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Farris v. McKaig

Court of Appeals of Michigan

May 17, 2018

JAMES FARRIS, Next Friend of KEAGAN FARRIS, Plaintiff-Appellant,
v.
JOHN H. MCKAIG, III, Defendant-Appellee.

          Antrim Circuit Court LC No. 2016-009053-NM

          Before: Shapiro, P.J., and M. J. Kelly and O'Brien, JJ.

          O'BRIEN, J.

         James Farris, plaintiff's father and acting as plaintiff's next friend, appeals as of right the trial court's order granting defendant's motion for summary disposition under MCR 2.116(C)(7). We affirm.

         In 2010, defendant was appointed as plaintiff's lawyer-guardian ad litem (LGAL) in child protective proceedings involving plaintiff's parents. As a result of those proceedings, both of plaintiff's parents' parental rights were terminated. James appealed the termination, and our Supreme Court eventually remanded the case to the trial court "for reconsideration in light of In re Sanders, 495 Mich. 394; 852 N.W.2d 524 (2014), " which had abolished the one-parent doctrine. In re Farris, 497 Mich. 959 (2015). James's parental rights were subsequently reinstated, and plaintiff now resides with his father.

         After the reinstatement of James's parental rights, plaintiff, through next friend James, filed this suit against defendant for legal malpractice stemming from defendant's role as plaintiff's LGAL. The complaint alleged that defendant had breached his duty as LGAL to plaintiff by failing to "inform[] himself of the true facts" of the child protective proceedings and failing to adequately advocate for plaintiff.

         Defendant moved for summary disposition under MCR 2.116(C)(7), arguing that he was entitled to governmental immunity under MCL 691.1407(6), which grants a guardian ad litem (GAL) immunity from civil liability when acting within the scope of the GAL's authority. In response, James argued that MCL 691.1407(6) was only applicable to GALs, not LGALs. Following a hearing, the trial court held that LGALs are a "subset" of GALs and, therefore, are entitled to governmental immunity under MCL 691.1407(6). The trial court granted summary disposition for defendant because the allegations in the complaint were solely related to actions undertaken by defendant in his role as LGAL.

         On appeal, James, as plaintiff's next friend, argues that the trial court erred by concluding that LGALs are entitled to immunity under MCL 691.1407(6). We disagree.

         "We review de novo a trial court's grant of summary disposition." Innovation Ventures v Liquid Mfg, 499 Mich. 491, 506; 885 N.W.2d 861 (2016). We also review de novo the availability of governmental immunity, Norris v Lincoln Park Police Officers, 292 Mich.App. 574, 578; 808 N.W.2d 578 (2011), and issues of statutory interpretation, Estes v Titus, 481 Mich. 573, 578-579; 751 N.W.2d 493 (2008). With regard to a motion for summary disposition pursuant to MCR 2.116(C)(7), we review the affidavits, pleadings, and other documentary evidence presented by the parties, and we accept as true the plaintiff's well-pleaded allegations that are not contradicted by documentary evidence. Oliver v Smith, 290 Mich.App. 678, 683; 810 N.W.2d 57 (2010).

         At issue in this case is a provision of the Governmental Tort Liability Act (GTLA), MCL 691.1401 et seq. The purpose of the GTLA is to limit governmental tort liability. Genesee Co Drain Comm'r v Genesee Co, 309 Mich.App. 317, 321; 869 N.W.2d 635 (2015). Thus, the GTLA's grant of immunity is broad, and exceptions are narrowly construed. Nawrocki v Macomb Co Rd Comm, 463 Mich. 143, 158; 615 N.W.2d 702 (2000). Under the GTLA, "[a] guardian ad litem is immune from civil liability for an injury to a person or damage to property if he or she is acting within the scope of his or her authority as guardian ad litem." MCL 691.1407(6). However, the GTLA does not define "guardian ad litem." Therefore, it is necessary for us to interpret the statute and determine whether "guardian ad litem" as used in MCL 691.1407(6) applies to LGALs.

