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COURT OF APPEALS
DECISION
DATED AND FILED                                                                       NOTICE
This opinion is subject to further editing. If
published, the official version will appear in the
bound volume of the Official Reports.
December 23, 1998
A party may file with the Supreme Court a
                                                                                      Marilyn L. Graves         petition  to  review  an  adverse  decision  by  the
                                                                                      Clerk, Court of Appeals   Court of Appeals.  See § 808.10 and RULE 809.62,
                                                                                      of Wisconsin              STATS.
No.                                                                                   98-0028
STATE OF WISCONSIN                                                                    IN COURT OF APPEALS
                                                                                      DISTRICT II
MALCOLM K. H.,
PLAINTIFF-APPELLANT,
V.
MICHAEL R. PHEGLEY,
DEFENDANT-RESPONDENT.
APPEAL from a judgment of the circuit court for Racine County:
MARY KAY WAGNER-MALLOY, Judge.   Affirmed.
Before Snyder, P.J., Brown and Anderson, JJ.
SNYDER, P.J.      Malcolm K. H. appeals from a summary judgment
dismissing his complaint alleging that Attorney Michael R. Phegley improperly
performed his duties as guardian ad litem (GAL) for Malcolm’s daughter.   The
trial  court  granted  Phegley  absolute  quasi-judicial  immunity  from  Malcolm’s




No. 98-0028
claims.   Malcolm contends that Phegley’s actions were intentional and therefore
not subject to immunity.   We disagree and affirm.
Malcolm’s complaint against Phegley stems from a divorce action
brought by Malcolm’s former wife Elizabeth H. and from her allegations that
Malcolm had sexually abused their only child, Mary.   Phegley was appointed as
Mary’s GAL on December 16, 1993.   During his investigation, Phegley learned
that  Mary  had  made  statements  to  Elizabeth  and  her  maternal  grandmother
indicating that Malcolm had sexually abused her.    In February  1994, Phegley
requested, and the parties agreed, to use Dr. Marc Ackerman as a neutral expert to
evaluate the sexual abuse allegations.   Ackerman initially assessed that Mary had
been sexually abused by Malcolm.   Both parties then retained their own experts.
During  hearings  on  custody  and  visitation,  the  court  found  Ackerman’s  and
Elizabeth’s experts more compelling than Malcolm’s experts and subsequently
ordered Malcolm not to have contact with Mary.
In March 1997, Malcolm brought suit against Phegley for breach of
contract, professional malpractice, gross negligence1 and intentional infliction of
emotional  distress.    Malcolm’s  claims  arise  from  the  following  allegations:
Phegley knew or should have known that Ackerman’s reports of sexual abuse
were false and based upon falsified data and flawed and unprofessional practices;
Phegley  knew  or  should  have  known  that  his  recommendation  to  the  court
prohibiting contact between Malcolm and Mary was contrary to the best interests
of the child; Phegley was “grossly negligent, professionally and otherwise, in his
investigation,  analysis  and  representation  of  the  best  interests  of  the  child”;
1 Malcolm later dropped his gross negligence claim pursuant to Bielski v. Schulze, 16
Wis.2d 1, 17-18, 114 N.W.2d 105, 113-14 (1962).
2




No. 98-0028
Phegley acted with “deliberate indifference” to the effect of his substandard work
upon Malcolm and Mary and his actions were “outside the scope of his authority”;
Phegley manipulated and indoctrinated Mary “into [a] false ‘sexual abuse victim’
role with its concomitant psychological damage” to Malcolm and Mary; Phegley
breached his duty of good faith, fair dealing, honesty and proper performance
which he owed to Malcolm and Mary; Phegley acted out of his dislike of Malcolm
and maintained a “vendetta” against him; and Phegley breached an express and
implied contract that he had with Malcolm and Mary.
On October 17, 1997, Phegley filed a motion for summary judgment
on the grounds that Malcolm’s complaint failed to state a claim for relief.2   See
§ 802.06(2)(a)6,                                                                               (2)(b),  STATS.    The  court  granted  his  motion,  holding  that
because Phegley’s actions were within the scope of his GAL position, he was
entitled to absolute quasi-judicial immunity.
We use the same summary judgment methodology as does the trial
court, and we review its decision de novo.   See Grosskopf Oil, Inc. v. Winter, 156
Wis.2d 575, 581, 457 N.W.2d 514, 517 (Ct. App. 1990).   The first step in this
methodology requires the court to examine the pleadings to determine whether a
claim for relief has been stated.   See Green Spring Farms v. Kersten, 136 Wis.2d
304,  315,  401  N.W.2d  816,  820  (1987).    We  are  convinced  that  Malcolm’s
pleadings fail to present a claim for relief.
Malcolm’s  first  claim  is  that  Phegley  impliedly  and  expressly
breached a contract with Malcolm and Mary which was made on December 16,
2 Although this action was venued in Racine county, all of the Racine county judges
disqualified themselves.  The case was subsequently assigned to Judge Mary Kay Wagner-Malloy
of Kenosha county.
3




