Central Florida Psychological Consultants, Inc, and W. Steven Saunders v. Jon Comas

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D2025-0444

LT Case No. 35-2022-CA-828

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CENTRAL FLORIDA

PSYCHOLOGICAL CONSULTANTS,

INC., and W. STEVEN SAUNDERS,

Petitioners,

v.

JON COMAS,

Respondent.

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Petition for Certiorari Review of Order

from the Circuit Court for Lake County,

Michael G. Takac, Judge.

Derek J. Angell, of O’Connor, Haftel & Angell, PLLC, Orlando,

for Petitioners.

Dale R. Sisco, Tampa, for Respondent.

May 8, 2026

SOUD, J.

Petitioners Central Florida Psychological Consultants, Inc.

and W. Steven Saunders petition us for a writ of certiorari

quashing the trial court’s denial of their motion for summary

judgment as to two of three counts in the action brought against

them by Respondent Jon Comas. They argue that the litigation

privilege grants them absolute immunity from the suit. We grant

the petition.

I.

Comas and his wife got divorced. The legal proceedings

surrounding timesharing with their two children endured for

years. During the litigation, Saunders was a court-appointed

psychologist ordered to provide the presiding judge with a report

and recommendations pertaining to a parenting plan.

Ultimately, Comas filed a civil suit against Saunders and

Central Florida Psychological Consultants, Inc., the practice

Saunders owned. The thrust of Comas’s claims is that Saunders

was negligent in the preparation of his report recommending a

parenting plan during supplemental proceedings in Comas’s

divorce case.

Saunders and his practice moved for summary judgment,

arguing the common law litigation privilege affords absolute

immunity from the suit. Comas contended, as he does here, that

his claims are permitted by section 61.122(4), Florida Statutes

(2022). The trial court denied Petitioners’ motion on two of Comas’s

three claims.

This certiorari petition followed.

II.

The discretionary common law writ of certiorari is an

extraordinary remedy because by it we “reach down and halt a

miscarriage of justice where no other remedy exists.” See DRJ Atl.,

LLC v. Babadi, 392 So. 3d 1114, 1118 (Fla. 5th DCA 2024) (citing

Adventist Health Sys./Sunbelt, Inc. v. Machalek, 383 So. 3d 534,

536 (Fla. 5th DCA 2023)). We grant certiorari only when a

petitioner demonstrates that a challenged order (1) departs from

the essential requirements of law, (2) resulting in material injury

for the remainder of the case, (3) that cannot be corrected on post-

judgment appeal. See Dep’t of Child. & Fams. v. State, 380 So. 3d

1263, 1267 (Fla. 5th DCA 2024). The last two requirements,

combined into the concept of “irreparable harm,” are jurisdictional

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and must be found to exist before we consider whether an order

departs from the essential requirements of law. See id.

A trial court’s denial of a motion for summary judgment

claiming immunity from suit is reviewable via certiorari because

such absolute immunity protects a party from having to defend

against suit at all “and waiting until final appeal would render

such immunity meaningless if the lower court denied dismissal in

error.” James v. Leigh, 145 So. 3d 1006, 1008 (Fla. 1st DCA 2014).

Thus, if Petitioners are immune from Comas’s suit, they have

demonstrated irreparable harm sufficient to invoke our certiorari

jurisdiction.

The question that remains, then, is whether the trial court’s

denial of summary final judgment in favor of Saunders and his

practice constitutes a departure from the essential requirements

of law. It does.

A.

“A departure from the essential requirements of the law is

something ‘more than just a legal error.’” Fucci v. State, 420 So. 3d

523, 526 (Fla. 5th DCA 2023) (quoting Citizens Prop. Ins. Corp. v.

San Perdido Ass’n, 104 So. 3d 344, 351 (Fla. 2012)). “It occurs ‘only

when there has been a violation of a clearly established principle .

. . resulting in a miscarriage of justice.’” Id. (quoting Allstate Ins.

