KENNY ARMSTRONG, J.
This is a conservatorship case. Appellant, the only child of Appellee, sought a conservatorship over Appellee after Appellee suffered a stroke. Appellee filed a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss the petition. The trial court, in its memorandum opinion, denied the Appellee's motion to dismiss, finding Appellant's petition to appoint a conservator "legally sufficient." In that same opinion, the trial court considered matters outside the pleadings, converted the motion to dismiss to a motion for summary judgment, and sua sponte granted summary judgment in favor of Appellee. Appellant appeals. Because Appellant was not, as required under Tennessee Rule of Civil Procedure 12.02, "given reasonable opportunity to present all material made pertinent to [the] motion by Rule 56," we vacate and remand.
Appellee Michael S. Starnes is approximately sixty-nine years old. He is the founder of the trucking company, M.S. Carriers, Inc., which he sold some years ago at a substantial profit. In January 2006, Mr. Starnes suffered a massive and near-fatal stroke, which left him with serious brain injury. As a result, Mr. Starnes is allegedly unable to live autonomously, or to execute decisions without the assistance of others. Mr. Starnes also suffers from Aphasia, a speech impediment that limits his ability to communicate verbally. His verbal communications are limited to a few learned responses and the vocalization of the word "one," with a variety of inflections. Approximately six months before the stroke, Mr. Starnes married his second wife, Dr. Laura Starnes, whom he had only known for one year prior to their marriage. Mr. Starnes has one child from his first marriage, Appellant Mary Barker Starnes. The relationship between Mary Barker Starnes and Dr. Laura Starnes is acrimonious at best. Dr. Starnes has allegedly thwarted attempts by Appellant, family and friends of Mr. Starnes to communicate with him since the stroke.
On October 5, 2012, Mary Barker Starnes filed the present action for the appointment of a conservator over Mr. Starnes. According to the affidavits filed in support of her petition, Dr. Starnes has allegedly failed to act in Mr. Starnes' best interest. She has relocated with him to California and has allegedly cut off all communication with Mr. Starnes' family, including his parents and his daughter.
On October 31, 2012, Mr. Starnes filed a motion to dismiss and strike the petition for appointment of a conservator. Appellant opposed the motion to dismiss, which was scheduled for hearing on January 16, 2013. At that hearing, the court declined ruling on the motion to dismiss, pending appointment of a guardian ad litem to represent Mr. Starnes. On January 25, 2013, the court appointed attorney David E. Caywood as Mr. Starnes' guardian ad litem. Mr. Caywood proceeded to conduct discovery, meeting with the interested parties, including Mr. Starnes and Dr. Starnes. On March 22, 2013, Mr. Caywood filed his report with the trial court. Therein, he opined that "Michael Starnes does not need an Attorney Ad Litem to represent him and is not a disabled person as defined by Tennessee law."
Mary Barker Starnes filed an objection to Mr. Caywood's report and moved to appoint a new guardian ad litem, or in the alternative, to have Mr. Starnes appear in court. In response to Mary Barker Starnes' objection and motion, Mr. Starnes renewed his motion to dismiss on March 22, 2013. Specifically, Mr. Starnes alleged that the petition should be dismissed because it failed to: (1) comply with the Tennessee Code Annotated Section 34-3-104 requirement that all petitions seeking appointment of a conservator include a sworn medical examination; (2) include legally sufficient grounds for requesting a medical examination; and (3) include legally sufficient grounds for appointing a guardian ad litem because Mr. Starnes was already represented by counsel. Mary Barker Starnes opposed the renewed motion to dismiss.
