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 ...