IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

August 21, 2019 Session

LORING JUSTICE v. KIM NELSON ET AL.

Appeal from the Circuit Court for Loudon County

No. 2017-CV-78 Walter C. Kurtz, Senior Judge1

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No. E2018-02020-COA-R3-CV

___________________________________

Loring Justice and Kim Nelson are the divorced parents of a minor child. They have 

been in litigation over the child since 2004. This appeal arises from a lawsuit filed by 

Mr. Justice (plaintiff) against Ms. Nelson, Robert Bodine, and two unidentified coconspirators (defendants). In his original complaint, plaintiff alleged that defendants 

were liable for: conspiracy to commit the crime of extortion, intentional infliction of 

emotional distress, and tortious interference with parental rights. Defendants filed 

motions to dismiss, which the trial court granted. Exactly thirty days later, plaintiff filed 

an amended complaint. He alleged additional facts and new causes of action, including: 

fraud, coercion, attempted tortious interference with parental rights, and violations of the 

Racketeering Influenced and Corrupt Organization Act. Defendants filed a “response” to 

the amended complaint. They argued that the court should deny plaintiff leave to amend

his original complaint. The court treated defendants’ “response” as a motion to dismiss

the amended complaint, which the court then granted. We hold that the court erred when 

it treated defendants’ “response” as a motion to dismiss the amended complaint. We also 

hold that the court failed to provide adequate justification for dismissing the amended 

complaint sua sponte. Accordingly, we vacate the order of dismissal and remand for 

further proceedings.

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

Vacated; Case Remanded

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

SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

Linn Guerrero, Knoxville, Tennessee, for the appellant, Loring E. Justice.2

 

1

Sitting by designation.

2 Mr. Justice, a former attorney, was disbarred during the pendency of this appeal. Prior to his 

disbarment, Mr. Justice was jointly represented by himself and Ms. Guerrero. 

12/10/2019
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John McFarland, Kingston, Tennessee, for the appellees, Kim Nelson and Robert Bodine.

OPINION

I.

Plaintiff filed his original complaint on June 1, 2017. Defendants filed motions to 

dismiss pursuant to Tenn. R. Civ. P. 12.02(6). On May 17, 2018, the trial court entered a 

memorandum and order granting defendants’ motions to dismiss. The memorandum and 

order carefully explained why plaintiff’s complaint failed to state a claim upon which 

relief can be granted.

Exactly thirty days later, plaintiff filed a “First Amended Complaint.” The 

amended complaint contained additional factual allegations and new causes of action. 

Defendants filed a “Response in Opposition to Plaintiff’s First Amended Complaint.” In 

their “response,” defendants set forth the relevant factors a court should consider in 

deciding whether to grant a motion to amend. See Welch v. Thuan, 882 S.W.2d 792, 793

(Tenn. Ct. App. 1994). Defendants argued that four factors weighed in favor of denying 

plaintiff leave to amend his original complaint. Defendants concluded by asserting that 

plaintiff’s amended complaint should “be denied and that the Plaintiff be prohibited by 

the Court, in its discretion, from filing any additional pleadings and/or motions to amend 

in this case.” 

On September 4, 2018, the trial court entered an order clarifying that “Mr. Justice 

filed a First Amended Complaint not a motion to be allowed to file an amended 

complaint.” (Emphasis in original.) The court was reminding defendants that “[a] party 

may amend the party’s pleadings once as a matter of course at any time before a 

responsive pleading is served[.]” See Tenn. R. Civ. P. 15.01; see also Adams v. Carter 

Cty. Memorial Hosp., 548 S.W.2d 307, 308-09 (Tenn. 1977) (holding that the plaintiff 

could file an amended complaint as a matter of course after the trial court granted the 

defendants’ motion to dismiss and before that order of dismissal became a final 

judgment). Despite finding that “[t]here was never a motion to dismiss the amended 

complaint[,]” the trial court ruled that “[t]he response to the amended complaint reads 

like a motion to dismiss and the Court will consider it a motion to dismiss.” The court 

also requested additional briefing on the issue.

