COURT OF APPEALS DECISION DATED AND FILED |
NOTICE |
December 23, 1998 |
��� This opinion is subject to further
editing. If published, the official version will appear in the bound volume
of the Official Reports. |
Marilyn L. Graves Clerk, Court of Appeals of Wisconsin |
��� A party may file with the Supreme Court
a petition to review an adverse decision by the Court of Appeals.� See � 808.10 and Rule 809.62, Stats. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS DISTRICT II |
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Malcolm
K. H., ����������������������������
Plaintiff-Appellant, ������������� v. Michael
R. Phegley, ����������������������������
Defendant-Respondent. |
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����������������������� APPEAL from a judgment of the circuit court for Racine County:� MARY KAY WAGNER-MALLOY, Judge.� Affirmed.�
����������������������� Before Snyder, P.J., Brown and Anderson, JJ.�
����������������������� SNYDER, P.J.��� Malcolm K. H. appeals from a summary judgment dismissing his complaint alleging that Attorney Michael R. Phegley improperly performed his duties as guardian ad litem (GAL) for Malcolm�s daughter.� The trial court granted Phegley absolute quasi-judicial immunity from Malcolm�s claims.� Malcolm contends that Phegley�s actions were intentional and therefore not subject to immunity.� We disagree and affirm.
����������������������� Malcolm�s complaint against Phegley stems from a divorce action brought by Malcolm�s former wife Elizabeth H. and from her allegations that Malcolm had sexually abused their only child, Mary.� Phegley was appointed as Mary�s GAL on December 16, 1993.� During his investigation, Phegley learned that Mary had made statements to Elizabeth and her maternal grandmother indicating that Malcolm had sexually abused her.� In February 1994, Phegley requested, and the parties agreed, to use Dr. Marc Ackerman as a neutral expert to evaluate the sexual abuse allegations.� Ackerman initially assessed that Mary had been sexually abused by Malcolm.� Both parties then retained their own experts.� During hearings on custody and visitation, the court found Ackerman�s and Elizabeth�s experts more compelling than Malcolm�s experts and subsequently ordered Malcolm not to have contact with Mary.�
����������������������� In March 1997, Malcolm brought suit against Phegley for breach of contract, professional malpractice, gross negligence[1] and intentional infliction of emotional distress.� Malcolm�s claims arise from the following allegations:� Phegley knew or should have known that Ackerman�s reports of sexual abuse were false and based upon falsified data and flawed and unprofessional practices; Phegley knew or should have known that his recommendation to the court prohibiting contact between Malcolm and Mary was contrary to the best interests of the child; Phegley was �grossly negligent, professionally and otherwise, in his investigation, analysis and representation of the best interests of the child�; Phegley acted with �deliberate indifference� to the effect of his substandard work upon Malcolm and Mary and his actions were �outside the scope of his authority�; Phegley manipulated and indoctrinated Mary �into [a] false �sexual abuse victim� role with its concomitant psychological damage� to Malcolm and Mary; Phegley breached his duty of good faith, fair dealing, honesty and proper performance which he owed to Malcolm and Mary; Phegley acted out of his dislike of Malcolm and maintained a �vendetta� against him; and Phegley breached an express and implied contract that he had with Malcolm and Mary.�
����������������������� On October 17, 1997, Phegley filed a motion for summary judgment on the grounds that Malcolm�s complaint failed to state a claim for relief.[2]� See � 802.06(2)(a)6, (2)(b), Stats.� The court granted his motion, holding that because Phegley�s actions were within the scope of his GAL position, he was entitled to absolute quasi-judicial immunity.
����������������������� We use the same summary judgment methodology as does the trial court, and we review its decision de novo.� See Grosskopf Oil, Inc. v. Winter, 156 Wis.2d 575, 581, 457 N.W.2d 514, 517 (Ct. App. 1990).� The first step in this methodology requires the court to examine the pleadings to determine whether a claim for relief has been stated.� See Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987).� We are convinced that Malcolm�s pleadings fail to present a claim for relief.
����������������������� Malcolm�s first claim is that Phegley impliedly and expressly breached a contract with Malcolm and Mary which was made on December 16, 1993, the date Phegley was appointed GAL.� Malcolm, however, provides no indication of what contract Phegley had entered into with Malcolm or Mary.[3]� Likewise, we fail to find any contract in the record.� Therefore, Malcolm�s breach of contract allegation fails to state a claim for relief.
����������������������� Next, Malcolm contends that Phegley exercised professional misconduct, including breaching a duty of good faith, fair dealing, honesty and proper performance which he owed Malcolm and Mary.� A claim of professional misconduct requires a finding of negligence.� See Helmbrecht v. St. Paul Ins. Co., 122 Wis.2d 94, 103, 362 N.W.2d 118, 124 (1985).� In the recent supreme court case of Paige K.B. v. Molepske, 219 Wis.2d 418, 424, 580 N.W.2d 289, 292 (1998), the court ruled that absolute quasi-judicial immunity specifically covered the negligent acts of a GAL.� Accordingly, Malcolm�s professional misconduct allegation fails to state a claim.
����������������������� Finally, Malcolm alleges that Phegley intentionally inflicted emotional distress on him.� In particular, Malcolm contends that because Phegley adopted Ackerman�s conclusions, which were contrary to those reached by Malcolm and his experts, Phegley acted maliciously and carried a personal vendetta against him.� Malcolm asserts that because Phegley�s actions were malicious, he acted outside the scope of his authority.� Malcolm further claims that Phegley acted with deliberate indifference to his substandard work.� These allegations are conclusory and pure speculation.� Malcolm provides no factual support for these claims in his pleadings or affidavits.� See � 802.08(3), Stats.� Although he relies on an affidavit submitted by an expert social psychologist, Melvin Guyer, Guyer�s opinion is based entirely on Malcolm�s representations which we have already determined are not supported by fact.[4]� Thus, we are satisfied that Malcolm has failed to state a claim for relief and affirm the circuit court�s decision.[5]
����������������������� By the Court.�Judgment affirmed.
����������������������� Not recommended for publication in the official reports.
[1] Malcolm later dropped his gross negligence claim pursuant to Bielski v. Schulze, 16 Wis.2d 1, 17-18, 114 N.W.2d 105, 113-14 (1962).
[2] Although this action was venued in Racine county, all of the Racine county judges disqualified themselves.� The case was subsequently assigned to Judge Mary Kay Wagner-Malloy of Kenosha county.
[3] Throughout his complaint, Malcolm asserts that Phegley�s actions harmed Malcolm and Mary.� However, because Mary is not a party in interest in this action, she has no claim against Phegley.� See generally � 803.01(1), Stats.
[4] The only specific facts Malcolm sets forth involve Phegley�s allegedly improper recommendation and use of Ackerman as a neutral expert.� Malcolm charges that Ackerman should not have been recommended because Elizabeth had previously contacted Ackerman and Ackerman had reached a conclusion before the parties agreed to use his services.� This allegation, however, relates solely to Phegley�s performance as GAL and therefore involves professional misconduct which is subject to absolute quasi-judicial immunity.� See Paige K.B. v. Molepske, 219 Wis.2d 418, 435, 580 N.W.2d 289, 296 (1998).
[5] Because no claim for relief exists, we need not address Malcolm�s argument that Wisconsin law does not extend absolute quasi-judicial immunity to the intentional acts of a GAL that reach beyond the scope of his or her quasi-judicial duties, notwithstanding case law granting immunity to a GAL�s negligent acts.� We also need not consider whether genuine issues of fact exist.� See Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987).