Ward v. Fisher

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 1, 2025
• Docket: 24-5083
• Status: Unpublished

Opinion

Appellate Case: 24-5083 Document: 48-1 Date Filed: 04/01/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 1, 2025 _________________________________ Christopher M. Wolpert Clerk of Court DENVER WARD, individually and as the parent and guardian of H.A.B., a minor child,

Plaintiff - Appellant,

v. No. 24-5083 (D.C. No. 4:23-CV-00554-JFH-JFJ) LAURA FISHER; CAROL L. SWENSON; (N.D. Okla.) BRAD GRUNDY,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before PHILLIPS, BALDOCK, and ROSSMAN, Circuit Judges. _________________________________

Plaintiff Denver Ward filed this action against defendants Laura Fisher, Carol

Swenson, and Brad Grundy arising out of their alleged acts and omissions in

connection with an Oklahoma state paternity and custody action in which Mr. Ward

was a party. The district court dismissed Mr. Ward’s claims. Mr. Ward now appeals.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-5083 Document: 48-1 Date Filed: 04/01/2025 Page: 2

I. Factual history

In January 2016, Mr. Ward became involved in an Oklahoma state paternity

and custody action (the Paternity Action). Mr. Ward hired Mr. Grundy, a licensed

attorney in the State of Oklahoma, to represent him in the Paternity Action.

Mr. Ward conceded he was the father of the minor child, H.A.B., but alleged that

H.A.B.’s mother, Debra Billingsly, was subjecting H.A.B. to medical abuse (formerly

called Munchausen syndrome by proxy).

The state court appointed Ms. Swenson as a guardian ad litem for H.A.B. The

state court also appointed Dr. Fisher, a licensed psychologist, as a child custody

evaluator.

Dr. Fisher performed a custody evaluation and completed her initial report in

November 2016. At that time, Dr. Fisher “had concerns about the medical history

of” H.A.B., but “did not have information from a medical professional to substantiate

the concern for medical child abuse.” Aplt. App. vol. I at 67.

In December 2016, the state court entered an agreed temporary order awarding

joint legal custody of H.A.B., with the parties “to share physical custody on a 50/50

basis.” Id. at 217. Shortly thereafter, in early 2017, Mr. Ward retained new counsel

to represent him in the Paternity Action.

Dr. Mary Ellen Stockett, a specialist in pediatric child abuse, reviewed

H.A.B.’s medical records and opined that H.A.B. had been subjected to medical child

abuse by Ms. Billingsly. Dr. Stockett reported the abuse to the Oklahoma

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Department of Human Services (ODHS). In April 2017, ODHS issued a finding

substantiating Ms. Billingsly’s abuse of H.A.B.

Dr. Fisher reviewed Dr. Stockett’s written report and also consulted with

another expert in medical child abuse. After doing so, Dr. Fisher opined that H.A.B.

was “in a situation which potentially place[d] her in danger of irreparable harm while

in the physical custody of” Ms. Billingsly. Id. at 67.

In June 2017, Mr. Ward filed an application for an ex parte emergency order in

the Paternity Action. In support of the application, Mr. Ward submitted an affidavit

from Ms. Swenson in which she concluded, based upon the report of Dr. Stockett,

that the only way to ensure H.A.B.’s safety and well-being was “to terminate the

temporary joint custody and grant physical custody to” Mr. Ward “subject to

supervised visitation with” Ms. Billingsly. Id. at 223.

The State Court held an evidentiary hearing in late June 2017 and awarded

custody of H.A.B. to Mr. Ward while simultaneously restricting Ms. Billingsly’s

visitation to professional supervision.

In April 2019, Mr. Ward filed suit against Mr. Grundy and his law firm in

Oklahoma state court asserting claims of negligence and breach of contract in

connection with Mr. Grundy’s representation of Mr. Ward in the Paternity Action.

In February 2020, Mr. Ward voluntarily dismissed the lawsuit without having served

Mr. Grundy or his law firm.

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In September 2020, Mr. Ward refiled his case against Mr. Grundy in federal

district court. In November 2022, Mr. Ward voluntarily dismissed the lawsuit

without prejudice.

II. Procedural history

On November 16, 2023, Mr. Ward filed suit against Dr. Fisher, Ms. Swenson,

and Mr. Grundy in Oklahoma state court asserting both federal and state law claims.

