In Re: Adoption of Jordan F.J. ( 2013 )


Menu:
  •                      IN THE COURT OF APPEALS OF TENNESSEE
    AT JACKSON
    Assigned on Briefs October 28, 2018
    IN RE: ADOPTION OF JORDAN F. J.
    Direct Appeal from the Chancery Court for Gibson County
    No. 19351     George Ellis, Chancellor
    No. W2013-00427-COA-R3-PT - Filed November 20, 2013
    This is a termination of parental rights and adoption case. The trial court granted
    Appellee/Father’s motion for involuntary dismissal at the conclusion of Appellants’ proof.
    Because the trial court failed to make the required findings of fact and conclusions of law
    under Tennessee Rule of Civil Procedure 41.02(2), and because we are unable to determine
    the trial court’s reasoning from the record, we vacate and remand.
    Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Chancery Court Vacated
    and Remanded
    J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
    W.S., and D AVID R. F ARMER, J., joined.
    Brandon L. Newman, Trenton, Tennessee, for the appellant, Anthony A. and Laurie A.
    OPINION
    Laurie A. (“Mother”) and Christopher J. (“Father,” or “Appellee”) are the biological
    parents of the minor child at issue in this case, Jordan F. J.1 Mother and Father were never
    married and, at the time of the filing of the petition in this case, Father was incarcerated.
    Mother is married to Anthony A. (together with Mother, “Appellants”). On June 2, 2009,
    Appellants filed a petition to terminate Father’s parental rights and for adoption of Jordan
    F. J. by Anthony A. The petition was contested by Father. Following the filing of the
    Appellants’ petition, numerous procedural issues concerning discovery, appointment of a
    1
    In cases involving minor children, it is this Court's policy to redact names to protect the children's
    identity.
    guardian ad litem, withdrawal of various attorneys, and denial of Appellants’ motion for
    summary judgment were addressed by the trial court. None of this procedural history is
    germane to the instant appeal, and we will not tax the length of the opinion to recite it fully
    here. Suffice to say, after protracted litigation and numerous continuances, the Appellants’
    petition was heard by the trial court on July 24, September 11, and November 14, 2012. Our
    record contains only the transcript of the July 24, 2012 proceedings. However, by Order of
    March 13, 2013, this Court granted Appellants leave to file a Tennessee Rule of Appellate
    Procedure 24(c) statement of the evidence. This statement of the evidence was filed on April
    10, 2013. As is relevant to this appeal, at the conclusion of Appellants’ proof in this case,
    Father made a motion for involuntary dismissal, which the trial court granted. On December
    14, 2012, the trial court entered an order memorializing its decision. The order, which is now
    appealed, provides, in its entirety, as follows:
    This matter came to be heard before the undersigned
    Judge on the 14th day of November, 2012, in the Chancery
    Court of Gibson County, Tennessee, upon statement of counsel,
    testimony of the parties, and upon the entire record, from all of
    which it appears to the Court IT IS, THEREFORE, ORDERED,
    ADJUDGED AND DECREED:
    1. That [Appellee’s] Motion to Dismiss at the close of
    [Appellants’] proof is granted.
    Appellants appeal and raise three issues for review as stated in their brief:
    1. Whether the Chancery Court erred in granting Appellee’s
    Motion to Dismiss without making a written finding of fact to
    be included in the record for appeal.
    2. Whether it was error for the Chancery Court to grant the
    Appellee’s Motion to Dismiss after the close of Appellant’s
    proof.
    3. Whether the holding in In re Adoption of A.M.H., 
    215 S.W.3d 793
    , 797 is applicable to the case at bar.2
    In the appellate record, the motion made by Appellee at the close of Appellants’ proof
    2
    The Appellee has filed no responsive brief in this appeal. By Order of October 16, 2013, this Court
    allowed the appeal to be submitted for decision on the record, Appellants’ brief, and oral argument.
    -2-
    is labeled, at various places, a “motion to dismiss,” a “motion for directed verdict,” and a
    “motion for involuntary dismissal.” Due to the confused nomenclature, we begin our
    analysis with a review of the procedural differences in these three types of motions.