Co. v. Kaklamanos, 843 So. 2d 885, 889 (Fla. 2003)). Such a clearly

established legal principle “can derive from a variety of legal

sources, including recent controlling case law, rules of court,

statutes, and constitutional law.” Kaklamanos, 843 So. 2d at 890.1

1 Certiorari will lie in the rare instance when a trial court has

followed binding precedent from another district court that is

plainly wrong and should be rejected because it conflicts with the

unambiguous language of a statute. See State v. Jones, 283 So. 3d

1259, 1268 (Fla. 2d DCA 2019) (“Our supreme court has held that

although circuit courts are ‘bound to apply existing precedent from

another district if its district has not yet spoken on the issue,’ the

circuit court’s use of such precedent creates a departure from the

essential requirements of the law if ‘the circuit court followed

binding precedent from another district that was clearly contrary

3

To decide whether the trial court departed from the essential

requirements of law, we must consider both the litigation privilege

and section 61.122(4), Florida Statutes, as each applies to the facts

and claims presented in this case.

1.

The litigation privilege finds its origins in English common

law. See Myers v. Hodges, 44 So. 357, 360–61 (Fla. 1907). In its

early development in the United States, the privilege shielded

parties, judges, counsel, and witnesses from liability for

defamatory statements that were “connected with, or relevant or

material to, the cause in hand or subject of inquiry. If they be so

published and are so relevant or pertinent to the subject of inquiry,

no action will lie therefor, however false or malicious they may in

fact be.” Id. at 361; see also Fridovich v. Fridovich, 598 So. 2d 65,

66 (Fla. 1992). As a result, causes of action for the torts of perjury,

libel, slander, defamation, and similar proceedings could not be

maintained. See Myers, 44 So. at 360–61.

The privilege was born from balancing two competing and

important interests. See Debrincat v. Fischer, 217 So. 3d 68, 70

(Fla. 2017). On one hand is an individual’s rights, including the

right to maintain his reputation and remain free from slander or

malicious conduct. See id. On the other is the public’s strong

interest in allowing parties to advocate “freely and zealously” for

their causes in courts of law. Id. After considering these interests,

Florida “has long followed the rule, overwhelmingly adopted by the

weight of authority, that such torts [for defamatory statements]

committed in the course of judicial proceedings are not actionable.”

Wright v. Yurko, 446 So. 2d 1162, 1164 (Fla. 5th DCA 1984)

(footnote omitted).

Recognizing this history, in Levin, Middlebrooks, Mabie,

Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., the Florida

Supreme Court extended the reach of the litigation privilege. 639

So. 2d 606, 608 (Fla. 1994). There, the court specifically

to the plain language of the statute itself.’” (quoting Nader v. Fla.

Dep’t of High. Saf. & Motor Veh., 87 So. 3d 712, 724, 726 (Fla.

2012))).

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determined that this privilege provides absolute immunity from

suit, not just for defamatory statements, but for “any act occurring

during the course of a judicial proceeding, regardless of whether

the act involves a defamatory statement or other tortious behavior

. . . , so long as the act has some relation to the proceeding.” Id.

“Just as participants in litigation must be free to engage in

unhindered communication, so too must those participants be free

to use their best judgment in prosecuting or defending a lawsuit

without fear of having to defend their actions in a subsequent civil

action for misconduct.” Id.

Through the years, the litigation privilege continued its

evolution into the form we have today—one that sweeps broadly in

Florida. “The litigation privilege applies across the board to actions

in Florida, both to common-law causes of action, those initiated

pursuant to a statute, or of some other origin.” Echevarria,

McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380, 384

(Fla. 2007) (emphasis added). As a result, the absolute immunity

provided by the privilege “must be afforded to any act occurring

during the course of a judicial proceeding . . . so long as the act has

some relation to the proceeding.” 2 Id.

While the litigation privilege has expansive reach in Florida

law, it is not without exception. For example, the privilege does not

insulate a defendant from a viable claim for malicious prosecution,

which has been long recognized in Florida. See Debrincat, 217 So.

3d at 70–71 (citing Tatum Bros. Real Est. & Inv. Co. v. Watson, 109

So. 623, 626 (Fla. 1926)). The corpus of a malicious prosecution

claim is that a defendant tortiously, maliciously, and without legal

justification engaged the machinery of litigation so as to cause the

plaintiff damages. See id. at 70 (discussing the elements to be

proven in an action for malicious prosecution). Thus, the conduct

alleged in such a claim must, of necessity, occur within the context

2 As observed in Echevarria, the Florida Supreme Court has

noted that while immunity for such conduct may be established,

“adequate remedies still exist for misconduct in a judicial

proceeding, most notably the trial court’s contempt power, as well

as the disciplinary measures of the state court system and bar

association.” 950 So. 2d at 384.

