Billups v. Scott

Page 603

571 N.W.2d 603

253 Neb. 287

Andre Frederick BILLUPS, Sr., as next friend of Andre Frederick Billups, Jr., Appellant, v. Emily SCOTT, Appellee.

No. S-96-466.

Supreme Court of Nebraska.

Nov. 7, 1997.

Syllabus by the Court

1. Demurrer: Pleadings: Appeal and Error. In an appellate court's review of a ruling on a general demurrer, the court is required to accept as true all of the facts that are well pled and the proper and reasonable inferences of law and fact that may be drawn therefrom.

2. Actions: Pleadings. In order to state a cause of action, one must allege events, acts, and things done or omitted which show a legal liability on the part of the defendant to the plaintiff.

3. Demurrer: Pleadings. If, upon the sustainment of a demurrer, it is clear that no reasonable possibility exists that an amendment will correct a pleading defect, leave to amend need not be granted.

4. Guardians Ad Litem. The appointment of a guardian ad litem is not a mere matter of form, and such guardian should prepare and conduct the defense of the ward with as much care as though acting under a retainer.

5. Attorney and Client: Guardians Ad Litem. While an attorney serving as counsel acts in accordance with the client's wishes within the limits of the law, a guardian ad litem, generally speaking, steps into the position of the ward and, after considering the alternatives, asserts the right of the ward as the guardian ad litem sees fit.

6. Actions: Public Officers and Employees: Damages: Immunity. Immunity from suit for damages based upon the performance of duties within one's authority attaches to particular official functions, not to particular offices.

7. Actions: Public Officers and Employees: Liability: Damages: Immunity. In determining whether to grant immunity from suit for damages based upon the performance of duties within one's authority, courts examine the nature of the functions with which a particular official or class of officials has been lawfully entrusted, and seek to evaluate the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions.

8. Actions: Guardians Ad Litem: Damages: Immunity. A guardian ad litem is entitled to absolute immunity from any suit for damages based upon the performance of duties which are within the scope of such guardian's authority.

Andre Frederick Billups, Sr., pro se.

Thomas J. Guilfoyle and John A. Kinney, of Frost, Meyers, Guilfoyle & Govier, Omaha, for appellee.

WRIGHT, GERRARD, STEPHAN, and McCORMACK, JJ.

PER CURIAM.

Although the title of this case in the pleadings designates the "Guinan and Scott Law Firm" as the defendant, the plaintiff-appellant, Andre Frederick Billups, Sr. (hereinafter Billups), as the next friend of his son, Andre Frederick Billups, Jr., alleges that only the defendant-appellee, attorney Emily Scott, negligently performed her duties as a lawyer representing the son as his appointed guardian ad litem. Following the sustainment of Scott's demurrer, the district court dismissed the action. On our own motion, we, under our authority to regulate the caseloads of this court and that of the Nebraska Court of Appeals, removed this matter to our docket.

FACTS

In his original petition, Billups in substance alleged that Scott neglected to properly investigate, interview, and subpoena witnesses, and otherwise represent the son's best interests, as the result of which Scott recommended that the son be placed in a home in which there allegedly had been an ongoing history of abuse.

After the district court sustained Scott's demurrer to that petition, it granted Billups leave to file an amended petition. He then filed a document entitled "Amended Petition," but it was more in the nature of a legal memorandum than a pleading designed to state a cause of action. The document contained no specific allegation of facts, but made the bald assertion that Scott "did show gross negligence."

The district court dismissed the action on the basis that Scott was acting within the scope of her duties pursuant to her appointment as guardian ad litem and that she was therefore immune from civil suits.

ASSIGNMENTS OF ERROR

Billups' assignments of error combine to assert that the district court wrongly (1) dismissed his action without granting him leave to amend and (2) concluded that Scott was immune from suit.

SCOPE OF REVIEW

In an appellate court's review of a ruling on a general demurrer, the court is required to accept as true all of the facts that are well pled and the proper and reasonable inferences of law and fact that may be drawn therefrom. Galyen v. Balka, 253 Neb. 270, 570 N.W.2d 519 (1997); Fox v. Metromail of Delaware, 249 Neb. 610, 544 N.W.2d 833 (1996); Proctor v. Minnesota Mut. Fire & Cas., 248 Neb. 289, 534 N.W.2d 326 (1995).

