November 14, 2017
from the Circuit Court for Shelby County No. CT-005120-15
Robert L. Childers, Judge
an action against an attorney who previously served as a
Tenn. Sup. Ct. R. 40A court appointed guardian ad litem for
the benefit of the plaintiff and his two younger siblings in
their parents' divorce. Plaintiff alleges that he had an
attorney-client relationship with the guardian ad litem, and
the guardian ad litem violated the attorney-client
relationship by disclosing confidential information to the
divorce court after he was 18 years old. The guardian ad
litem denies any liability or actionable conduct, insisting
that all of her actions were pursuant to Tenn. Sup. Ct. R.
40A and the Order Appointing Guardian Ad Litem in the divorce
action. The trial court dismissed the complaint pursuant to
Tenn. R. Civ. P. 12.02(6) upon a finding that the complaint
failed to state a claim because the guardian ad litem's
duties in the divorce action did not terminate when the
oldest child turned 18 due to the fact that the custody
proceeding concerning his two younger siblings was still
ongoing, and the order of appointment authorized the guardian
ad litem to disclose to the court confidential information
that may affect the best interests of the children. Finding
no error, we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Dorothy J. Pounders and Timothy M. Ginski, Memphis,
Tennessee, for the appellant, Benjamin Runyon.
V. Redding and Sadia S. Staton, Jackson, Tennessee, for the
appellee, Lisa Zacharias.
G. Clement Jr., P.J., M.S., delivered the opinion of the
Court, in which J. Steven Stafford, P.J., W.S. and Kenny W.
Armstrong, J., joined.
G. CLEMENT JR., P.J., M.S.
January 6, 2012, attorney Lisa Zacharias
("Defendant") was appointed as guardian ad litem of
three minor children, including the oldest, Benjamin Runyon
("Plaintiff"), to represent the best interests of
the children in their parents' divorce action. Plaintiff
was still a minor when the divorce trial began on November
16, 2012; however, he turned 18 on November 27, 2012, and the
trial did not conclude until January 17, 2013.
years later, Plaintiff commenced this civil action against
Defendant claiming breach of confidentiality in her roles as
his guardian ad litem and as his attorney. He contends that
Defendant presented evidence to the court during his
parents' divorce action that was confidential information
and the disclosure of which violated the attorney-client
relationship because they were disclosed to the court after
he turned 18 years of age. These claims rest on the factual
allegations in paragraph 11 of the complaint which reads:
11. The trial of the foregoing divorce proceeding was held in
December 2012. At the trial, confidential psychological
records of [Plaintiff] (herein "confidential
information") had been intentionally and wrongfully
disclosed by [Defendant] to the Court in Division VII without
the knowledge, authority or consent of [Plaintiff].
contends Defendant's actions caused him
"embarrassment, humiliation, emotional pain and mental
anguish, as well as harm to his relationship with
filed a Tenn. R. Civ. P. 12.02(6) Motion to Dismiss based
upon quasi-judicial immunity. When the trial court denied the
motion, Defendant filed a Motion to Stay Discovery and a
Motion for Protective Order while she pursued an
interlocutory appeal. During the hearing on the motions, the
trial court sua sponte reversed its prior ruling and
dismissed the case. In dismissing Plaintiff's complaint,
the trial court relied on Tenn. Sup. Ct. R. 40A concluding
that a Rule 40A guardian ad litem represents the "best
interests" of the children in a custody case, as
distinguished from representing a child or the children in
the context of an attorney-client relationship. Furthermore,
the court relied on the Rule 40A order of appointment which
authorized Defendant to collect "confidential
information regarding the children, including: the
children's educational, medical, and mental health
records, " and granted Defendant authority to release
this confidential information "as it may be necessary
for, or greatly aid, the resolution of the issues."
Therefore, the trial court found that Defendant was
specifically authorized to release this information to the
court. In conclusion, the court stated the following:
I find that the complaint fails to state a cause of action
upon which relief can be granted because, as a matter of law,
the plaintiff has only alleged that . . . confidential
information of the plaintiff was disclosed to the court in
Division VII, which is clearly protected under Supreme Court
Rule 40A and the order of January 6, 2012, from Judge Fields.
and Defendant both raise issues on appeal. For her part,
Defendant contends the trial court erred in failing to
dismiss the complaint based on quasi-judicial immunity of a
guardian ad litem while acting pursuant to and within the
scope of her appointment in the divorce action.
part, Plaintiff contends:
1. The trial court erred in holding that the guardian ad
litem continues to function as such upon the child reaching
the age of 18.
2. The trial court erred in holding that no attorney-client
relationship exists between a guardian ad litem and the minor
children under an appointment pursuant to Tenn. Sup. Ct. R.
3. The trial court erred in holding that the Defendant's
disclosure of the child's confidential information to the
court was proper.
R. Civ. P. 12.02(6) motion to dismiss challenges only the
legal sufficiency of the complaint, not the strength of the
plaintiff's proof or evidence. Webb v. Nashville Area
Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn.
2011). The resolution of a Rule 12.02(6) motion to dismiss is
determined by an examination of the pleadings alone.
