1 

# FILED
December 31, 1998 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT JA CKSON WILLIAM THOMAS WINCHESTER, ) ) Plaintiff/Appellant, ) Madison Circ ui t No. C-97-370 ) VS. ) Appeal No. 02A01-9806-CV-00158 ) CHRISTY RAUCHLE LITTLE, ) ) Defendant/Appellee. )
APPEAL FROM

THE CIRCUI T COURT OF MADISON COU NTY AT JACKSON, TENNESSEE THE HONORABLE JULIAN P. G UINN, JUDGE

WILLIAM T. WIN CHESTER, pro se Jackson, Tennessee
THOMAS H. R

AINEY JOHN D. BURLESON DALE CONDER, JR. RAINEY, KIZER, BUTLER, REVIERE & BELL, P.L.C. Jackson, Tennessee Attorneys for Appellee

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR: DAVID R. FA

RMER, J. HOLLY KIRBY LI LLARD, J. 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”).2 I. Factual and Procedur al History

This case arose out of

a child custody dispute between Winchester and his former wife which was heard i n Chancery Court. Little was appointed to serve as guardian ad litem (or GAL) for the minor child. Little conducted an inves tigation and submitted her r eport to the Chancery Court.

The Chancery Court aw arded Winchester and his former wife joint custody of

the minor child over

the recommend ation of the g uardian ad l item. Both parties appealed the deci sio n and this Court vacated the order and remanded for fu rther 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, ex ceeded the scope of her appointment, and 1) violated Winchester’s civil ri gh ts, 2) defamed Winchester’s character, 3) c ommitted negligence, 4) caused Winchester to suff er the loss of socie ty with his daughter, and 5) committed fraud.

Winchester made several accusations in his complaint. He claims that Little did not conduct her investigation i n 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 suppor t from his female relatives. She favors mothers in custody cases. She influenced W inchester’s a ttorney t o coerce Winchester into not t a king legal action against Little. Finally, Winchester claims that Little inf luenced his attorney to withdraw

from the case. On November 24, 1997 Little filed an Answer r

aising thedefense of failure to state
a claim, denying the allegati ons, and raising defenses of immunity. On November 26,1997 Little filed a Motion to Dismiss and/or for Summary Judgment. Li ttle subsequently w

ithdrew
as GAL from further proceedings i n the matter and Winchester’s attorney w ithdrew as Winchester’s counsel.

On April 22, 1998. The trial c ourt gr anted Little’s Motion to D ismiss and/or For Summary Judgment. The trial court granted the motion on the grounds that the clai m 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 immu ne from suit3

pursuantto Ten n. 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 concl usory and do not satisfy the requirements of Rule 9.02 of the Tennessee Rules of Civil Procedure. This appeal by Winchester foll owed.

Winchester claims that the trial court dismis

sed his Complaint under 12.02(6) and the standa r d 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 outsid e the pleading were pr esented to and not excluded by the court, and therefore the motion to di smiss was treated as one for summary judgment. Little argues therefore that this Court should rev iew the decision under the standard provided under Rule 56. The standard of review is de novo with no presumption of correctness.
II. Scope of Revie w

The trial court’s order

is couched in t erms of a di smissal rather than summary judgment. The trial judge states that his opinion is based upon the pleadings a nd argument of Plaintiff and counsel for Defendant. No mention is made of considerati on of any matters outside the pleadings. Appellee contends that as to the i ssue of the guardian ad litem’s fee, matters outside the pleading we re presented to and not exclu ded by the court. If the guardian ad litem fee was an issue on appeal, this Court might find that partial summary judgmentwas granted on that is sue. However, this

Court finds that

all the issues raised in this appeal were dismi ssed by the trial cour

t for failure

to state a cl aim.

