as arm of the court and is entitled to
quasi-judicial immunity); Lavit v. Superior Court, 839 P.2d 1141, 1145-46 (Ariz, Ct. App. 1992) (psychologist
stipulated to by the parties, but appointed by the court to conduct independent evaluations and thus to serve as an
expert for the court and not for either party in a child custody proceeding was entitled to quasi-judicial immunity);
STS v. PM, 556 So. 2d 244, 247-48 (La. Ct. App. 1990) (holding that court-appointed psychologist in child
custody proceeding was entitled to quasi-judicial immunity); Myers Through Myers v. Price, 463 N.W.2d 773, 776
(Minn. Ct. App, 1990) (noting that quasi-judicial immunity protection had been extended to court-appointed
therapists for evaluations conducted of children suspected of having been abused); Howard vy, Drapkin, 222 Cal.
App. 3d 843, 903 (Cal. Ct. App. 1990) (holding that a psychologist engaged by the court to evaluate the parties in a
child custody dispute is entitled to quasi-judicial immunity); LaLonde v. Eissner, 539 N.E.2d 538, 541 (Mass. 1989)
(holding that "common law immunity protects persons appointed by a court to conduct a medical or psychiatric
evaluation and render an opinion or to provide other expert assistance" to the court); Moses v. Parwatikar, $13 F.2d
891, 892-93 (8th Cir, 1987) (holding psychiatrist appointed to conduct competency examination in a criminal case
was performing essential judicial functions and was entitled to quasi-judicial immunity despite defendant's claims of
a conspiracy); Miner v. Baker, 638 F,. Supp. 239, 240-41(E.D. Mo. 1986) (psychiatrist appointed by court pursuant
to sections 552.020 and 552.030 to conduct pretrial evaluation and examination of criminal defendant "enjoys
absolute immunity in his performance of the quasi-judicial function of court-appointed psychiatrist").
24
When a court appoints a psychologist to assist it in making a custody
determination, the court is depending upon that individual to exercise
discretionary judgment to render an evaluation and make a recommendation.
The exercise of discretionary judgment is a hallmark of a position
functionally comparable to that of a judge. ... Furthermore, in conducting
such evaluations, the psychologist is essentially acting as a neutral fact-finder
for the court. Fact-finding is an integral part of the judicial process and a
function naturally associated with judges and juries, both of whom are
granted immunity from suit.
In addition, courts that have addressed this issue have uniformly held that
psychologists appointed by the court to conduct psychological evaluations of
parties involved in custody disputes perform a function integral to the judicial
process and are therefore immune from suit.
Id. at 498 (citations omitted). This rationale aligns with the functional analysis employed
in Bird to extend quasi-judicial immunity to guardians ad litem. 864 S.W.2d at 385-86. In
addition, the policies recognized in Bird, 864 S.W.2d at 385-86, that are served by
extension of the common law doctrine of quasi-judicial immunity to guardians ad litem
align with those served by extending the doctrine to court-appointed psychological
evaluators, as noted in Diehl, 618 N.W.2d at 89:
The common law doctrine of absolute immunity extends to all persons who
are an integral part of the judicial process. The purpose behind a grant of
absolute immunity is to preserve the independent decision-making and
truthfulness of critical judicial participants without subjecting them to the
fear and apprehension that may result from a threat of personal liability. ...
These policy reasons apply equally to court-appointed officials such as
psychologists and psychiatrists who assist the court in making decisions.
Without immunity, these professionals risk exposure to lawsuits whenever
they perform quasi-judicial duties. Exposure to liability could deter their
acceptance of court appointments or color their recommendations.
(quoting Duff'v. Lewis, 958 P.2d 82, 85-86 (Nev. 1998)). Though in a criminal, and not a
civil context, the Eighth Circuit has thus recognized the need to extend quasi-judicial
25
immunity to court-appointed psychologists or psychiatrists charged with providing neutral
guidance to the court.
Without absolute immunity two problems are likely to develop in cases such
as this. First, psychiatrists will be reluctant to accept court appointments. . . .
Second, the threat of civil liability may taint the psychiatrist's overall
opinions. The disinterested objectivity, so necessary to an accurate
competency determination, will be lost. In short, only by granting absolute
immunity will the paths to the truth remain open.
Moses, 813 F.2d at 892 (citing Briscoe, 460 U.S. at 333).
Against this overwheiming weight of contrary authority, Tolu argues that a few
jurisdictions have refused to extend quasi-judicial immunity to psychologists appointed by
a court to conduct independent psychological evaluations in child custody proceedings.
Tolu relies on five cases that do not hold as she suggests, and that are readily
distinguishable.
In Awai v. Kotin, 872 P.2d 1332, 1333 (Colo. App. 1993), the court appointed a
psychologist to evaluate a child in a child custody dispute, and to report back to the court.
Based on this evaluation, the court appointed the same psychologist to provide therapy to
the child and to both of the child's parents. /d. The child's father later sued the psychologist
and his supervisor for negligence and breach of fiduciary duty, and "alleged that the
treatment he had received from defendants was substandard.” Id. at 1334. In addressing
whether quasi-judicial immunity protected the psychologist and his supervisor from civil
liability, the court found as follows:
[I]mmunity is not established merely because a court appointee performed
acts within the scope of the court's order. . . . [I]t is still necessary to establish
that the acts performed were intimately related and essential to the judicial
decision-making process... .
26
{T]reatment, unlike reports or evaluations and recommendations, is not
intimately related and essential to the judicial decision-making process.
Rather, it is a separate remedial function in which full disclosure may be
contrary to the best interests of the patient and improper... .
[T]he focus of the psychologist in performing evaluations, providing reports,
and making recommendations is not necessarily on the best interests of the
subject being evaluated or any one of the parties involved in the litigation,
but on aiding the court to separate truth from falsity. In contrast, the focus
of the therapist in treatment is solely on the best interests of the patient. The
need for absolute immunity for treatment is therefore not as compelling as
the need for immunity for evaluations and recommendations. . . .
Id. at 1335-36 (citations omitted). In holding that father's court-appointed therapist and the
therapist's supervisor had "not sustained their burden of showing that an exemption from
liability for negligent treatment is justified,” the court did not hold, as Tolu suggests, that
court-appointed psychologists directed to conduct independent evaluations are ineligible
for quasi-judicial immunity. To the contrary, Awai drew a careful and thoughtful
distinction between court-appointed independent evaluators, and court-appointed treating
therapists, and concluded the latter are not entitled to quasi-judicial immunity.
In Cegalis v. Trauma Inst. & Child Trauma Inst., No. 2:19-cv-00153, 2020 WL
2079514, at *1-2 (D. Vt. Apr. 30, 2020), psychological professionals privately retained by
a child's father to provide therapy to the child and to testify as experts in litigation
concerning parental alienation were sued by the child's mother on a number of tort theories
after they testified that the child should not be reunited with mother. Not surprisingly, the
doctrine of quasi-judicial immunity was not addressed in this case, as the defendants were
not court-appointed to serve as the court's independent experts.