As requested, both parties submitted briefs. Defendants simply doubled down on 

their argument that plaintiff “clearly . . . would have to file a Motion to Amend his 

Complaint that has been dismissed.” Their brief failed to address plaintiff’s additional 

factual allegations and new tort claims in any way. Plaintiff’s brief argued that 

defendants waived the opportunity to seek dismissal of the amended complaint because 

they failed to follow the court’s instruction to file a brief in support of a Rule 12.02(6) 
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motion to dismiss.

On September 28, 2018, the court entered another memorandum and order. After 

reciting the relevant procedural history, the court stated the following:

In this 16-page First Amended Complaint[,] Mr. Justice has 

done his imaginative best to put life back into his 2017 

complaint based on this 2012 incident. He has reworded 

some of his causes of action, injected further detail, and has 

even gone so far as to add a RICO claim. All this based on 

what must be described as non-assaultive and all too common 

incidents between two (2) people engaged in a bitter custody 

dispute.

The Court has considered this latest complaint and all its 

asserted claims and reaches the same conclusion it did in its 

May 17, 2018 Memorandum and Order. On these alleged 

facts there are no viable causes of action in this case.

For the reasons stated above, the motion to dismiss is granted. 

This case is dismissed and any outstanding court costs are 

taxed to the Plaintiff.

Any further disagreement with this Court’s dismissal should 

be taken to the Court of Appeals.

(Emphasis in original.) This memorandum and order incorporated by reference the May 

17, 2018 memorandum and order dismissing plaintiff’s original complaint.

After the court’s dismissal of the amended complaint, plaintiff apparently filed 

two post-dismissal motions.3 The trial court denied those motions and entered a final 

judgment on October 29, 2018. Plaintiff timely appealed.

II.

Plaintiff raises several issues in this appeal. In our judgment, the dispositive 

issues are: (1) whether the trial court erred by treating defendants’ “response” to 

plaintiff’s amended complaint as a motion to dismiss; and, if the court did err, (2)

whether the court failed to provide adequate justification for dismissing the amended 

 

3 These motions are not included in the appellate record. Plaintiff attached one motion as an 

appendix to his appellate brief, but that is not the appropriate way to supplement the record. See Tenn. R. 

App. P. 24(e); Jennings v. Sewell-Allen Piggly Wiggly, 173 S.W.3d 710, 712 (Tenn. 2005). 
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complaint sua sponte. 

III.

The issues raised in this appeal require us to interpret the Tennessee Rules of Civil 

Procedure. Accordingly, our review is de novo with no presumption of correctness. See

Turner v. Turner, 473 S.W.3d 257, 268 (Tenn. 2015). “Furthermore, when interpreting 

our own rules of civil procedure, we consult and are guided by the interpretation that has 

been applied to comparable federal rules of procedure.” Id. (citations omitted). We have 

previously explained “that Tenn. R. Civ. P. 12.02(6) is based upon Fed. R. Civ. P. 

12(b)(6)[.]” Boyd v. Bruce, No. M2000-03211-COA-R3-CV, 2001 WL 1346264, at *5 

(Tenn. Ct. App., filed Nov. 2, 2001) (citing Dyer v. Itnera Corp., 870 F.2d 1063, 1066 

(6th Cir. 1989)), perm. app. denied (Tenn. Feb. 11, 2002).

IV.

The first issue is whether the trial court erred by treating defendants’ “response” to 

plaintiff’s amended complaint as a motion to dismiss. We approach this issue with the 

following principles in mind:

The Tennessee Rules of Civil Procedure are designed to 

simplify and ease the technicalities of the old common law 

forms of pleading. Branch v. Warren, 527 S.W.2d 89, 91 

(Tenn. 1975). Tenn. R. Civ. P. 8.05(1) states that “[n]o 

technical forms of pleading or motions are required.” 

Likewise, Tenn. R. Civ. P. 8.06 states that “all pleadings shall 

be so construed as to do substantial justice” and Tenn. R. Civ. 

