                                Cite as 2016 Ark. App. 163

                ARKANSAS COURT OF APPEALS
                                       DIVISION II
                                      No. CV-15-571


BERNICE RUTLAND                                  Opinion Delivered   March 9, 2016
                              APPELLANT
                                                 APPEAL FROM THE SALINE
                                                 COUNTY CIRCUIT COURT
V.                                               [NO. 63PR-14-627]

                                                 HONORABLE ROBERT HERZFELD,
WARREN MCWHORTER AND                             JUDGE
ANGELA MCWHORTER
                 APPELLEES                       REVERSED AND REMANDED




                          PHILLIP T. WHITEAKER, Judge

       This case involves a guardianship petition. The appellant, Bernice Rutland, is the

paternal grandmother of S.M. and A.M. She filed a petition for guardianship of both

grandchildren. The appellees, Angela and Warren McWhorter, are the parents of the children.

The circuit court denied the guardianship petition. Rutland appeals the Saline County Circuit

Court order, raising several points on appeal. We find merit to Rutland’s contention that the

trial court improperly weighed the credibility of the evidence in granting appellees’ motion

to dismiss and reverse on this point. Because we hold that the trial court improperly weighed

credibility in reaching its decision on the appellees’ motion to dismiss and reverse on that

basis, we need not reach the merits of her other arguments.
                                 Cite as 2016 Ark. App. 163

                                      I. Procedural History

       Rutland initially filed a joint petition to be appointed the guardians of the person and

estate, along with her husband, William Rutland.1 The petition alleged that S.M. and A.M.

were incapacitated by reason of their minority, and that the guardianship was necessary to

protect the best interest of the children. In essence, Rutland asserted that the parents were

consumed with their own marital problems and that the children’s needs had become

secondary. The petition further alleged that S.M. had been diagnosed with ADHD without

a proper evaluation; that the parents had been overmedicating S.M. with ADHD medication

in an effort to decrease her activity level and make her more docile and compliant; and that

S.M. was suffering adverse side effects from the medication. The McWhorters answered,

denying that a guardianship was necessary and further asserting that S.M.’s diagnosis was made

after an evaluation by a physician and that the child’s demeanor and attitude had improved

after being placed on the medication.

       A hearing was held on the petition on March 18, 2015. Rutland presented testimonial

evidence that Warren, the father of the children, had engaged in extramarital affairs, had

received a DWI, and had been terminated from his job. As a result of Warren’s behavior,

Angela, the mother of the children, was depressed and losing focus on the children. Rutland

identified specific occasions where this lack of focus to the children was detrimental, including

(1) an incident wherein A.M. chased S.M. with an aerosol spray can; (2) an incident involving


       1
          William Rutland subsequently moved to amend the petition, withdrawing his
request to be appointed coguardian of the children. His motion was granted, and he was
dismissed with prejudice. Therefore, he is not a party to this appeal.

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                                  Cite as 2016 Ark. App. 163

A.M. having access to a screwdriver; (3) allegations of inadequate food within the home and

the malnourished appearance of S.M.; (4) incidents of leaving the home unlocked at night;

and (5) incidents of not always properly placing the children in appropriate car-seat restraints.

With regard to S.M. and medication, Rutland took issue with the diagnosis, the treatment,

and the need for the medication. She reported not observing behavioral problems with S.M.

and opined that the McWhorters were simply medicating the child because they could not

handle her childish tendencies.

       After Rutland presented her case in chief, the McWhorters moved for a directed

verdict, which was granted by the trial court. An order of dismissal was entered the next day.

Rutland subsequently filed a Rule 52 request for findings of fact and conclusions of law. The

court granted the request and entered findings and conclusions on April 1, 2015.2

                                          II. Analysis

       Rutland first argues that the trial court erred in granting the motion for a “directed

verdict.”3 In ruling on a motion for directed verdict or a motion for dismissal, the standard

is the same: the trial court must decide “whether, if it were a jury trial, the evidence would

be sufficient to present to the jury.” Woodall v. Chuck Dory Auto Sales, Inc., 347 Ark. 260, 264,


       2
          In their brief, appellees question the finality of this order for appellate purposes,
noting that they had filed a statutory counterclaim for attorneys’ fees, which remained
outstanding. However, under Arkansas Rule of Appellate Procedure–Civil 2(a)(12), all orders
in probate cases (save a few exceptions not applicable here) are immediately appealable.
Therefore, there is no finality problem.
       3
         While the appellees styled their motion as one for directed verdict, because the
underlying matter was resolved at a bench trial, we treat the motion as one for dismissal. Ark.
R. Civ. P. 50(a) (2012); Baptist Health v. Murphy, 2010 Ark. 358, 373 S.W.3d 269.

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61 S.W.3d 835, 838 (2001). If the nonmoving party has made a prima facie case on its claim

or counterclaim, then the issue must be resolved by the finder of fact. See Swink v. Giffin, 333

Ark. 400, 402, 970 S.W.2d 207, 208 (1998). In evaluating whether the evidence is substantial

enough to make a question for the fact-finder, however, the circuit court may not assess the

witnesses’ credibility. First United Bank v. Phase II, 347 Ark. 879, 902, 69 S.W.3d 33, 49

(2002); Swink, 333 Ark. at 403, 970 S.W.2d at 209.

       Here, the circuit court granted the motion because it simply did not find the testimony

or evidence of the plaintiff to be credible. In its Findings of Fact and Conclusions of Law, the

court stated,

       The directed verdict motion was granted because the Petition failed completely to
       establish any legitimate need for a guardianship. It was apparent from the testimony and
       demeanor of the Petitioner that she was not credible in the testimony she offered, and further
       there was no credible evidence submitted that a guardianship was desirable to protect the
       interests of the children. Furthermore, [p]arents have a fundamental constitutional
       right to raise their own children and to make reasonable medical decisions regarding
       their children. The Petitioner failed to offer any credible evidence of harm, danger, or
       unmet needs of the children such that abrogating this significant Constitutional right
       was necessary in any way to protect the best interests of the children. Therefore, the
       Petitioner failed to meet her burden.

(Emphasis added.) The court erred in doing so at this juncture.

       The credibility of the witnesses is a matter for the court acting as a finder of fact at the

close of all the evidence, not as a matter for the court in evaluating whether the petitioner had

presented a prima facie case for purposes of a motion to dismiss. See Rymor Builders v.

Tanglewood Plumbing Co., 100 Ark. App. 141, 265 S.W.3d 151 (2007) (holding trial court

erred in weighing credibility of evidence on a motion to dismiss at close of plaintiff’s case-in-



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chief). Because the trial court improperly evaluated the credibility of the evidence in ruling

on the appellees’ motion to dismiss, we reverse and remand for further proceedings.

       We are mindful of the additional arguments raised by Rutland on appeal.4 However,

we decline to address the remaining issues as they either may not recur or may be readdressed

by the trial court on remand. We are reluctant to tie the hands of the trial court on retrial in

matters addressed to its discretion. See Larimore v. State, 309 Ark. 414, 421, 833 S.W.2d 358,

361 (1992).

       Reversed and remanded.

       KINARD and HIXSON, JJ., agree.

       James F. Valley Esq. P.A., by: James F. Valley, for appellant.

       The Lancaster Law Firm, PLLC, by: Clinton W. Lancaster and Lori D. Howard, for

appellees.




       4
          She argues that the court utilized the wrong standard in assessing the validity of the
petition, committed a discovery violation by erroneously granting a protective order and by
displaying bias and hostility toward her claims.

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