Gerber v. Peters

• Decision Date: 14 December 1990
• Citation: 584 A.2d 605
• Parties: Ernst W. GERBER v. Thomas P. PETERS, II, et al.
• Court: Maine Supreme Court

Page 605

584 A.2d 605

Ernst W. GERBER v. Thomas P. PETERS, II, et al.

Supreme Judicial Court of Maine.

Argued Oct. 29, 1990.

Decided Dec. 14, 1990.

Dana E. Prescott (orally), Roderick H. Potter, Potter & Prescott, Saco, for plaintiff.

Theodore H. Kirchner (orally), Norman, Hanson & DeTroy, Portland, for defendants.

Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD and BRODY, JJ.

GLASSMAN, Justice.

The plaintiff, Ernst W. Gerber, challenges the summary judgment granted to the defendants, Thomas P. Peters, II, and the law firm of Peters & Randlett, by the Superior Court (Androscoggin County, Alexander, J.). He contends that the record discloses genuine issues of material fact as to the defendants' liability in damages for the conduct of Peters while acting as the court appointed guardian ad litem for Gerber's minor child. We find no error in the record and affirm the judgment.

The undisputed historical facts leading to the present action are as follows: On March 30, 1984, a judgment of divorce was entered in the Superior Court (Oxford County, Delahanty, J.) providing, inter alia, that Ernst and Becky Gerber have joint custody of their three minor children, that Becky have the primary physical custody of the children during the school year and that the children live with Ernst during their summer vacations. The judgment further provided that when their minor son Eduard reached 13 years of age his primary physical custody would be with Ernst. In response to a motion filed by Ernst and consented to by both parties through their respective counsel, on January 5, 1989, the court appointed Peters as guardian ad litem of Eduard. The order provided that Peters's duties were "to evaluate the parties, their children, and any other appropriate individuals and to provide a report and recommendations to the Court as to an appropriate disposition of the parental rights and responsibilities regarding Eduard Gerber. The responsibility for payment of his fees shall be divided equally between the parties." After an investigation, on July 31, 1989, Peters filed his initial report with the court recommending that Ernst be given immediate primary physical custody of Eduard. Although this recommendation was not immediately incorporated into a court order, ¹ Ernst took Eduard with him to his home in Nevada. In early November 1989, Peters presented to the court his affidavit in which he recommended that Eduard return to Maine with Becky, who was visiting in Nevada, and detailed the reasons for his recommendation. On November 2, 1989, the court issued its order, "pending further hearing," that Becky have sole parental rights and responsibilities regarding Eduard, that the primary physical residence of Eduard be with Becky in Maine, and that the child "shall return from Nevada accompanied by his mother when she completes her visit in November, 1989." The order further stated that the "Court finds based on [the] affidavit of [the] guardian ad litem that there is sufficient cause to act immediately, without notice, to be in [the] best interest of child." ² Eduard returned to Maine with Becky.

In January 1990, Ernst Gerber filed the present action against Thomas P. Peters II, an attorney, and the law firm of Peters & Randlett. By his complaint, Gerber sought damages from the named defendants for Peters's alleged intentional and malicious interference with Gerber's parental rights, intentional and negligent infliction of emotional distress, professional malpractice, and violation of Gerber's rights under the Maine Civil Rights Act, 5 M.R.S.A. §§ 4681-4683 (Supp.1990). ³ The defendants filed a motion to dismiss the complaint on the ground that Peters owed no legally cognizable duty to Gerber and, in the alternative, that Peters was entitled to immunity for actions taken in his capacity as a guardian ad litem of Eduard. The court, pursuant to M.R.Civ.P. 12, treated the defendants' motion as a motion for a summary judgment and after a hearing granted a summary judgment to the defendants from which Gerber appeals.

In testing the propriety of a summary judgment, we accept as true the uncontroverted facts properly appearing in the record. Field, McKusick & Wroth, Maine Civil Practice § 56.4 at 357 (2d ed. Supp.1981). The invocation of a summary judgment procedure is not a submission of issues of fact to the court for resolution but a request to the court for a determination whether any genuine issue of a material fact exists. Wescott v. Allstate Ins., 397 A.2d 156, 163 (Me.1979). However, in a case when "the plaintiff will have the burden of proof on an essential issue at trial and it is clear that the defendant would be entitled to a directed verdict at trial if the plaintiff presented nothing more than was before the court at the hearing on the motion, the court may properly grant a defendant's motion for a summary judgment." Bailey v. Gulliver, 583 A.2d 699 (Me.1990); 2 Field, McKusick & Wroth, Maine Civil Practice § 56.2a, at 36 (2d ed. 1970).

We have previously recognized the authority of the court in a divorce proceeding to appoint a guardian ad litem for a minor child,...