IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

July 6, 2010 Session

IN RE JOSEPH A.

Appeal from the Circuit Court for Hamilton County

No. 05-D-0799 W. Jeffrey Hollingsworth, Judge

No. E2009-00924-COA-R3-CV - FILED AUGUST 4, 2010

This proceeding began in the Hamilton County Juvenile Court when the Department of

Children’s Services(“DCS”) filed a petition seeking to have Joseph A. (the “Child”) declared

dependent and neglected based on allegations of abuse committed by Douglas A. (“Father”).

Katheryn B. (“Mother”) was allowed to intervene. A guardian ad litem was appointed on the

Child’s behalf. The Juvenile Court found the Child to be dependent and neglected, and

Father appealed that finding to the Circuit Court. While this case was pending in the Circuit

Court, DCS voluntarily dismissed the original petition. Thereafter, the guardian ad litem

filed a motion seeking payment of attorney fees and costs. The Circuit Court granted this

motion and entered a judgment against DCS for the guardian ad litem’s fees and expenses.

DCS appeals. We vacate the order taxing the guardian ad litem fees and costs against DCS

and remand for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the

Circuit Court Vacated; Case Remanded

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS,

P.J., and JOHN W. MCCLARTY, J., joined.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General,

and Douglas Earl Dimond, Senior Counsel, Nashville, Tennessee, for the Appellant, State

of Tennessee, Department of Children’s Services.

Robert B. Pyle, Chattanooga, Tennessee, Guardian ad Litem.
MEMORANDUM OPINION

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Background

Mother and Father were divorced in March of 2002. The Child, their only

offspring, currently is eleven years old. At the time of the divorce, Mother was designated

the Child’s primary residential parent, although she and Father originally agreed to equal coparenting time. The relationship between Mother and Father has been and remains

contentious. Prior to and since the granting of the divorce, there have been serious

allegations made with respect to the parenting ability and fitness of both parents. The

technical record in this case consists of over five hundred pages of pleadings and reports by

health care professionals and therapists regarding allegations of abuse toward the Child,

primarily allegations of sexual abuse by Father.

The present lawsuit involves a petition filed by DCS seeking to have the Child

declared dependent and neglected. While these proceedings were pending in the Juvenile

Court, in November of 2002, DCS requested a guardian ad litem be appointed pursuant to

Tenn. Code Ann. § 37-1-150 and that the guardian be compensated pursuant to that statute

and applicable rules. A few days later, the Juvenile Court appointed a guardian ad litem for

the Child “with the fees to be assessed between the parents at the conclusion.”

In October 2004, the original guardian ad litem filed a motion seeking to

withdraw from the case because he had secured new employment as a staff member at the

Juvenile Court. The motion to withdraw was granted and pursuant to the Juvenile Court’s

order, the “Office of the Clerk shall appoint a new Guardian ad litem in this matter.”

Although there is nothing in the record to show that a new guardian ever was properly

appointed, Robert B. Pyle (“Pyle”) took over as the Child’s guardian ad litem.

The Juvenile Court eventually found the Child to be dependent and neglected

based on Father’s alleged conduct, and that finding was appealed by Father to the Circuit

Court for a de novo hearing. In May of 2005, Mother apparently realized that even though

Pyle was acting as a guardian for the Child, no order had been entered officially appointing

Mr. Pyle as guardian ad litem. Mother, therefore, filed a motion which states:

Rule 10 of the Rules of the Court of Appeals provides: “This Court, with the concurrence of all

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judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum

opinion when a formal opinion would have no precedential value. When a case is decided by memorandum

opinion it shall be designated ‘MEMORANDUM OPINION,’ shall not be published, and shall not be cited

or relied on for any reason in any unrelated case.”

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[P]ursuant to Tenn. Code Ann. § 36-6-101, et seq., [Mother]

moves the Court to appoint a guardian ad litem to represent the

interest of the minor child. . . . [Mother] would show that

Robert B. Pyle had been acting as guardian ad litem for the

minor child and it would be in the child’s best interest for him

to continue to do so.

