IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

OCTOBER 14, 2010 Session

SHIRLEY NICHOLSON v. LESTER HUBBARD REALTORS, ET AL.

Direct Appeal from the Circuit Court for Shelby County

No. CT-005422-04 Kay S. Robilio, Judge

No. W2010-00658-COA-R3-CV - Filed October 28, 2010

After Plaintiff appealed from general sessions to circuit court, the circuit court entered an

order requiring her to file a formal complaint. The circuit court then granted the Defendants’

motion to dismiss the complaint for failure to state a claim. We find no error in the trial

court’s decision to require Plaintiff to file a formal complaint, but we reverse its

determination that the amended complaint failed to state a claim upon which relief could be

granted.

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

Remanded

ALAN E. HIGHERS, P.J., delivered the opinion of the Court, in which DAVID R. FARMER, J.

and HOLLY M. KIRBY, J., joined.

Sam F. Cole, Jr., Memphis, Tennessee, for the appellant, Shirley Nicholson

Kenneth M. Margolis, Memphis, Tennessee, for the appellees, Lester Hubbard Realtors,

Regina H. Hubbard, Lester Hubbard and Kimberly Jackson
OPINION

I. FACTS & PROCEDURAL HISTORY

Shirley Nicholson (“Plaintiff”) filed a civil warrant against Lester Hubbard Realtors,

Regina H. Hubbard, Lester Hubbard, and Kimberly Jackson (collectively, “Defendants”) in

Shelby County General Sessions Court. The civil warrant stated that Plaintiff’s action was

one “for negligence and violation of the Consumer Protection Act, 47-18-101 T.C.A. et.seq.,

proximately resulting in damages to Plaintiff regarding the sale of 1950 Ponderosa,

Memphis, Tenn. and purchase of 7675 Breezewood Cove, Memphis, Tenn. in October 2001

and thereafter; Wherefore, Plaintiff sues for actual, compensatory and/or double or treble

damages, attorney fees and costs under $25,000.00.” The General Sessions Court entered

judgment for Defendants, and Plaintiff appealed to circuit court.

In circuit court, Plaintiff filed a demand for trial by jury, but she did not file a

complaint, electing instead to rely upon her civil warrant filed in General Sessions Court.

Plaintiff then filed a motion for summary judgment, supported by her own affidavit. In

response, Defendants filed the affidavit of Lester Hubbard, along with an exclusive listing

contract entered into by the parties. Defendants also filed a motion to dismiss for failure to

state a claim, contending that Plaintiff’s civil warrant should be dismissed because it failed

to state a claim upon which relief could be granted.

Following a hearing, the circuit court entered an order denying Plaintiff’s motion for

summary judgment and denying Defendant’s motion to dismiss for failure to state a claim.

The court’s order further provides that, “Sua Sponte, the Court ruled that Plaintiff is to file

a formal Complaint setting out the basis of her claimed relief in this cause within thirty (30)

days[.].” Plaintiff subsequently filed a document entitled, “Plaintiff’s Amendment to

Pleadings.” The Amendment to Pleadings alleged that “the Defendants engaged the Plaintiff

[sic] to obtain a buyer for her real property,” and when they located a buyer, they told

Plaintiff that she had to close the sale by October 26, 2001. Plaintiff further alleged that she

closed on the sale “based on statements given to her by Defendants that she would be quickly

moving into her new home at 7675 Breezewood Cove[.]” Plaintiff claimed that she took

time off from her job from October 29 until November 2, 2001, in order to complete the

closing on her new home, and she moved all of her property into a moving truck “for the

move into her new home that she was shortly moving into based upon the advice and

representations given to her by Defendants.” She alleged that she placed her frozen food

onto the moving truck in order to move it into her new home “which Defendants told her she

would be quickly moving into.” Plaintiff claimed that her frozen food had to be disposed of

after three days on the moving truck. According to Plaintiff’s allegations, she was unable

to move into her new home until December 21, 2001. As such, from October 26 until

-2-
December 21, she was required to pay rent for another place to live, pay storage fees for her

personal property, and pay additional moving truck costs. Plaintiff also claimed that she lost

income from her job “during the period that Defendants told Plaintiff to take off from work.”

In sum, Plaintiff alleged that Defendants “have been guilty of negligence and violation of the

Tennessee Consumer Protection Act[.]”

