Chalmers v. East Valley Fiduciary

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

WILLIAM JOHN CHALMERS, Plaintiff/Appellant,

v.

EAST VALLEY FIDUCIARY SERVICES, Defendants/Appellees.

No. 1 CA-CV 21-0152
FILED 12-2-2021

Appeal from the Superior Court in Maricopa County
No. CV2019-053790
The Honorable Sally Schneider Duncan, Judge

AFFIRMED

COUNSEL

S. Alan Cook, PC, Phoenix
By S. Alan Cook
Counsel for Plaintiff/Appellant

Jones, Skelton & Hochuli PLC, Phoenix
By J. Gary Linder, Jonathan Paul Barnes, Jr., Kimberly K. Page
Counsel for Defendants/Appellees Brian J. Theut and Theut & Theut PC
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Decision of the Court

MEMORANDUM DECISION

Judge David B. Gass delivered the decision of the court, in which Presiding
Judge D. Steven Williams and Judge James B. Morse Jr. joined.

G A S S, Judge:

¶1 William John Chalmers appeals from the dismissal of his
complaint against attorney Brian J. Theut, Chalmers’s court-appointed
guardian ad litem (GAL), and Theut’s law firm. Because the superior court
properly applied judicial immunity, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In connection with Chalmers’s ongoing divorce, the superior
court appointed a GAL to protect Chalmers’s interests. At that time,
Chalmers was incapacitated because of diminished mental capacity. Under
Title 14, the superior court subsequently appointed a guardian with health
care privileges and a conservator. The superior court consolidated
Chalmers’ dissolution and probate cases.

¶3 About 14 months after the GAL’s original appointment, the
superior court determined Chalmers no longer needed a GAL. Chalmers
then filed a civil suit asserting the GAL and others committed legal
malpractice, conspired to defraud him, breached their fiduciary duties, and
engaged in unreasonable conduct. The GAL moved for dismissal under
Rule 12(b)(6) of the Arizona Rules of Civil Procedure, arguing Chalmers
failed to state a claim upon which relief could be granted. The superior
court determined judicial immunity applied and dismissed the case against
the GAL with prejudice and included Rule 54(b) finality language.
Chalmers timely appealed. This court has jurisdiction under article VI,
section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21.A.1 and 12-
2101.A.1.

ANALYSIS

¶4 This court reviews de novo the dismissal of a complaint under
Rule 12(b)(6). Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012). “When
adjudicating a Rule 12(b)(6) motion to dismiss, Arizona courts look only to
the pleading itself and consider the well-pled factual allegations contained
therein.” Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008). This

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court will affirm the dismissal only if, as a matter of law, Chalmers is not
“entitled to relief under any interpretation of the facts susceptible of proof.”
See Fid. Sec. Life Ins. Co. v. State, 191 Ariz. 222, 224, ¶ 4 (1998).

I. The scope of this appeal is limited to whether the GAL is protected
by judicial immunity.

¶5 Chalmers objects to a variety of the GAL’s acts, including the
GAL’s role in Chalmers’s divorce settlement and certain resulting tax and
credit-bureau consequences, the GAL’s association with the forensic
psychiatrist, the GAL’s role in preserving Chalmers’s guardianship and
conservatorship, the GAL’s role in Chalmers’s involuntary hospitalizations,
and the GAL’s actions related to various professional fees. Chalmers’s
remaining factual allegations concern the GAL’s actions regarding
Chalmers’s continued need for a guardian or conservator, and relationship
to Dr. Levitt. And Chalmers challenges the GAL’s legal decision-making
throughout. Even so, Chalmers concedes all the GAL’s actions occurred
during the GAL’s appointment. And here we are dealing only with
Chalmers’s challenge of the superior court’s finding judicial immunity
protected the GAL’s actions.

¶6 Chalmers’s complaint raises the same issues against the
conservator, his lawyers, and his conservator’s lawyers. Essentially,
Chalmers argues all the professionals acted in their own self-interests rather
than in his. Because this appeal arises from the dismissal of Chalmers’s
claims against the GAL, we lack jurisdiction to address his grievances with
East Valley Fiduciary Services and others. See Jessicah C. v. Dep’t of Child
Safety, 248 Ariz. 203, 205, ¶ 8 (App. 2020) (explaining appellate courts
should not proceed with an appeal when they lack jurisdiction); Desert Palm
Surgical Grp., P.L.C. v. Petta, 236 Ariz. 568, 576, ¶ 15 (App. 2015) (explaining
appellate courts have an independent duty to examine jurisdiction).

II. This court will not consider Chalmers’s claim regarding his grant
of powers of attorney to his sister.

¶7 Chalmers argues the GAL breached a duty by failing to
disclose that Chalmers previously granted his powers of attorney to his
sister. But during argument on the motion to dismiss the first amended
complaint, Chalmers’s counsel acknowledged the power of attorney issues
were not before the superior court at that time.

