Nichols v. Fahrenkamp

• Citation: 113 N.E.3d 1183,2018 IL App (5th) 160316
• Decision Date: 09 July 2018
• Docket Number: NO. 5–16–0316,5–16–0316
• Parties: Alexis NICHOLS, f/k/a Alexis Brueggeman, Plaintiff–Appellant, v. David FAHRENKAMP and David Fahrenkamp, d/b/a Fahrenkamp Law Offices, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

2018 IL App (5th) 160316
113 N.E.3d 1183

Alexis NICHOLS, f/k/a Alexis Brueggeman, Plaintiff–Appellant,
v.
David FAHRENKAMP and David Fahrenkamp, d/b/a Fahrenkamp Law Offices, Defendants–Appellees.

NO. 5–16–0316

Appellate Court of Illinois, Fifth District.

Opinion Filed: July 9, 2018

Charles W. Armbruster III, Michael T. Blotevogel, Roy C. Dripps III, Winterscheidt & Blotevogel, LLC, 51 Executive Plaza Court, Maryville, IL 62062, Attorneys for Appellant

M. Joseph Hill, 511 St. Louis Street, P.O. Box 647, Edwardsville, IL 62025, Attorney for Appellees

OPINION

JUSTICE CATES delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Alexis Nichols, f/k/a Alexis Brueggeman, brought a legal malpractice action against defendants, David Fahrenkamp and David Fahrenkamp, d/b/a Fahrenkamp Law Offices, to recover damages occasioned by the negligence of defendants during the time attorney Fahrenkamp was acting as plaintiff's guardian ad litem . Plaintiff alleged that attorney Fahrenkamp's negligence caused the dissipation of settlement proceeds that had been recovered from a personal injury lawsuit brought on behalf of plaintiff when she was a minor. The circuit court of Madison County entered summary judgment for defendants, relying on the premise that a private attorney appointed as a guardian ad litem has quasi-judicial immunity for his or her omissions "so long as the guardian ad litem follows the directions of the court and is within the scope of the appointment." We reverse the entry of summary judgment in favor of defendants and remand for further proceedings.

¶ 2 When plaintiff was 11 years old, she received a $600,000 settlement for injuries she sustained in a motor vehicle accident. Because plaintiff was a minor, her mother was appointed as guardian of plaintiff's person and estate. Attorney Fahrenkamp was appointed by the court as the guardian ad litem for plaintiff. In 2012, plaintiff brought suit against her mother, alleging that she spent funds from the settlement account that were not used for the benefit of plaintiff, but instead were used solely for her mother's benefit. According to the allegations in the 2012 litigation, plaintiff alleged that her mother petitioned the probate court and withdrew some $79,507 that was not used on plaintiff's behalf. This litigation, case number 12–MR–188, proceeded to trial in 2013.

¶ 3 On April 17, 2013, during trial, the judge asked, "And where was the GAL [guardian ad litem ] in all of this?" (The guardian ad litem , attorney Fahrenkamp, had not been named as a party-defendant in 12–MR–188.) At the conclusion of the trial in 12–MR–188, the court entered an award for plaintiff, but limited the amount of the recovery. With regard to the amount of damages, the trial court determined that plaintiff's mother could not be faulted for

113 N.E.3d 1185

her failure to have receipts to prove each and every amount she claimed to have spent for the items provided to her daughter. The court explained that it would not assess damages "while [Plaintiff] had a guardian ad litem who approved the estimates and expenditures." In other words, the court relied on attorney Fahrenkamp's status as guardian ad litem to limit plaintiff's remedies against her mother. As a result, judgment was entered against plaintiff's mother for $16,365, plus $10,000 in attorney fees and the return of a 2007 vehicle, far less than the amount plaintiff claimed had been dissipated.

