### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON JANUARY 23, 20 02 Session 

### JOHN ASBURY, ET AL 

### . v. LAGONIA-SHERMAN, LLC, ET AL 

### .

Direct Appeal from the Circuit Court for Shelby County No. CT-001369-00; The Honorable D’Army Bailey, Judge

No. W2001-01821-COA-R3-CV - Filed October 15, 2002

DISSENTING

OPINION

I must respec tfully

dissent.
The majority

in this cas e has str

uggle d heroic all y t o establish what the record does not support, namely, that the trial judg e decided this case on summary judgment rather than on a dismissal f

or failur e to state a claim.
The orde r of the tr ial cour t is quite c lear an d explicit. I t states: ORDER OF

DISMI SSAL WI TH PREJUDI

CE
This matter came on for hearing be fore the Honor able D ’Army Bail ey, Judge of Division 8 of the Circuit Courtof Shelby County , Tennessee, for the Thirtieth Judicial District of Memphis, on the 15 th day of June, 2001 on the Defe ndants’ Motion to Dismiss or, In the Alternative, for Summary Judgmentpu rs ua nt to Ru le s 1 2. 02 (6 ) a nd 56 , r es pe ct iv el y, of the Tennessee Ru les of Civi l Procedure. It ap

pearing to the Cour

t that the Pl aintiffshave fa iled to sta te a cau se of action for which relief may

be granted,
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that this case is dismissed withprejudice and all costs of this action are taxed to the Plaintiff for which exe cution ma

y is sue if ne ce ss ar y. ENTERED T

HIS 6 Day of Ju ly , 2001.
/s/ Honorable D’Army

Bailey2

The trial judge noted that the motion was for dismissal pursuant to Rule 12.02(6) or, in the alte rnative, for summa

ry judgmen t pursuan t to Rule 56, after w

hich the c ourt cle arly

state d: “I t appearing to the Court that the Plaintiffs have failed to state a cause of action for which relief may be granted...” (emphasis supplied). This is the lang uage of Rule 12, not Rule 56.
The majority

relies on the lang uage o f Rule

12.02 which states, in pertinent part: “If ...matters outside the pleading are presented to and not e xcluded by the

court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56...” It is true that extraneous matters were filed herein because the motion was framed in the alternative either as a motion

to dismiss or as a motion for su mmary jud gment, but t here is not a s cinti lla of proof that t he tri al jud ge considered

such matters in making his ruling or that he was confused or mistaken about the basis for his ru ling.
It is correctly note d by the majority that the trial court “need n ot express ly state that it has chosen to exclude such matters filed with the motion,” but “there must be some indicia that the trial court in fact excluded the additional information.” One wonders how this could have bee n more plainly done by the trial cour

t short of an express exclusion. The order bore the caption: “ORDER OFDISMI SSAL WITH PREJUDICE.” The first sentence declared : “This matter came on for hearing...on

the Defendants’ Motion...” It did not say, “This matter c ame on fo r heari ng on th e Defend ants’ Motion, depositions and affidavits filed herein, and the entire record in the cause.” That omission is signif

icant. Th is case f alls squarely with this Court’s opinion in Wincheste r v. L ittle , 996 S.W.2d 818, 821 (Tenn. Ct. App. 1998), in which we stated:

The trial cou

rt’s orde r is couched in terms of a dismissal rather than summary judgmen t. The tri a l j udge states that his opinion is based upon the plea

dings and argument of Pla inti ff an d counsel for Defen dant. No mention is made of consideration of any mat ters outside th e pleadin

gs. (emphasis supplied). Likewise, in the present case, (1) the trial judge c ouched h

is ruling in terms of a dismissal, and (2) no mention is made of consideration of any matters outside the pleadings. This certainly indicates that outsid

e matter s were “ excluded” by t he trial c ourt.
In Pendleton

v. Mills , 73 S.W. 3d 115, the trial court specifically

considered the motion “on the pleadings and other

materials submitted.” In Ali-Al-Fatlawy v. John Doe , CA, MS, filed March 29, 2000, pla

intiff re lied “on t he affi davit

of Officer James Bledsoe.” Judge Susano say s “the trial court con si der ed i t, ” an d t he m ot io n be cam e on e fo r su mm ary j udg men t. In Pass v. Shelby Aviation , CA, WS, filed Ap

ril 13, 200 0, Judge L

illard co rrectly points out th at the moti on to dismiss was predicated

not just on the pleadings but on the “entire record in the cause ,” and therefore became a summary judgment motion. In Jordan v. Ca mpbell , CA, MS, filed November 10, 1999, we found the motion to be one for summary judgment “because the trial court considered material outside of the pleadings.”3

I agree that in most cases where e xtraneous matters are filed, we have found the motion was converted from a Rule 12 to a Rule 56. But I do not find any of the factors that are

cited in the above case s to be present in this case. Bear in mind there is no transcr ipt in this case. Th e trial c ourt’ s order is the only document in the rec ord stating what he considered. The trial judge knew the motion was for a Rule 12.02 (6) dismissal or, in the alternative, for summary judgment. He cites thisin his order. Yet, he purposely elected to dismiss for failure to “state a cause of action.” F urther, his order nowhere reflects that he considered matters outside the pleading s, but rather it particularly limits the scope of his con siderati on to the “ Defend ants’ Moti on.” I think this is sufficient to indicate that all other matters outside the pleadings were excluded fr om consideration.
The importance of this issue is that different standards of review apply to Rule 12 a

nd Rule 56. The parties are entitled to a review of their case based upon the ty

pe of order entered by

the trial court. A Rule 12.0 2(6) motio n to dismiss f or fail ure to st ate a claim upon which relief may be granted tests only the sufficiency

of the complaint, not the strength of plaintiff’s evidence. See Doe v. Sundquist , 2 S.W.3d 919, 922 (Tenn. 199 9). The motion admits the truth of all relevant and material averments in the complaint but asserts that such facts are insufficient to state a claim as a matter of law. See Wincheste

r v. L ittle , 996 S.W.2d 818, 821 (Tenn. Ct. App. 1998). On the other hand, a motion for summary judgment goes directly to the merits of the litigation. See By

rd v. Hal l , 847 S.W.2d 208, 210 (Tenn. 1993). This decision has the e ffect o f transf orming t he role o f this Courtfrom a court

of review to a court of original jurisdiction. When the appellate c ourt considers document s never mentioned or contempl ated by

the trial court, a nd rende rs a dec ision it app arently feels the trial cou rt should have made , it ceases to be a court of review.
The plaintiff

s h ave been caught in the crosshair between two courts. The trial court has dismissed their complaint for failure to state a cause of a ction, and this Court has granted summary judgment for the defendants. I

would treat

their case as the trial court did, namely , as a dismissal for failure to state a cause of action, a nd upon re

view app ly th

e standa rd applic able to su ch case s.

ALAN E. HI

GHERS, JUDGE