
    Mary FINCHUM, Individually and as Next of Kin to William Finchum, Deceased v. ACE, USA, individually and as successor to Cigna Insurance Company, et al.
    Court of Appeals of Tennessee, at Knoxville.
    May 10, 2004 Session.
    Aug. 23, 2004.
    Rehearing Denied Sept. 22, 2004.
    Permission to Appeal Denied by Supreme Court Jan. 24, 2005.
    
      Paul T. Gillenwater, Knoxville, Tennessee, for Appellant.
    Gerald V. Weigle, Jr., Cincinnati, Ohio for Appellee, Liberty Mutual Insurance Co.
    J. Thomas Jones, Knoxville, Tennessee, and James E. Rocap, III, Washington, DC, for Appellee, Travelers Casualty and Surety Co.
   OPINION

HERSCHEL PICKENS FRANKS, P.J.,

delivered the opinion of the court, in which D. MICHAEL SWINEY, J., joined. CHARLES D. SUSANO, JR., J.,

Dissented and filed an opinion.

The Trial Court dismissed the Complaint on a Motion filed pursuant to Tenn. R. Civ. P. 12.02(6). We vacate and remand because the Motion to Dismiss did not comply with the Rules of Civil Procedure.

In this contract action, the Trial Court, responding to a Motion to Dismiss pursuant to Tenn. R. Civ. P. 12.02(6), dismissed plaintiffs Complaint for failure to state a cause of action. Plaintiff has appealed.

Counsel argued the Motion to Dismiss on March 21, 2003, as well as several other motions not germane to this Appeal. The Trial Court granted defendants’ Motion to Dismiss and the Order subsequently entered on April 14, 2003 attached and incorporated by reference the transcript of the Court’s ruling at the hearing. It is clear from the transcript that the Court treated this as an action in contract and dismissed the claim for failure to state a cause of action.

We do not reach the merits of the appeal because we hold that the Motion to Dismiss is proeedurally deficient and does not comply with the Tennessee Rules of Civil Procedure. The Motion to Dismiss states:

Pursuant to Tennessee Rules of Civil Procedure 12.02(6), defendants hereby move to dismiss the claim raised by the plaintiffs Complaint. A Memorandum in support of this Motion is attached.

A motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Tenn. R. Civ. P. 12.02(6) is designed to test the legal sufficiency of the complaint, not the strength of the plaintiffs case. Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn.1999); Riggs v. Burson, 941 S.W.2d 44, 47 (Tenn.1997).

As the functional equivalent of the old common law demurrer, Rule 12.02(6) motion to dismiss is subject to the same strict rules of construction. Gore v. Tenn. Dept. Of Correction, 132 S.W.3d 369, 373 (Tenn.Ct.App.2003). The common law demurrer could not “speak,” i.e., state or introduce a new fact to support it; but the rule 12.02(6) motion is not so limited. If it does “speak” it becomes converted into a Tenn. R. Civ. P. 56 motion for summary judgment by the express provisions of rule 12.02, and must be adjudicated pursuant to the standard for summary judgment under Rule 56. Id. at 374.

Defendants attached as an exhibit to their memorandum of authorities the Settlement Agreement in the original personal injury action executed by a representative of the Center for Claims Resolution and rely upon it extensively in their brief. Under the modern rules of civil procedure, the trial court retains the discretion to consider extrinsic evidence outside the pleadings, Hixson v. Stickley, 493 S.W.2d 471, 473 (Tenn.1973), but, if it does it “shall be treated as one for summary judgment and disposed of as provided in Rule 56.” Tenn. R. Civ. P. 12.02; Hunt v. Shaw, 946 S.W.2d 306, 307 (Tenn.Ct.App.1996). It is clear from the record that the Trial Court did not consider the settlement document attached to the motion to dismiss. Furthermore, it is clear that the Trial Court did not consider anything other than the face of the complaint, including the release attached to the complaint, in reaching its decision to grant the Motion to Dismiss.

A motion to dismiss must comply with Tenn. R. Civ. P. 7.02(1) and “state with particularity the grounds therefor.” Our Supreme Court has held that stating the. grounds for the motion in an accompanying memorandum of law does not fulfill this requirement, Willis v. Tennessee Dept. of Corr., 113 S.W.3d 706, 709 n. 2 (Tenn.2003); accord, Hicks v. Campbell, 2003 WL 22438441 (Tenn.Ct.App.2003); Ivy v. Tennessee Dept. of Corr., 2003 WL 22383613 (Tenn.Ct.App.2003).

The Supreme Court declared with unmistakable clarity the correct procedure to follow for Rule 12.02(6) motions. In Willis, the Attorney General filed a motion to dismiss for failure to state a claim, then filed a second motion attaching a memorandum of law, because the first motion was not accompanied by a memorandum. Before turning to constitutional issues, the Court commented upon this procedure:

The Attorney General’s motion simply asserted that the petition should be dismissed “[pjursuant to Tenn. R. Civ. P. 12.02(1) and (6).” This motion fails to meet the basic requireménts of Tennessee Rule of Civil Procedure 7.02(1) which requires that motions must ‘state with particularity the grounds therefor.’ For the purposes of a Tennessee Rule of Civil Procedure 12.02(6) motion, the moving party must state in its motion why the plaintiff has failed to state a claim for which relief can be granted. Including the grounds for a rule 12.02(6) motion in a separate memorandum of law does not comply with Rule 7.02(1).

Id. at 709 n. 2.

The Supreme Court in Willis sets forth the proper procedure for filing motions to dismiss and the correct composition of the record ultimately submitted to the appellate court for review.