The renewed motion to dismiss was set for hearing on June 26, 2013; however, on that day, the trial court held an in-chambers conference with counsel for the parties and orally held that, pursuant to Tennessee Code Annotated Section 34-3-105, Mr. Starnes would be required to submit to an in-person examination by a physician. Before the trial court entered an order on its oral ruling, Mr. Starnes filed an objection to the proposed order requiring additional medical examination, arguing that such examination would be a severe detriment to his health. Mr. Starnes also requested a ruling on his renewed motion to dismiss. The parties returned to court on July 18, 2013 for a hearing on Mr. Starnes' objection and motion to dismiss. The trial court ultimately held that instead of an in-person examination of Mr. Starnes, an independent physician could review his medical records to determine whether Mr. Starnes was capable of undergoing an independent medical examination.
Following a lengthy search for a qualified physician to review Mr. Starnes' medical records, the court chose Dr. Emmel B. Golden, Jr. Dr. Golden issued his written report on September 4, 2013. Dr. Golden opined that Mr. Starnes "is capable of making decisions directing his own affairs." Appellant alleges that Dr. Golden's report is not supported by an accompanying affidavit, and is "rife with hearsay statements," on which the trial court erroneously relied.
On September 26, 2013, the trial court held a hearing on Mr. Starnes' renewed motion to dismiss. On October 30, 2013, the trial court issued its memorandum opinion and order, in which it dismissed Mary Barker Starnes' petition to appoint a conservator over Michael S. Starnes. In its order, the trial court cites the relevant law on Tennessee Rule of Civil Procedure 12.02(6) motions to dismiss, and then concludes that Mary Barker Starnes' petition "is legally sufficient and adequately sets forth the requisite requirements for a petition to appoint a conservator." The court then acknowledges that it considered evidence outside the original petition so as to convert the Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss to a motion for summary judgment. See, e.g.,
After considering this evidence, the trial court, in its October 30, 2013 order, granted summary judgment in favor of Mr. Starnes, finding that "there remain no genuine issues as to any material fact left for the court to consider."
Mary Barker Starnes appeals. She raises four issues for review as stated in her brief:
Appellant first contends that because the trial court specifically found, in its October 30, 2013 order, that Mary Barker Starnes' petition "is legally sufficient and adequately sets forth the requisite requirements for a petition to appoint a conservator," the court should have simply denied Mr. Starnes' motion to dismiss at that point. A motion to dismiss for failure to state a claim upon which relief can be granted "challenges only the legal sufficiency of the complaint, not the strength of the plaintiff's proof or evidence."
As noted above, the trial court's order specifically acknowledges that it considered matters outside the pleadings, i.e., the affidavits of Drs. Biskar and Pearlson, and Mr. Mencio, as well as the guardian ad litem's report. In light of its consideration of this evidence, the court's order specifically states that "the [m]otion to [d]ismiss must be converted to a Rule 56 motion for summary judgment." A trial court speaks through its order.
It is clear from the court's order that it not only did not exclude the extraneous evidence, but that it also considered this evidence in deciding Appellee's motion. Under these circumstances, the trial court was not only authorized to treat the motion as one for summary judgment, it was required to do so under Rule 12.02. Accordingly, we apply the standard of review applicable to summary judgment decisions.
When a motion for summary judgment is made, the moving party has the burden of showing that "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Tenn. R. Civ. P. 56.04. According to the Tennessee Legislature:
Tenn. Code Ann. § 20-16-101 (effective on claims filed after July 1, 2011). Although the Tennessee Supreme Court has authorized trial judges to sua sponte grant summary judgment for non-moving parties, it has warned that such action "should be taken only in rare cases and with meticulous care."
Tennessee Rule of Civil Procedure 12.02 states that when a motion to dismiss is converted to a motion for summary judgment, "all parties shall be given reasonable opportunity to present all material made pertinent to such motion by Rule 56." In other words, when a Rule 12 motion is converted to a Rule 56 motion, courts must use care not to violate the non-moving party's right to both fair notice and a reasonable opportunity to "set forth specific facts showing that there is a genuine issue for trial ." See Tenn. R. Civ. P. 56.06. Thus, under the rule, a motion to dismiss must be treated as a motion for summary judgment when matters outside the complaint are submitted and are not excluded by the court, provided that all parties are given a "reasonable opportunity" to present all relevant material.