A Rule 12.02(6) motion to dismi ss for failure to state a clai m upon which relief can be granted tests only the sufficiency of the complaint, not the strength of a plaintiff’s pr oof
as does, for example, a motion for a di rected verdict. Merriman v. Smith , 599 S.W.2d 548, 560 (Tenn. Ct. App. 1979). The failure t o state a claim upo n whic h relief can be granted is determined by an e xamination of the complaint alone. Wolc otts Fn. S erv. 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.4

1975); Shelby C ounty v. Kin g , 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 ofall relevant and material averments cont ained in the complaint but asser ts 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 dismi ss, courts should construe the complaint liberally in favor of the plaintiff, taking al l the allegations of fact therein astrue. Fuerst v. Methodist H ospital 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 th e plaint iff can prove no set of facts in support of his claim that would entitl e 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 la w and the scope of review is de novo with no presumpti on 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, ordin a nce, regulation, custom, or usage, of any Stat e or Territo r y, or the District of Columbia, subjects, or causes to be subjected, any citizen of the Uni ted States or other person w ithin the jurisdiction thereof to the deprivation of any rights, privileges, or immunities s ecured by the Constitution and la ws, shall be liable to the party injured i n an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this secti on , any Act of Congress appl icable exclusivel y to the District of Columbia shall be consider ed to be a statuteof the District of Columbia. A successful §1983 plaintiff must show both that he has been deprived o f a right secured bythe 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 al leges that Appellee vio lated his rights under the Fourteenth Amendment of the Uni t ed States Constitution. Becaus e the Fourteenth Ame ndmen t protects individuals only from governmental and not from private action, Appellanth as to demon strate that Appellee’s acti ons were those of the state. Sta ted5

differ ently, in order tosatisfy the first prong of the inquiry (depri

vation 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 challeng ed conduct of Appelleeconstitutes state action, then that conduct was also actionunder color of state law (prong two) and will support a suit under §1983. Lugar v. Edmondson Oil Co., Inc. , 102 S.Ct. 2744, 2752 (1982).

Appellantassertsthat 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 s tate 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 gene rallyheld that GALs are not state ac tors for the purposes of the civil ri ghts statute. In Meeker v. Kercher

forexample, theCourt of Appeals forthe Tenth Circu it reasoned that a guardian ad litem is ana log ous 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 col or” of state law for purposes of section 1983. Meeker , 782 F.2d 15 3, 155 (10th Cir. 1986). Se e also Malachowski , 787 F.2d at 706 & 710, (stating that a c ou rt appointed attorney for a mi nor in a delinquency proceeding, who had earlier act ed as minor’s guardian ad litem in abuse and neglect proceedings,does not act under color of state law); and Polk County v. Dods on , 454 U.S. 31 2, 320, 102 S.Ct. 445, 450, 70 L.Ed.2d 509 ( 1981) ( holding that a public defender, although an employee o f th e state, assumes no obligation to the sta te ’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 Prob ate Code of the State of Maine, allowingfor the appointment of a guardian ad litem for the lim ited purpose of representing the interest of the min or, upon a determin ation of the minor’s interest would otherwise be inadequate. Pursu ant to this statute, the GAL w as responsible fo r exercising independent judgment to ensu re tha t the rights

of Plaintiff’s mi nor chi ld wer e fu lly and adequately protected in the context of court proceedings, regardless of the interestsof the state and the other parties to the litigation. She did not exercise custodial or supervisory rights over the child or engage in any other ar rangements that could have been viewed as carrying out the state’s mandate. See Polk County , 454 U.S. at 320, 102 S.Ct. at 450 (contrasting the independent role of public defenders to the custodial and supe rvisory functions carried out by doctors employed at

state institutions). Based on this restrictiv e and independent rol e, the GAL is likewise not a state ac

tor for purposes of §1983. Snyder at 24.
Othe r courts have addressed the issue and come to the same conclus ion. Holl e y
v. Deal , 948 F.Supp. 711 (M.D. Tenn. 1996) (holding that

a limited guardian who had not taken on substantial author ity, conf erred by the state, for long-term involvement in6

overseeing a minor’s or incompetent’s well being is not a state actor); Offut v. Kaplan , 884 F.Supp. 1179 (N.D., Ill. 1995) (a guardian ad litem in a st ate custody proceeding does not act under color of state law) ; Levine v. County of Westchester , 828 F.Supp. 238 (S.D.N.Y. 1993), aff’d , 22 F.3d 1090 (2nd Cir. 1994) (law guardians

who represent children in custody and child abuse disputes do not act under color of state law); Doe v. Bobbitt , 665 F.Supp. 691 (N.D. Ill. 1987) (c

ou rt a ppointed guardian ad litem for a child is not a state actor); Chrissy F. v. Mississi ppi Dep’t of Pub. Welfare , 780 F.Supp. 1104 (S.D.Miss. 1991), aff’d in pa rt , rev’d in part , 995 F.2d 595 (5th Cir. 1993) , cert. denied , 114 S.Ct. 1336 (1994) (cou ntyofficial s designated as guardians ad litem for a minor in a state court custody dispute were not engaged in state action because they ac ted on behalf of the minor rather than the state).
Appellant cites cases in w hich guardians ad litem w ere found to be state actors. However, in the cited cases Thomas v. Morrow , 781 F.2d 367 (4th Cir. 1986), and Matter of Guardianship of

