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Runyon v. Zacharias

Court of Appeals of Tennessee, Jackson

January 23, 2018


         Session November 14, 2017

         Appeal from the Circuit Court for Shelby County No. CT-005120-15 Robert L. Childers, Judge

         This is 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Dorothy J. Pounders and Timothy M. Ginski, Memphis, Tennessee, for the appellant, Benjamin Runyon.

          Robert V. Redding and Sadia S. Staton, Jackson, Tennessee, for the appellee, Lisa Zacharias.

          Frank 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.


          FRANK G. CLEMENT JR., P.J., M.S.

         On 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.[1]

         Three 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].

         Plaintiff contends Defendant's actions caused him "embarrassment, humiliation, emotional pain and mental anguish, as well as harm to his relationship with others."

         Defendant 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.

         This appeal followed.


         Plaintiff 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.

         For his 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. 40A.
3. The trial court erred in holding that the Defendant's disclosure of the child's confidential information to the court was proper.

         Standard of Review

         A Tenn. 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)).

         Tennessee 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)).

         When 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.


         I. Tennessee Supreme Court Rule 40A

         In 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 attorney.

         It is 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 presented.

Tenn. Sup. Ct. R. 40A § 9, adv. comm. cmt.[2]

         Supreme 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).

         Other 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 ...

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