27
In Williamson v. Odyssey House, Inc., No. 99-561, 2000 WL 1745116, at *1-2
(D.N.H. Nov. 1, 2000), a child's guardian sued a residential care facility after the child
attempted suicide. The child had been placed in the care facility by court order following
the recommendation of a juvenile officer. /d. at *1. The care facility moved for summary
judgment on the basis of judicial immunity. /d. at *2. The court denied the motion because
even though court-appointed psychologists acting as an arm of the court are entitled to
quasi-judicial immunity, "a factual dispute remains as to whether [the care facility] was
acting in a quasi-judicial capacity while [the child] was a resident .... The facts of record
suggest that [the child] was ordered to the placement at [the care facility], not that [the care
facility] was serving as a court-appointed expert in her case." Jd. Williamson does not
hold, that a court-appointed psychologist directed to conduct an independent evaluation as
the court's expert is ineligible for quasi-judicial immunity. To the contrary, just as in Awai,
Williamson distinguished between court-appointed evaluators, and court-appointed
treating therapists, finding the former to be immune and the latter not to be immune.
In Politi vy. Tyler, 751 A.2d 788, 789-90 (Vt. 2000), a psychologist hired by parents
to conduct a forensic evaluation of the parents and their child was sued for malpractice.
The psychologist sought to dismiss the malpractice action on the basis of quasi-judicial
immunity, claiming she was a court-appointed expert. /d. The Vermont Supreme Court
concluded that the psychologist was "not a court appointed expert," and that the trial court
"correctly decided that the duties imposed on [the psychologist] arose from her contract
with the parties, not from a quasi-judicial function performed [for the court] pursuant to a’
family court order." Jd. at 791.
28
Finally, Tolu relies on Chambers v. Stern, 994 §.W.2d 463, 464 (Ark. 1999), where
a court-appointed physician “over a four-year period evaluated, [father and mother] and
their children, engaged them in therapy, and reported his findings, observations, and
recommendations" to the court. "Subsequently, [father] contended that [the court-
appointed physician] committed malpractice during the therapy or ‘treatment’ phase with
the family members." Jd. "[T]he parties agree[d] that absolute judicial immunity extends
to physicians appointed by courts to assist in ‘evaluations.’ However, the parties dispute|d]
whether judicial immunity continues to shield the court-appointed physician when the
evaluation phase progresses to treatment or therapy." Jd. at 465. Ultimately, the court
concluded that "[p]ublic policy considerations . . . compel us to extend judicial immunity
to court-appointed therapists." /d. at 466. However, the court found that genuine issues of
fact remained in dispute as to whether the physician “act[ed] within the scope of his court
appointment," preventing the entry of summary judgment in favor of the therapist. Jd.
Once again, this case supports the conclusion that court-appointed independent
psychological evaluators in child custody proceedings are entitled to quasi-judicial
immunity.
The five cases Tolu relies on did not, as she argues, refuse to extend quasi-judicial
immunity to court-appointed independent psychological evaluators, and instead support
the contrary conclusion. In fact, we have not located a single decision that refuses to extend
quasi-judicial immunity to a psychiatrist or psychologist duly appointed by a court to
perform neutral evaluations to aid the court in its fact-finding judicial function.
~ 29
Unphased, Tolu relies on Murphy v. A.A. Mathews, a Div. of CRS Grp, Eng'rs, Inc.,
841 S.W.2d 671 (Mo. banc 1992), to argue against extension of quasi-judicial immunity to
Dr. Reid, and contends that Murphy stands for the proposition that a court-appointed expert
may be sued for negligence in performing litigation related services. Tolu substantially
distorts the holding in Murphy.
In Murphy, an engineering firm was hired by a construction subcontractor to
document the subcontractor's claims for compensation in connection with an arbitration
proceeding brought by the subcontractor against the general contractor. /d. at 672. After
the arbitrator awarded the subcontractor less than 25% of the compensation the engineer
testified should have been awarded, the subcontractor sued its retained engineer for
professional malpractice. Jd. The engineering firm asserted that the subcontractor failed
to state a cause of action based on witness immunity, and the trial court agreed. Id. Our
Supreme Court noted that "Missouri has recognized witness immunity," and that "[t]he
immunity is one that is generally related to defamation actions against adverse witnesses."
Id. at 674. The Supreme Court thus framed the issue as being required to "determine
whether this [witness] immunity should be extended to bar malpractice claims against
professionals hired to perform litigation support services." Id.After a lengthy exploration of the policy rationale underlying the doctrine of witness
immunity, the Supreme Court concluded:
Due to the hired expert witness' function, we do not believe that the policy
of ensuring frank and objective testimony is furthered by granting immunity.
In most circumstances, these experts possess no independent factual
knowledge concerning the litigation. Instead, they are usually retained to
assist a party in preparing and presenting its best case in exchange for a fee.
30
In practice, they function as professionals selling their expert services
rather than as an unbiased court servant. Thus, immunizing an expert
retained and compensated for providing litigation support services does not
advance this underlying policy.
id. at 681 (emphasis added). Plainly, Murphy does not address, or have any bearing on,
the subject of quasi-judicial immunity. Even with respect to witness immunity, Murphy is
limited in its scope to privately retained testifying experts.'* Id. Murphy is not relevant to
determining whether the common law doctrine of quasi-judicial immunity should be
extended to Dr. Reid, a court-appointed independent expert charged with assisting the
family court with its judicial fact-finding functions.
Finally, in an effort to block extension of quasi-judicial immunity to Dr. Reid, Tolu
relies on Devitre v. Orthopedic Ctr. of St. Louis, LLC, 349 8.W.3d 327 (Mo. bane 2011), |
to argue that Dr. Reid owed Tolu a duty of care. In Devitre, a defendant in an automobile
accident case "requested that [the injured plaintiff] have an independent medical evaluation
conducted by [a named doctor] pursuant to Rule 60.01(a) to assess his injuries allegedly
arising from the automobile accident." Jd. at 329-30. The plaintiff consented to the exam.
id, at 330. The plaintiff later filed an action for assault and battery against the physician
and the health care facility where the examination was performed, claiming that in the
18Jn Tolu's Brief, she claims that Murphy “held that a ‘court-appointed’ or ‘privately retained expert’ may be
sued for negligence in performing their litigation related services." She cites to page 679 of Murphy to support her
reference to "court-appointed" experts. This is grossly misleading, At that page, the Supreme Court surmmarized
the holding in a New Jersey case where an action was brought "against a court-appointed accountant and accounting
firm for negligence in valuing a business asset to be divided in a divorce proceeding.” Murphy, 841 S.W.2d at 679
(citing Levine v. Wiss & Co., 478 A.2d 397 (N_J. 1984)). Murphy observed that Wiss rejected the accounting
experts’ argument that they were protected by quasi-judicial immunity as a court-appointed arbitrator because the
court "found that the defendants served pursuant to an agreement between the parties merely approved by the court,"
and were engaged by the parties to act as compensated appraisers, and not appointed by the court as an "arbitrator"
as the accounting experts claimed. /d, (citing Wiss, 478 A.2d at 400). The Supreme Court's summarization of the
holding in Wiss does not permit a conclusion that Murphy authorizes “court-appointed" experts to be sued for
negligence in performing litigation related services.