¶ 4 On August 16, 2013, plaintiff filed suit against defendants, contending that they failed to protect her interests by allowing her mother to convert plaintiff's settlement funds for the mother's personal benefit. In her complaint against defendants, plaintiff alleged that attorney Fahrenkamp never met with or talked to plaintiff during any of the time he was acting as her guardian ad litem , nor did he ever ask her if the statements contained in her mother's petitions to withdraw monies from the settlement account were accurate. She averred that if Fahrenkamp had spoken with her, she would have told him that the expenses her mother claimed needed to be paid out of plaintiff's settlement account either did not exist, were grossly inflated, or were covered expenses that plaintiff, herself, was already paying for out of other proceeds. Plaintiff further stated that she had no idea she could ask attorney Fahrenkamp, or any other attorney, for advice regarding her mother's requests to withdraw funds from the settlement proceeds. Plaintiff claimed she did not even realize that she had a guardian ad litem appointed for her, let alone attorney Fahrenkamp, until after the probate file was closed on September 2, 2010, when she reached the age of 18. Plaintiff further asserted that information about her settlement monies, and the process by which such funds could be used on her behalf, were largely kept from her during her childhood. Finally, plaintiff also claimed that defendants negligently failed to audit the account or report any irregularities to the court or to the plaintiff.

¶ 5 Defendants filed a motion to dismiss, and then a motion for summary judgment, alleging that attorney Fahrenkamp, as a guardian ad litem , had quasi-judicial immunity for the functions he performed in the probate proceeding, given that he was acting within the scope of his appointment by the court. Attorney Fahrenkamp specifically averred that he met with plaintiff on three separate occasions during the time he acted as her guardian ad litem . He also stated that he gave plaintiff, who was then 11 years old, his business card when he was first appointed as her guardian ad litem , and there was nothing that prevented her from contacting him through the numbers listed on the business card, if she had any questions or concerns.

¶ 6 On June 22, 2016, the court granted defendants' motion for summary judgment. The court, in ruling in favor of defendants, recognized that Illinois law had not yet answered the question of whether a guardian ad litem was subject to a grant of immunity under the circumstances presented by plaintiff's claims. The trial court recognized, however, that a guardian ad litem , appointed by the court in a probate proceeding, is under a duty to help safeguard and protect the interests and welfare of the minor. In drawing a distinction between immunity and duty, the court then explained, relying on McCarthy v. Cain , 301 Ill. 534, 134 N.E. 62 (1922), that a guardian ad litem should examine the case, determine what the rights are of his wards, what defense their interests demand, and then make such defense as the exercise of care and prudence would dictate.

113 N.E.3d 1186

"The guardian ad litem who perfunctorily files an answer for his ward and then abandons the case fails to comprehend his duties as an officer of the court." (Internal quotation marks omitted.) McCarthy , 301 Ill. at 539, 134 N.E. 62.

¶ 7 Despite the trial court's recognition of the duty imposed upon a guardian ad litem , the court granted summary judgment in favor of the defendants, finding that the failure of the guardian ad litem to meet with plaintiff over the monies requested by mother did not "constitute a failure to fulfill the actions and duties that were assigned to defendant by the probate court." The court reasoned that so long as the guardian ad litem acted within the scope of his appointment to give advice to the court, he should enjoy the same immunity as the court. Because attorney Fahrenkamp's role was general, and his duty was to act in the ward's best interests by making recommendations to the court, the court concluded that Fahrenkamp had no duty to perform the specific tasks of verifying mother's requests, perform audits of the settlement account, or act as an accountant to review receipts, unless specifically instructed by the court to do so.

¶ 8 In making its ruling, the court relied on Heisterkamp v. Pacheco , 2016 IL App (2d) 150229, 400 Ill.Dec. 227, 47 N.E.3d 1192. Although the facts of that case involved a court-appointed expert to perform a custody evaluation, the trial court adopted the Heisterkamp reasoning and determined that when a court-appointed individual acts within the scope of his or her appointment to give advice to the court regarding the best interest of the minor, for use in the court's decision-making process, that individual must be cloaked with the same immunity as the court. With regard to plaintiff's allegations that Fahrenkamp did not meet with her, the court recognized that the facts regarding this issue were in dispute. The court held, however, that this dispute was not a material fact that precluded summary judgment. Accordingly, the failure to meet with plaintiff over monetary requests did not constitute a failure to fulfill the actions and duties that were assigned to the guardian ad litem by the probate court. This meant, in essence, that plaintiff had little remedy for the dissipation and conversion of her assets. According to the trial court, the plaintiff's mother was shielded from liability for her alleged misconduct because plaintiff had a guardian ad litem , who approved the expenditures, and the guardian ad litem was immune from liability because the court order appointing him as guardian ad litem lacked any specificity regarding his duties.

¶ 9 We agree with plaintiff that the trial court erred in granting defendants quasi-judicial immunity...