¶8 This court will not address issues related to Chalmers’s claim
his sister had his power of attorney because he failed to raise them when
this case—including in his first amended complaint—was before the

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superior court. See Regal Homes, Inc. v. CNA Ins., 217 Ariz. 159, 171, ¶ 52
(App. 2007) (explaining parties generally cannot raise issues for the first
time on appeal); see also Trantor v. Fredrikson, 179 Ariz. 299, 300–01 (1994)
(litigants cannot raise errors for the first time on appeal).

III. GALs’ actions taken as part of the judicial process are immune.

¶9 Chalmers argues the superior court erred when it found
judicial immunity protected the GAL’s actions and dismissed his first
amended complaint. We disagree because the GAL’s conduct here falls in
line with the purpose of his court appointment—to protect Chalmers’s
interests.

¶10 The superior court may appoint GALs when adult wards are
mentally or physically incapacitated and cannot adequately protect their
own interests. A.R.S. §§ 14-1408, -5101(3). “In exercising its discretion, the
[superior] court has wide latitude to perform its statutory duty to safeguard
the well-being of the ward.” In re Guardianship of Kelly, 184 Ariz. 514, 518
(App. 1996). Judicial immunity protects GALs and other court officials who
act under “a court directive related to the judicial process.” Lavit v. Super.
Ct., 173 Ariz. 96, 99 (App. 1992) (citing Acevedo v. Pima Cnty. Adult Prob.
Dep’t, 142 Ariz. 319, 321 (1984)) (court-appointed psychologist); see also
Widoff v. Wiens, 202 Ariz. 383, 386, ¶¶ 9, 11 (App. 2002) (GALs); Brittner v.
Lanzilotta, 246 Ariz. 294, 296, ¶¶ 6–7 (App. 2019) (family court therapeutic
interventionalist). Judicial immunity protects Arizona judges from civil
liability for judicial acts the judges perform in the exercise of their judicial
functions. Widoff, 202 Ariz. at 386, ¶ 9. Judicial immunity primarily serves
to ensure judges may “exercise their functions independently and without
fear of [personal] consequences.” Acevedo, 142 Ariz. at 321.

¶11 Like judges, GALs are entitled to immunity to prevent the
“threat of litigation” from undermining the performance of their
duties. Widoff, 202 Ariz. at 386–87, ¶ 12. The existence of judicial immunity
is a question of law, which this court reviews de novo. Id. at 385–86, ¶ 8.

¶12 Chalmers argues even if judicial immunity protects some of
the GAL’s actions, it should not protect them all. For this proposition
Chalmers relies on Acevedo. In Acevedo, the Arizona Supreme Court
addressed whether judicial immunity protected a probation officer from
suit for the negligent supervision of a dangerous parolee. 142 Ariz. at 320.
The outcome turned on “the nature of the activities performed and the
relationship of those activities to the judicial function.” Id. at 321.

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¶13 Chalmers, for instance, argues judicial immunity should not
shield the GAL’s actions if those actions were quasi-judicial, unreasonable,
and taken in bad faith. Arizona courts, however, do not parse out
ministerial actions or limit immunity to acts directly related to the judicial
process. See Rasmussen by Mitchell v. Fleming, 154 Ariz. 207, 222–23 (1987)
(“In representing the interests of [a] ward, [a GAL] will perform both
procedural and substantive duties.”); Brittner, 246 Ariz. at 297, ¶ 10 (“[W]e
do not parcel out therapeutic service from evaluation and reporting to the
court nor do we limit immunity only for services related to the judicial
process. To do so is neither practical nor possible.”). Because one of the
reasons absolute judicial immunity exists is to avoid engaging in discovery,
courts also do not limit judicial immunity to cases of negligence or good
faith errors. See Mireles v. Waco, 502 U.S. 9, 11–12 (1991) (citations omitted).

A. The GAL’s actions were part of the judicial process.

¶14 The GAL argues the superior court acted properly when it
dismissed Chalmers’s claims because the GAL’s conduct was part of the
judicial process and, thus, protected by judicial immunity. We agree.

¶15 A GAL is a statutorily created position specifically designed
to protect an incapacitated ward’s interests in court proceedings. A.R.S.
§ 14-1408. GALs “assist the court in performing its judicial duties.” Desilva
v. Baker, 208 Ariz. 597, 602, ¶ 18 (App. 2004). In determining whether GALs’
actions were made in a judicial capacity, this court looks to the nature of the
acts themselves. See Mireles, 502 U.S. at 12. GALs’ actions are immune if a
court orders them and they closely relate to the judicial process or will
impact court decisions. Lavit, 173 Ariz. at 100–01. Here, the superior court
appointed the GAL to protect Chalmers’s interests during Chalmers’s
incapacitation. The GAL, therefore, acted in his Title 14 capacity in court
hearings and filings. See Widoff, 202 Ariz. at 387, ¶ 14 (explaining GALs’
court-appointed conduct, including their participation in a hearing, is
protected by judicial immunity).