Count I of the complaint alleged that Dr. Fisher and Ms. Swenson “breached their

respective contracts when they became aware of the abuse being suffered by H.A.B.

and failed to act to protect her.” Id. at 21. Count I further alleged that Mr. Grundy

“breached this contract when he chose not to pursue an emergency application” for

temporary custody of H.A.B. and “by failing to provide all medical records” to an

expert witness, and that his “acts and omissions” resulted in the state court’s custody

decision being “delayed by more than a year,” which in turn “subjected [H.A.B.] to

untold atrocities and cost” Mr. Ward “over one hundred thousand dollars . . . in

additional attorneys’ fees and costs.” Id. at 22. Count II alleged negligence claims

against all three defendants related to their respective roles in the Paternity Action.

Count III alleged that Dr. Fisher and Ms. Swenson, “acting under cover of state law,

violated the Eighth and/or Fourteenth Amendments of the United States Constitution”

by denying, delaying, and obstructing “immediate and emergent intervention to

prevent further abuse” of H.A.B. and by “disregard[ing] the known, obvious[,] and

substantial risks to [her] health and safety.” Id. at 24. Count IV of the complaint

sought punitive damages against all three defendants.

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Dr. Fisher removed the case to federal district court on the basis of federal

subject matter jurisdiction and then moved to dismiss the complaint pursuant to

Fed. R. Civ. P. 12(b)(6), arguing that “[c]ourt-appointed child custody evaluators are

entitled to quasi-judicial immunity from suit.” Id. at 30. Ms. Swenson likewise

moved to dismiss the claims against her on the basis of quasi-judicial immunity.

Mr. Grundy, for his part, moved to dismiss the claims against him as untimely.

The district court granted the motions to dismiss. In doing so, it concluded

both Dr. Fisher and Ms. Swenson were entitled to quasi-judicial immunity from

Mr. Ward’s claims. As for the claims against Mr. Grundy, the district court noted

that Mr. Ward “concede[d] the negligence claim [wa]s time-barred.” Id. at 261. The

district court in turn concluded that Mr. Ward’s breach of contract claim against

Mr. Grundy was also time-barred.

Following the entry of final judgment, Mr. Ward filed a timely notice of

appeal.

III. Analysis

We review de novo a district court’s “grant of a motion to dismiss pursuant to

Rule 12(b)(6), applying the same legal standard applicable in the district court.”

Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir. 2007). Under that standard, “[a]ll

well-pleaded facts, as distinguished from conclusory allegations, are accepted as true

and viewed in the light most favorable to the nonmoving party.” Id. If the complaint

includes “enough facts to state a claim to relief that is plausible on its face,” then

dismissal is not warranted. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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“A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A. The claims against Dr. Fisher and Ms. Swenson

Mr. Ward argues the district court erred in concluding Ms. Swenson and

Dr. Fisher were entitled to quasi-judicial immunity. For the reasons that follow, we

disagree.

Absolute immunity, which “has long been available to protect judges from

liability for acts performed in their judicial capacity,” “has been extended to ‘certain

others who perform functions closely associated with the judicial process.’” Dahl v.

Charles F. Dahl, M.D., P.C. Defined Benefit Pension Tr., 744 F.3d 623, 630

(10th Cir. 2014) (quoting Cleavinger v. Saxner, 474 U.S. 193, 200 (1985)). This

includes guardians ad litem, such as Ms. Swenson, and court-appointed child custody

evaluators, such as Dr. Fisher. See Dahl, 744 F.3d at 630 (guardian ad litems);

Hughes v. Long, 242 F.3d 121, 128 (3d Cir. 2001) (child custody evaluators). Such

immunity “is often called quasi-judicial immunity” because “it is applied to someone

other than a judge.” Dahl, 744 F.3d at 630. The purpose of quasi-judicial immunity

is to allow these officers to “exercise their judgment (which on occasion may not be

very good) without fear of being sued in tort.” Id. at 631.

There are, of course, “limits to the scope of th[is] immunity.” Id. at 630. But

those cases are the exception, rather than the rule. As the Supreme Court noted long

ago, a party entitled to judicial or quasi-judicial immunity does not lose that

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immunity simply because “the action he took was in error, was done maliciously, or

was in excess of his authority; rather, he will be subject to liability only when he has

acted in the clear absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349,

356–57 (1978).

