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Torts: Court Appointed Attorneys Malpractice/Judicial Immunity/Negligent Hiring

Posted by Ted A. Schmidt | Mar 25, 2019 | 0 Comments

Gibson v. Theut, __Ariz. Adv. Rep. __, No. 1 CA-CV 17-0562 (App.  Div. I, March 12, 2019) (J. Perkins)


Plaintiff Steven Gibson, a minor,  and his mother, sister and friend planned and carried out the murder of plaintiff's father who they claimed was guilty of domestic violence. The parents of the decedent brought a wrongful death action in probate court against the plaintiff and his accomplices. The court commissioner assigned the case appointed attorney Paul Theut to act as plaintiff's guardian ad litem [GAL] and attorney Rick Kilvoy to represent plaintiff.

The decedent's parents obtained a default judgment against plaintiff's sister and mother for $50,010,000 and then served a Rule 68 Offer of Judgment upon plaintiff. While the offer of judgment was still pending the plaintiff entered a guilty plea to second degree murder. This plea formed the basis of the decedent's parents subsequent motion for summary judgement which was granted.

Neither Theut nor Kilvoy told plaintiff of the offer of judgment, the  motion for summary judgment, the $50,010,000 default judgment or the damage hearing that followed the granting of the summary judgment. Thereafter, while Theut and Kilvoy attended the damage hearing they did nothing to contest the claimed damages and presented no evidence or argument for mitigation. The probate court ultimately entered judgment against plaintiff in the amount of $50,060,000. Thereafter the court awarded the decedent's parents $1,142,465.21 in Rule 68 sanctions.

Plaintiff then brought this malpractice action against Theut and Kilvoy and sued the state for negligence in their hiring. The trial court granted defendants' Ariz. R. Civ. Pro. Rule 12(b)(6) motion to dismiss. The Arizona Court of Appeals affirmed in part, reversed in part and remanded the case:

Because each acted in a representative rather than judicial capacity, we hold neither the GAL nor the appointed attorney is entitled to absolute judicial immunity. Gibson's appointed attorney additionally argues that because Gibson was represented by a GAL, he lacks standing to sue the appointed attorney. Because a minor represented by a GAL in adversarial proceedings is the real party in interest, we hold that minors have standing to sue their attorney for legal malpractice. Finally, drawing on the principles expressed in State v. Hicks, 219 Ariz. 328 (2009), we hold that government entities may be held liable under a theory of negligent hiring when they authorize appointment of a legal representative who lacks competence to handle the matter. .  .  .

The State and County are entitled to absolute judicial immunity under A.R.S. § 12-820.01(A)(1) against any claim by Gibson of direct or vicarious liability for Commissioner Fish's orders appointing Theut and Kilfoy. Furthermore, under Hicks, neither the State nor the County can be held vicariously liable for the misconduct of independently contracted attorneys. The State and County's direct liability, if any, is limited to each entity's conduct in prequalifying or selecting Theut and Kilfoy to serve as appointed counsel, to the extent Gibson can show Theut and Kilfoy were incompetent and unqualified, and therefore should not have been on the list provided to Commissioner Fish and other judicial officers.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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