Ohio Appellate Reports


ROLFE v. GIUSTO, Unpublished Decision (1-11-2007)
GIUSTO, DEFENDANT-APPELLEE. No. 87831. Court of Appeals of
Ohio, Eighth District, Cuyahoga County. RELEASED: January
11, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] AFFIRMED.

Civil Appeal from the Cuyahoga County Court of Common
Pleas, Case No. CV-562217.

Sam A. Zingale, 700 Rockefeller Building, ATTORNEY FOR

Timothy D. Johnson Weston Hurd, LLP, The Tower at Erieview,




{¶ 1} This cause came to be heard upon the
accelerated calendar pursuant to App.R. 11.1 and Loc.R.
11.1, the trial court records and briefs of counsel.

{¶ 2} Plaintiff-appellant, Nancy Rolfe, appeals the
decision of the Cuyahoga County Court of Common Pleas that
granted defendant-appellee, Blaise Giusto’s, motion for
summary judgment. Finding no error with the trial court’s
decision, we affirm.

{¶ 3} Rolfe filed a lawsuit against Giusto alleging
that in violation of a court order he engaged in conduct
that falsely accused Rolfe of abusing her child with the
intended purpose of depriving her of visitation and/or
possession and/or custody of her minor child, which was not
in the best interest of the child. This lawsuit arose out of
a juvenile court action involving the determination of
appropriate allocation of parental rights and privileges
concerning the minor child of Rolfe and the father of the
child, Denver Barry. Giusto had been assigned as guardian
ad litem (“GAL”) in the custody suit to represent what was
in the best interest of the minor child.

{¶ 4} Giusto filed a motion for summary judgment
asserting absolute immunity for all actions arising out of
his role as GAL. Rolfe filed her brief in opposition,
arguing that the conduct by the GAL was in violation of a
court order, not in furtherance of the child’s best
interest and outside the scope of his appointment and,
therefore, his actions were not covered by the doctrine of
absolute immunity. The trial court granted Giusto’s motion
for summary judgment, and this appeal follows. Rolfe
asserts one assignment of error for our review and states
the following:

{¶ 5} “The trial court erred in granting defendant’s
motion for summary judgment.”

{¶ 6} This court reviews a trial court’s grant of
summary judgment de novo. Ekstrom v. Cuyahoga County Comm.
College, 150 Ohio App.3d 169, 2002-Ohio-6228. Before
summary judgment may be granted, a court must determine
that “(1) no genuine issue as to any material fact remains
to be litigated, (2) the moving party is entitled to
judgment as a matter of law, and (3) it appears from the
evidence that reasonable minds can come to but one
conclusion, and viewing the evidence most strongly in favor
of the nonmoving party, that conclusion is adverse to the
nonmoving party.” State ex rel. Dussell v. Lakewood Police
Dept., 99 Ohio St.3d 299, 300-301, 2003-Ohio-3652, citing
State ex rel. Duganitz v. Ohio Adult Parole Auth., 77 Ohio
St.3d 190, 191, 1996-Ohio-326.

{¶ 7} Rolfe argues that Giusto is not protected by
the doctrine of absolute immunity because the juvenile
court specifically found that he acted in direct violation
of a court order and not in the best interest of the child
and removed Giusto as GAL.

The journal entry stated the following:

“Defendant claimed that the Court prohibited the making
of any videotapes which one guardian participated in
making available to the treating therapist and to the
psychological evaluator, which claim is accurate. The
evidence proved that the guardian ad litem, in direct
violation of a court order, knew that [the child] was
videotaped by Kim Barry, that he never informed the court
that the court’s order was being violated, and
participated in the dissemination of the tapes to the
therapist and psychological evaluator. The guardian’s
failing to inform the court of the plaintiff’s violation
and participating in providing those tapes to the child’s
therapist and to the child’s psychological evaluator
affected the results and tainted the evidence pertaining
to the child’s best interests. No reason was presented to
explain the guardian’s actions. His failure to inform the
court that the child was being videotaped while being
questioned by a member of the father’s family about the
mother abusing [the child] is not harmless error, and
affected the determination of the child’s best interest,
given the totality of all evidence about abuse toward [the

{¶ 8} Giusto argues that at all relevant times he
was acting solely in furtherance of his role as GAL and in
the best interests of the child. He argues the doctrine of
absolute immunity was created to protect GALs in situations
like this where an unsatisfied parent claims defamation,
false statements, coercion, abuse and conspiracy.