Defendants then filed a second motion to dismiss for failure to state a claim. The

circuit court entered an order dismissing Plaintiff’s claim for “failure to state a claim upon

which relief can be granted.” Plaintiff timely filed a notice of appeal.

II. ISSUES PRESENTED

On appeal, Plaintiff contends that the circuit court erred in requiring her to file a

formal complaint, and she claims that the allegations in her civil warrant were sufficient to

state a cause of action under the rules applicable in general sessions courts. Defendants, on

the other hand, argue that the circuit court did not err in requiring Plaintiff to file a formal

complaint or in dismissing her amended pleading for failure to state a claim.

III. DISCUSSION

A. Filing a Formal Complaint

First, we will address Plaintiff’s contention that the circuit court erred in requiring her

to file a formal complaint rather than relying upon the civil warrant she filed in general

sessions. Plaintiff relies upon Vinson v. Mills, 530 S.W.2d 761, 764 (Tenn. 1975), where

the Supreme Court granted certiorari to review the Court of Appeals’ determination that in

a case appealed from general sessions to circuit court, a defendant is required to file a formal

answer. The Supreme Court explained:

It is true that Rule 1 of the Tennessee Rules of Civil Procedure provides

that the Rules are applicable to civil actions appealed or otherwise transferred

to the circuit or chancery courts. The Rules are expressly not applicable in the

general sessions court, except in those instances where that court exercises

equivalent jurisdiction to circuit or chancery by virtue of a special statutory

provision.

Nothing in the Rules, however, requires that the parties replead their

action, reissue process or take any other retrospective step, once a case is

appealed from a general sessions court to a circuit court. A special provision

is contained in Rule 38.03 for the filing of a jury demand in such cases, and the

time for doing so is specified.

-3-
It is the opinion of this Court that the Tennessee Rules of Civil

Procedure are applicable, insofar as pertinent, to cases appealed to the circuit

court from the general sessions court, but that the Rules do not require the

filing of written pleadings, issuance of new process, or any other steps which

have been completed prior to the appealing of the case to the circuit court.

T.C.A. § 19-425, which applies to general sessions courts as well as to

1

justice of the peace courts, is still in force and effort, and it provides:

‘No civil case, originating before a justice of the peace and

carried to a higher court, shall be dismissed by such court for

any informality whatever, but shall be tried on its merits; and the

court shall allow all amendments in the form of action, the

parties thereto, or the statement of the cause of action, necessary

to reach the merits, upon such terms as may be deemed just and

proper; and the trial shall be de novo.'

While we are in agreement with the Court of Appeals that written

pleadings are more desirable than oral ones, the practice prior to the adoption

of the Tennessee Rules of Civil Procedure was to have oral pleadings in the

circuit court, upon appeal there from the general sessions court, unless, of

course, either party relied upon a claim or defense which was required to be

under oath or otherwise in written form. In such cases, of course, a written

statement of the matter would probably have been necessary initially in the

general sessions court or would have been supplied in the circuit court on

appeal.

The Rules of Civil Procedure did not change the practice in regard to

the pleading of appealed cases in the circuit court. The Rules are applicable to

such cases, after the appeal has been docketed, only insofar as then pertinent

or relevant. Certainly pretrial discovery procedures are available in the circuit

court in such cases, time permitting, and the Rules governing the trial and

disposition of cases in that court are also applicable. The rules governing

pleadings, however, do not apply except to such extent and insofar as the trial

judge may direct them to be applied in given cases, in carrying out the

provisions of T.C.A. § 19-425 or in the disposition of his docket under any

applicable local rules.

Section 19-425 is now codified at Tennessee Code Annotated section 16-15-729. It contains nearly

1

identical language, but the phrase “justice of the peace” has now been replaced with “generalsessions court,”

and the current statute also provides that the trial shall be de novo, “including damages.”

-4-
Vinson, 530 S.W.2d at 765.

In the case before us, Plaintiff correctly cited Vinson for the notion that “the Rules do

not require the filing of written pleadings, issuance of new process, or any other steps which

have been completed prior to the appealing of the case to the circuit court.” “Even though

the Tennessee Rules of Civil Procedure apply to generalsessions cases appealed to the circuit

court, the parties are not required to file formal pleadings.” Ware v. Meharry Medical

College, 898 S.W.2d 181, 185 (Tenn. 1995) (citations and footnote omitted). Thus, the Rules

of Civil Procedure did not require Plaintiff to file a formal complaint when she appealed to

circuit court.

