G. Keith Gambrel & the Gambrel Firm, LLC v. Croushore

• Decision Date: 25 June 2021
• Docket Number: NO. 2020-CA-0881-MR,2020-CA-0881-MR
• Citation: 638 S.W.3d 452
• Parties: G. Keith GAMBREL and the Gambrel Firm, LLC, Appellants v. Paul CROUSHORE, in His Capacity AS NEXT FRIEND OF Each of Sophia VILLARREAL, a Minor and Spencer Villarreal, a Minor, Appellee
• Court: Kentucky Court of Appeals

638 S.W.3d 452

G. Keith GAMBREL and the Gambrel Firm, LLC, Appellants

v.Paul CROUSHORE, in His Capacity AS NEXT FRIEND OF Each of Sophia VILLARREAL, a Minor and Spencer Villarreal, a Minor¹ , Appellee

NO. 2020-CA-0881-MR

Court of Appeals of Kentucky.

JUNE 25, 2021; 10:00 A.M. Discretionary Review Denied by Supreme Court February 16, 2022

BRIEFS FOR APPELLANT: Joseph W. Borchelt, Matthew A. Taulbee, Ft. Mitchell, Kentucky.

ORAL ARGUMENT FOR APPELLANT: Joseph W. Borchelt, Ft. Mitchell, Kentucky.

BRIEF AND ORAL ARGUMENT FOR APPELLEE: John J. Mueller, Cincinnati, Ohio.

BEFORE: ACREE, DIXON, AND McNEILL, JUDGES.

OPINION

ACREE, JUDGE:

G. Keith Gambrel appeals the Campbell Circuit Court's June 18, 2020 order denying his motion to dismiss a legal malpractice claim against him. His motion to dismiss was based on his claim of quasi-judicial immunity for actions he took as a court-appointed guardian ad litem ("GAL"). Upon careful consideration, we conclude Gambrel was cloaked with absolute quasi-judicial immunity and reverse and remand with instructions to dismiss the action.

BACKGROUND AND PROCEDURE

The genesis of this matter is a custody dispute between Alexandra Lawson ("Mother") and her former husband, Spencer Villarreal ("Father") relative to their two minor children. The family resided in Indiana when a court of that state entered the parties’ divorce decree, including the custody determination.² Subsequent to the divorce, the parties independently relocated with their children to Campbell County, Kentucky.

In May 2014, Mother registered the Indiana decree and custody determination with the Campbell Circuit Court and simultaneously sought an order authorizing the relocation of the children to Mississippi. Father opposed the motion. Pursuant to FCRPP³ 6(2)(e), the court appointed Gambrel as GAL of the two children. The circuit court granted Mother's motion and authorized the relocation.

In 2018, Father moved to modify the custody agreement. He asked the court to re-designate him as the children's primary custodial parent and for return of the children to Campbell County; he alleged Mother failed to act in good faith in co-parenting the children. Again, Gambrel served as the court-appointed GAL. Gambrel argued that re-designating Father as the primary residential custodian and relocating the children to Campbell County was in the children's best interests. (Trial Record "T.R." at 76). In exercising his statutory duty, Gambrel filed motions and introduced evidence supporting that position. (T.R. at 263). He noted that neither child voiced a preference between their parents as primary residential custodian. (T.R. at 76). In addition, he presented evidence that Mother had not made good decisions regarding the son's education and that the schools in Campbell County would better accommodate his educational needs.⁴ The circuit court granted Father's motion.

Mother filed emergency motions for reinstatement as the children's primary residential parent alleging Gambrel committed malpractice. She sought Gambrel's removal as GAL. The motions were denied. (T.R. at 146-47).

Paul Croushore, in his capacity as next friend of the Villarreal children, filed this action against Gambrel claiming he committed legal negligence in the way he performed his duties as GAL.⁵ In response, Gambrel filed a motion pursuant to CR ⁶ 12.02(f) to dismiss the case for failure to state a claim upon which relief may be granted, asserting he was cloaked with absolute quasi-judicial immunity. The circuit court denied the motion. "[A]n order denying a substantial claim of absolute immunity is immediately appealable even in the absence of a final judgment." Maggard v. Kinney , 576 S.W.3d 559, 564 (Ky. 2019) (internal quotation marks and citation omitted). Gambrel then brought this appeal.

STANDARD OF REVIEW

"[A] court should not grant ... a motion [to dismiss for failure to state a claim] ‘unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved....’ " Fox v. Grayson , 317 S.W.3d 1, 7 (Ky. 2010) (quoting Pari-Mutuel Clerks’ Union of Kentucky, Local 541, SEIU, AFL-CIO v. Kentucky Jockey Club , 551 S.W.2d 801, 803 (Ky. 1977) ). Such a motion "admits as true the material facts of the complaint." Id. (quoting Upchurch v. Clinton County , 330 S.W.2d 428, 429-30 (Ky. 1959) ). Immunity is purely a question of law and our review is de novo. Lawrence v. Bingham, Greenebaum, Doll, L.L.P. , 567 S.W.3d 133, 137 (Ky. 2018), reh'g denied (Mar. 14, 2019).

