Day on Torts
In Tennessee, trial judges are allowed to convert Rule 12 Motions to Dismiss into Motions for Summary Judgment, but this action “should be taken only in rare cases and with meticulous care.” Thomas v. Transp. Ins. Co., 532 S.W.2d 266 (Tenn. 1976). The Court of Appeals recently overturned such a summary judgment in In Re Conservatorship of Starnes, No. W2013-02614-COA-R3-CV (Tenn. Ct. App. Dec. 10, 2014), because the trial court did not permit proper discovery before granting a motion it had converted from a motion to dismiss into a motion for summary judgment.
Petitioner in the Starnes case was a daughter who alleged that her father needed a conservator after his health declined following a stroke. Father filed a motion to dismiss, which the court declined to rule on until a guardian ad litem had been appointed. After appointment and his own discovery, the guardian ad litem filed a report finding that father did not need a conservator. Daughter filed an objection to this report, and father renewed his motion to dismiss. In an in-chambers conference with counsel, the trial judge determined that a physician should review father’s medical records, and the court chose a Dr. Golden to do so. After reviewing the records, Dr. Golden issued a report stating that father was “capable of making decisions directing his own affairs.” Daughter, on appeal, alleges that this report is not supported by an accompanying affidavit and relies largely on hearsay.
In September 2013, the trial court held a hearing on father’s motion to dismiss. The next month the judge issued an opinion and order dismissing daughter’s conservatorship petition. The trial court concluded that daughter’s petition was “legally sufficient and adequately set[] forth the requisite requirements for a petition to appoint a conservator” pursuant to Rule 12.02(6), but then went on to acknowledge that it considered evidence outside the pleadings and thus converted the motion, sua sponte, to one for summary judgment pursuant to Rule 56. Specifically, the court considered a copy of a doctor’s letter submitted by father, three affidavits submitted by father (two from doctors), the guardian ad litem report, and Dr. Golden’s report.
In vacating the summary judgment, the Court of Appeals noted that when a motion to dismiss is converted to a summary judgment 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.’” Here, daughter’s attorney had asked the court to allow limited discovery, specifically the depositions of the two doctors relied upon by father, to test their credibility and allow daughter to examine the accuracy of the reports the court was relying upon. According to the Court of Appeals, however, there was no evidence that the trial court even considered this request for discovery before granting the summary judgment. The Court of Appeals found that the trial judge should have allowed the requested depositions, as the court clearly stated that it relied upon the affidavits of the two doctors and the guardian ad litem had incorporated the doctors’ opinions into his report. The Court accordingly vacated the summary judgment order and remanded with instructions to allow limited discovery.
The discovery issue alone was sufficient to warrant remand, as “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.” On top of the discovery issue, though, the Court of Appeals found additional problems with the trial court’s decision. First, daughter had objected to the guardian ad litem report and moved for a new guardian ad litem, but the court never specifically ruled on this request or gave daughter an opportunity to explain her objections. Second, despite the trial court order stating that daughter had agreed to a physician reviewing father’s records, the record did not support any such agreement, and daughter’s lawyer never signed the order directing the review. Finally, the trial court never qualified Dr. Golden as an expert, so its reliance on his report raised concern.
This case is a reminder that it is rarely appropriate for a court to sua sponte convert a motion to dismiss into a motion for summary judgment. In the rare cases where that does occur, the non-moving party should be allowed the opportunity to take discovery necessary to oppose the summary judgment motion. If pertinent discovery is not allowed, the Starnes case is a good example of how to present such an issue to the appellate court.