P. 1 states that “[t]hese rules shall be construed to secure the 

just, speedy and inexpensive determination of every action.”

In light of these rules, courts now give effect to the substance 

of pleadings and motions rather than to their terminology or 

form. Bemis Co. v. Hines, 585 S.W.2d 574, 576 (Tenn. 

1979); Usrey v. Lewis, 553 S.W.2d 612, 614 (Tenn. Ct. App. 

1977). However, pleadings and motions must still adequately 

inform the court and the parties of what they seek. Thus, 

Tenn. R. Civ. P. 7.02(1) provides that a motion “shall state 

with particularity the grounds therefor, and shall set forth the 

relief or order sought,” and Tenn. R. Civ. P. 8.05(1) requires 

that “[e]ach averment of a pleading shall be simple, concise 

and direct.” 4

 

4

In a footnote, the Court observed that “Tenn. R. Civ. P. 8’s requirements concerning the form of 
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Anderson v. DTB Corp., No. 89-172-11, 1990 WL 33380, at *2 (Tenn. Ct. App., filed 

Mar. 28, 1990).

Here, defendants filed a “Response in Opposition to Plaintiff’s First Amended 

Complaint.” Neither the title nor the body of defendants’ “response” states that it is a 

motion to dismiss filed pursuant to Tenn. R. Civ. P. 12.02(6). Instead, defendants

identified six relevant factors that a court should consider in deciding whether to grant a 

motion to amend. Welch, 882 S.W.2d at 793. Then, defendants argued that four factors 

weighed in favor of denying plaintiff leave to amend. Defendants concluded by asserting 

that the amended complaint should “be denied and that the Plaintiff be prohibited by the 

Court, in its discretion, from filing any additional pleadings and/or motions to amend in 

this case.” Defendants’ response, in form and substance, is clearly a request to deny 

plaintiff leave to amend his original complaint. 

In their appellate brief, defendants attempt to reframe the issue. Relying on 

Norton v. Everhart, 895 S.W.2d 317, 319 (Tenn. 1995), defendants argue that trial courts 

should dispose of a motion according to “the relief sought” not necessarily the 

“substance” of the motion. That is a distinction without a difference. The “substance” 

and “the relief sought” by defendants’ response is the denial of a non-existent motion for 

leave to amend – not the dismissal of plaintiff’s amended complaint. 

Defendants also point out that their response contains a few sentences suggesting 

that the amended complaint fails to state a claim upon which relief can be granted. That 

is true. In context, however, those statements were made in furtherance of the 

defendants’ position that the court should deny plaintiff leave to amend. Defendants 

never attempted to explain why the amended complaint failed to state a claim upon which 

relief can be granted. 

Even if defendants’ response could be construed as a motion to dismiss, their

response does not “state with particularity the grounds [for granting a motion to 

dismiss],” as required by Tenn. R. Civ. P. 7.02(1). Defendants did not refer to any of the 

new factual allegations or tort claims raised in the amended complaint. At most, 

defendants’ response contains three vague assertions that the amended complaint failed to 

state a claim upon which relief can be granted.

To its credit, the trial court recognized these deficiencies. That is why the court 

requested additional briefing. But this is problematic for two reasons. First, the Supreme 

Court has ruled that “[i]ncluding the grounds for a Rule 12.02(6) motion in a separate 

memorandum of law does not comply with Rule 7.02(1).” Willis v. Tenn. Dept. of Corr., 

 

pleadings are applicable to motions by virtue of Tenn. R. Civ. P. 7.02.”
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113 S.W.3d 706, 709 n.2 (Tenn. 2003).

5

 Second, the Supreme Court has ruled that trial 

briefs, including memoranda of law filed in support of a motion to dismiss, are ordinarily 

excluded from the appellate record pursuant to Tenn. R. App. P. 24(a).6Id. Even 

considering defendants’ trial brief, however, defendants still failed to “state with 

particularity the grounds [for granting a motion to dismiss].” As previously discussed, 

defendants’ brief simply doubled down on the argument that the court should deny 

plaintiff leave to amend.