L. W. , 482 N.W.2d 60 (Wis. 1992), the issue was whether a guardian of an incompetent ward was a state actor. Importantly , in Matter of Gu ar di an sh ip of L. W. , the guardian was decidi ng whether to withdraw life support fromL.W. The court found that
a guardian designated to make health care decisions for an incompetent ward is a stat e actor and thus the patient must be accor ded due process before the state may deprive him
or her of life. In Thomas v. Morro w , the guar dian participated in admitti ng his ward to a state hospital and joined with the state in bringing about various placements.
Appellantalso points to various state cases which hav e found that a guardi an ad litem owes his primary

duty to the court. Kahre v. Kahre , 916 P.2d 1355, 61 (Okl. 1995) (in custody matters the gua rdian ad litem has almost universally been seen as owing his primaryduty to the court that appo i nted him); Yonker by a nd throu gh Helstro m v. Thompson , 939 P.2d 530, 533 (Colo. App. 1997) (a guardian adlitem is an agent of the court through whom it acts t o protect the interests of the mi no r); Cruzan , by Cruzan v. Harmon , 760 S.W.2d 408, 425 (Mo. banc 1988) (a guardian is the delegatee of the state’s parens patriae power). While these cases cit ed by App ellant lend some weight to Appellant’s argument,
none of these cases was brought in the context of §1983. Accord ingly, this Court affords
more weight to the cases which specifically determined whether a guardian ad l item was
a state actor, or acted under color of state law, for the purposes of 42 U.S.C. §1983. This Court also places greate r reliance on §1983 cases d ealing wi th a guardi an ad litem,1 As set forth in Lugar, “Although we hold that conduct satisfying the state action require men t of th e

Fourtee nth Amendment satisfies t he statuto ry requi rement of acti on under color of state l aw, it does not foll ow from that th at all co ndu ct tha t satis fies th e und er co lor of s tate la w req uirem ent w ould satisfy the F ourteen th Amendment requ irem ent o f stat e act ion. [S ]eco nd, a lthou gh w e hold in this case that t he under-color -of-statelaw requirement does not add anythi ng not alr eady incl uded withi n the state -actio n requirement of the Fourtee nth Amendment, §1983 is appli cable to ot her constitutionalprovisions and statutory provisi ons that con tain no state-act ion requi rement. Where such a federal ri ght is at issue, t he statuto ry concept o f action under color of st

ate law would be a di stinct element of thecase not sati sfied i mplicitl y by a f inding of

a viol ation of the particular federal right.” Lugar footnote 18. 7 appointed to represent the best intere st of the child in a custody di spute, over §1983 cases which dealt with a guardian of an incompetent war d.

In the case at hand, Appellee was appointed s olely for the purpose of repre senting the interests of theminor child in the custody dispute. Appellee owed her undivided loyalty to the minor client and not to the state of Tennessee. Appellee was r esponsible for exercisingindependent judgment to ensure that the rights of

the minor child were fully and adequ ately pro tected in the context of the cour t proceedings, regard less of the interests of the state and the other parties to the litigation. She di d not exercise custodial or supervisory

rights over the chi ld or engage in any o ther arrangements that could hav e been viewed as carrying

out the state’s mandate. Additional ly, the court was n ot bound by the evidence presented by the guardian ad litem and w as free to award custody as it saw fit. (In fact, the trial judge ini tially went agai nst the recommendation of Appellee and awarded jointcustody to the parties.) For all the foregoing reasons , this Court holds that a guardian ad litem appointed to represent the best interest of a ch ild in a custody proceeding i s not a state actor.