¶16 As a matter of law, the superior court correctly dismissed
Chalmers’s complaint against the GAL based on absolute judicial
immunity. See id. And even if we presume—as we must—the truth of all of
Chalmers’s factual claims in the first amended complaint, the superior court
appropriately dismissed the complaint for failing to state a claim upon
which relief could be granted. See Rule 12(b)(6).

¶17 Chalmers also argues the superior court erred because it did
not specifically address all his tort allegations. But the superior court

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addressed those claims when it found judicial immunity applied to the
GAL’s conduct, barring any tort claims stemming from such conduct.

B. None of the exceptions to judicial immunity apply.

¶18 Chalmers argues this court should except the GAL’s actions
from judicial immunity because the GAL committed legal malpractice,
acted unreasonably, and breached the GAL’s fiduciary duty by acting with
malice and in the GAL’s own self-interests. Chalmers argues those bad acts
are at odds with the judicial process and undeserving of absolute immunity.
Because case law does not support Chalmers’s position, we disagree.

¶19 The exceptions to absolute judicial immunity are few and
none are present here. In Mireles, the United States Supreme Court ruled a
party may overcome absolute judicial immunity in only two circumstances:
(1) when a judge is sued for non-judicial actions or (2) if the contested
judicial actions were knowingly “taken in the complete absence of all
jurisdiction.” 502 U.S. at 11–12; see also Acevedo, 142 Ariz. at 321. Allegations
of malice, greed, bias, or the encouragement of excessive force will not
pierce judicial immunity. See Mireles, 502 U.S. at 11; Green Acres Tr. v.
London, 141 Ariz. 609, 613 (1984) (citation omitted) (ruling lawyers immune
from defamation suit because motive, purpose, and reasonableness do not
affect immunity); Burk v. State, 215 Ariz. 6, 11, ¶ 12 (App. 2007) (ruling
judicial immunity protects a court employee who makes a discriminatory
recommendation based on employee’s bias against father’s religion).
Though other states provide additional exceptions to judicial immunity,
like when a GAL acts as an advocate, Arizona does not because this state
has a broader definition of such immunity. Compare Brittner, 246 Ariz. at
297, ¶ 10 (explaining this court does not “limit immunity only for services
related to the judicial process”) with Collins v. Tabet, 806 P.2d 40, 51, ¶ 38
(N.M. 1991) (explaining GALs are not entitled to immunity when they are
acting as an attorney representing a private interest and are “not assisting
the court in the discharge of its judicial duties”).

C. Arizona’s ethical rules, Code of Judicial Administration,
and probate statutes do not impact judicial immunity.

¶20 Finally, Chalmers argues the GAL’s acts go beyond the scope
of Title 14 and plainly contravene “the rules and procedures set out by our
legislature in the probate code and by our Arizona Supreme Court with
respect to the obligations of fiduciaries.” Although Chalmers did not
squarely raise these rules in his first amended complaint, we exercise our
discretion to address them. See Resol. Tr. Corp. v. City of Scottsdale, 177 Ariz.

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234, 237 (App. 1993). This court reviews de novo questions related to
statutory interpretation and court rules. Haroutunian v. Valueoptions, Inc.,
218 Ariz. 541, 544, ¶ 6 (App. 2008).

¶21 The GAL’s alleged violations of the probate code, the
Supreme Court ethical rules, and the Code of Judicial Administration do
not change the GAL’s immunity. See, e.g., Burk, 215 Ariz. at 10, ¶ 11
(explaining judicial immunity applies even if a judicial officer’s “action was
in error, illegal, done maliciously, or was performed in excess of
authority”); see also Mesnard v. Campagnolo, 251 Ariz. 244, 249–51, ¶¶ 18,
25–26 (2021) (citation omitted) (whether a legislator “violated House rules,
statutory law, or even the state or federal Constitution has no bearing” on
whether immunity protected those actions). Accordingly, even if we
assume the truth of Chalmers’s allegations, the superior court did not err
when it dismissed the claims against the GAL.

COSTS ON APPEAL

¶22 Chalmers asks this court to award him costs under ARCAP
21(a) and A.R.S. § 12-341. Because Chalmers did not prevail on appeal, we
deny his request. As the prevailing parties, we award the GAL and the
GAL’s law firm their costs upon compliance with ARCAP 21.

CONCLUSION

¶23 Because the GAL is immune, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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