Two weeks later, the Circuit Court instructed the attorneys in this case to

submit an agreed order appointing Pyle as guardian ad litem. Apparently, no agreed order

ever was submitted, but Pyle continued to act as guardian. While the appeal was pending in

Circuit Court, DCS decided to dismiss its original petition and filed a motion requesting the

Circuit Court grant a dismissal. A hearing was held on the motion to dismiss, following

which the Circuit Court entered an order, as amended, stating as follows:

This is an appeal from the Juvenile Court of Hamilton

County. The State of Tennessee (“the State”) acting through its

Department of Children’s Services, was the Plaintiff in the

Juvenile Court proceedings. [Father] was the Defendant in the

Juvenile Court proceedings and the appellant in this Court.

The parties appeared before this Court on October 13,

2008, at which time the State announced its intention to dismiss

the petition it had originally filed in the Juvenile Court. The

Guardian ad Litem and counsel for the mother of the child

involved objected.

Based upon the law and argument of counsel, this Court

finds the State’s motion to be well founded and therefore,

1. it is Ordered that the State’s motion to dismiss its

petition is Granted; and

2. the State’s petition is hereby Dismissed. (emphasis in

the original)

The amended order was entered on December 3, 2008.

Following entry of the December 3, 2008, order dismissing the State’s petition,

Pyle filed a motion seeking payment of his attorney fees and costs. Pyle sought to have his

fees and expenses allocated between the various parties. Pyle’s motion was filed on January

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5, 2009. A hearing was conducted on the motion, following which the Trial Court entered

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an order in favor of Pyle which states as follows:

This cause came to be heard on the 16 day of February,

th

2009 . . . on the Motion for Fees for the Guardian ad Litem and

it appearing to the Court that the original action was filed by the

Tennessee Department of Children’s Services in the Hamilton

County Juvenile Court where the matter was adjudicated in the

Department’sfavor, appealed by the Appellant to this Court, and

then was non-suited by the Department which effectively

dismissed this action and it further appearing that the accounting

for time and expenses is reasonable and that the Guardian ad

Litem should be paid $6,280.00 for fees incurred and $87.96 to

reimburse his expenses.

It is therefore ORDERED, ADJUDGED and DECREED

that a judgment for these costs be and hereby [is] entered against

the Tennessee Department of Children’s Services in favor of the

Guardian . . . in the amount of $6,367.96 for which execution

may issue [if] necessary. . . .

DCS appeals claiming the Trial Court “erroneously assessed the Guardian ad

Litem’s attorney fees against the State because it lacked any constitutional or statutory

authority to do so.”

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Discussion

The factual findings of the Trial Court are accorded a presumption of

correctness, and we will not overturn those factual findings unless the evidence

preponderates against them. See Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721,

727 (Tenn. 2001). With respect to legal issues, our review is conducted “under a pure de

novo standard of review, according no deference to the conclusions of law made by the lower

courts.” Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710

(Tenn. 2001).

This motion was filed 33 days after entry of the amended order dismissing the petition. Thirty days 2

after entry of the amended order would have been Friday, January 2, 2009.

The parties to this appeal are only DCS and the Guardian ad Litem. Neither Mother nor Father 3

were required to or did file a brief.

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This appeal is significantly complicated by the fact that there is no order

appointing Pyle as the guardian ad litem in the record. The reason for this is no such order

ever was filed in either the Juvenile Court or Circuit Court, although there is no doubt that

everybody understood that Pyle was acting as guardian. Thus, we cannot be certain pursuant

to which statute or rule Pyle was appointed as guardian. This is important because it could

affect the procedure under which Pyle is to seek payment for his fees and expenses. For

example, if the parents were deemed indigent and Pyle was appointed pursuant to Tenn. Code

Ann. § 37-1-149, then he would need to seek payment of his fees in accordance with Rule

13 of the Rules of the Supreme Court. See Tenn. Code Ann. § 37-1-150(a)(3) (the state shall

pay for the guardian ad litem when the parents are indigent and the “supreme court shall

prescribe by rule the nature of the expense for which compensation may be allowed . . . .”).