The allegations of a complaint dr afted by a pro se litiga nt are held to less stringent standards than formal pleadings drafted by law yers. Haines v. Kerner, 404 U.S. 519, 520, 9 2 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972)

. Jourdan v. Jabe , 951 F.2d 108, 110 (6th Cir. 1991). To the extent that Appellant’s §1983 complaint could be constr ued to allege that A ppellee violated constitutional provisions other than the Fourteenth Amendment, o r statutory provisions whic h contain no state action req uirement, and assuming Appella nt could then satisfy prong one of the Adickesin quiry, this Court holds that Appell ee, as guardian ad litem, did not act “under color of state law,” for the same reasons noted above, and Appellant would therefore fai l to satisfy prong tw o of the Adickes inquiry

. 1
IV. Immunity U nder 42 U.S.C. §1983

The elements of, and defenses to, a federal cause of action are defined by federal8

law. Howlett v. Rose , 496 U.S. 356, 375 (1990). see also Wood v. Strickland , 420 U.S. 308, 314 (1975); Owen v. City of Independence , 445 U.S. 622, 647 n. 30 (Munic ipal defenses, including assertions of sovereign immunity , are controlled by federal law.) With respect to a §1983 claim, state law immunity priv ileges and defenses do not contro l.

The Supreme Court of the United States has held that witnesses and other persons who are integral parts of the judicial process are entitled to absolute immunity. Briscoe v. La H ue , 460 U.S. 325 ( 1983). This absolute immun ity exten ds to guardi ans ad litem. Kurzawa v. Mueller , 732 F.2d 1456 (6th Cir. 1984). In Kurzawa , the plaintiff filed a §1983 action against an attorney w ho functioned a s a guardian ad litem for a mi nor child. The Sixth Circui t noted that a guardian ad litem must act in the best interes ts of the child h e represents. Id . at 1458. The court further stated:

Such a position clearly places [a guardian ad litem] squarely within the judicial process to ac complish that

goal. A guardian ad litem must also be able to functi on without the worry of possible later harrassment and inti midation from dissatisfied parents. Consequently, a gr ant of absolute immunity would be appropriate. A failure to grant immunity would hamper the duties of a guar

dian ad l item in h is role as advocate fo rthe child in judicial pro

ceedings. Id

. Other courts have also held th at a guardian is entitled to abs olute immunity. see Flemming v. Asbill , 42 F.3d 886 (4th Cir. 1984) ( guardian entitledto immunity for damages liability under §1983); Gardner v. Parson , 874 F.2d 131 (3d Cir. 1989) (g uardian should be absolutely immune from liability for civil rights violation s); McCuen v. Polk County , 893 F.2d 172 (8th Cir. 1990); Holley v. Deal , 948 F.Supp. 711 (M.D. Tenn. 1996) ; Offutt v. Kaplan , 884 F.Supp. 1179 (N.D. Ill.1995).
Appellant’s cont enti on that Tenn. Code Ann. §37-1-149 controls App ellee’s immunity in this federal issue is incorrect. The extent to w hich a §19 83 defen dant is protected by a n immun ity from liability is a question of federal law . This Court holds that undercurren t federal law, a guardi an ad litem, appointed to represe nt the best interests of a child in a custod y proceeding, is entitled to absolute immuni ty from liability un der §1983.
V. Negligence

To sustain a caus e of action for negligence it is necessary: (1) to show a duty of
care owed by the defendant to the plaintiff; (2) to show a breach of th at duty; and (3) a9

causal connection between the injury to the plaintiff and the defend ant’s breach of his duty of care. Shouse v. Otis , 448 S .W.2d 673 (T enn. 1969). Failure to establ ish any one of these elements is fatal to a cause of action for negligence.
Appellant alleges that Appel lee, as guardian ad litem, owes a duty to the cour t, to the best interests of

the child, and to all the parties involved in the case. Appellant relies
on Stinson v. Brand , 738 S.W.2d 186 (Te nn 1987) to support this proposition. In Stinson the c ou rt held that attorneys, as well as land surv

eyors, accountants, or title companies who negligently supply false information for the guidance of others in t heir business transactions may be liabl e in negligence to those individuals. Id . at 190.

This C ourt does not agree that Stinson is applicable in this c ase. The Court i n Stinson was dealingwith a real estate si tuation and noted that the relationship between an attorney and the parties to a real est ate transaction is often comp lex and delicate. Id . at 191. In the Stinson case, the attorney was hired to represent the

purchaser in a real estate transaction and was later sued by the sellers in the transaction who w ere not represented byindependent counsel. The court further noted that the attorneys so far inv olved themselvesin the transaction that the tr ier of fact could find they were r epresenting multiple interests, not just the pur chaser. Id . at 190.

