Parental Consortium in Tort Damages: GOEBEL V. ARNETT (COA 8/24/2007)

GOEBEL V. ARNETT
TORTS:  PARENTAL CONSORTIUM IN A NON-DEATH CASE; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; ADOPTION MALPRACTICE
2006-CA-001656
PUBLISHED: AFFIRMING IN PART, AND VACATING AND REMANDING
PANEL: COMBS, PRESIDING; NICKELL AND WINE CONCUR
COUNTY: CAMPBELL
DATE RENDERED: 08/24/2007

CA affirms in part and vacates and remands in part TC entry of SJ for attorney in this case of adoption malpractice, fraud, negligent misrepresentation, loss of consortium and intentional infliction of emotional distress.

Appellant, depressed, pregnant and estranged from the baby’s father, contacted Adoptions of Kentucky, Inc. She was told she needed an attorney and was referred to Arnett without being told that Arnett was the owner/sole shareholder of Adoptions of Kentucky. Arnett also represented the mother, the adoptive parents and her own agency at the termination proceedings. She did not tell the mother that the adoptive parents had paid the firm a fee in excess of $6,000. The mother also alleges that Arnett ordered her avoid the father before the termination occurred, to falsely inform the court that she did not know the identy of the father, and to terminate her own parental rights under threat of a countersuit from the adoptive parents. The termination was entered. Since, the father was able to regain custody; he and the child now live in Egypt. The mother’s motion to set aside her termination was denied and she did not appeal. She filed suit against Arnett and Adoptions of Kentucky. The TC entered SJ against the appellant, noting that since she did not appeal the denial of her motion to set aside her termination she could not recover on her claims as a matter of law. The TC believed that appellant was attempting to re-litigate issues raised, and denied, in her CR 60.02 motion.

The CA affirms in part and vacates and remands in part, holding that the TC erred in concluding that appellant was attempting to re-litigate adjudicated issues. Appellant’s claims of Arnett and Adoptions of Kentucky’s wrongdoing and negligence had never been litigated. The loss of consortium claim, however, was properly dismissed. The IIED claim, however, remains.

Digested by John E. Hamlet
Sitlinger, McGlincy, Theiler & Karem

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