Winchester v. Little

Citation996 S.W.2d 818
PartiesWilliam Thomas WINCHESTER, Plaintiff/Appellant, v. Christy Rauchle LITTLE, Defendant/Appellee.
Decision Date31 December 1998
CourtCourt of Appeals of Tennessee

William T. Winchester, Jackson, pro se.

Thomas H. Rainey, John D. Burleson, Dale Conder, Jr., Rainey, Kizer, Butler, Reviere & Bell, P.L.C. Jackson, Tennessee, Attorneys for Appellee.

HIGHERS, Judge.

Plaintiff William Thomas Winchester ("Winchester" or "Appellant") appeals the decision of the trial court dismissing Plaintiff's Complaint against Defendant Christy Little ("Little" or "Appellee").

I. Factual and Procedural History

This case arose out of a child custody dispute between Winchester and his former wife which was heard in Chancery Court. Little was appointed to serve as guardian ad litem (or GAL) for the minor child. Little conducted an investigation and submitted her report to the Chancery Court.

The Chancery Court awarded Winchester and his former wife joint custody of the minor child over the recommendation of the guardian ad litem. Both parties appealed the decision and this Court vacated the order and remanded for further findings of fact regarding each parent's capabilities of caring for the child.

Winchester filed a five count Complaint against Little alleging that Little, while acting as guardian ad litem in a child custody case, exceeded the scope of her appointment, and 1) violated Winchester's civil rights, 2) defamed Winchester's character, 3) committed negligence, 4) caused Winchester to suffer the loss of society with his daughter, and 5) committed fraud.

Winchester made several accusations in his complaint. He claims that Little did not conduct her investigation in an impartial manner. Her report contained false and erroneous information. She did not contact the female relatives on the list Winchester provided her and then proclaimed that he had no support from his female relatives. She favors mothers in custody cases. She influenced Winchester's attorney to coerce Winchester into not taking legal action against Little. Finally, Winchester claims that Little influenced his attorney to withdraw from the case.

On November 24, 1997 Little filed an Answer raising the defense of failure to state a claim, denying the allegations, and raising defenses of immunity. On November 26, 1997 Little filed a Motion to Dismiss and/or for Summary Judgment. Little subsequently withdrew as GAL from further proceedings in the matter and Winchester's attorney withdrew as Winchester's counsel.

On April 22, 1998. The trial court granted Little's Motion to Dismiss and/or For Summary Judgment. The trial court granted the motion on the grounds that the claim for defamation was time barred; Winchester's allegations were insufficient to state a claim for negligence as Little owed no duty to Winchester; Little, as GAL, was immune from suit pursuant to Tenn.Code Ann. § 37-1-149; Little, as GAL, is not liable under 42 U.S.C. § 1983, and further, as GAL, Little is immune from suit pursuant to 42 U.S.C. § 1983; and the allegations of fraud are conclusory and do not satisfy the requirements of Rule 9.02 of the Tennessee Rules of Civil Procedure. This appeal by Winchester followed.

Winchester claims that the trial court dismissed his Complaint under 12.02(6) and the standard of review should be de novo with no presumption of correctness, and this Court must take all the well-pleaded factual material allegations as true, and construe the complaint liberally in the plaintiff's favor.

Little contends that matters outside the pleading were presented to and not excluded by the court, and therefore the motion to dismiss was treated as one for summary judgment. Little argues therefore that this Court should review the decision under the standard provided under Rule 56. The standard of review is de novo with no presumption of correctness.

II. Scope of Review

The trial court's order is couched in terms of a dismissal rather than summary judgment. The trial judge states that his opinion is based upon the pleadings and argument of Plaintiff and counsel for Defendant. No mention is made of consideration of any matters outside the pleadings. Appellee contends that as to the issue of the guardian ad litem's fee, matters outside the pleading were presented to and not excluded by the court. If the guardian ad litem fee was an issue on appeal, this Court might find that partial summary judgment was granted on that issue. However, this Court finds that all the issues raised in this appeal were dismissed by the trial court for failure to state a claim.