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of litigation. To hold such an action barred by the litigation

privilege would be to erase the cause of action from the books

because “malicious prosecution could never be established if

causing the commencement or continuation of an original

proceeding against the plaintiff were afforded absolute immunity

under the litigation privilege.” Id. at 70. As a result, “the litigation

privilege does not bar the filing of a claim for malicious

prosecution.” Id. at 71.

2.

But considering the litigation privilege does not end our

inquiry. Citing Estape v. Seidman, 269 So. 3d 565, 569 (Fla. 4th

DCA 2019), Comas contends section 61.122(4) abrogates the

privilege in this family law context and authorizes his action

against Saunders and his practice for negligent acts that deviated

from applicable standards. His argument stretches the language

of the statute beyond its breaking point.

Pertinent here, section 61.122(4) provides:

If a legal action, whether it be a civil action, a

criminal action, or an administrative proceeding, is

filed against a court-appointed psychologist in a

dissolution of marriage . . . matter involving the

relationship of a child and a parent, including time-

sharing of children, the claimant is responsible for

all reasonable costs and reasonable attorney’s fees

associated with the action for both parties if the

psychologist is held not liable. If the psychologist is

held liable in civil court, the psychologist must pay

all reasonable costs and reasonable attorney’s fees

for the claimant.

§ 61.122(4), Fla. Stat. 3

Of course, when interpreting Florida statutes, our “task is to

give effect to the words that the legislature has employed in the

3 Section 61.122(4) was amended in 2025. Our analysis would

be the same under the 2025 version of the statute.

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statutory text.” Lab’y Corp. of Am. v. Davis, 339 So. 3d 318, 323

(Fla. 2022). In doing so, we follow the supremacy-of-the-text

principle, which directs “that ‘[t]he words of a governing text are

of paramount concern, and what they convey, in their context, is

what the text means.’” Coates v. R.J. Reynolds Tobacco Co., 365

So. 3d 353, 354 (Fla. 2023) (alteration in original) (quoting Levy v.

Levy, 326 So. 3d 678, 681 (Fla. 2021)). In the end, our objective “is

to arrive at a ‘fair reading’ of the text by ‘determining the

application of [the] text to given facts on the basis of how a

reasonable reader, fully competent in the language, would have

understood the text at the time it was issued.’” D.L. v. Cmty. Based

Care of Brevard, Inc., 51 Fla. L. Weekly D280 (Fla. 5th DCA Feb.

13, 2026) (alteration in original) (quoting Ham v. Portfolio

Recovery Assocs., LLC, 308 So. 3d 942, 947 (Fla. 2020)).

Distilled to its essence, section 61.122(4) is an attorney’s fees

statute. The statute requires that “[i]f a legal action . . . is filed,” a

claimant (such as Comas) is responsible for the attorney’s fees “for

both parties” if the court-appointed psychologist (such as

Saunders) is found not liable. § 61.122(4), Fla. Stat. On the other

hand, if a psychologist is found liable “in civil court” then he must

pay all reasonable costs and fees incurred by the claimant. See id.

This language presupposes the legal ability of a claimant to bring

a cognizable and then-existing cause of action. The language of the

statute does not create a new cause of action, nor does it authorize

a claim where none otherwise exists.

Comas’s reliance on section 61.122(4) as abrogating the

litigation privilege and authorizing his claims against Saunders

simply requires the language of the statute to carry more than it

can bear. “A basic rule of textual interpretation is that ‘statutes

will not be interpreted as changing the common law unless they

effect the change with clarity.’” Peoples Gas Sys. v. Posen Constr.,

Inc., 322 So. 3d 604, 611 (Fla. 2021) (quoting Antonin Scalia &

Bryan A. Garner, Reading Law: The Interpretation of Legal Texts

318 (2012)). Accordingly, we will interpret section 61.122(4) to

displace the common law privilege only to the extent “clearly

necessary.” Essex Ins. Co. v. Zota, 985 So. 2d 1036, 1048 (Fla. 2008)

(“It is a well-settled rule of Florida statutory construction that

[s]tatutes in derogation of the common law . . . will not be

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interpreted to displace the common law further than is clearly

necessary.” (internal quotation marks and citation omitted)).