As set out in its October 30, 2013 order, the trial court granted summary judgment, sua sponte, in favor of Mr. Starnes upon the following analysis:
Importantly, in its order, the court states that: "It is the Court's opinion that [Mary Barker Starnes] had a `full and fair opportunity' to present evidence that genuine issues of material facts exist. . . ." On appeal, Mary Barker Starnes contends that she was given no such opportunity to conduct further discovery in order to gather additional evidence to oppose the motion. In addition, she avers that throughout the proceedings in the trial court, she objected to the affidavits considered by the trial court. Had she been permitted to conduct additional discovery, she contends, the trial court would not have granted summary judgment. Thus, she argues, the trial court erred in not giving her a "reasonable opportunity to present all material made pertinent to [Mr. Starnes'] motion by Rule 56," as required under Rule 12.02.
As noted above, the failure to permit further discovery is rendered harmless if the fatal defect could not have been remedied by permitting further discovery. See
More troubling is the fact there is no evidence that Appellant ever agreed to the appointment of a physician to review Mr. Starnes' medical records. We have reviewed the July 18, 2013 transcript of the hearing, and, at no point therein, does Mary Barker Starnes' lawyer agree to review of the medical records by an independent party, i.e., Dr. Golden. In fact, we glean from the record that it was the trial court that proposed this review because, as the court states: "I don't want to be the one that causes this man to die, but it will make me feel better if I have a doctor here look at his records and make a report based on his records to this Court." Furthermore, as noted by Appellant in her brief, her lawyer never signed the order directing the independent review of Mr. Starnes' medical records. Accordingly, the trial court's statement, in its October 30, 2013 order, that Mary Barker Starnes "agreed to the appointment of the guardian ad litem and to the appointment of a physician to review the medical records of [Mr. Starnes]," is not supported by the record.
Because Mary Barker Starnes did not consent to Dr. Golden's review of the medical records, and the trial court never qualified Dr. Golden as an expert, this Court has some additional concern that the trial court erroneously relied on Dr. Golden's report. In
In addition, the trial court's order states that Mary Barker Starnes "failed to provide any evidence showing [Mr. Starnes] is a person with a disability that requires full or partial supervision," and that she has "failed to offer any evidence-aside from her own testimony-that affirmatively states [Mr. Starnes] is in need of a conservator." Even if we allow, arguendo, that the court's statements are true, the lack of evidence from Appellant appears to be because the trial court denied Appellant further discovery when Appellant's lawyer petitioned the court for it:
There is no evidence in our record that the trial court even considered Appellant's request for more discovery before granting summary judgment, sua sponte, to Appellee. Tennessee Rule of Civil Procedure 56.07 states:
The depositions proposed by Mary Barker Starnes' lawyer should have been permitted because the trial court's October 30, 2013 order clearly states that it relied on the affidavits of Drs. Biskar and Pearlson. In addition, Dr. Golden's report states that he incorporated the opinions of Drs. Biskar and Pearlson. Accordingly, the affidavits of Drs. Biskar and Pearlson were "made pertinent to [the Appellee's motion] by Rule 56."
This Court has repeatedly held that a trial court's failure to permit a non-moving party the opportunity to "pursue discovery in order to obtain materials made pertinent by a summary judgment motion, such as interrogatories and depositions," is reversible error. For example, in
For the foregoing reasons, we vacate the judgment of the trial court. We remand the case to the trial court for purposes of allowing the parties an opportunity to engage in discovery in accordance with Rule 56 of the Tennessee Rules of Civil Procedure prior to the trial court's ruling on such motion, and for any further proceedings as may be necessary and are consistent with this opinion. Costs of the appeal are assessed against the Appellee, Michael S. Starnes, for which execution may issue if necessary.