{¶ 9} The existence of immunity as a defense in a
civil action is a purely legal issue, properly determined
by a trial court prior to trial. Dolan v. Kronenberg (July
22, 1999), Cuyahoga App. No. 76054, citing Goad v. Cuyahoga
Cty. Bd. of Commrs. (1992), 79 Ohio App.3d 521, 524.

{¶ 10} In Pisani v. Pisani (Dec. 11, 1997), Cuyahoga
App. No. 72136, this court affirmed a grant of summary
judgment in favor of the guardian ad litem, holding that a
guardian ad litem enjoys the same absolute immunity from
actions for defamation and invasion of privacy arising out
of their service as guardian ad litem as do judges, counsel,
parties, and witnesses. Similarly, in Penn v. McMonagle
(1990), 60 Ohio App.3d 149, 152, the Sixth Appellate
District held that a guardian ad litem “is entitled to
absolute immunity from actions arising out of the
performance of her duties as guardian ad litem.” The Penn
court adopted the reasoning of the Sixth Circuit Court of
Appeals in Kurzawa v. Mueller (C.A. 6, 1984), 732 F.2d
1456, 1458, wherein the court stated:

“* * * a guardian ad litem * * * must act in the best
interests of the child he represents. Such a position
clearly places him squarely within the judicial process to
accomplish that goal. A guardian ad litem must also be
able to function without the worry of possible later
harassment and intimidation from dissatisfied parents.
Consequently, a grant of absolute immunity would be
appropriate. A failure to grant immunity would hamper the
duties of a guardian ad litem in his role as advocate for
the child in judicial proceedings.”

{¶ 11} Contrary to Rolfe’s assertion, the juvenile
court did not find that Giusto’s actions were against the
child’s best interest or outside the scope of his duties as
GAL. The juvenile court stated:

“Defendant [Rolfe] next claimed that the guardian failed
to fully and impartially investigate complaints of abuse
toward [the child]. The evidence shows the opposite. The
guardian ad litem assiduously investigated those
complaints, whether or not to [Rolfe’s] satisfaction or
liking. * * *

“As to her last two claims that the guardian ad litem
failed to comply with local court guidelines and failed to
impartially prepare a written report, the court finds that
[Rolfe] failed in her burden to show, other than as
previously found, any non-compliance with Juvenile Court
guidelines for guardian ad litems, or impartial
preparation of the report.”

{¶ 12} Finally, the juvenile court noted:

“Nancy Rolfe, in [an] effort to cause the guardian to
remove himself from this case telephoned divorce counsel
for the wife of the guardian ad litem after filing one of
her motions to have the guardian removed. Her
out-of-court actions demonstrate the extent of her
determination in pursuit of her motion. Therefore the
court for good cause must issue some extraordinary orders
to insure that a future guardian is not subjected to this
level of zealousness.”

{¶ 13} It is clear from the record before us, that
Giusto was acting in his capacity as GAL. Although Giusto
violated a court order, that action does not give rise to
an independent cause of action for defamation. See Pisani,
supra (attorney violated the code of professional
responsibility, but his actions did not rise to an
independent cause of action for invasion of privacy or
slander). Giusto enjoys absolute immunity in the
performance of his duties as GAL. Accordingly, Rolfe’s sole
assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs
herein taxed.

The court finds there were reasonable grounds for this

It is ordered that a special mandate be sent to said court
to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.


[fn*] Sitting by Assignment: Judge Michael J. Corrigan,
Retired, of the Eighth District Court of Appeals.