In sum, the trial court erroneously treated defendants’ response to the amended 

complaint as a motion to dismiss. Even if the response could be construed as a motion to 

dismiss, the response failed to satisfy the basic requirements of Tenn. R. Civ. P. 7.02(1), 

whether considered in isolation or in combination with defendants’ trial brief.

V.

If defendants never filed a motion to dismiss, the question then becomes whether 

the trial court erred when it subsequently dismissed the amended complaint sua sponte.

In Huckeby v. Spangler, the Supreme Court ruled that trial courts have the 

authority to dismiss a complaint sua sponte, “although such practice is not to be 

encouraged.” 521 S.W.2d 568, 571 (Tenn. 1975). This holding has been reaffirmed 

several times. E.g., Burt v. MacTavish, No. E2012–01293–COA–R3–CV, 2013 WL 

3198147, at *3 n.1 (Tenn. Ct. App., filed June 21, 2013); Wicks v. Vanderbilt Univ., No. 

M2006-00613-COA-R3-CV, 2007 WL 858780, at *14 (Tenn. Ct. App., filed Mar. 21, 

2007); Decker v. Carroll Academy, No. 02A01-9709-CV-00242, 1999 WL 332705, at *3 

(Tenn. Ct. App., filed May 26, 1999); Lackey v. Carson, 886 S.W.2d 232, 232 (Tenn. Ct. 

App. 1994), perm. app. denied (Tenn. Sept. 6, 1994).

In Carnett v. PNC Bank, NA, we emphasized the limits of a trial court’s authority 

to dismiss a complaint sua sponte. No. W2015-01677-COA-R3-CV, 2016 WL 402495, 

at *5-6 (Tenn. Ct. App., filed Feb. 2, 2016), no appl. perm. filed. In that case, we 

expressed concern that “the trial court offered no reasoning illuminating its decision to 

 

5

In some cases, our courts have considered the merits of a motion to dismiss despite a party’s 

noncompliance with Tenn. R. Civ. P. 7.02(1). See Allen v. Ozment, No. W2017-00887-COA-R3-CV, 

2018 WL 6169238, at *6 (Tenn. Ct. App., filed Nov. 26, 2018) (compiling cases), perm. app. denied

(Tenn. May 17, 2019). In those cases, unlike this one, the defendants actually filed a motion to dismiss. 

6

In some cases, our courts have considered trial briefs despite a party’s noncompliance with 

Tenn. R. App. P. 24(a). E.g., Abdur'Rahman v. Parker, 558 S.W.3d 606, 621 (Tenn. 2018) (citing Flax 

v. DaimlerChrysler Corp., 272 S.W.3d 521, 541 (Tenn. 2008)); Shomo v. City of Franklin, No. M2006-

00319-COA-R3-CV, 2008 WL 490646, at *4-5 (Tenn. Ct. App., filed Feb. 22, 2008), perm. app. denied

(Tenn. Oct. 6, 2008).
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dismiss the complaint.” Id. at *5. We acknowledged that not all forms of dismissal 

expressly require that the trial court make findings of fact and/or conclusions of law.” Id.

at *6. Nevertheless, we insisted that “[t]he trial court’s burden . . . is much higher when 

dismissing a complaint sua sponte.” 7 Id. “Given the sparse record in [that] case, and 

respectfully, the even sparser state of the trial court’s order, we [could not] conclude that 

the trial court’s order provide[d] appropriate justification for the sua sponte dismissal in 

[that] case.” Id. Accordingly, we vacated the order of dismissal and remanded for 

further proceedings. Id.

Carnett may be the only decision in which this Court has vacated a trial court’s 

order of dismissal because the order failed to explain why the court was dismissing a

complaint sua sponte. Notably, however, multiple federal courts have adopted a similar 

rule. For example, in the Sixth Circuit, 

a district court faced with a complaint which it believes may 

be subject to dismissal must: (1) allow service of the 

complaint upon the defendant; (2) notify all parties of its 

intent to dismiss the complaint; (3) give the plaintiff a chance 

to either amend his complaint or respond to the reasons stated 

by the district court in its notice of intended sua sponte 

dismissal; (4) give the defendant a chance to respond or file 

an answer or motions; and (5) if the claim is dismissed, state 

its reasons for the dismissal.