ANALYSIS

Billups' assignments of error are interrelated, because in order to state a cause of action, one must allege events, acts, and things done or omitted which show a legal liability on the part of the defendant to the plaintiff. See Giese v. Stice, 252 Neb. 913, 567 N.W.2d 156 (1997). Thus, if Scott's role and work as a guardian ad litem entitle her to immunity, then Billups clearly does not have a cause of action against her that will survive a demurrer. If that is the situation, the district court did not err in not permitting Billups further leave to amend, for if, upon the sustainment of a demurrer, it is clear that no reasonable possibility exists that an amendment will correct a pleading defect, leave to amend need not be granted. See Giese, supra.

Although through the adoption of our commissioners' opinion in Boden v. Mier, 71 Neb. 191, 98 N.W. 701 (1904), we have declared that the appointment of a guardian ad litem is not a mere matter of form and that such guardian should prepare and conduct the defense of the ward with as much care as though acting under a retainer, we have not heretofore considered whether a guardian ad litem enjoys civil immunity in the performance of the duties attendant to that office. Such determination necessarily requires a review of the role of a guardian ad litem.

In Orr v. Knowles, 215 Neb. 49, 337 N.W.2d 699 (1983), we distinguished between the role of such a guardian and that of an attorney and noted that the duties and responsibilities of a guardian ad litem are not coextensive with those of an attorney. While an attorney serving as counsel acts in accordance with the client's wishes within the limits of the law, a guardian ad litem, generally speaking, steps into the position of the ward and, after considering the alternatives, asserts the right of the ward as the guardian ad litem sees fit. We also observed in Orr that, at least in certain contexts, the functions of a guardian ad litem are ministerial and not judicial or quasi-judicial.

We have recognized, however, that immunity from any suit for damages based upon the performance of duties within one's authority attaches to particular official functions, not to particular offices. Talbot v. Douglas County, 249 Neb. 620, 544 N.W.2d 839 (1996), citing Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). Under Forrester, in determining whether to grant such immunity, courts examine the nature of the functions with which a particular official or class of officials has been lawfully entrusted, and seek to evaluate the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions.

In Talbot, a woman sued an attorney in a county attorney's office who had promised that he would collect delinquent child support and alimony for her. The attorney was negligent in pursuing the collection, and the woman sued. We denied the attorney immunity, distinguishing the situation therein presented from that presented in Koch v. Grimminger, 192 Neb. 706, 223 N.W.2d 833 (1974), in which a prosecutor was granted immunity on the ground that prosecuting is a quasi-judicial function. We reasoned that as the Talbot attorney had agreed to represent the woman, he was acting as an advocate, which is not a quasi-judicial function.

Because it is the official functions performed, and not the office held, which is determinative, we have extended civil immunity to a psychiatrist directed by a court to evaluate an accused for the purpose of determining his competency to stand trial. We held that the psychiatrist was entitled to absolute immunity from suit for damages based on the examination made within the scope of the psychiatrist's authority and while acting without willfulness, malice, or corruption. Gallion v. Woytassek, 244 Neb. 15, 504 N.W.2d 76 (1993).

We have also written that an officer acting in a quasi-judicial capacity " ' "is usually given immunity from liability to persons who may be injured as the result of an erroneous decision, provided the acts complained of are done within the scope of the officer's authority, and without wilfulness, malice, or corruption." ' " Koch, 192 Neb. at 709, 223 N.W.2d at 835 (quoting Allen v. Miller, 142 Neb. 469, 6 N.W.2d 594 (1942)). In addition, we have recognized that immunity exists for officials acting in a ministerial capacity in obeyance of a process regular and valid on its face issuing from a court or tribunal with apparent jurisdiction to issue the same. See, Gallion, supra; Jeffres v. Countryside Homes, 214 Neb. 104, 333 N.W.2d 754 (1983); Koepf v. County of York, 198 Neb. 67, 251 N.W.2d 866 (1977).

A number of courts have specifically held...