Id. A defendant who files a motion to dismiss
"admits the truth of all of the relevant and material
allegations contained in the complaint, but . . . asserts
that the allegations fail to establish a cause of
action." Id. (quoting Brown v. Tenn. Title
Loans, Inc., 328 S.W.3d 850, 854 (Tenn. 2010)).
Rule of Civil Procedure 8.01 merely requires a plaintiff to
state "the facts upon which a claim for relief is
founded." Id. at 427 (citing Smith v.
Lincoln Brass Works, Inc., 712 S.W.2d 470, 471
(Tenn. 1986)). Complaints "need not contain detailed
allegations of all the facts giving rise to the claim, "
but they "must contain sufficient factual allegations to
articulate a claim for relief." Id. (quoting
Abshure v. Methodist Healthcare-Memphis Hospitals,
325 S.W.3d 98, 103-04 (Tenn. 2010)). "The facts pleaded,
and the inferences reasonably drawn from these facts, must
raise the pleader's right to relief beyond the
speculative level." Id. However, courts are not
required to accept as true assertions that are merely legal
arguments or "legal conclusions" couched as facts.
Id. (quoting Riggs v. Burson, 941 S.W.2d
44, 47-48 (Tenn. 1997)).
considering a motion to dismiss, courts "must construe
the complaint liberally, presuming all factual allegations to
be true and giving the plaintiff the benefit of all
reasonable inferences." Id. at 426 (quoting
Tigg v. Pirelli Tire Corp., 232 S.W.3d 28, 31-32
(Tenn. 2007)). A trial court should grant a motion to dismiss
"only when it appears that the plaintiff can prove no
set of facts in support of the claim that would entitle the
plaintiff to relief." Id. (quoting Crews v.
Buckman Labs. Int'l, Inc., 78 S.W.3d 852, 857 (Tenn.
2002)). We review the trial court's legal conclusions
regarding the adequacy of the complaint de novo.
Id.; Brown, 328 S.W.3d at 855.
Tennessee Supreme Court Rule 40A
order to analyze the issues presented in this appeal, it is
necessary to appreciate the scope and purpose of Tenn. Sup.
Ct. R. 40A, which went into effect in 2009. Simply stated,
Rule 40A authorizes the trial court presiding over a custody
proceeding to appoint an attorney as a guardian ad litem
"when the court finds that the child[ren]'s best
interests are not adequately protected by the parties and
that separate representation of the child[ren]'s best
interests is necessary." Tenn. Sup. Ct. R. 40A §
3(a). The rule also defines "Guardian Ad Litem" to
mean "a licensed attorney appointed by the court to
represent the best interests of a child or children in a
custody proceeding." Tenn. Sup. Ct. R. 40A § 1(c).
Thus, a Rule 40A guardian ad litem must be a licensed
also necessary to recognize that Rule 40A differs from prior
rules and practices involving guardians ad litem in custody
proceedings in that a Rule 40A guardian ad litem
"functions as a lawyer, not as a witness or special
master." See Tenn. Sup. Ct. R. 40A § 9,
adv. comm. cmt. As the comments of the Advisory Commission
reveal, unlike prior practice and procedure:
(1) A [Rule 40A] guardian ad litem may not be a witness or
testify in any proceeding in which he or she serves as
guardian ad litem, except in those extraordinary
circumstances specified by Supreme Court Rule 8, Rule of
Professional Conduct 3.7.
(2) A [Rule 40A] guardian ad litem is not a special master,
and should not submit a "report and
recommendations" to the court but may file a pre-trial
brief/memorandum as any attorney in any other case. The
guardian ad litem may advocate the position that serves the
best interest of the child by performing the functions of an
attorney, including but not limited to those enumerated in
Supreme Court Rule 40(d)(7).
(3) The [Rule 40A] guardian ad litem must present the results
of his or her investigation and the conclusion regarding the
child's best interest in the same manner as any other
lawyer presents his or her case on behalf of a client: by
calling, examining and cross examining witnesses, submitting
and responding to other evidence in conformance with the
rules of evidence, and making oral and written arguments
based on the evidence that has been or is expected to be
Tenn. Sup. Ct. R. 40A § 9, adv. comm. cmt.
Court Rule 40A directs that the appointment of a guardian ad
litem "shall be by written order of the court" that
shall set forth "the reasons for the appointment, "
and "the specific duties to be performed by the guardian
ad litem." Tenn. Sup. Ct. R. 40A § 4(a) - (b).
Additionally, "[t]he court shall provide in the
appointment order as much detail and clarity as possible
concerning the guardian ad litem's duties." Tenn.
Sup. Ct. R. 40A § 4(c).
pertinent sections in Rule 40A provide that the role of the
guardian ad litem is "to represent the
child's best interests by gathering facts and
presenting facts for the court's consideration subject to
the Tennessee Rules of Evidence." Tenn. Sup. Ct. R. 40A
§ 6 (emphasis added). Section 8 of Rule 40A states that
a guardian ad litem shall satisfy his or her duties "in
an unbiased, objective, and fair manner." Tenn. Sup. Ct.
R. 40A § 8(a). It further instructs that:
(b) A guardian ad litem shall:
(1) conduct an investigation to the extent that the guardian
ad litem considers necessary to determine the best interests
of the child, which can include, but ...