31
course of the examination, the physician injured him by over rotating his shoulder. fd. The
physician moved to dismiss because the plaintiff failed to file a health care affidavit. Jd.
The plaintiff argued that he had no obligation to file a health care affidavit because he was
never a patient of the physician. Jd.
Our Supreme Court concluded that a Rule 60.01(a) “independent medical
examination is a health care service," and that a medical professional who performs an
independent medical examination has a patient relationship with the person for whom the
examination is performed. Jd. at 333. As such, a medical professional who “only provides
an independent medical examination but does not treat the examinee ‘has a limited
physician-patient relationship with the examinee that gives rise to limited duties to exercise
professional care." Jd. at 332 (quoting Dyer v. Trachtman, 679 N.W.2d 311, 314 (Mich,
2004)).
The Supreme Court did not address the doctrine of quasi-judicial immunity in
Devitre. It had no reason to, as the physician who performed the Rule 60.01 independent
medical examination was not court-appointed to serve a judicial fact-finding function as
the court's expert. Instead, the physician in Devitre was privately retained to serve as an
expert witness for one of the parties. That is consistent with the recognized purpose of
Rule 60.01 to "providfe] for medical examinations in actions involving the physical [or
mental] condition of a party [] to eliminate uncertainty concerning the medical aspects of
the cause and to permit the preparation of an intelligent and informed defense." Ratcliff v.
Sprint Mo., Inc., 261 8.W.3d 534, 552-53 (Mo, App. W.D. 2008) (quoting State ex rel. C.S.
v. Dowd, 923 S.W.2d 444, 447 (Mo. App. E.D. 1996)); see also Jensen v. Wallace, 671
32
5.W.2d 331, 333 (Mo. App. W.D. 1984) (observing that a Rule 60.01 independent medical
examination is essentially "part of the discovery process"), Devitre is thus not relevant to
determining whether quasi-judicial immunity should be extended to Dr. Reid. Though Dr.
Reid was appointed by the family court in purported reliance on Rule 60.01 (the propriety
of which we discuss, infra), he was not an expert witness privately retained by one of the
parties, and was instead appointed to serve as the family court's expert to conduct
independent psychological evaluations, and to make findings and recommendations to
assist the family court in its judicial fact-finding function.
In any event, Tolu's contention that Devitre requires us to conclude that Dr. Reid
owed her a limited duty of care misses the mark. The issue in this case is not whether Dr.
Reid owed Tolu a limited duty of care as an independent medical examiner appointed by
the family court in purported reliance on Rule 60.01.’° Rather, even assuming Dr. Reid
owed Tolu a limited duty of care as a court-appointed independent evaluator, the issue is
whether Dr. Reid is nonetheless protected from civil liability for an alleged breach of that
duty by the doctrine of quasi-judicial immunity. See Bird, 864 S.W.2d at 385 (analogously
recognizing that "the guardian[] [ad litem's] principal allegiance is to the court. Although
the best interests of the child are always paramount, the guardian's relationship to the child
is not strictly that of attorney and client").
In summary, based on the functional analysis employed in Bird, there is no reasoned
basis to differentiate between guardians ad litem and court-appointed independent
Because it is irrelevant whether Dr. Reid owed Tolu a limited duty of care as suggested by Devitre, 349
S.W.3d at 332, we need not address whether the provision in the Psychological Evaluation Order stating that no
patient relationship existed between Dr. Reid and the parties he was directed to evaluate is controlling.
33
psychological evaluators with respect to extending the common law doctrine of quasi-
judicial immunity. Both are appointed to provide neutral assistance in connection with a
court's judicial fact-finding function. Regardless of their professional duties, both owe
their principal allegiance to the court, and the policy rationale underlying quasi-judicial
immunity is served by extending absolute immunity from civil liability to both for acts
within the scope of their expressly assigned judicial! functions. Because Dr. Reid's court-
appointed duties were integrally related to the family court's judicial fact-finding function,
it would seemingly follow that Dr. Reid is entitled to quasi-judicial immunity from civil
liability for actions with the scope of his judicial functions,
However, we stop short of holding that quasi-judicial immunity extends to court-
appointed independent psychological evaluators in child custody proceedings as a matter
of law. In Bird, this Court emphasized that guardians ad litem are authorized, even
required, to be appointed in child custody proceedings by statute. 864 S.W.2d at 385-86.
Because Bird attached significance to the fact that the court's appointment of a guardian ad
litem is statutorily authorized or required, we necessarily examine whether the family
court's Psychological Evaluation Order was authorized by rule or statute, and if not, the
effect on extension of quasi-judicial immunity to Dr. Reid.
ii.
Though a functional analysis supports extending quasi-judicial immunity to court-
appointed psychological evaluators in concept, the family court was not authorized by
rule or statute to appoint Dr. Reid as the family court's independent mental health
expert in the child custody modification proceeding
34
"A court cannot abdicate or delegate, in whole or in part, its judicial power."
Aubuchon v. Hale, 384 8.W.3d 217, 223 (Mo. App. E.D. 2012) (citation omitted); see also
Country Club of the Ozarks, LLC v, CCO Inv., LLC, 338 §.W.3d 325, 329 (Mo. App. $.D.
2011). A court's nondelegable judicial powers include the "power to hear cases, decide
disputed issues of fact and law, enter a judgment in accordance with the facts and the law,
and enforce its judgment." 16A Am. Jur. 2d Constitutional Law section 311. Substantial
sensitivity must therefore attach to consideration of a court's authority to delegate functions
that are, by their nature, inherently related to nondelegable judicial powers.
Child custody disputes afford an example of this sensitivity. A "trial court derives
its authority to determine child custody and visitation from statute." Clark v. Clark, 568
S.W.3d 920, 922 (Mo. App. S.D. 2019) (citation omitted). A "trial court ‘has a special
obligation in orders pertaining to custody of minor children and must act upon evidence
adduced. Jd. at 923 (quoting Aubuchon, 384 8.W.3d at 223). Yet, guardians ad litem are,
as acknowledged by Bird, expected to “investigate and present [their] perspective to the
trial judge, thereby enabling the court to render a decision in accordance with the statutory
standard of 'best interests of the child.“ 864 §.W.2d at 385 (citation omitted). A “court is
not bound by the opinion or recommendation of the guardian ad litem." Jd. Still, the
guardian ad litem's “principal allegiance [] to the court" lends itself to potential abuse
should guardian ad litem recommendations cross a blurry line into a trial court's
nondelegable duty to decide contested issues. See id.