Since the Motion to Dismiss did not comply with the Tennessee Rules of Civil Procedure, the Trial Court should not have considered the Motion. Accordingly, we vacate the Judgment of the Trial Court and remand for further proceedings.

The cost of the appeal is assessed to defendants.

CHARLES D. SUSANO, JR., J., Dissented and filed an opinion.

CHARLES D. SUSANO, JR.,

dissenting.

The majority opinion concludes that the defendants’ motion to dismiss is deficient. I agree. In Willis v. Tennessee Dep’t of Corr., 113 S.W.3d 706 (Tenn.2003), the Supreme Court opined that Tenn. R. Civ. P. 12.06(6), construed in light of Tenn. R. Civ. P. 7.02(1), requires that a motion filed pursuant to 12.06(6) must state “why the plaintiff has failed to state a claim for which relief can be granted.” Willis, 113 S.W.3d at 709 n. 2 (emphasis added). For example, in the instant case, the motion should have recited, on its face, that (1) the motion was filed pursuant to Tenn. R. Civ. P. 12.06(6), and (2) that the complaint fails to state a claim upon which relief can be granted “in that the claim is for breach of contract but fails to reflect a promise by any of the defendants,” or words to this effect. Having said all of this, I would hasten to add that I do not believe Willis requires that we vacate the trial court’s judgment in the case at bar.

At the outset, I note that the Willis court, while finding the 12.06(6) motion there to be deficient, still considered the motion on its merits. If the Supreme Court in Willis did not believe the deficiency in the State’s Tenn. R. Civ. P. 12.02 motion was serious enough to warrant a remand in that case, I do not understand why the majority believes a remand is appropriate in the instant case. There are, however, more compelling reasons why we should address the motion now before us.

In the case at bar, the plaintiff filed a reply to the defendants’ motion to dismiss. The reply was filed eight days prior to the date on which the trial court considered the defendants’ motion. In her reply, the plaintiff acknowledged that she understood the basis of the defendants’ motion. The reply provides, in part, as follows:

The Defendant insurance companies contend they are not legally liable to honor the terms of the Release because: 1. The Release does not create any obligations on behalf of the Releasees named therein. 2. These Defendant insurance companies were not parties to the [Center for Claims Resolution] or to any documents relating to the Release.

In the course of its memorandum opinion rendered from the bench, which opinion was subsequently incorporated by reference into the trial court’s judgment, the court agreed with the defendants’ position. That position, as previously noted, was well known to the plaintiff in advance of the court’s hearing on March 21, 2003. In its memorandum opinion, the trial court stated, in part, as follows:

The complaint is devoid of any allegation that otherwise suggests that the defendants made any promise whatsoever to the plaintiffs in this case.
But the Court must conclude that in contract cases, and this is a contract case, the thread that he must first have is a promise, because contracts are undertaking agreements. And the Court can find nothing in the complaint to suggest or aver that any defendant made any agreement with the plaintiff and can find nothing in the release that suggests that any insurer made any promise or undertaking to the plaintiff.

It is clear in the record before us that the plaintiff understood the basis of the defendants’ 12.02(6) motion. As previously noted, the plaintiffs response to the defendants’ motion makes this clear. Furthermore, the plaintiff did not seek a continuance of the trial court’s motion hearing because of any alleged surprise as to the basis of the defendants’ motion. There was no prejudice whatsoever to the plaintiff as a result of the defendants’ failure to spell out, with greater specificity, the basis of its motion.

There is a more fundamental reason why we should consider the merits of the defendants’ motion: the plaintiff does not raise the WiMis-deficiency as an issue on this appeal. Under Tenn. R.App. P. 13(b), “[r]eview generally will extend only to those issues presented for review.” While we have discretion to reach issues not raised, I do not believe the issue under discussion is of the type contemplated by 13(b). I also note that Tenn. R.App. P. 36(a) provides that we are not required to grant relief “to a party ... who failed to take whatever action was reasonably available to prevent or nullify the harmful effect of an error.” The plaintiff failed to take such action when she failed to raise this issue in the trial court or on appeal.

Because I believe the trial court was correct in determining that the plaintiffs complaint, as amplified by the release document attached to it, “fail[s] to state a claim upon which relief can be granted,” see Tenn. R. Civ. P. 12.02(6), I would affirm the trial court’s judgment granting the defendants’ Rule 12.02(6) motion.

Accordingly, I respectfully dissent. 
      
      . Center for Claims Resolution is composed of a consortium of 16 member companies defending claims primarily asbestos manufacturers and distributors.
     
      
      . While this issue has not been raised on appeal, for the sake of procedural consistency Appellate Courts will sua sponte require proper procedures to be followed. See Culbreath v. First Tenn. Bank, 44 S.W.3d 518 at 528-29 (Tenn.2001).
     
      
      
        .Willis reversed the majority of the Court of Appeals,' Judge Koch dissenting. Judge Koch’s articulate Dissent stated: The Motion to Dismiss simply asserts that the petition should be dismissed pursuant to Tenn. R. Civ. P. 12.06(1) and (6). This Motion, like most of the motions filed by the Civil Rights and Claims Division in cases of this sort, fail to comply with the rudimentary requirements of motion practice under Tennessee Rules of Civil Procedure, in terms that even first year law students can understand. Tenn. R. Civ. P. 7.01 requires the motion must state, with particularity the grounds therefor, and for the purpose of Tenn. R. Civ. P. 12.06 this means that the moving party must state in its motion why the plaintiff has failed to state a claim for which relief can be granted. Willis v. Tenn. Dept. Of Corr., 2002 WL 1189730 at *16 (Tenn.Ct.App.2002).
     