                     IN THE COURT OF APPEALS OF TENNESSEE
                                  AT JACKSON
                                Assigned on Briefs October 28, 2018

                            IN RE: ADOPTION OF JORDAN F. J.

                  Direct Appeal from the Chancery Court for Gibson County
                           No. 19351     George Ellis, Chancellor


                   No. W2013-00427-COA-R3-PT - Filed November 20, 2013


        This is a termination of parental rights and adoption case. The trial court granted
Appellee/Father’s motion for involuntary dismissal at the conclusion of Appellants’ proof.
Because the trial court failed to make the required findings of fact and conclusions of law
under Tennessee Rule of Civil Procedure 41.02(2), and because we are unable to determine
the trial court’s reasoning from the record, we vacate and remand.

  Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Chancery Court Vacated
                                   and Remanded

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and D AVID R. F ARMER, J., joined.

Brandon L. Newman, Trenton, Tennessee, for the appellant, Anthony A. and Laurie A.




                                                   OPINION

       Laurie A. (“Mother”) and Christopher J. (“Father,” or “Appellee”) are the biological
parents of the minor child at issue in this case, Jordan F. J.1 Mother and Father were never
married and, at the time of the filing of the petition in this case, Father was incarcerated.
Mother is married to Anthony A. (together with Mother, “Appellants”). On June 2, 2009,
Appellants filed a petition to terminate Father’s parental rights and for adoption of Jordan
F. J. by Anthony A. The petition was contested by Father. Following the filing of the
Appellants’ petition, numerous procedural issues concerning discovery, appointment of a


        1
            In cases involving minor children, it is this Court's policy to redact names to protect the children's
identity.
guardian ad litem, withdrawal of various attorneys, and denial of Appellants’ motion for
summary judgment were addressed by the trial court. None of this procedural history is
germane to the instant appeal, and we will not tax the length of the opinion to recite it fully
here. Suffice to say, after protracted litigation and numerous continuances, the Appellants’
petition was heard by the trial court on July 24, September 11, and November 14, 2012. Our
record contains only the transcript of the July 24, 2012 proceedings. However, by Order of
March 13, 2013, this Court granted Appellants leave to file a Tennessee Rule of Appellate
Procedure 24(c) statement of the evidence. This statement of the evidence was filed on April
10, 2013. As is relevant to this appeal, at the conclusion of Appellants’ proof in this case,
Father made a motion for involuntary dismissal, which the trial court granted. On December
14, 2012, the trial court entered an order memorializing its decision. The order, which is now
appealed, provides, in its entirety, as follows:

                       This matter came to be heard before the undersigned
                Judge on the 14th day of November, 2012, in the Chancery
                Court of Gibson County, Tennessee, upon statement of counsel,
                testimony of the parties, and upon the entire record, from all of
                which it appears to the Court IT IS, THEREFORE, ORDERED,
                ADJUDGED AND DECREED:

                1. That [Appellee’s] Motion to Dismiss at the close of
                [Appellants’] proof is granted.

        Appellants appeal and raise three issues for review as stated in their brief:

                1. Whether the Chancery Court erred in granting Appellee’s
                Motion to Dismiss without making a written finding of fact to
                be included in the record for appeal.

                2. Whether it was error for the Chancery Court to grant the
                Appellee’s Motion to Dismiss after the close of Appellant’s
                proof.

                3. Whether the holding in In re Adoption of A.M.H., 215
                S.W.3d 793, 797 is applicable to the case at bar.2

        In the appellate record, the motion made by Appellee at the close of Appellants’ proof


        2
         The Appellee has filed no responsive brief in this appeal. By Order of October 16, 2013, this Court
allowed the appeal to be submitted for decision on the record, Appellants’ brief, and oral argument.

                                                    -2-
is labeled, at various places, a “motion to dismiss,” a “motion for directed verdict,” and a
“motion for involuntary dismissal.” Due to the confused nomenclature, we begin our
analysis with a review of the procedural differences in these three types of motions.