This court also finds unpersuasiv e Appe l lant’s argument that breach of a duty imposed by the C ode of Professional Responsibili ty is sufficient to satisfy the duty requirement

for a negligence cause of action. The Code of Prof ess iona l Responsibility does not c r eate a private cause of action for damages. Lazy Seven Coal Sal es v. Stone & Hinds , 813 S.W.2d 400, 405 (Tenn. 1991). The purpose of the code is to state w hen a lawyer will be subject to disciplinary ac tion, not to define standards w hereby a lawyer may be civilly lia ble, and conduct that violates the Code may not breach duty to client. Id . at 404.

A guardian ad litem is appoi n ted to represent the best inter est of the child. The guardian ad litem statutefound at Tenn. Code Ann. §34-11-106(d)(1), while not applicable to the situation at hand, states that the guardian ad litem owes a duty to the cour t and to the best interests of

the child. T his Court can find no authorit y which holds that the guardian ad litem has any duty to the parents of the minor child. The general rule is that
an attorney is not liabl e in negligence to thir d parties who are no

t clients a nd are not in10

privity of contract with the attor

ney. Stinson at 190. For theforegoing reasons, this Court holds that the guardian ad lit e m owes no duty to the parents of the child whom she is app ointed to represent. The trial court did not err finding Appellant’s allegations were insufficient to state a claim for n egligence against Appellee.
VI. Absolute Quasi-Judicial Immunity
Appellee asserts she is entitled to absolute quasi-judicial immuni ty from suit for

the state law causes of action. The d octrine of absolute judicial immunity, which first arose under the common law, has been ext e nded to persons other than judges , performing judicial or quasi-j udici al functions. Miller v. Niblack , 942 S.W.2d 533, 537 (Tenn. App. 1996). Courts have expanded the doctrine of absolute

judicial immunity to include these “quasi-judicial” officers because they are involved in an integral part of the judicial process and thus must be able to act freely without

the threat of a lawsuit. Id . When acting at the judge’s direction, these “quasi-judicial” officers enjoy the same absolute immun ity for their conduct. Id

.

Most jurisdict ions have held that common law immunity protect s persons appointed by the court to c onduct a medical or psychi atric evaluation and ren der an opinion or to provide other expert assistanc e because oftheir integral relation to the judicial process. Id

. (cita ti ons omitted). These courts recog nized that these persons w ould be reluctant to acceptcourt appointment if they opened themse lv es to liability for their actions in this capacity. Id . Also, human natu re indicates that court-appointed experts, faced wi th the threatof personal liability, wi ll be less likely to offerthe disinterested objectiv e opinion that the court seeks. Id . (citing LaLonde v. Eissner , 539 N.E.2d 538, 540-41 (1989)). This same rationale h as been applied in cases in w hich the courts have ex tended the protection of absolute immunity

to guardians ad litem. See Kurzawa v. Mueller , 732 F.2d at 1459; and discussi on of §1 983 immu nity supra
. Appellantargues th at Appellee is only entitled to qualified (“good faith”) immunity pursuantto Tenn. Code Ann. §37-1-149. How ever, we find that st atute is not applicable to a guardian ad litem appointed to repre sent the best interests of a chi ld in a divorce/custody proceeding. Tenn. Code Ann. §37-1-149 provides as follows:

37-1-149. Guardian ad litem- Sp ecial advocate - Appointment.- (a) The court at any stage of a proceeding under this part , on application of a party or on its ow n motion, shall appoint a11 guardian ad lit em for a child who is a party to the proceeding if such a child has noparent, guardian or cust odian appearing on such ch ild’s behalf orsuch parent’s, guardian’ s or custodian’s interest s conflic t wi th the child’s or in any other case in which the interest s of the child require a

guardian. The court, in any proceeding under this part resulting from a report of harm or an investigati on report under §§37-1-401 - 3 7 -1
- 411, shall appoint a guardian ad litem for the child who was the subject of the report. A part y to the proceeding or the party’s employee or representativ e shall not be appointed. (b)(3) Any guardian ad litem or special advocate so appointed by the court

shall be presumed to

be acting in good faith and in so doing shall be immune from any liability that mig ht otherwise be incurred while ac ting within the sc o pe of such appointment. (emphasis added). Th is statute covers a guar dian ad litem appointed for a chil d who is a party in a juv enil e proce eding. The minor child in the case at hand was not a party to the underly in g divorce/custody

proceeding. In fact, making a minor chil d a party in a such a proceeding is clearly improper