         In reviewing questions of statutory interpretation, we must discern and give effect to the Legislature's intent. Putkamer v Transamerica Ins Corp of America, 454 Mich. 626, 631; 563 N.W.2d 683 (1997). "To do so, we begin by examining the most reliable evidence of that intent, the language of the statute itself." Whitman v City of Burton, 493 Mich. 303, 311; 831 N.W.2d 223 (2013). "If the language of a statute is clear and unambiguous, the statute must be enforced as written and no further judicial construction is permitted." Id. When interpreting an undefined statutory term, the term "must be accorded its plain and ordinary meaning." Brackett v Focus Hope, Inc, 482 Mich. 269, 276; 753 N.W.2d 207 (2008). Consulting a lay dictionary is proper when defining common words or phrases that lack a unique legal meaning, but when the statutory term is a legal term of art, the term "must be construed in accordance with its peculiar and appropriate legal meaning." Id. "Guardian ad litem" is a legal term of art, see King v Emmons, 283 Mich. 116, 124-125; 277 N.W. 851 (1938), and, therefore, resort to a legal dictionary to determine its meaning is appropriate, see Ford Motor Co v City of Woodhaven, 475 Mich. 425, 440; 716 N.W.2d 247 (2006).

         "Guardian ad litem" is defined in Black's Law Dictionary (10th ed) as "[a] guardian, usu. a lawyer, appointed by the court to appear in a lawsuit on behalf of an incompetent or minor party." Black's Law Dictionary (10th ed) defines "guardian" as "[s]omeone who has the legal authority and duty to care for another's person or property, esp. because of the other's infancy, incapacity, or disability." Thus, we must decide whether an LGAL is someone appointed by the court to appear in a lawsuit on behalf of a minor and has the legal authority and duty to care for the minor's person or property. We conclude that an LGAL is.

         MCL 712A.17c(7) provides that "[i]n a proceeding under section 2(b) or (c) of this chapter, the court shall appoint a lawyer-guardian ad litem to represent the child." The LGAL's duties are laid out in MCL 712A.17d(1), which provides in pertinent part as follows:

         A lawyer-guardian ad litem's duty is to the child, and not the court. The lawyer-guardian ad litem's powers and duties include at least all of the following:

(a) The obligations of the attorney-client privilege.
(b) To serve as the independent representative for the child's best interests, and be entitled to full and active participation in all aspects of the litigation and access to all relevant information regarding the child.
(c) To determine the facts of the case by conducting an independent investigation including, but not limited to, interviewing the child, social workers, family members, and others as necessary, and reviewing relevant reports and other information. The agency case file shall be reviewed before disposition and before the hearing for termination of parental rights. Updated materials shall be reviewed as provided to the court and parties. . . .
(d) To meet with or observe the child and assess the child's needs and wishes with regard to the representation and the issues in the case . . . .
(f) To explain to the child, taking into account the child's ability to understand the proceedings, the lawyer-guardian ad litem's role.
(g) To file all necessary pleadings and papers and independently call witnesses on the child's behalf.
(i) To make a determination regarding the child's best interests and advocate for those best interests according to the lawyer-guardian ad litem's understanding of those best interests, regardless of whether the lawyer-guardian ad litem's determination reflects the child's wishes. The child's wishes are relevant to the lawyer-guardian ad litem's determination of the child's best interests, and the lawyer-guardian ad litem shall weigh the child's wishes according to the child's competence and maturity. Consistent with the law governing attorney-client privilege, the lawyer-guardian ad litem shall inform the court as to the child's wishes and preferences.
(j) To monitor the implementation of case plans and court orders, and determine whether services the court ordered for the child or the child's family are being provided in a timely manner and are accomplishing their purpose. The lawyer-guardian ad litem shall inform the court if the services are not being provided in a timely manner, if the family fails to take advantage of the services, or if the services are not accomplishing their intended purpose.
(k) Consistent with the rules of professional responsibility, to identify common interests among the parties and, to the extent possible, promote a cooperative resolution of the matter through consultation with the child's parent, foster care provider, guardian, and caseworker.
(1) To request authorization by the court to pursue issues on the child's behalf that do not arise specifically ...

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