We believe it of no coincidence, therefore, that the appointment of guardians ad
litem is subject to the authorization expressly extended to trial courts by sections 452.423
35
and 210.160. See Bird, 864 S.W.2d at 385-86 (noting that sections 452.423 and 210.160
address a court's authority to appoint and monitor the performance of guardians ad litem,
and support "extension of quasi-judicial immunity to statutorily mandated guardians ad
litem in child custody proceedings,” and noting that absolute immunity protects "the
guardian's independence which serves as the cornerstone of Missouri's statutory scheme"
(emphasis added)). Somewhat analogously, it is significant that Rule 68.01 serves as the
source of a trial court's authority to appoint a master to serve as a fact-finder and to
recommend dispositions with respect to referred matters, subject to the obligation to
prepare a report which may (but need not) be adopted by the appointing court. But because
the referral of matters to a master comes dangerously close to delegating nondelegable
judicial powers, Rule 68.01(b) directs that "[a] reference to a master shall be the exception
and not the rule." See, e.g., SKB. v. .C.B., 867 8.W.2d 651, 658 (Mo. App. W.D. 1993)
(where the appointment of a master pursuant to Rule 68.01 in connection with child custody
issues was held to be erroneous because the case did not involve exceptional
circumstances). And even where exceptional circumstances are shown, decisional law
emphasizes that although a trial court is authorized by Rule 68.01 to "appoint a special
master to aid a judge in specific duties," a "court cannot [] 'delegate or abdicate, in whole
or in part, its judicial power." Country Club of the Ozarks, 338 S.W.3d at 329 (quoting
D'Agostino v, D'Agostino, 54 8.W.3d 191, 200 (Mo. App. W.D. 2001)).
We are aware of no statute or rule that authorizes a trial court to appoint a
psychiatrist or psychologist to serve as the court's independent mental health expert in
dissolution or child custody proceedings. In sharp contrast, in criminal proceedings,
36
section 552.020.2 provides that "[w]henever any judge has reasonable cause to believe that
the accused lacks mental fitness to proceed, the judge shall... appoint one or more private
psychiatrists or psychologists .. . to examine the accused." Similarly, section 475.075.6,
permits a trial court in a proceeding addressing the capacity or disability of a potential ward
or protectee to "direct that the respondent be examined by a physician, licensed
psychologist, or other appropriate professional,” and section 475.075.7 provides that this
court appointed professional "shall submit a report in writing to the court and to counsel
for all parties.". There is no corollary to sections 552.020.2 or 475.075.6 applicable to
dissolution or child custody proceedings.
Here, the Psychological Evaluation Order appointing Dr. Reid was purportedly
entered "[p]ursuant to Rule 60.01." We question the family court's reliance on Rule 60.01
to appoint its own expert to conduct independent psychological evaluations.
Rule 60.01(a)(1) provides that “[i]n an action in which the mental condition... of
a party, or of . . . a person in the custody or under the legal control of a party, is in
controversy, the court in which the action is pending may order the party (i) to submit to
physical, mental, or blood examinations by physicians or other appropriate licensed health
care providers or (ii) to produce for such examinations such party's agent or the person in
0Independent psychological evaluators appointed by a court pursuant to section 552.020 have been held to
be entitled to quasi-judicial immunity. See Moses, 813 F.2d at 892 (psychiatrist appointed by court to conduct
competency examination in a criminal case performed functions essential to the judicial process and was entitled to
quasi-judicial immunity); Miner, 638 F. Supp. at 240-41 (psychiatrist appointed by court pursuant to sections
552.020 and 552.030 to conduct pretrial evaluation and examination of criminal defendant “enjoys absolute
immunity in his performance of the quasi-judicial function of court-appointed psychiatrist").
37
such party's custody or legal control." However, Rule 60.01(a)(3) provides, in pertinent
part, as follows:
Any order under this Rule 60.01(a) may be made only on motion for good
cause shown, upon notice to the person against whom the order is sought and
to all other parties.
(Emphasis added.) The necessity of a motion as an express condition to entry of a Rule
60.01(a) order is consistent with the fact that Rule 60.01 is an authorized means for
conducting discovery whereby one party asks another party to submit to a physical or
mental examination by a privately retained expert. Jensen, 671 S.W.2d at 333 (noting that
Rule 60.01 is essentially a part of the discovery process). This conclusion is reinforced by
section 510.040, which similarly provides that:
In an action in which the mental or physical condition of a party is in
controversy, the court in which the action is pending may order him to submit
to a physical or mental examination by a physician, chosen by the party
requesting the examination. The order may be made only on motion for
good cause shown and upon notice to the party to be examined.... Such
physician shall be deemed the witness of the party procuring the
examination unless called as a witness in court by the opposing party... .
(Emphasis added.) Neither Rule 60.01(a)(3) nor section 510.040 contemplate, or authorize
a court to enter, an order requiring a party to submit to a physical or mental examination
conducted by someone who will be serving as the court's independent fact-finding expert.
The family court's Psychological Evaluation Order did not grant any pending Rule
60.01(a)(3) motion, and did not require submission to a psychological evaluation with Dr.
Reid in his capacity as a retained expert (and thus witness) for another party.*! Instead, the
*!Tolu alleged in her amended petition that Stientjes asked the family court to appoint Dr. Reid to evaluate
Tolu, that Tolu asked the family court to require Stientjes and the Children to be evaluated; and that Pudlowski
asked the family court to appoint Dr, Reid to evaluate all of the parties. Accepting these factual assertions as true,
38
Psychological Evaluation Order ordered all of the parties to submit to psychological
evaluations with Dr. Reid as the family court's independent forensic psychologist, and
directed Dr. Reid to prepare a report for the purpose of assisting the family court in its fact-
finding role on the issue of the best interest of the Children. The Psychological Evaluation
Order was not authorized by Rule 60.01{a), or by its corollary, section 510.040. See State
v. Wagner, 504 8.W.3d 899, 902-03 (Mo. App. W.D. 2016) (holding that the plain language
of Rule 60.01 and section 510.040 do not authorize a trial judge to order, on its own accord,
a mental examination conducted by a mental health expert that will be reporting his
findings to the court).””
However, no one, Tolu included, challenged the family court's authority to appoint
an independent psychological evaluator pursuant to Rule 60.01(a) in the child custody
each of these requests was at best a Rule 60.01(a)(3) motion that, if granted, would have resulted in an order
directing the requested party to submit to an examination by the movant's privately retained expert. As we have
explained, the Psychological Evaluation Order did not grant any of the "motions" described in Tolu's amended
petition; did not order any party to submit to evaluation by another party's privately retained expert; and instead
ordered all parties to submit to evaluation by Dr, Reid as the court's independent expert to assist the court in its
judicial fact-finding function, with Tolu and Stientjes court-ordered to split the cost for Dr, Reid's services.