    From the plain language of the trial court’s order, it appears that the trial court
    dismissed the case on the basis of a motion to dismiss pursuant to Rule 12 of the Tennessee
    Rules of Civil Procedure.3 However, it is well settled that a Tennessee Rule of Civil
    Procedure 12 motion tests the legal sufficiency of the complaint. Lanier v. Rains, 
    229 S.W.3d 656
    , 660 (Tenn.2007). When considering a Rule 12 motion, a reviewing court is
    limited to an examination of the complaint alone. See Wolcotts Fin. Serv., Inc. v.
    McReynolds, 
    807 S.W.2d 708
    , 710 (Tenn. Ct. App. 1990). The basis for the motion is that
    the allegations in the complaint, when considered alone and taken as true, are insufficient to
    state a claim as a matter of law. See Cornpropst v. Sloan, 
    528 S.W.2d 188
    (Tenn.1975). A
    trial court must consider a motion for judgment on the pleadings for failure to state a claim
    in a manner similar to consideration of a motion to dismiss for failure to state a claim.
    Timmins v. Lindsey, 
    310 S.W.3d 834
    , 838 (Tenn. Ct. App. 2009); cf. Satterfield v. Breeding
    Insulation Co., 
    266 S.W.3d 347
    , 375 (Tenn. 2008). When a defendant files a motion to
    dismiss for failure to state a claim, the issue is whether the complaint is legally sufficient.
    Webb v. Nashville Area Habitat for Humanity, Inc., 
    346 S.W.3d 422
    , 425 (Tenn. 2011).
    Although the trial court’s order specifically states that it is granting a “motion to
    dismiss,” as discussed below, it appears that the trial court did, in fact, consider the
    Appellants’ evidence in reaching its decision to dismiss their case. Weighing the evidence
    is outside the contemplation of a Rule 12 motion and, thus, we cannot construe the trial
    3
    Tennessee Rule of Civil Procedure 12.08 provides that a motion for failure to state a claim upon
    which relief can be granted is not waived by failure to raise such defense in a pre-answer motion (i.e., a
    motion for judgment on the pleadings). Instead, the Rule provides that a motion to dismiss for failure to state
    a claim “may also be made by a later pleading, if one is permitted, or by motion for judgment on the
    pleadings or at the trial on the merits.” Tenn. R. Civ. P. 12.08 (emphasis added). As explained 5 Nancy
    F. MacLean & Matthew J. MacLean, Tennessee Practice: Civil Procedure Forms §12:21 (2013):
    The motion may be made prior to answer under Rule 12.02. However, the
    defense may be inserted in the answer, or may be made by motion for
    judgment on the pleadings, or by motion at the trial. Under Rule 12.07 and
    Rule 12.08, the defense is not waived by failure to assert it prior to trial.
    However, when the defense is asserted prior to answer, the waivable
    defenses under Rule 12.02 must be asserted or they are waived. The
    defense may be noticed by the court on its own motion.
    Accordingly, simply because the motion was made at trial does not, ipso facto, lead to the conclusion that
    the motion was not a Rule 12 motion to dismiss.
    -3-
    court’s disposition of the case as the grant of a motion to dismiss. See 
    Wolcotts, 807 S.W.2d at 710
    .
    In contrast to the language in the trial court’s order, the Appellants’ undisputed
    Statement of the Evidence indicates that Appellee’s attorney “made a motion for directed
    verdict at the close of the petitioner’s proof, which was granted by the Court.” Motions for
    directed verdict, which are governed by Tennessee Rule of Civil Procedure 50, and motions
    for involuntary dismissal, which are governed by Tennessee Rule of Civil Procedure 41.02,
    are often confused. As succinctly explained by Judge (now Justice) Koch in the case of
    Burton v. Warren Farmers Co-op., 
    129 S.W.3d 513
    (Tenn. Ct. App., 2002):
    A Tenn. R. Civ. P. 41.02(2) motion for involuntary
    dismissal differs markedly from a Tenn. R. Civ. P. 50 motion for
    a directed verdict. The most obvious, yet most overlooked,
    difference is that motions for directed verdicts have no place in
    bench trials, while Tenn. R. Civ. P. 41.02(2) motions have no
    place in jury trials. Cunningham v. Shelton Sec. Serv., Inc., 
    46 S.W.3d 131
    , 135 n. 1 (Tenn. 2001); City of Columbia v. C.F.W.