2

Nevertheless, we disagree with Plaintiff’s contention that the trial court lacked

authority to order her to file a formal complaint. The Supreme Court in Vinson concluded

by stating, “The rules governing pleadings . . . do not apply except to such extent and insofar

as the trial judge may direct them to be applied in given cases, in carrying out the provisions

of T.C.A. § 19-425 or in the disposition of his docket under any applicable local rules.”

Section 19-425, now codified at Tennessee Code Annotated section 16-15-729, providesthat

“the court shall allow all amendments in the form of action, the parties thereto, or the

statement of the cause of action, necessary to reach the merits, upon such terms as may be

deemed just and proper.” From our reading of this statute in conjunction with Vinson, we

conclude that it is permissible for the trial court to direct the parties to file formal pleadings

when necessary to reach the merits of the case, upon such terms as the court deems just and

proper. Because Plaintiff’s civil warrant merely alleged that Defendants were being sued

3

“for negligence and violation of the Consumer Protection Act . . . regarding the sale of 1950

Ponderosa, Memphis, Tenn. and purchase of 7675 Breezewood Cove, Memphis, Tenn. in

October 2001 and thereafter,”we find no error in the trial court’s decision to require Plaintiff

to file a formal complaint “setting out the basis of her claimed relief in this cause.”

B. Dismissal for Failure to State a Claim

The amended pleading that Plaintiff filed in circuit court alleged that Defendants told

her that she had to close on the sale of her home by October 26, 2001, and that she closed on

that date “based on statements given to her by Defendants that she would be quickly moving

Of course, “[t]he parties may, . . . without the court’s direction, file pleadings, engage in discovery, 2

and take advantage of the procedural flexibility in the Tennessee Rules of Civil Procedure.” Ware, 898

S.W.2d at 185.

 At least one author has reached the same conclusion. See 1 Pivnick, Tenn. Cir. Ct. Prac. § 3:11 3

(2010 ed.) (explaining that on appeal from general sessions to circuit court, formal pleadings are not

necessary “unless expressly ordered by the circuit court”).

-5-
into her new home at 7675 Breezewood Cove[.]” Plaintiff claimed that Defendants

instructed her to take time off work from October 29 until November 2, 2001, in order to

complete the closing on her new home. She alleged that she moved all of her property into

a moving truck “for the move into her new home that she was shortly moving into based

upon the advice and representations given to her by Defendants.” According to the

pleadings, Plaintiff was unable to move into her new home until December 21, 2001, and as

a result, she incurred additional rental expenses, storage fees, moving costs, and damage to

her property. Plaintiff alleged that Defendants were therefore “guilty of negligence and

violation of the Tennessee Consumer Protection Act[.]”

“A Rule 12.02(6) motion to dismiss seeks only to determine whether the pleadings

state a claim upon which relief can be granted .” Edwards v. Allen, 216 S.W.3d 278, 284

(Tenn. 2007). The motion challenges the legal sufficiency of the complaint, admitting the

truth of all relevant and material averments contained therein, but asserting that such facts

do not constitute a cause of action. Id. “It is well-settled that a complaint should not be

dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of

facts in support of his or her claim that would warrant relief.” Trau-Med of America, Inc.

v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002). We are required to take the relevant

and material factual allegations in the complaint as true and to liberally construe all

allegations in favor of the plaintiff. Edwards, 216 S.W.3d at 284. Applying these principles

to the case at bar, we cannot say that Plaintiff’s amended pleading is so deficient that it fails

to state a claim upon which relief could be granted.

IV. CONCLUSION

For the aforementioned reasons, we reverse the decision of the circuit court and

remand for further proceedings. Further, we decline to award attorney’s fees to Defendants.

Costs of this appeal are taxed equally to the Defendants/Appellees, Lester Hubbard Realtors,

Regina H. Hubbard, Lester Hubbard, and Kimberly Jackson, and the Plaintiff/Appellant,

Shirley Nicholson, and her surety, for which execution may issue if necessary.

_________________________________

ALAN E. HIGHERS, P.J., W.S.

-6-