Here, the statute makes no mention whatsoever of the long-

existing common law litigation privilege. 4 In the face of this

silence, it is unreasonable to conclude the Legislature abrogated

the litigation privilege sub silentio. If in fact the Legislature

intended to take the extraordinary step of abrogating this

privilege, such would be its constitutional prerogative. 5 But the

Legislature must clearly say so, as “[a]ny such intent must be

gleaned from the text, structure, and purpose of the Act.” Peoples

Gas Sys., 322 So. 3d at 608.

B.

Thus, the litigation privilege protects Saunders and his clinic

from the negligence claims brought by Comas based on Saunders’s

report and recommendations as a court-appointed psychologist in

Comas’s divorce case “involving the relationship of a child and a

4 When writing statutes, the Florida Legislature is presumed

to be aware of relevant decisions of Florida courts. See Potter v.

Potter, 317 So. 3d 255, 258 (Fla. 1st DCA 2021).

5 The Florida Constitution vests all legislative power and

prerogative in our state legislature. See Art. III, § 1, Fla. Const.

Thus, the Florida Legislature’s power is plenary until it meets with

the restraining boundaries otherwise drawn by the Florida

Constitution or the supremacy of federal law on subject matter

granted to the national government by the States. See Neisel v.

Moran, 85 So. 346, 349 (Fla. 1919). As such, the Legislature’s

prerogatives are not constitutionally cabined by the common law.

Rather, the Florida Legislature has addressed the common law for

itself—granting legal force and effect to the English common law

existing before July 4, 1776, “provided, the said . . . common law

be not inconsistent with the Constitution and laws of the United

States and the acts of the Legislature of this state.” § 2.01, Fla.

Stat. This wording plainly declares the acts of the Legislature

superior to the common law crafted by the courts.

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parent, including time-sharing of children.” § 61.122(4), Fla. Stat.

The litigation privilege provides Petitioners absolute immunity

from suit, not just for defamatory statements in any report or

testimony, but for “any act occurring during the course of a judicial

proceeding, regardless of whether the act involves a defamatory

statement or other tortious behavior . . . , so long as the act has

some relation to the proceeding.” Levin, Middlebrooks, Mabie,

Thomas, Mayes & Mitchell, P.A., 639 So. 2d at 608.

There is no dispute that Saunders was appointed by the trial

court to provide a parenting plan recommendation during Comas’s

divorce case. Every action, representation, and recommendation

necessarily arose from and is related to that appointment. Thus,

Saunders and his clinic are afforded absolute immunity from

Comas’s suit by the litigation privilege.

Our conclusion does not render section 61.122(4) without

effect as to civil claims against court-appointed psychologists.

Rather, those actions contemplated by the statute are those that

would otherwise survive the litigation privilege, such as a claim

for malicious prosecution. See, e.g., Yurko, 446 So. 2d at 1165–67

(allowing a malicious prosecution claim against both the parties

and their supporting expert witness in an underlying medical

malpractice action); see also Restatement (Second) of Torts, §§

586–588 (Am. L. Inst. 1977). Here, Comas makes no claim against

Petitioners for malicious prosecution or any other theory of

recovery that has been deemed to survive the litigation privilege.

Rather, he only alleges that Saunders was negligent in preparing

his recommendations and fell below the standards that a

reasonable court-appointed psychologist would use to develop the

recommended parenting plan, at its core a general negligence

claim entitled to immunity under the facts presented. Thus, his

suit is barred.

III.

As a result, because Petitioners have demonstrated that the

trial court departed from essential requirements of law in denying

their motion for summary judgment based on absolute immunity

afforded by the litigation privilege, we GRANT the petition for writ

of certiorari and QUASH the trial court’s denial of summary

judgment. In issuing the writ, the trial court is instructed to grant

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the motion for summary judgment as to all counts and enter

judgment in favor of Petitioners.

It is so ordered.

JAY, C.J., and MAKAR, J., concur.

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Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

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