” Bird could not have anticipated the family court's Psychological Evaluation Order, but presciently
underscored that a family court is not authorized by Rule 60.01 to appoint its own fact-finding psychological expert
in a child custody proceeding when it held:
[T]he guardian ad liter role fills a void inherent in the procedures required for the adjudication of
custody disputes. Absent the assistance of a guardian ad litem, the trial court, charged with
rendering a decision in the “best interests of the child," has no practical or effective means to assure
itself that all of the requisite information bearing on the question will be brought before it untainted
by the parochial interests of the parents. Unhampered by the ex parte and other restrictions that
prevent the court from conducting its own investigation of the facts, the guardian ad litem
essentially functions as the court's investigative agent, charged with the same ultimate standard that
must ultimately govern the court's decision--i.e., the “best interests of the child.”
$64 §.W.2d at 384 (emphasis added). Had the family court granted the motion Tolu claims Pudlowski filed, which
sought to appoint Dr. Reid to conduct forensic psychological evaluations of the parties, then, as herein explained, Dr.
Reid would have been Pudlowski's Rule 60.01 expert--not the family court's independent expert. That is not what
happened, however. We therefore need not address, as the issue is not before us, whether a guardian ad litem's quasi-
jedicial immunity extends to psychological evaluators retained by the guardian ad litem to conduct Rule 60.01 forensic
evaluations for the purpose of assisting the guardian ad litem in the “essential function[] [to act] as the court's
investigative agent." Id.
39
modification proceeding.”? In fact, the Psychological Evaluation Order was signed by
Tolu, Stientjes, their counsel, and Pudlowski, reflecting agreement to either the form, or
the substance, of the Order. Whatever effect, if any, these signatures had on the family
court's "authority" to enter the Psychological Evaluation Order, for reasons we explain,
infra, Dr. Reid is nonetheless entitled to quasi-judicial immunity for his court-appointed
judicial functions.
iii.
Dr. Reid is protected by quasi-judicial immunity even though his appointment as the
family court's independent mental health expert was not authorized by rule or statute
Though the family court was not authorized to appoint Dr. Reid as its independent
mental health expert pursuant to Rule 60.01 or section 510.040, the family court
nonetheless acted within its jurisdiction (and may well have had the parties' consent) when
it did so, requiring the conclusion that its unauthorized action is protected by judicial
immunity. Stalnacker, 631 $.W.3d at 661-62 (holding that judicial immunity applies if a
judge has acted without authority so long as the judge is acting within his or her subject
matter jurisdiction). That same protection necessarily extends to Dr. Reid. The grant (or
extension) of quasi-judicial immunity to someone ordered by the court to perform a judicial
function is “essential if the court's authority and ability to function are to remain
uncompromised." White v. Camden Cty. Sheriff's Dept., 106 S.W.3d 626, 633 (Mo. App.
5.D. 2003) (quotation omitted). "[I]t is simply unfair to spare the judges who give orders
More to the point, this appeal has not been taken from the child custody modification proceeding, and has
instead been taken from the dismissal of Tolu's later filed civil action seeking damages from Pudlowski, Dr. Reid
and Van Luven for services provided in connection with the child custedy modification proceeding.
40
while punishing the officers who obey them. Denying these officials absolute immunity
for their acts would make them a ‘lightening rod for harassing litigation aimed at judicial
orders." Jd. (quoting Valdez v. City & Cty. of Denver, 878 F.2d 1285, 1288-89 (10th Cir.
1989)).
We thus find that conduct in the nature of a judicial function,*4 performed in
compliance with a facially valid court order, is entitled to quasi-judicial immunity, as "[t]o
hold otherwise would require . . . court officers enforcing facially valid orders 'to act as
pseudo-appellate courts scrutinizing the orders of judges.’ Such a result is ‘obviously
untenable." Jd. (quoting Mays v. Sudderth, 97 F.3d 107, 113 (Sth Cir. 1996)). Because
the unchallenged Psychological Evaluation Order delegated judicial functions to Dr. Reid
by directing him to conduct independent psychological evaluations in a child custody
matter and to report his findings to the family court, Dr. Reid is protected from civil liability
in the performance of his court ordered judicial functions by the quasi-judicial immunity
doctrine, even though his appointment as the family court's independent expert was not
authorized by Rule 60.01 or by section 510.040,
iv.
Dr. Reid's actions were within the scope of his official duties
*4Importantly, conduct that does not constitute the exercise of "judicial business," even if performed
ancillary to, or as a by-product of, a facially valid court order, is not entitled to quasi-judicial immunity. White v.
Camden Cty. Sheriff's Dept., 106 8.W.3d 626, 633-34 (Mo. App. S.D. 2003) (holding that sheriff who applied for an
equitable share of forfeiture proceeds after trial court's order to transfer property to a federal agency had been
performed was not engaged in "judicial business," such that the “reasoning for applying judicial immunity ... does
not apply").
Al
That brings us to the second argument raised by Tolu's second point on appeal,
which is whether Dr. Reid “acted outside the scope of any quasi-judicial immunity. . .
when he violated three [court orders] and destroyed, altered, and concealed evidence." In
the argument portion of her Brief, Tolu more specifically alleges that Dr. Reid exceeded
the scope of his official duties because he "violated the standard of care for forensic
psychologists rendering evaluations" in family court. Tolu then identifies numerous
examples of how she contends Dr. Reid violated the standard of care.2> Even accepting
these allegations (to the extent they are factual) as true, all of Tolu's assertions arise from
Dr. Reid's role as a court appointed forensic evaluator. Immunizing individuals who are
performing judicial functions from complaints that they did not perform those functions
well is precisely the purpose of quasi-judicial immunity. Bird, 864 8.W.2d at 382 (holding
that quasi-judicial immunity applies to performance of judicial functions by those who are
not judges where "conduct of ... official duties may adversely affect a wide variety of
individuals, each of whom may be a potential source of future controversy,” in order “to
forestall an atmosphere of intimidation that would conflict with their resolve to perform
their functions in a principled fashion"), We reject Tolu's arguments that by conducting
his psychological evaluations in a manner that violated the standard of care, Dr. Reid
25Tolu alleges that Dr, Reid: grossly misrepresented test results; failed to provide an acculturation measure
fo account for the fact Tolu was born and raised in Russia; admitted that his report was subjective; failed to
investigate reports of Stientjes's sexual, physical and domestic violence; failed to investigate Stientjes's poor moral
character; failed to use standard methodology; did not seek peer review; misdiagnosed Toilu; altered audio
recordings of interviews and deleted or destroyed video recordings; and misrepresented objective testing data
revealing Stientjes's personality disorders.
42
exceeded the scope of his official duties, and thus the parameters of the protective cloak of
quasi-judicial immunity.
Tolu also argues that Dr. Reid violated the family court's May 25, 2018 and August
3, 2018 orders requiring Dr. Reid to "produce his complete and unaltered file." Tolu
summarily states, without analysis or citation to authority, that by violating court orders
regarding the production of "his complete and unaltered file," Dr. Reid “acted outside the
scope of his duties leaving him without . . . immunity."”6 Even accepting Tolu's factual
allegations as true, bad faith or malicious conduct does not negate quasi-judicial immunity.
