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Gibson v. Theut

Court of Appeals of Arizona, First Division

March 12, 2019

STEVEN GIBSON, JR., Plaintiff/Appellant,
v.
PAUL J. THEUT, et al., Defendants/Appellees.

          Appeal from the Superior Court in Maricopa County No. CV2016-094631 The Honorable David M. Talamante, Judge (Retired)

          Riggs Ellsworth & Porter, PLC, Mesa By Matthew L. Riggs Co-Counsel for Plaintiff/Appellant

          Ahwatukee Legal Office, P.C., Phoenix By David L. Abney Co-Counsel for Plaintiff/Appellant

          Jones, Skelton & Hochuli, P.L.C., Phoenix By J. Gary Linder, Michele Molinario, Sean M. Moore Counsel for Defendants/Appellees Paul J. Theut, Theut, Theut & Theut and Maricopa County

          Lewis Brisbois Bisgaard & Smith, LLP, Phoenix By Sean P. Healy, Brian J. Hembd Counsel for Defendants/Appellees Rick Kilfoy and Rick Kilfoy, PLC

          Arizona Attorney General's Office, Phoenix By Deborah Garner, Cynthia D. Starkey Counsel for Defendant/Appellee State of Arizona

          Presiding Judge Jennifer M. Perkins delivered the opinion of the Court, in which Judge Lawrence F. Winthrop concurs. Judge Jon W. Thompson concurs in part and dissents in part.

          OPINION

          PERKINS, Judge

         ¶1 Steven Gibson Jr. appeals from the superior court's orders dismissing his tort complaint for failure to state a claim pursuant to Arizona Rule of Civil Procedure ("Rule") 12(b)(6). In the course of a wrongful death suit brought against Gibson while he was a minor, the superior court appointed an attorney and a guardian ad litem ("GAL"), who was also an attorney, to defend Gibson's interests. The GAL contends he is entitled to absolute judicial immunity under Widoff v. Wiens, 202 Ariz. 383 (App. 2002). Gibson's appointed attorney contends he too is protected by absolute judicial immunity as a court-appointed attorney. 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 the appointment of a legal representative who lacks competence to handle the matter.

         ¶2 We affirm in part, reverse in part, and remand.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 We "assume the truth of all well-pleaded factual allegations and indulge all reasonable inferences from those facts," although we do not accept as true mere conclusory statements. Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 9 (2012).

         ¶4 Claiming an extensive history of domestic violence, Steven Gibson Jr., along with his mother, sister, and a friend, planned and carried out the killing of Gibson's father in February and March of 2013. While criminal charges were pending, Gibson's paternal grandparents filed a civil complaint in probate court against Gibson, his mother, and his sister seeking damages for the alleged wrongful death of Gibson's father. Probate court Commissioner Fish appointed attorney Paul Theut to act as Gibson's GAL for the purposes of the wrongful death suit. Commissioner Fish subsequently appointed attorney Rick Kilfoy to act as Gibson's attorney in the wrongful death suit.

         ¶5 In February 2014, the probate court entered a default judgment against Gibson's co-defendants, his sister and mother, in the amount of $50, 010, 000.00. Gibson's grandparents subsequently served Gibson's representatives with a Rule 68 offer to take judgment against him in the amount of $5, 000, 000.00. Neither Theut nor Kilfoy ever informed Gibson about the fifty-million-dollar default judgment against his co-defendants or about the tendered five-million-dollar offer of judgment. On July 8, 2014, while the offer of judgment was still open, Gibson pled guilty to second degree murder in the death of his father.

         ¶6 After Gibson's guilty plea, Gibson's grandparents filed for summary judgment in their civil action. The probate court granted the motion for summary judgment and set a damages hearing. Theut and Kilfoy attended the damages hearing but failed to inform Gibson of the entry of summary judgment against him. At the damages hearing, Theut and Kilfoy did nothing to contest the claimed damages and presented no evidence or argument to support mitigation. The probate court ultimately entered judgment against Gibson in the amount of $50, 060, 000.00. Subsequently, pursuant to Rule 68, the court awarded sanctions against Gibson in the amount of $1, 142, 465.21 for failure to obtain a more favorable judgment than the lapsed five-million-dollar offer of judgment.

         ¶7 Gibson then filed this negligence action alleging Kilfoy failed to properly defend against the summary judgment motion by filing deficient responses and failing to conduct discovery, including responses that were untimely or lacked citations to legal authority. Gibson further contends Theut and Kilfoy failed to inform him of the damages hearing or secure his presence at the hearing, all in violation of fiduciary duties owed to Gibson.

         ¶8 Specifically, Gibson alleges Theut and Kilfoy failed to properly defend the damages hearing by failing to make even minimal efforts to reduce the potential damages award and by failing to address or even advise Gibson concerning the offer of judgment before it lapsed. The complaint alleges that, to the contrary, these two professionals demonstrated more concern for opposing parties' emotional states than for protecting their own client's interests. For example, and not withstanding their client's stated motivation for the killing-to protect himself and his family members from further domestic violence-Theut and Kilfoy informed the court at the damages hearing that Gibson would not present evidence "in order to spare [Gibson's] grandparents from suffering more grief." According to the complaint, Theut and Kilfoy "justified" this decision on the basis that "the ...


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