        From the plain language of the trial court’s order, it appears that the trial court
dismissed the case on the basis of a motion to dismiss pursuant to Rule 12 of the Tennessee
Rules of Civil Procedure.3 However, it is well settled that a Tennessee Rule of Civil
Procedure 12 motion tests the legal sufficiency of the complaint. Lanier v. Rains, 229
S.W.3d 656, 660 (Tenn.2007). When considering a Rule 12 motion, a reviewing court is
limited to an examination of the complaint alone. See Wolcotts Fin. Serv., Inc. v.
McReynolds, 807 S.W.2d 708, 710 (Tenn. Ct. App. 1990). The basis for the motion is that
the allegations in the complaint, when considered alone and taken as true, are insufficient to
state a claim as a matter of law. See Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn.1975). A
trial court must consider a motion for judgment on the pleadings for failure to state a claim
in a manner similar to consideration of a motion to dismiss for failure to state a claim.
Timmins v. Lindsey, 310 S.W.3d 834, 838 (Tenn. Ct. App. 2009); cf. Satterfield v. Breeding
Insulation Co., 266 S.W.3d 347, 375 (Tenn. 2008). When a defendant files a motion to
dismiss for failure to state a claim, the issue is whether the complaint is legally sufficient.
Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 425 (Tenn. 2011).

       Although the trial court’s order specifically states that it is granting a “motion to
dismiss,” as discussed below, it appears that the trial court did, in fact, consider the
Appellants’ evidence in reaching its decision to dismiss their case. Weighing the evidence
is outside the contemplation of a Rule 12 motion and, thus, we cannot construe the trial


        3
         Tennessee Rule of Civil Procedure 12.08 provides that a motion for failure to state a claim upon
which relief can be granted is not waived by failure to raise such defense in a pre-answer motion (i.e., a
motion for judgment on the pleadings). Instead, the Rule provides that a motion to dismiss for failure to state
a claim “may also be made by a later pleading, if one is permitted, or by motion for judgment on the
pleadings or at the trial on the merits.” Tenn. R. Civ. P. 12.08 (emphasis added). As explained 5 Nancy
F. MacLean & Matthew J. MacLean, Tennessee Practice: Civil Procedure Forms §12:21 (2013):

                 The motion may be made prior to answer under Rule 12.02. However, the
                 defense may be inserted in the answer, or may be made by motion for
                 judgment on the pleadings, or by motion at the trial. Under Rule 12.07 and
                 Rule 12.08, the defense is not waived by failure to assert it prior to trial.
                 However, when the defense is asserted prior to answer, the waivable
                 defenses under Rule 12.02 must be asserted or they are waived. The
                 defense may be noticed by the court on its own motion.

Accordingly, simply because the motion was made at trial does not, ipso facto, lead to the conclusion that
the motion was not a Rule 12 motion to dismiss.

                                                     -3-
court’s disposition of the case as the grant of a motion to dismiss. See Wolcotts, 807 S.W.2d
at 710.

       In contrast to the language in the trial court’s order, the Appellants’ undisputed
Statement of the Evidence indicates that Appellee’s attorney “made a motion for directed
verdict at the close of the petitioner’s proof, which was granted by the Court.” Motions for
directed verdict, which are governed by Tennessee Rule of Civil Procedure 50, and motions
for involuntary dismissal, which are governed by Tennessee Rule of Civil Procedure 41.02,
are often confused. As succinctly explained by Judge (now Justice) Koch in the case of
Burton v. Warren Farmers Co-op., 129 S.W.3d 513 (Tenn. Ct. App., 2002):