    Constr. Co., 
    557 S.W.2d 734
    , 740 (Tenn. 1977); Scott v. Pulley,
    
    705 S.W.2d 666
    , 672 (Tenn. Ct. App. 1985). Beyond this
    obvious procedural difference, motions for involuntary dismissal
    serve a different purpose than motions for directed verdict and
    require the courts to employ a substantially different method of
    analysis.
    A Tenn. R. Civ. P. 50 motion for directed verdict
    provides a vehicle for deciding questions of law. The question
    presented is whether the plaintiff has presented sufficient
    evidence to create an issue of fact for the jury to decide. Spann
    v. Abraham, 
    36 S.W.3d 452
    , 462 (Tenn. Ct. App. 1999);
    Ingram v. Earthman, 
    993 S.W.2d 611
    , 626 (Tenn. Ct. App.
    1998). The courts do not weigh the evidence when they answer
    this question, Conatser v. Clarksville Coca–Cola Bottling Co.,
    
    920 S.W.2d 646
    , 647 (Tenn. 1995), nor do they evaluate the
    credibility of the witnesses. Richardson v. Miller, 
    44 S.W.3d 1
    ,
    30 (Tenn. Ct. App. 2000). Rather, they review the evidence in
    the light most favorable to the non-moving party, give the
    non-moving party the benefit of all reasonable inferences, and
    disregard all the evidence contrary to the non-moving party's
    position. Alexander v. Armentrout, 
    24 S.W.3d 267
    , 271 (Tenn.
    2000); Addaman v. Lanford, 
    46 S.W.3d 199
    , 203 (Tenn. Ct.
    -4-
    App. 2000).
    *                                     *                          *
    Motions for involuntary dismissal pursuant to Tenn. R. Civ. P.
    41.02(2) require the courts to engage in an entirely different
    analysis. These motions do not raise questions of law but rather
    challenge the sufficiency of the plaintiff's proof. Smith v.
    Inman Realty Co., 
    846 S.W.2d 819
    , 821 (Tenn. Ct. App.
    1992); Merriman v. Smith, 
    599 S.W.2d 548
    , 560 (Tenn. Ct.
    App. 1979). A claim may be dismissed pursuant to a Tenn. R.
    Civ. P. 41.02(2) motion to dismiss if, based on the law and the
    evidence, the plaintiff has failed to demonstrate a right to the
    relief it is seeking. City of Columbia v. C.F.W. Constr. 
    Co., 557 S.W.2d at 740
    . Motions under Tenn. R. Civ. P. 41.02(2) require
    less certainty than motions for directed verdict. Smith v. Inman
    Realty 
    Co., 846 S.W.2d at 822
    .
    
    Id. at 520.
    Accordingly, despite the nomenclature assigned in the Statement of the Evidence,
    the Appellee’s motion was not a motion for directed verdict as it was made during a bench
    trial and not in a jury trial.
    As noted above, despite the trial court’s order, stating that it granted Appellee’s
    “motion to dismiss,” it appears from the Statement of the Evidence that the trial court may
    have weighed, or at least considered, the Appellants’ proof in reaching its decision.
    Accordingly, we must construe the disposition in this case as a grant of a motion for
    involuntary dismissal pursuant to Tennessee Rule of Civil Procedure 41.02(2); which
    provides:
    (2) After the plaintiff in an action tried by the court without a
    jury has completed the presentation of plaintiff's evidence, the
    defendant, without waiving the right to offer evidence in the
    event the motion is not granted, may move for dismissal on the
    ground that upon the facts and the law the plaintiff has shown no
    right to relief. The court shall reserve ruling until all parties
    alleging fault against any other party have presented their
    respective proof-in-chief. The court as trier of the facts may then
    determine them and render judgment against the plaintiff or may
    decline to render any judgment until the close of all the
    evidence. If the court grants the motion for involuntary
    -5-
    dismissal, the court shall find the facts specially and shall state
    separately its conclusion of law and direct the entry of the
    appropriate judgment.
    The standard applicable to Rule 41.02(2) motions was very recently discussed by our
    Supreme Court in the case of Shore v. Maple Lane Farms, L.L.C., --- S.W.3d ----, No.
    E2011-00158-SC-R11-CV, 
    2013 WL 4428904
    (Tenn. Aug. 19, 2013), wherein the Court
    stated:
    A complaint may be dismissed pursuant to Tenn. R. Civ. P.
