JAMES FARRIS, Next Friend of KEAGAN FARRIS, Plaintiff-Appellant,
JOHN H. MCKAIG, III, Defendant-Appellee.
Circuit Court LC No. 2016-009053-NM
Before: Shapiro, P.J., and M. J. Kelly and O'Brien, JJ.
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.
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.
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
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.
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.
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).
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.
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
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.
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:
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 ...