NJ Appellate Court Finds That A Guardian / Expert Appointed By The Court Is Entitled To Absolute Immunity From Liability In Litigation

Plaintiff Barry Sable was named by his father Harry Sable as agent under his father’s power of attorney. Several years later, Barry’s brother Michael Sabel filed a lawsuit seeking guardianship of his father and Barry’s removal as Harry’s power of attorney. After a number of hearings, the Court declared Harry to be incapacitated, appointed a temporary guardian, found that Barry had, among other things, acted improperly by converting his father’s assets to his own use, and removed Barry as his father’s power of attorney. To replace Barry, the Court appointed Martin Abo, a certified public account, as temporary guardian of Harry’s property.

Following the Court’s direction, Ado prepared a report and testified at trial. Thereafter, the Court found that plaintiff had exerted undue influence over his father and violated fiduciary duties owed to him. As a result, the court entered judgment against plaintiff in the total amount of $715,040.97, for damages and costs arising from what the court described as plaintiff’s egregious conduct. The judgment was affirmed on appeal.

Thereafter, plaintiff filed a separate lawsuit against the temporary guardian alleging accounting malpractice and negligent misrepresentation. Plaintiff alleged that the trial court had relied upon defendants’ report and trial testimony when it rendered its decision, and that Abo failed to exercise the skill and knowledge normally professed by others in the accounting profession when he performed the accounting and provided testimony in the trial court action.

Defendant then filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Defendant argued that he was entitled to absolute immunity from liability on the claims asserted against him. After argument, the court found that defendant was entitled to absolute immunity from liability in the matter. The court dismissed the complaint with prejudice.

Plaintiff appealed. Plaintiff argued that the trial court erred in finding that defendant was entitled to immunity from liability on plaintiff’s accounting malpractice and negligent misrepresentation claims. The appellate court disagreed, however. The appellate court held that defendant was entitled to absolute immunity for the actions taken and statements made during judicial proceedings. The court’s rationale follows:

The court required a forthright and candid evaluation of the transactions undertaken with Harry’s assets so that it could determine the damages resulting from plaintiff’s exercise of undue influence over Harry and the breach of his fiduciary duties. Here . . . the court’s ability to obtain such an evaluation would be “severely compromised” [if the court was] to conclude that defendant was not entitled to absolute immunity for the reports and testimony provided to the court.

The case is annexed here – Sable v. Abo