    41.02(2) if, based on the law and the evidence, the plaintiff
    failed to demonstrate a right to the relief sought. City of
    Columbia v. C.F. W. Constr. Co., 
    557 S.W.2d 734
    , 740
    (Tenn.1977). A trial court entertaining a motion for involuntary
    dismissal under Tenn. R. Civ. P. 41.02(2) must impartially
    weigh and evaluate the evidence just as it would after all the
    parties had presented their evidence. Building Materials Corp.
    v. Britt, 
    211 S.W.3d 706
    , 711 (Tenn.2007) (citing City of
    Columbia v. C.F.W. Constr. 
    Co., 557 S.W.2d at 740
    ). The court
    may dismiss the plaintiff's claim if the plaintiff has failed to
    make out a prima facie case. Building Materials Corp. v. 
    Britt, 211 S.W.3d at 711
    ; Smith v. Inman Realty Co., 
    846 S.W.2d 819
    , 822 (Tenn. Ct. App.1992). If the trial court grants a motion
    for involuntary dismissal, Tenn. R. Civ. P. 41.02(2) requires the
    court to “find the facts specially and ... state separately its
    conclusions of law.”
    Appellate courts review a trial court's decision to grant an
    involuntary dismissal in accordance with Tenn. R. App. P.
    13(d). Building Materials Corp. v. 
    Britt, 211 S.W.3d at 711
    ;
    Irvin v. City of Clarksville, 
    767 S.W.2d 649
    , 653 (Tenn. Ct.
    App.1988). Accordingly, we must review the record de novo,
    presuming that the trial court's factual findings are correct unless
    the evidence preponderates otherwise. Tenn. R. App. P. 13(d);
    Burton v. Warren Farmers Coop., 
    129 S.W.3d 513
    , 521 (Tenn.
    Ct. App. 2002). If the trial court has not made a specific finding
    on a particular matter, we review the record to determine where
    the preponderance of the evidence lies without employing a
    presumption of correctness. Hickman v. Continental Baking
    Co., 
    143 S.W.3d 72
    , 75 (Tenn. 2004); Ganzevoort v. Russell,
    
    949 S.W.2d 293
    , 296 (Tenn.1997).
    -6-
    
    Id. at *5.
    In the instant case, we are unable to conduct any meaningful review of the trial court’s
    grant of the involuntary dismissal because the trial court’s order does not “find the facts
    specially and ... state separately its conclusions of law” as required by Tennessee Rule of
    Civil Procedure 41.02(2). Generally, the appropriate remedy when a trial court fails to make
    required findings of fact and conclusions of law is to “vacate the trial court's judgment and
    remand the cause to the trial court for written findings of fact and conclusions of law.” Lake
    v. Haynes, No. W2010-00294-COA-R3-CV, 
    2011 WL 2361563
    , at *1 (Tenn. Ct. App. June
    9, 2011). However, this Court has previously held that when faced with a trial court's failure
    to make specific findings, the appellate courts may “soldier on” when the case involves only
    a clear legal issue, Burse v. Hicks, No. W2007-02848-COA-R3-CV, 
    2008 WL 4414718
    , at
    *2 (Tenn. Ct. App. Sept. 30, 2008), or when the court's decision is “readily ascertainable.”
    Burgess v. Kone, Inc., No. M2007-0259-COA-R3-CV, 
    2008 WL 2796409
    , at *2 (Tenn. Ct.
    App. July 18, 2008). Unfortunately, this is not one of those cases. As noted above, the record
    does not contain a transcript of the trial court’s ruling on the motion from the bench.
    Accordingly, we cannot glean the court’s reasoning from what occurred at the hearing.
    Likewise, the statement of the evidence does not provide sufficient information from which
    we can determine the trial court’s reasoning in this case. Accordingly, we vacate the trial
    court’s order and pretermit the remaining issues.
    For the foregoing reasons, we vacate the order of the trial court and remand to the trial
    court for it to make the findings of fact and conclusions of law required by Rule 41.02(2).
    Costs of the appeal are assessed to the Appellants and their surety, for all of which execution
    may issue if necessary.
    _________________________________
    J. STEVEN STAFFORD, JUDGE
    -7-