After examining the record on appeal, we agree with the district court that

Ms. Swenson and Dr. Fisher were entitled to quasi-judicial immunity from

Mr. Ward’s claims. Notably, the complaint concedes both defendants were appointed

by the state court to assist it in the resolution of the Paternity Action. Further, all of

the allegations against Ms. Swenson and Dr. Fisher involve acts that can be

characterized as “within the core duties” of the respective roles they were appointed

to in “assisting the court” in the Paternity Action. Dahl, 744 F.3d at 630. Although

the complaint alleges that both defendants acted improperly in carrying out their

appointments, none of the allegations are sufficient to establish that either defendant

acted in the clear absence of all jurisdiction.1 We therefore conclude the district

court did not err in dismissing the claims against Ms. Swenson and Dr. Fisher.2

1 The complaint alleges, for example, that both defendants at times advocated for Ms. Billingsly and also ignored the abuse allegations and intentionally delayed resolution of the Paternity Action to benefit themselves financially. 2 Because we conclude Dr. Fisher was entitled to quasi-judicial immunity from Mr. Ward’s claims, we need not address Mr. Ward’s argument that Dr. Fisher was a state actor for purposes of 42 U.S.C. § 1983.

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B. The claims against Mr. Grundy

Mr. Ward argues the district court erred in dismissing his breach of contract

claim against Mr. Grundy as time-barred. “We review de novo a district court’s

ruling regarding the applicability of a statute of limitations.” Sierra Club v. Okla.

Gas & Elec. Co., 816 F.3d 666, 671 (10th Cir. 2016) (internal quotation marks

omitted). “A statute of limitations defense may be appropriately resolved on a Rule

12(b) motion when the dates given in the complaint make clear that the right sued

upon has been extinguished.” Id. (internal quotation marks and brackets omitted).

In Oklahoma, “a party may bring a claim based in both tort and contract

against a professional and . . . such action may arise from the same set of facts.”

Great Plains Fed. Sav. & Loan Ass’n v. Dabney, 846 P.2d 1088, 1092 (Okla. 1993).

That said, a breach of contract claim may only be brought “where the parties have

spelled out the performance promised by defendant and defendant commits to the

performance without reference to and irrespective of any general standard” of skill or

care. Id. If, however, the underlying contract “merely incorporates by reference or

by implication a general standard of skill or care which [the] defendant would be

bound [by] independent of the contract,” then only a tort claim may be brought and

such claim is “governed by the tort limitation period.” Id. In Oklahoma, legal

malpractice claims based in tort are “governed by [a] two-year statute of limitations.”

Funnell v. Jones, 737 P.2d 105, 107 (Okla. 1985).

The district court concluded the written engagement letter between Mr. Ward

and Mr. Grundy did not spell out the performance promised by Mr. Grundy and

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instead “merely restate[d] [Mr.] Grundy’s normal duty of care.” Aplt. App. vol. I at

262–63. The district court therefore concluded “[t]he written engagement letter d[id]

not provide grounds for a five-year contract-based statute of limitations.” Id. at 263.

As a result, the district court dismissed Mr. Ward’s claim as untimely.

Mr. Ward disputes the district court’s interpretation of the written engagement

letter. He notes the letter stated Mr. Grundy would “represent [him] in connection

with [his] paternity action with [Ms.] Billingsly.” Id. at 192. This language,

Mr. Ward argues, spelled out the performance promised by Mr. Grundy “without

references and irrespective of general standards” of skill or care. Aplt. Br. at 18.

Thus, Mr. Ward argues, he was permitted under Dabney to bring a breach-of-contract

claim against Mr. Grundy which was governed by a five-year statute of limitations.

We reject this argument. The contractual language Mr. Ward relies on simply

described the general nature of Mr. Grundy’s engagement, i.e., Mr. Grundy agreed to

represent Mr. Ward in the Paternity Action. It did not, as Mr. Ward suggests, spell

out the performance promised by Mr. Grundy. Thus, we agree with the district court

that, under Dabney, Mr. Ward is not entitled to the benefit of the five-year limitations

period applicable to breach-of-contract claims.

IV. Conclusion

The judgment of the district court is affirmed.

Entered for the Court

Bobby R. Baldock Circuit Judge