See, e.g., Moses, 813 F.2d at 893 (allegations of conspiracy to find a criminal defendant
competent to testify do not defeat absolute immunity afforded by quasi-judicial immunity
(citing Pierson, 386 U.S. at 553-54 (observing that malicious or corrupt acts are protected
by absolute immunity provided by judicial immunity))). Instead, "the need to preserve [a]
judge's independence requires a grant of absolute immunity. The same policy [applies] to
[] a court appointed psychiatrist...." fd. Dr. Reid's obligation to retain, maintain, and
deliver records related to the psychological evaluations he was court ordered to perform
are within the scope of Dr. Reid's court appointed judicial functions. If Dr. Reid failed to
abide by his court ordered directives, he was subject to accountability by other means.””
¢Tolu's citation to Hale v. Cottrell, Inc., 456 S.W.3d 481 (Mo. App. W.D. 2014) lends no support for the
proposition that quasi-judicial immunity is negated if the individual performing a judicial function then fails to
produce their entire file for scrutiny, even when ordered by the court. In Hale, we affirmed an award of sanctions
where a party concealed “certain medical records as part of a scheme to preclude the defense from challenging the
nature and extent of claimed injuries," and that the concealment constitutes a fraud on the court and an example of
bad faith conduct. Id. at 491. But, Hale did not address immunities, or the effect of bad faith conduct in the
performance of official duties otherwise protected by quasi-judicial immunity.
"See Bird, 864 8.W.2d at 386 (noting that guardian ad litem remains subject to applicable rules of
professional conduct; court supervision; and trial court's inherent ability to “not be bound by" or to "modify or reject
the guardian's recommendations as it deems appropriate"). In addition, “[p]arents may advocate positions contrary
43
But, his alleged failures, even if intentional, malicious, or in bad faith, do not alter the fact
that his actions were within the scope of his official duties and are protected from civil
liability by the doctrine of quasi-judicial immunity.
Dr. Reid is absolutely immune from civil liability for the conduct alleged in Tolu's
petition. The trial court's dismissal of Count I of the amended petition on the basis of quasi-
judicial immunity is affirmed. Tolu's Point Two is denied.
v.
Count II of the amended petition was also properly dismissed based on the doctrine of
quasi-judicial immunity
The Judgment dismissed Count I of the amended petition (breach of contract)
because "it is clear from the face of the petition that [Tolu] did not bargain for any services
with Dr. Reid and Dr. Reid did not obligate himself to provide any services to [Toluj,” in
part because the SOU plainly stated that "the court is to be considered the client of Dr. Reid
in this contract for his independent professional judgments." Alternatively, the Judgment
dismissed Count II because the amended petition alleged that Dr. Reid had an obligation
"to act within the standard of care of a forensic psychologist," a claim that sounds in
malpractice, and not in contract, and that is thus duplicative of Count I, already dismissed
on the basis of quasi-judicial immunity. In other words, the trial court found that although
Tolu signed the SOU and Informed Assent, those documents did not constitute a "contract"
to the guardian and all determinations of the reviewing court are subject to judicial review." id. The same, or
similar, safeguards are in place for court-appointed psychologists charged with conducting independent evaluations
and reporting findings to the court. "[A]ny marginal improvement in the accountability of [a non-judicial officer
entitled to quasi-judicial immunity] that would arguably be advanced by permitting civil liability is far outweighed
by the adverse impact on the [person's] independence... ." Jd.
44
for bargained for services, a conclusion that is consistent with the fact that the
Psychological Evaluation Order required Dr. Reid to give Tolu and Stientjes "a written
explanation of the evaluation process and... a written explanation of [his] fee policies."
And even assuming the SOU and Informed Assent were contracts for bargained for
services, the trial court found the allegations in Tolu's breach of contract claim were
indistinguishable from her claim for malpractice, rendering both claims subject to dismissal
on the basis of quasi-judicial immunity.
Tolu's third point on appeal argues that dismissal of claims against Dr. Reid was
error because Dr. Reid "is liable for the breach of his contracts with [Tolu] for the reason
that [the] SOU and [Informed Assent] provided a separate basis for [Tolu's] claims." This
claim of error responds only to the trial court's second basis for dismissing Count II of the
amended petition. The point relied on does not address the trial court's finding that the
SOU and Informed Assent were not contracts for bargained for services that would support
a claim for breach of contract. Tolu's failure to challenge this independent basis for
dismissing Count II of the amended petition against Dr. Reid is fatal to her appeal.
STRCUE, Inc. v. Potts, 386 8.W.3d 214, 219 (Mo. App. W.D. 2012) (holding that "failure
to properly challenge a finding and ruling of the trial court that would support its judgment"
is fatal to appeal, as an appellant has the burden "to demonstrate that the trial court's
judgment was incorrect on any basis supported by the record and the applicable law"
(citations omitted)). Though the first line in the argument portion of Tolu's Brief
addressing this point relied on alleges that the trial court "incorrectly found that [Tolu] did
not bargain for any contractual services from [Dr.] Reid," that argument exceeds the scope
45
of the point relied on, preserving nothing for our review. See KDW Staffing, LLC, v. Grove
Const, LLC, 584 $.W.3d 833, 837 (Mo. App. W.D. 2019) (holding that an appellant's
preserved argument is limited to only those errors asserted in the points relied on); Gaar v.
Gaar's Inc., 994 $.W.2d 612, 616 (Mo. App. S.D. 1999) (holding that our courts "adhere[]
to the well-entrenched doctrine that the questions for decision on appeal are those stated in
the points relied on, and a question not there presented will be considered abandoned").
Even if Tolu could overcome this preservation hurdle, we would otherwise find her
bare assertion that she bargained for services with Dr. Reid to be an undeveloped,
conclusory statement that preserves nothing for appellate review. Hiner v. Hiner, 573
S.W.3d 732, 736 (Mo. App. W.D. 2019) ("Mere conclusions and the failure to develop an
argument with support from legal authority preserve nothing for review." (quotation
omitted)), "When an appellant fails to support contentions with relevant law and analysis
beyond conclusory statements, we deem the [argument] abandoned." Wallace v. Frazier,
546 S.W.3d 624, 628 (Mo. App. W.D. 2018).
With respect to the claim of error that is captured in Tolu's point relied on, we agree
with the trial court that Count I of the amended petition is duplicative of the malpractice
claim asserted in Count I. This conclusion is demonstrated by Tolu's Brief where she
alleges that Dr. Reid "breached" the SOU and Informed Assent by violating the standard
of care when he produced a subjective evaluation though he promised an objective and
impartial evaluation; when he misrepresented his psychological testing; and when he
refused to provide his complete file. These same allegations were made in connection with
Count I, the claim for breach of the standard of care. This is not a case, as Tolu alleges, of
46
pleading alternative theories of recovery.”* Instead, as the trial court correctly found,
Counts I and II were essentially duplicative theories, as each relied on a claim that Dr. Reid
violated the standard of care. See Klemme v. Best, 941 S.W.2d 493, 496 (Mo. banc 1997)
(holding analogously that if an alleged breach of fiduciary duty can be characterized as
both a breach of the standard of care (negligence) and a breach of fiduciary duty, a
plaintiffs sole claim is for malpractice); King Gen. Contractors, Inc. v. Reorganized
Church, 821 $.W.2d 495, 501 (Mo. banc 1991) (holding that "[s]eparate legal theories are
not to be considered as separate claims, even if ‘the several legal theories depend on
different shadings of the facts, or would emphasize different elements of the facts, or would
call for different measures of liability or different kinds of relief" (quoting Siesta Manor,
Inc. v. Cmty. Fed. Sav. & Loan Ass'n, 716 8.W.2d 835, 839 (Mo. App. E.D. 1986))).