. Allison v. Allison , 638 S.W.2d 394, 396 (Tenn. Ct. App. 1982). Tenn. Code Ann. §37-1-149 is not applic able to the facts of this case. Appellant is incorrect in his assertion that Appellee was entitled to only qualified immunity based upon this statute. The trial court, which hel d that Appell ee, as guard ian ad litem,was “immune from suit” pur suant to same statute was also i ncorrect.

The Tennessee Legislature has r ecently enacted a statute, effectiv e Janua ry 1 , 1999, which codifies

the appointment of a guardian ad litem in divorce proceedings. The statute does not address the issue of immu nity, unlike the guardian ad li tem statute found in Title 37 of the Code (Juveniles). If the legislature w ished to limit the immunity of guardiansad litem i n the dom estic rela tions set ting, the y could have done so in the statute, and of course, they are stil l free to do so.

In th e absence of a statute specifically addressing the immunity of a guardian ad litem in the domestic relat ions arena, this Court is left wi th the common law. Tennessee has extended the doctrine of absol ute judicial immunity to persons performing judic ial or quasi-judicialfunctions because such persons are involv ed in an integral part of the j udicial process and thus must be able to act freely with out the t hreat of a lawsuit. Our court s have recognizedthat court-appointed exper ts, faced with the threat of personal liability, wi ll be less lik ely to offer the disinterested objective opinion that the court see ks. Other c ourt s have relied upon this same rati onale in extending absolute judicial immunity to guardians ad litem.

Courts rely upon the guardian ad litem to provide an objec tive opinion, unbiased by12

the interests of the parties. A g uardian ad litem must be able to act freely w ithout the cloud of a potential lawsuit hang ing over his or her head . For all the reasons set forth above, quasi-judicialimmunity should be extended to guardians

ad litem in the domestic relations
arena. The trial court was c orrect in concluding that Appellee, as guardian ad litem, was immune from suit as to thestate law causes of action, although incorrect in attributing such immunity to Tenn. Code Ann. §37-1- 149.

VII. Other State Law Causes of Action

On appeal, Appellant contends that di smissal was improper in that the facts, as stated in the Complaint, also support a cause of action for outrageous c onduct, as well as other intentional torts under Tenness ee law. The onlyintentional torts raise d by Appellant in the Complaint were for defamation and fraud. The trial court fou nd that th e allegedly defamatory statements were not actionable inasmuch as the report of the guardian ad litem
was made in t he course of judicial proceedi ngs in which the repo rt was relevant and pertinent. The trial court noted th at Plaint iff (App ellant) a ppeared to have abandoned his allegations of fraud, but proceeded to evaluate the fraud c laim and found the allegations of fraud were conclusory and did not satisfy the req uirements of Rule 9.02 of the Tennessee Rules of Civil P rocedure.
Appellantdid not address either one of these issues in his brief to this Court. Based upon that fact, and our holding abo ve t hat Appellee, as guardian ad l item, was immune from suit as to the state law causes of action, this Court sees no reason to address these issues.

VIII. Conclusion
Appellee has asked us to declare that this appeal is frivolous and awa rd damages pursuantto Tenn. Code Ann. § 27-1-122. While several of the issues raised by Appel lant
are devoid

of merit , the is

sue of g uardian ad litem immunity under state law was a valid issue that doe s not app ear to have been pre viously addres sed on facts similar to those presented in this case. Accordingly, w e decline to award Appell ee damages for a frivolous appeal.

For all the fore g oing reasons, we hereb y affirm the trial court’s Dismissal of13

Appellants Complaint for Failure to Sta te a C laim pu rsuant to Rule 12.02(6) of the Tennessee Rules of Civil Proc edure. Costs of this appeal are taxed to Appellant, for which executio n may issue if neces sary.

HIGHERS, J.

CONCUR:

FARMER, J.

LILLARD, J.