                     A Tenn. R. Civ. P. 41.02(2) motion for involuntary
              dismissal differs markedly from a Tenn. R. Civ. P. 50 motion for
              a directed verdict. The most obvious, yet most overlooked,
              difference is that motions for directed verdicts have no place in
              bench trials, while Tenn. R. Civ. P. 41.02(2) motions have no
              place in jury trials. Cunningham v. Shelton Sec. Serv., Inc., 46
              S.W.3d 131, 135 n. 1 (Tenn. 2001); City of Columbia v. C.F.W.
              Constr. Co., 557 S.W.2d 734, 740 (Tenn. 1977); Scott v. Pulley,
              705 S.W.2d 666, 672 (Tenn. Ct. App. 1985). Beyond this
              obvious procedural difference, motions for involuntary dismissal
              serve a different purpose than motions for directed verdict and
              require the courts to employ a substantially different method of
              analysis.
                     A Tenn. R. Civ. P. 50 motion for directed verdict
              provides a vehicle for deciding questions of law. The question
              presented is whether the plaintiff has presented sufficient
              evidence to create an issue of fact for the jury to decide. Spann
              v. Abraham, 36 S.W.3d 452, 462 (Tenn. Ct. App. 1999);
              Ingram v. Earthman, 993 S.W.2d 611, 626 (Tenn. Ct. App.
              1998). The courts do not weigh the evidence when they answer
              this question, Conatser v. Clarksville Coca–Cola Bottling Co.,
              920 S.W.2d 646, 647 (Tenn. 1995), nor do they evaluate the
              credibility of the witnesses. Richardson v. Miller, 44 S.W.3d 1,
              30 (Tenn. Ct. App. 2000). Rather, they review the evidence in
              the light most favorable to the non-moving party, give the
              non-moving party the benefit of all reasonable inferences, and
              disregard all the evidence contrary to the non-moving party's
              position. Alexander v. Armentrout, 24 S.W.3d 267, 271 (Tenn.
              2000); Addaman v. Lanford, 46 S.W.3d 199, 203 (Tenn. Ct.

                                             -4-
              App. 2000).

              *                                     *                          *

              Motions for involuntary dismissal pursuant to Tenn. R. Civ. P.
              41.02(2) require the courts to engage in an entirely different
              analysis. These motions do not raise questions of law but rather
              challenge the sufficiency of the plaintiff's proof. Smith v.
              Inman Realty Co., 846 S.W.2d 819, 821 (Tenn. Ct. App.
              1992); Merriman v. Smith, 599 S.W.2d 548, 560 (Tenn. Ct.
              App. 1979). A claim may be dismissed pursuant to a Tenn. R.
              Civ. P. 41.02(2) motion to dismiss if, based on the law and the
              evidence, the plaintiff has failed to demonstrate a right to the
              relief it is seeking. City of Columbia v. C.F.W. Constr. Co., 557
              S.W.2d at 740. Motions under Tenn. R. Civ. P. 41.02(2) require
              less certainty than motions for directed verdict. Smith v. Inman
              Realty Co., 846 S.W.2d at 822.

Id. at 520. Accordingly, despite the nomenclature assigned in the Statement of the Evidence,
the Appellee’s motion was not a motion for directed verdict as it was made during a bench
trial and not in a jury trial.

      As noted above, despite the trial court’s order, stating that it granted Appellee’s
“motion to dismiss,” it appears from the Statement of the Evidence that the trial court may
have weighed, or at least considered, the Appellants’ proof in reaching its decision.
Accordingly, we must construe the disposition in this case as a grant of a motion for
involuntary dismissal pursuant to Tennessee Rule of Civil Procedure 41.02(2); which
provides:

              (2) After the plaintiff in an action tried by the court without a
              jury has completed the presentation of plaintiff's evidence, the
              defendant, without waiving the right to offer evidence in the
              event the motion is not granted, may move for dismissal on the
              ground that upon the facts and the law the plaintiff has shown no
              right to relief. The court shall reserve ruling until all parties
              alleging fault against any other party have presented their
              respective proof-in-chief. The court as trier of the facts may then
              determine them and render judgment against the plaintiff or may
              decline to render any judgment until the close of all the
              evidence. If the court grants the motion for involuntary

                                              -5-
            dismissal, the court shall find the facts specially and shall state
            separately its conclusion of law and direct the entry of the
            appropriate judgment.

