Doreen M. Erickson & a. v. Kysa Crusco, Esq.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0189, Doreen M. Erickson & a. v. Kysa
Crusco, Esq., the court on October 18, 2022, issued the following
order:

Having considered the briefs and record submitted on appeal, we conclude
that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). The
plaintiffs, Doreen M. Erickson and Ella M. Duggan, appeal an order of the
Superior Court (Tucker, J.) dismissing their complaint against the defendant,
Kysa Crusco, Esq., for failing to state a claim upon which relief may be granted.
In dismissing the complaint, which arises out of the defendant’s alleged acts or
omissions as guardian ad litem (GAL) in a contested parenting matter to which
plaintiff Erickson was party and plaintiff Duggan was a subject child, the trial
court determined that the defendant was entitled to absolute quasi-judicial
immunity under Surprenant v. Mulcrone, 163 N.H. 529 (2012). On appeal, the
plaintiffs argue that the trial court erred because, they claim, quasi-judicial
immunity does not extend to a GAL’s administrative or ministerial obligations,
and the challenged conduct in this case allegedly concerned administrative or
ministerial obligations. We affirm.

When reviewing a trial court order granting a motion to dismiss for failure
to state a claim, we assume the truth of the well-pleaded allegations of fact in the
complaint, and draw all reasonable inferences from those facts in the light most
favorable to the plaintiff. See Sivalingam v. Newton, 174 N.H. 489, 494 (2021).
We need not assume, however, the truth of statements in the complaint that are
conclusions of law. See id. We then engage in a threshold inquiry that tests the
facts against the applicable law. See id. In conducting this inquiry, we may
consider documents attached to the plaintiff’s pleadings, documents the
authenticity of which the parties do not dispute, official public records, or
documents sufficiently referred to in the complaint. See id. If the pleaded facts
do not constitute a basis for legal relief, we will uphold a trial court decision
granting a motion to dismiss. See id.

In Surprenant, we held that a GAL is entitled to absolute quasi-judicial
immunity for acts performed within the GAL’s function as a court-appointed
agent. Surprenant, 163 N.H. at 531-32. In arguing that Surprenant is
distinguishable, the plaintiffs contend that quasi-judicial immunity does not
extend to acts that are administrative or ministerial in nature, and that the
defendant’s challenged conduct in this case was administrative or ministerial.
The only act or omission that the plaintiffs specifically identify as administrative
or ministerial, however, was the defendant’s alleged failure to file her report in
the underlying parenting case in a timely manner, a failure that they argue
violated RSA 490:26-g (2010). The plaintiffs concede that, under Surprenant, a
GAL’s report filed “in conformance with” RSA 490:26-g is a “judicial act” that is
“worthy of protecting under the doctrine of quasi-judicial immunity.” See id. at
532 (reasoning that investigating and issuing a final GAL report are actions that
are “‘integral to the judicial process,’ and [are] entitled to absolute quasi-judicial
immunity”).

The record demonstrates that, in the underlying parenting case, plaintiff
Erickson moved to strike the GAL report and exclude her testimony on the basis
that she had not timely filed the report. The record further reflects that the
family court, in its final order, denied the motion and extended the deadline,
nunc pro tunc, to the date on which the GAL filed her report. Plaintiff Erickson
did not appeal the final order in the underlying parenting case. Accordingly, even
if we were to assume, without deciding, that a GAL’s failure to timely file a report
with the appointing court is not subject to quasi-judicial immunity under
Surprenant, in this case, the family court in the underlying parenting matter
determined that the GAL report was timely. Under these circumstances, the
facts pleaded do not form a basis for legal relief, and the trial court did not err by
dismissing the complaint. Sivalingam, 174 N.H. at 494.

Affirmed.

MacDonald, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Timothy A. Gudas,
Clerk

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