Tolu has not preserved a claim of error challenging the trial court's dismissal of
Count II of the amended petition on the basis that no contract was formed with Dr. Reid.
And Tolu has not persuasively challenged the trial court's dismissal of Count IT of the
amended petition on the alternative basis that it was duplicative of the malpractice claim
asserted in Count [, and thus also subject to dismissal on the basis of quasi-judicial
28Tolu's reliance on Hoover v. Mercy Health, 408 8.W.3d 140 (Mo. banc 2013) for the proposition that a
healthcare provider can be sued for breach of contract is of no aid to Tolu. Hoover involved a situation where a
patient claimed to have been double billed for goods and services. fd. at 142. No assertion involving a breach of the
standard of care was at issue in the case. Similarly, Tolu's reliance on Breeden v. Hueser, 273 S.W.3d 1 (Mo. App.
W.D. 2008) is misplaced, as the case holds, in direct opposition to Tolu's contention that she can plead malpractice
claims in the alternative, that “an action that arises out of a doctor's malpractice or negligence in providing health
care cannot avoid the application of section 516.105 [the statute of limitations for medical negligence claims] merely
because it is pled as a claim for fraud, misrepresentation, or breach of contract." /d. at 7. Finally, Tolu's reliance on
Simonson v. Schaefer, 301 P.3d 413 (Okla. 2013) is unpersuasive, as in that case, no claim was asserted for
malpractice, and instead a parent in a custody action sued to recover from a court-appointed psychologist the amount
paid by the parent for a report the psychologist never prepared.
47
immunity. We affirm the trial court's dismissal of Count II of the amended petition against
Dr. Reid. Tolu's Point Three is denied.
Cc.
We need not determine whether the claims against Van Luven were appropriately
dismissed based on the doctrine of quasi-judicial immunity because the claims were
appropriately dismissed on another basis raised in Van Luven's motion to dismiss
and relied on by the Judgment
In Tolu's fourth point on appeal, Tolu argues that it was error to dismiss claims
against Van Luven because she "is not immune from suit for breach of the standard of care
for a treating therapist, even if court appointed, for the reason that Missouri law does not
immunize therapists from their violations of the standard of care." In Tolu's fifth point on
appeal, Tolu argues that it was error to dismiss claims against Van Luven because she "is
not immune from suit for breach of her fiduciary duty, even if court appointed, for the
reason that Missouri law does not immunize therapists from releasing a person's PHI
without authorization from the court or the patient." Collectively, these points on appeal
argue that it was error to dismiss Tolu's claims against Van Luven because a treating
therapist is not entitled to quasi-judicial immunity, and because in any event, the
unauthorized release of PHI exceeds the scope of the immunity.
Jurisdictions that have addressed whether the common law doctrine of quasi-judicial
immunity should be extended to court-appointed treating psychologists or therapists are
not in agreement on the subject, with some concluding that treating psychologists or
therapists (as opposed to independent psychological or psychiatric evaluators) perform a
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remedial function for one or more parties, and not an independent judicial fact-finding
function for the court.2?7_ We need not address whether the common law doctrine of quasi-
judicial immunity should be extended to court-appointed or ordered treating psychologists
or therapists in Missouri. As a result, we need not address whether Van Luven exceeded
the scope of the immunity by disclosing Tolu's PHI. That is because Tolu's fourth and fifth
points on appeal fail to challenge the trial court's alternative finding that regardless of
whether quasi-judicial immunity extends to Van Luven, "[t]he Court orders appointing Van
Luven to provide reunification counseling for the children clearly establish that [Tolu] was
not [] Van Luven's client or patient. [Tolu] has not alleged any facts that support the finding
of a fiduciary relationship." See Klemme, 941 8.W.2d at 495-96 (holding that claims of
malpractice and breach of fiduciary duty require evidence of the existence of a client
relationship). Tolu's failure to challenge this independent basis for dismissing her claims
against Van Luven is fatal to her appeal. STRCUE, Inc., 386 S.W.3d at 219.
In the argument portion of her Brief addressing Point Four, Tolu states that she "pled
abundant facts establishing that she was Van Luven's patient," and cites to paragraphs 183
?? Compare John v. Faitak, 594 §.W.3d 871, 874 (Ark. 2020) (quasi-judicial immunity extends to a court-
appointed psychologist directed to conduct neutral psychological evaluation, but does not protect therapeutic
relationship that was entered into in excess of the court's order); Dieh/, 618 N.W.2d at 90 n.3 (noting that
psychologist appointed by court as a fact finder was entitled to quasi-judicial immunity, and distinguishing "a
psychologist who is appointed by the court to render treatment to a party or individual, a remedial function arguably
unrelated to the fact-finding and decision making processes of the court"); Estape y, Seidman, 269 So. 3d 565, 569-
70 (Fla, Dist. Ct. App. 2019) (addressing litigation privilege and not quasi-judicial immunity, but noting court's
designation of a treating therapist is different from court appointment of an expert to assist in evaluating custody or
other matters in a dissolution proceeding); Awai v. Kotin, 872 P.2d 1332, 1336 (Colo. App. 1993) (holding that
court-appointed treating therapist was not entitled to quasi-judicial immunity as "treatment, unlike reports or
evaluations and recommendations, is not intimately related and essential to the judicial decision-making process,"
and is instead "a separate remedial function"); with Doe v. Hennepin Cty., 623 F. Supp. 982, 986 (D. Minn. 1985)
(holding that court-appointed treating therapists are entitled to absolute immunity for acts committed within the
scope of their appointment); Chambers v. Stern, 994 $.W.2d 463, 466 (Ark. 1999) (holding that even though a
treating therapist serves a different role than an independent evaluator, public policy concerns mandate extending
quasi-judicial immunity te both).