ANALYSIS

This case presents an issue of first impression in Kentucky: whether court-appointed guardians ad litem enjoy absolute quasi-judicial immunity from legal malpractice claims arising from their role in child custody proceedings. Based on applicable Kentucky law and public policy, we conclude they do.

"Absolute immunity against suits for money damages is ‘well established’ for judges, and such immunity has also been extended to non-judicial officers performing ‘quasi-judicial’ duties." Sangster v. Kentucky Bd. of Med. Licensure , 454 S.W.3d 854, 858 (Ky. App. 2014) (citations omitted). Kentucky extends quasi-judicial immunity "to those persons performing tasks so integral or intertwined with the judicial process that these persons are considered an arm of the judicial officer who is immune." Id. ; see also Stone v. Glass , 35 S.W.3d 827, 829 (Ky. App. 2000). To determine quasi-judicial immunity, we apply a "functional approach" and " ‘look[ ] to’ the nature of the function performed, not the identity of the actor who performed it." Sangster , 454 S.W.3d at 858-59 (citation omitted). This doctrine applies to court officers when working within the scope of the court's appointment. See Horn by Horn v. Commonwealth , 916 S.W.2d 173, 176 (Ky. 1995) ("[Q]uasi-judicial immunity attaches to the CDW when working within her capacity as a court designated worker.").

The circuit court, in denying Gambrel his claimed immunity, relied on our Supreme Court's decision in Morgan v. Getter , 441 S.W.3d 94 (Ky. 2014). However, Morgan says nothing directly relating to the question of immunity, whether that immunity applies to a GAL, a "friend of the court," or any other court-appointed officer or investigator.

Although Morgan distinguished the role of a GAL in custody proceedings from that of "court investigators," it decided only whether due process requires a court to permit a litigant to cross-examine a court-appointed officer who submits a report to the court. Id. at 112 ("parties’ right to due process includes the right to cross-examine the authors, including so-called GALs, of evidentiary reports upon which the fact finder is entitled to rely"). In that context, the Court concluded a friend of the court is "a child's representative appointed as an officer of the court to investigate the child's and the parents’ situations, to file a report summarizing his or her findings, and to make recommendations as to the outcome of the proceeding[.]" Id. at 111. By contrast, a GAL is "a child's representative appointed to participate actively as legal counsel for the child, to make opening and closing statements, to call and to cross-examine witnesses, to make evidentiary objections and other motions, and to further the child's interest in expeditious, non-acrimonious proceedings[.]" Id. The lesson of Morgan for bench and bar is that, to avoid implicating the due process right of cross-examination, a GAL "should not file reports, testify, make recommendations, or otherwise put his own or her own credibility at issue." Id. at 114 (emphasis original).

Extrapolating Morgan , the circuit court in the instant case concluded as follows:

Here, the Defendant, Gambrel, was appointed and clearly served as legal counsel to the children rather than serving as a friend of the court investigator. Gambrel served as an advocate for the best interest of the children by filing motions and introducing evidence on behalf of his clients, whereas the Family Court judge served as the fact-finder and decided the law that governed those facts. Moreover, the acts by Gambrel on which the children base their claims of malpractice involved no non-discretionary functions performed at the direction of a judicial officer. Discretionary actions are those that involve personal deliberation, decisions, and judgment, and the role of counseling a client on the law and the client's rights clearly involves the exercise of discretion. Jacobi v. Holbert , 553 S.W.3d 246, 262 (Ky. 2018). The Defendant was appointed to provide legal counsel for and to advocate on behalf of the children. Thus, Gambrel's role was vastly different from that of the Family Court judge and did not involve discretionary acts or conduct like those a judge performs.

....

... Morgan ... makes clear that the role of a GAL is to serve as legal counsel for the children and to advocate for their best interests. Therefore, the Court finds that the Defendants do not qualify for quasi-judicial, nor any other form of immunity.

(T.R. at 263-64). We find that the circuit court erred when it concluded a GAL whose duty it is to advocate for the children's best interests is, ergo , disqualified from claiming quasi-judicial immunity.

Morgan is not dispositive of the immunity issue. The question is not whether Gambrel could have been cross-examined despite not filing any report with the family court. Gambrel's appeal requires this Court to answer a different question – whether he is immune from suit, a question ultimately answered by considerations of public policy, not the same principles of due process that guided the Supreme Court in Morgan .

We acknowledge that Morgan distinguishes the roles of GALs and court investigators. However, these distinctions do little to answer the immunity question. In other words, there is no justification for denying immunity to a court-appointed GAL simply because Morgan says the GAL cannot be cross-examined. After all, neither role – GAL nor ...