We note that when DCS originally requested appointment of a guardian, it requested that the

guardian’s fees be paid by the state in accordance with the above statute and applicable rules,

presumably including Supreme Court Rule 13.

Although not entirely clear, it appears on appeal that Pyle is seeking payment

of his fees pursuant to Tenn. R. Civ. P. 17.03, which provides as follows:

17.03. Infants or Incompetent Persons. – Whenever an

infant or incompetent person has a representative, such as a

general guardian, conservator, or other like fiduciary, the

representative may sue or defend on behalf of the infant or

incompetent person. If an infant or incompetent person does not

have a duly appointed representative, or if justice requires, he or

she may sue by next friend. The Court shall at any time after the

filing of the complaint appoint a guardian ad litem to defend an

action for an infant or incompetent person who does not have a

duly appointed representative, or whenever justice requires. The

court may in its discretion allow the guardian ad litem a

reasonable fee for services, to be taxed as costs. (emphasis

added)

If his fees can be taxed as costs against DCS pursuant to this rule, then Pyle

must comply with Tenn. R. Civ. P. 54.04 which states, in relevant part, that:

54.04 Costs.– (1) Costs included in the bill of costs

prepared by the clerk shall be allowed to the prevailing party

unless the court otherwise directs, but costs against the state, its

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officers, or its agencies shall be imposed only to the extent

permitted by law.

(2) Costs not included in the bill of costs prepared by the

clerk are allowable only in the court’s discretion. Discretionary

costs allowable are: . . . guardian ad litem fees . . . . Subject to

Rule 41.04, a party requesting discretionary costs shall file and

serve a motion within thirty (30) days after entry of judgment.

The trial court retains jurisdiction over a motion for

discretionary costs even though a party has filed a notice of

appeal. The court may tax discretionary costs at the time of

voluntary dismissal. . . . (emphasis added)

On appeal, DCS argues, among other things, that if Pyle is seeking payment

of fees pursuant to Rule 54.04, and even assuming DCS can be made to pay guardian ad

litem fees pursuant to that rule, Pyle’s motion nevertheless was not timely filed because it

was filed 33 days after entry of the final judgment. DCS never raised this issue before the

Trial Court.

The typical manner for a guardian ad litem to seek payment of fees by the state

is through Rule 13 of the Rules of the Supreme Court. However, there is nothing in the

record to indicate that Pyle ever sought payment pursuant to Rule 13. Because we cannot

determine pursuant to what authority Pyle actually was appointed, we cannot determine if he

should have sought payment in accordance with Rule 13 and whether his fee request would

have been capped pursuant to that Rule. Based on the record, it appears that Pyle was

seeking payment through Tenn. R. Civ. P. 54.04, which requires the request be filed within

thirty days of entry of the final judgment, which it was not. The Circuit Court’s order is

unclear as to whether it was awarding fees pursuant to Rule 54.04 and does not address

whether the state can be required to pay guardian ad litem fees pursuant to that rule.

Because we cannot ascertain the statute or rule pursuant to which Pyle was

appointed guardian ad litem, and because we cannot determine which statute or rule was

utilized by the Circuit Court when awarding Pyle his fees and expenses, we vacate the Circuit

Court’s judgment against DCS and remand this case to the Circuit Court for resolution of

these issues. In so doing we note that “[t]he first consideration in determining if [guardian

ad litem] fees can be charged against a state agency is that the statutory power to assess costs

against the state is in derogation of the state’s sovereignty and must be strictly construed.”

See Matter of Harris, 849 S.W.2d 334, 336 (Tenn. 1993).

We express no opinion on any remaining issues raised by either DCS or Pyle.

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Conclusion

The judgment of the Trial Court is vacated and this cause is remanded to the

Circuit Court of Hamilton County for further proceedings consistent with this Opinion and

for collection of the costs below. Exercising our discretion, costs on appeal are taxed onehalf to the Appellant, State of Tennessee, Department of Children’s Services, and one-half

to the Appellee, Robert B. Pyle, for which execution may issue, if necessary.

_________________________________

D. MICHAEL SWINEY, JUDGE

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