A Rule 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted tests only the sufficiency of the complaint, not the strength of a plaintiff's proof as does, for example, a motion for a directed verdict. Merriman v. Smith, 599 S.W.2d 548, 560 (Tenn.Ct.App.1979). The failure to state a claim upon which relief can be granted is determined by an examination of the complaint alone. Wolcotts Fin. Servs. Inc. v. McReynolds, 807 S.W.2d 708, 710 (Tenn.App.1990). The basis for the motion is that the allegations contained in the complaint, considered alone and taken as true, are insufficient to state a claim as a matter of law. Cornpropst v. Sloan, 528 S.W.2d 188, 190 (Tenn.1975); Shelby County v. King, 620 S.W.2d 493, 494 (Tenn.1981); Shipley v, Knoxville Journal Corp., 670 S.W.2d 222, 223 (Tenn.App.1984). The motion admits the truth of all relevant and material averments contained in the complaint but asserts that such facts do not constitute a cause of action. League Cent. Credit Union v. Mottern, 660 S.W.2d 787, 789 (Tenn.Ct.App.1983).

In scrutinizing the complaint in the face of Rule 12.02(6) motion to dismiss, courts should construe the complaint liberally in favor of the plaintiff, taking all the allegations of fact therein as true. Fuerst v. Methodist Hospital South, 566 S.W.2d 847, 848-849 (Tenn.1978); Holloway v. Putnam County, 534 S.W.2d 292, 296 (Tenn.1976). The motion should be denied unless it appears that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Fuerst, 566 S.W.2d at 848.

As the allegations of fact are taken as true, the issues raised on motion to dismiss are questions of law and the scope of review is de novo with no presumption of correctness. Tenn. R.App. P. 13(d).

III. State Action

42 U.S.C. § 1983 provides as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

A successful § 1983 plaintiff must show both that he has been deprived of a right secured by the Constitution and laws of the United States and that the defendant acted under color of any statute of any State. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970).

In his Complaint, Appellant alleges that Appellee violated his rights under the Fourteenth Amendment of the United States Constitution. Because the Fourteenth Amendment protects individuals only from governmental and not from private action, Appellant has to demonstrate that Appellee's actions were those of the state. Stated differently, in order to satisfy the first prong of the inquiry (deprivation of a right secured by the Constitution and laws of the United States), Appellant has to demonstrate that Appellee was a state actor. If the challenged conduct of Appellee constitutes state action, then that conduct was also action under color of state law (prong two) and will support a suit under § 1983. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 102 S.Ct. 2744, 2752, 73 L.Ed.2d 482 (1982).

Appellant asserts that Appellee, in her role as guardian ad litem, could fairly be said to be a state actor, thus making her amenable to suit under § 1983. The issue of whether a guardian ad litem is a state actor has been addressed by the courts. In Snyder v. Talbot, 836 F.Supp. 19, 24 (D.Me.1993) the court found that the guardian ad litem (GAL) was not a state actor for the purposes of § 1983.

[E]ven using this liberal construction, the Complaint fails to allege a cause of action under section 1983 because courts have generally held that GALs are not state actors for the purposes of the civil rights statute.

In Meeker v. Kercher for example, the Court of Appeals for the Tenth Circuit reasoned that a guardian ad litem is analogous to a court-appointed attorney because she owes her undivided loyalty to the minor client and not to the state and, hence, does not act "under color" of state law for purposes of section 1983. Meeker, 782 F.2d 153, 155 (10th Cir.1986). See also Malachowski, 787 F.2d at 706 & 710, (stating that a court appointed attorney for a minor in a delinquency proceeding, who had earlier acted as minor's guardian ad litem in abuse and neglect proceedings, does not act under color of state law); and Polk County v. Dodson, 454 U.S. 312, 320, 102 S.Ct. 445, 450, 70 L.Ed.2d 509 (1981) (holding that a public defender, although an employee of the state, assumes no obligation to the state's mission when serving as independent counsel to an indigent defendant, and does not act under color of state law).

The same reasoning applies in this case, where the GAL was appointed under the Probate Code of the State of Maine, allowing for the appointment of a guardian ad...

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