No. 98-0028
1993, the date Phegley was appointed GAL.    Malcolm, however, provides no
indication of what contract Phegley had entered into with Malcolm or Mary.3
Likewise, we fail to find any contract in the record.   Therefore, Malcolm’s breach
of contract allegation fails to state a claim for relief.
Next,  Malcolm  contends  that  Phegley  exercised  professional
misconduct, including breaching a duty of good faith, fair dealing, honesty and
proper performance which he owed Malcolm and Mary.   A claim of professional
misconduct requires a finding of negligence.   See Helmbrecht v. St. Paul Ins. Co.,
122 Wis.2d 94, 103, 362 N.W.2d 118, 124 (1985).   In the recent supreme court
case of Paige K.B. v. Molepske,  219 Wis.2d  418,  424,  580 N.W.2d  289,  292
(1998), the court ruled that absolute quasi-judicial immunity specifically covered
the negligent acts of a GAL.   Accordingly, Malcolm’s professional misconduct
allegation fails to state a claim.
Finally,  Malcolm  alleges  that  Phegley  intentionally  inflicted
emotional distress on him.   In particular, Malcolm contends that because Phegley
adopted  Ackerman’s  conclusions,  which  were  contrary  to  those  reached  by
Malcolm  and  his  experts,  Phegley  acted  maliciously  and  carried  a  personal
vendetta  against  him.    Malcolm  asserts  that  because  Phegley’s  actions  were
malicious, he acted outside the scope of his authority.   Malcolm further claims that
Phegley  acted  with  deliberate  indifference  to  his  substandard  work.    These
allegations are conclusory and pure speculation.    Malcolm provides no factual
support for these claims in his pleadings or affidavits.   See § 802.08(3), STATS.
3 Throughout his complaint, Malcolm asserts that Phegley’s actions harmed Malcolm and
Mary.   However, because Mary is not a party in interest in this action, she has no claim against
Phegley.  See generally § 803.01(1), STATS.
4




No. 98-0028
Although he relies on an affidavit submitted by an expert social psychologist,
Melvin Guyer, Guyer’s opinion is based entirely on Malcolm’s representations
which we have already determined are not supported by fact.4    Thus, we are
satisfied that Malcolm has failed to state a claim for relief and affirm the circuit
court’s decision.5
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
4  The  only specific facts Malcolm sets  forth  involve  Phegley’s  allegedly improper
recommendation and use of Ackerman as a neutral expert.   Malcolm charges that Ackerman
should not have been recommended because Elizabeth had previously contacted Ackerman and
Ackerman had reached a conclusion before the parties agreed to use his services.  This allegation,
however, relates solely to Phegley’s performance as GAL and therefore involves professional
misconduct which is subject to absolute quasi-judicial immunity.   See Paige K.B. v. Molepske,
219 Wis.2d 418, 435, 580 N.W.2d 289, 296 (1998).
5 Because no claim for relief exists, we need not address Malcolm’s argument that
Wisconsin law does not extend absolute quasi-judicial immunity to the intentional acts of a GAL
that reach beyond the scope of his or her quasi-judicial duties, notwithstanding case law granting
immunity to a GAL’s negligent acts.   We also need not consider whether genuine issues of fact
exist.  See Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987).
5

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