The standard applicable to Rule 41.02(2) motions was very recently discussed by our
Supreme Court in the case of Shore v. Maple Lane Farms, L.L.C., --- S.W.3d ----, No.
E2011-00158-SC-R11-CV, 2013 WL 4428904 (Tenn. Aug. 19, 2013), wherein the Court
stated:

            A complaint may be dismissed pursuant to Tenn. R. Civ. P.
            41.02(2) if, based on the law and the evidence, the plaintiff
            failed to demonstrate a right to the relief sought. City of
            Columbia v. C.F. W. Constr. Co., 557 S.W.2d 734, 740
            (Tenn.1977). A trial court entertaining a motion for involuntary
            dismissal under Tenn. R. Civ. P. 41.02(2) must impartially
            weigh and evaluate the evidence just as it would after all the
            parties had presented their evidence. Building Materials Corp.
            v. Britt, 211 S.W.3d 706, 711 (Tenn.2007) (citing City of
            Columbia v. C.F.W. Constr. Co., 557 S.W.2d at 740). The court
            may dismiss the plaintiff's claim if the plaintiff has failed to
            make out a prima facie case. Building Materials Corp. v. Britt,
            211 S.W.3d at 711; Smith v. Inman Realty Co., 846 S.W.2d
            819, 822 (Tenn. Ct. App.1992). If the trial court grants a motion
            for involuntary dismissal, Tenn. R. Civ. P. 41.02(2) requires the
            court to “find the facts specially and ... state separately its
            conclusions of law.”
                    Appellate courts review a trial court's decision to grant an
            involuntary dismissal in accordance with Tenn. R. App. P.
            13(d). Building Materials Corp. v. Britt, 211 S.W.3d at 711;
            Irvin v. City of Clarksville, 767 S.W.2d 649, 653 (Tenn. Ct.
            App.1988). Accordingly, we must review the record de novo,
            presuming that the trial court's factual findings are correct unless
            the evidence preponderates otherwise. Tenn. R. App. P. 13(d);
            Burton v. Warren Farmers Coop., 129 S.W.3d 513, 521 (Tenn.
            Ct. App. 2002). If the trial court has not made a specific finding
            on a particular matter, we review the record to determine where
            the preponderance of the evidence lies without employing a
            presumption of correctness. Hickman v. Continental Baking
            Co., 143 S.W.3d 72, 75 (Tenn. 2004); Ganzevoort v. Russell,
            949 S.W.2d 293, 296 (Tenn.1997).

                                            -6-
Id. at *5.

        In the instant case, we are unable to conduct any meaningful review of the trial court’s
grant of the involuntary dismissal because the trial court’s order does not “find the facts
specially and ... state separately its conclusions of law” as required by Tennessee Rule of
Civil Procedure 41.02(2). Generally, the appropriate remedy when a trial court fails to make
required findings of fact and conclusions of law is to “vacate the trial court's judgment and
remand the cause to the trial court for written findings of fact and conclusions of law.” Lake
v. Haynes, No. W2010-00294-COA-R3-CV, 2011 WL 2361563, at *1 (Tenn. Ct. App. June
9, 2011). However, this Court has previously held that when faced with a trial court's failure
to make specific findings, the appellate courts may “soldier on” when the case involves only
a clear legal issue, Burse v. Hicks, No. W2007-02848-COA-R3-CV, 2008 WL 4414718, at
*2 (Tenn. Ct. App. Sept. 30, 2008), or when the court's decision is “readily ascertainable.”
Burgess v. Kone, Inc., No. M2007-0259-COA-R3-CV, 2008 WL 2796409, at *2 (Tenn. Ct.
App. July 18, 2008). Unfortunately, this is not one of those cases. As noted above, the record
does not contain a transcript of the trial court’s ruling on the motion from the bench.
Accordingly, we cannot glean the court’s reasoning from what occurred at the hearing.
Likewise, the statement of the evidence does not provide sufficient information from which
we can determine the trial court’s reasoning in this case. Accordingly, we vacate the trial
court’s order and pretermit the remaining issues.

       For the foregoing reasons, we vacate the order of the trial court and remand to the trial
court for it to make the findings of fact and conclusions of law required by Rule 41.02(2).
Costs of the appeal are assessed to the Appellants and their surety, for all of which execution
may issue if necessary.




                                                    _________________________________
                                                    J. STEVEN STAFFORD, JUDGE




                                              -7-