Tingler v. Marshall, 716 F.2d 1109, 1112 (6th Cir. 1983) (emphasis added), overruled in 

part as stated in Wagenknecht v. United States, 533 F.3d 412, 417 n.4 (6th Cir. 2008)

(holding that the Tingler framework applies in all cases, except those arising under The 

Prison Litigation Act); see also Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 

15, 22 (1st Cir. 2014) (holding that the district court’s “sua sponte dismissal of 

[plaintiff’s] claims, without explanation or notice, was error.”); Bazrowx v. Scott, 136 

F.3d 1053, 1054 (5th Cir. 1998) (citing 5a Charles Alan Wright & Arthur R. Miller, 

Federal Practice and Procedure § 1357, at 301 (2d ed.1990) (holding that district judges 

only have the authority to dismiss a complaint sua sponte when “the procedure employed 

is fair to the parties.”). 

We agree with the reasoning of this Court’s decision in Carnett, and with the 

reasoning of the federal courts cited above. “Dismissal is a harsh sanction.” Carnett, 

2016 WL 402495, at *5 (quoting Holt v. Webster, 638 S.W.2d 391, 394 (Tenn. Ct. App. 

 

7 The last sentence of Tenn. R. Civ. P. 52.01 relieves the trial court of its responsibility to make

specific findings of fact and conclusions of law when ruling on “motions under Rules 12 or 56 or any 

other motion except as provided in Rules 41.02 and 65.04(6).” (Emphasis added.) The rule does not, 

however, absolve the trial court of its responsibility to make specific findings of fact and conclusions of 

law when entering an order of dismissal in the absence of a motion.
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1982)). Although “sua sponte dismissals are authorized by Tennessee law, trial courts 

must have ample justification in taking such a rare and drastic step.” Id. at *6 (citations 

omitted). When a court decides to dismiss a complaint sua sponte, the court must utilize 

a procedure that is fair to the parties. At a minimum, the court must state the reasons for 

the dismissal in its order.

In this case, the trial court dismissed plaintiff’s amended complaint sua sponte 

without utilizing a procedure that was fair to the parties. Although the court indicated its 

willingness to dismiss the amended complaint and allowed both sides to file briefs on the 

issue, the court’s order did not provide adequate justification for the sua sponte dismissal. 

The court acknowledged that plaintiff’s amended complaint included new factual 

allegations and new causes of actions, but the court dismissed them without explanation:

The Court has considered this latest complaint and all its 

asserted claims and reaches the same conclusion it did in its 

May 17, 2018 Memorandum and Order. On these alleged 

facts there are no viable causes of action in this case.

Although the court incorporated by reference its memorandum and order dismissing the 

original complaint, that memorandum and order could not possibly explain the court’s 

reasoning for dismissing newly-asserted causes of action. Because the court failed to 

provide adequate justification for dismissing the amended complaint sua sponte, we 

vacate the judgment of the trial court and remand for further proceedings. 

Although we understand the trial court’s frustration with “[t]his intractable case,” 

we hope our decision will underscore important legal principles. First, the Tennessee 

Rules of Civil Procedure exalt substance over form, but they do not allow trial courts to 

change the substance of a pleading or motion in order to achieve a desired outcome. 

Although we construe pleadings and motions liberally, parties must still abide by the 

particularity requirement of Tenn. R. Civ. P. 7.02(1). Second, trial courts must utilize a 

procedure that is fair to the parties when taking the drastic step of dismissing a complaint 

sua sponte. At a minimum, this requires trial courts to explain the reason for dismissing a 

complaint sua sponte.

VI.

We vacate the trial court’s order dismissing plaintiff’s amended complaint. The 

case is remanded for further proceedings. Costs on appeal are taxed to the defendants, 

Kim Nelson and Robert Bodine.

_______________________________

 CHARLES D. SUSANO, JR., JUDGE