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through 246 of the amended petition. This argument exceeds the scope of Tolu's point
relied on, which alleges only that quasi-judicial immunity does not extend to a court-
appointed treating therapist, and preserves nothing for our review. See KDW Staffing, LLC,
584 S.W.3d at 837; Gaar, 994 S,W.2d at 616,
Regardless, we do not agree with Tolu's characterization of the allegations in her
amended petition. The extent of court ordered and authorized therapy for the parties was
expressly covered in the family court's order dated September 17, 2018, attached as Exhibit
12 to the amended petition. That order specifies that:
. Child T and Child A “shall continue to work on reestablishing their
relationship by continuing to meet with [Van Luven] for joint therapy;
° Child A and Tolu "shall begin therapy" with either Churcharillo or
Ottolini, to be determined by Pudlowski in her role as GAL;
° Child T and Stientjes "shall begin therapy" with either Churcharillo
or Ottolini, to be determined by Pudlowski in her role as GAL;
. The goal of "the above listed therapy is primarily to focus on
reestablishing the relationship between [Child T] and [Child A]; the
secondary goal is to reestablish the relationships between the children and
the parents";
. "(Child T] shall continue to meet with Meg Meyers at Safe
Connections; [Child A] shall continue to meet with Nancy Messey";
° "!Tolu] shall continue to meet with Jessica Boyd at Safe Connections.
[Stientjes] shall continue to meet with Nancy Messey"; and
° "All parties are to sign releases to allow GAL to speak w/ all necessary
therapists and therapists to speak w/ each other."
The family court unambiguously specified the court ordered and authorized therapeutic
relationships for the parties. There is nothing in the family court's order permitting a
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finding that Tolu was Van Luven's patient. Tolu's generalized assertions in the amended
petition that she thought she was Van Luven's patient, and that Van Luven never told Tolu
she was not Van Luven's patient, do not establish that Tolu was Van Luven's patient.
Instead, Exhibit 12 to the amended petition establishes to the contrary. See Rule 55.12
(providing that "[a]n exhibit to a pleading is a part thereof for all purposes"). "[A]
[therapist ]/patient relationship is essential to a malpractice claim." Meekins v. St. John's
Regional Health Ctr., Inc., 149 §.W.3d 525, 532 (Mo. App. S.D. 2004) (citing Millard v,
Corrado, 14 §.W.3d 42, 49 (Mo. App. E.D. 1999)).
The trial court's dismissal of Counts IV and V of the amended petition against Van
Luven is affirmed. Tolu's Points Four and Five on appeal are denied.
Vi
The MMPA claim against Pudlowski, Dr. Reid, and Van Luven was properly
dismissed
Tolu's sixth point on appeal challenges the trial court's dismissal of Count VI of the
amended petition which purported to state a claim for violation of the MMPA.
Specifically, Tolu's sixth point on appeal argues that the trial court erred in dismissing the
MMPA claim "against Pudlowski, [Dr.] Reid and Van Luven ... because the MMPA
applies to all unfair, deceptive, and fraudulent conduct for the reason that it extends to
litigation support professionals like Pudlowski, Reid and Van Luven."
Tolu's argument developing this point on appeal is limited to challenging the trial
court's finding "that Pudlowski, Reid and Van Luven were not liable under the MMPA
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because their unlawful practices did not cause [Tolu] to hire them." Tolu is correct that the
trial court concluded in the Judgment that:
[Tolu] does not allege that the Defendants' unlawful practices caused her to
enter into the transactions at issue. In fact, she alleges she was ordered by
the Court to use the Defendants' services.
In effect, the trial court found that Tolu did not establish that she entered into a transaction
to purchase merchandise or services from Pudlowski, Dr. Reid, or Van Luven. Based on
this finding, the trial court found that "the MMPA does not apply to [Tolu's] transactions
with Defendants and Count VI must be dismissed."
However, the trial court also dismissed Count VI of the amended petition because
it found that "[t]he 2020 Amendments to the MMPA, which were in affect [sic] when
[Tolu] filed her initial Petition in this matter, specifically prohibit plaintiffs from using the
MMPA as a vehicle to bring claims that should be filed under Missouri's malpractice
statute." Tolu has not challenged the trial court's conclusion that the 2020 amendments to
the MMPA preclude her claims against Dr. Reid and Van Luven, as those claims were
either express malpractice claims (Counts I and IV of the amended petition), or were claims
found by the trial court to be duplicative of asserted malpractice claims (Counts II and V
of the amended petition).*° Tolu's failure to challenge this independent basis for the trial
3° Consistent with the fact that Tolu's claims against Dr. Reid and Van Luven asserted in Counts I, II, IV
and V of the amended petition were in the nature of malpractice claims, Toiu filed healthcare affidavits pursuant to
section 538.225 confirming that she had obtained a written report by a legally qualified health professional stating
that Dr. Reid and Van Luven failed to conform their conduct with the applicable standard of care. We express no
opinion about the statutory sufficiency of these healthcare affidavits, but simply note that Tolu's filing of the
affidavits underscores that her claims against Dr. Reid and Van Luven are the type the 2020 amendments to the
MMPA intended to prohibit.
32
court's dismissal of the MMPA ciaims against Dr. Reid and Van Luven is fatal to her
appeal?! STRCUE, Inc., 386 S.W.3d at 219.
With respect to Pudlowski, Tolu has not persuasively challenged the trial court's
finding that Tolu did not purchase merchandise or services from Pudlowski, and was
instead involuntarily subjected to Pudlowski's court ordered services as guardian ad litem.
"To prevail on a claim under the MMPA, a plaintiff must plead and prove he or she (1)
purchased merchandise (which includes services) from [a] defendant[]; (2) for personal,
family or household purposes; and (3) suffered an ascertainable loss of money or property;
(4) as a result of an act declared unlawful under the Merchandising Practices Act." Murphy
v. Stonewall Kitchen, LLC, 503 S.W.3d 308, 311 (Mo. App. E.D. 2016) (citations omitted).
"The term ‘purchase,’ for purposes of the MMPA, is not statutorily defined." Raster v.
Ameristar Casinos, Inc., 280 8.W.3d 120, 128 (Mo. App. E.D. 2009). "Purchase! is
defined in Webster's dictionary as meaning 'to obtain by paying money or its equivalent."
Id. (quoting Jackson vy. Charlie's Chevrolet, Inc., 664 S.W.2d 675, 677 (Mo. App. E.D.
1984)). The essence of a purchase, therefore, is voluntarily undertaking to secure the
receipt of goods or services in exchange for the payment of money.
Here, Tolu did not voluntarily seek out or secure Pudlowski's services in exchange
for the payment of money. Instead, the family court appointed Pudlowski as the guardian
ad litem by court order. Though Tolu and Stientjes were each ordered to deposit funds in
the court registry to be later applied against Pudlowski's reasonably incurred costs and fees,
*'Tolu has not challenged the trial court's retroactive application of the 2020 amendments to the MMPA to
conduct predating the effective date of the amendments. We express no opinion on that subject.
33
the deposit of funds was not a condition to Pudlowski's appointment, or to performance of
her court ordered services. The family court's order appointing Pudlowski as guardian ad
litem does not contemplate or reflect the "purchase" of services by Tolu, at all, let alone
for "personal, family or household purposes" for purposes of asserting an MMPA claim.
The trial court did not err in dismissing Count VI of the amended petition against
Pudiowski, Dr. Reid, and Van Luven. Tolu's Point Six on appeal is denied.
Conclusion
The trial court's Judgment is affirmed.
Cyilthia L. Martin, J udge ©
All concur.
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