IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 15, 2013

HEATHER MICHELE COHEN and ADAM LEE COHEN v. TRISHA

CLARKE and MICHELLE JULIAN

Direct Appeal from the Circuit Court for Williamson County

No. 2012-70 Derek Smith, Judge

No. M2012-02249-COA-R3-CV - Filed January 10, 2014

This is an appeal of the trial court’s dismissal of Appellants’ defamation lawsuit. The trial

court granted Appellees’ motions to dismiss under both Tennessee Rule of Civil Procedure

12.02(6), and under Tennessee Rule of Civil Procedure 41.02, for violation of Tennessee

Rules of Civil Procedure 11 and 45. We conclude that the trial court erred in granting the

Rule 12.02 motion when the Appellants’ motion to amend their pleadings was still pending.

We further conclude that the trial court’s stated reasons for granting the Rule 41.02 motion

are not sufficient to justify the drastic sanction of dismissal. Accordingly, we vacate the trial

court’s order and remand for further proceedings. Vacated and remanded.

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

Remanded

J. STEVEN STAFFORD,J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J.,

W.S., and DAVID R. FARMER, J., joined.

Joe Napiltonia, Franklin, Tennessee, for the appellants, Heather Michele Cohen and Adam

Lee Cohen.

OPINION

On February 10, 2012, Heather Michele Cohen and Adam Lee Cohen (together, the

“Cohens,” or “Appellants”), acting pro se, filed their original complaint for defamation,

slander, and libel against Lorna Reynolds, Trisha Clarke, and Michelle Julian. As discussed

1

There is some confusion in the record as to whether Ms. Julian’s first name is spelled Michele or 1

(continued...)
below, the trial court did not adjudicate the case vis Ms. Reynolds because she was not

present at the hearing and did not file any responsive pleadings; however, the trial court did

make its judgment final and appealable as to Ms. Clarke and Ms. Julian by inclusion of

Tennessee Rule of Civil Procedure 54.02 language, see infra. Accordingly the only

Appellees in this appeal are Ms. Clarke and Ms. Julian. The Cohens filed an amended

complaint on February 14, 2012. In the amended complaint, the Cohens alleged that the

named defendants had engaged in defamatory statements against the Cohens on an internet

public forum known as Topix.

On June 15, 2012, Defendant Michelle Julian filed a motion to dismiss the amended

complaint pursuant to Tennessee Rule of Civil Procedure 12.02(6). Specifically, Ms. Julian

alleged that the amended complaint did not specify any statements that could be construed

as defamatory, and further that the amended complaint did not allege actual damages. The

Cohens opposed Ms. Julian’s motion. On June 19, 2012, the Cohens filed a motion for leave

to file a second amended complaint to add additional allegedly defamatory statements, which

Ms. Julian allegedly made after the first amended complaint was filed. The trial court’s

failure to rule on June 19, 2012 motion for leave to amend will be discussed in detail below.

On June 29, 2012, Ms. Julian filed a second motion to dismiss the first amended complaint

pursuant to Tennessee Rule of Civil Procedure 41.02(1), based upon the Cohens’ alleged

violations of Tennessee Rule of Civil Procedure 11 and 45 during discovery. The Cohens

also opposed this motion.

The only correspondence in the appellate record concerning the named-defendant

Lorna Reynolds is a letter that was filed in the trial court on August 3, 2012. Therein, Ms.

Reynolds explains that she is unable to attend the hearing on the case, but does not otherwise

join in either of Ms. Julian’s motions to dismiss the amended complaint. However, on July

26, 2012, Defendant Trisha Clarke filed a notice that she wished to join in Ms. Julian’s

motions to dismiss. The trial court granted Ms. Clarke’s motion, and the motions to dismiss

were heard on August 6, 2012. By order of August 27, 2012, the court granted both the Rule

12.02(6) motion and the Rule 41.02 motion, stating, in relevant part:

Before the Court is (1) Defendant Michelle Julian’s July 15,

2012 motion to dismiss for failure to state a claim upon which

relief may be granted, Tenn. R. Civ. P. 12.02(6); (2) Defendant

Michelle Julian’s June 29, 2012 motion to dismiss pursuant to

Rule 41.02(1), Tenn. R. Civ. P., for discovery abuses; and (3)

(...continued) 1

Michelle. For the sake of consistency, we will use Michelle in this Opinion. This is the spelling used in the

substantive motions filed in the trial court.

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Defendant Trisha Clarke’s notice of joining of defendant

Michelle Julian’s motion to dismiss for discovery abuses . . . .

The court has considered the motions, responses and

arguments and is of the opinion that the motions are well taken

and they are therefore GRANTED. The court specifically finds

that the motion to dismiss for failure to state a claim (which

Defendant Clarke joined orally at the August 6, 2012 hearing as

to failure to plead damages) is well taken because the Plaintiff[s]

failed to state a claim for defamation (libel) against Defendant

Julian and failed to sufficiently plead damages as to Defendants

Julian and Clarke in that Plaintiffs failed to plead that any

member of their community actually read the alleged libelous

postings on the internet message board, Topix.

The Court further finds that the Plaintiffs committed

discovery abuses by (1) sending the Court an ex-parte letter in

which the Plaintiffs plead with the Court to assist them in

prevailing in their claims against the Defendants thereby

violating Rule 11's requirement that documents are not

submitted to the Court for any improper purpose; and (2)

violating Rule 45 as a result of failing to copy counsel of record

on the issuance of the subpoenas and the resulting documents

obtained therefrom.

To su[mmarize], Plaintiffs’ claims against Defendants

Julian and Clarke are hereby DISMISSED with prejudice.

The Court would note that this matter is still pending

against the Defendant Lorna Reynolds who was not present at

the hearing and who did not file any dispositive motions.

However, the Court further expressly determines pursuant to

Rule 54.02 of the Tennessee Rules of Civil Procedure that no

just reason for delay exists as to the entry of judgment in favor

of these Defendants. Thus, the Court directs the clerk to enter

judgment in favor of Defendants Julian and Clarke. The matter

of costs will be reserved until the entry of final judgment where

they will ultimately be taxed either [to] the Plaintiffs or

Defendant Lorna Reynolds.

2

 Tennessee Rule of Civil Procedure 54.02 provides that:

2

When more than one claim for relief is present in an action, whether as a

(continued...)

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On September 4, 2012, the Cohens filed a motion to alter or amend the trial court’s

order. As grounds for their motion, the Cohens argued, inter alia, that the trial court had

erred in dismissing their complaint while a motion to amend the complaint was pending, and

that the court had also erred in granting the Rule 41.02 motion to dismiss based upon the

letter that the Cohens had sent to the trial judge. By order of October 1, 2012, the trial court

denied the motion to alter or amend, stating only that “[a]fter due consideration, the court

finds that the motion is without merit.” The Cohens appeal; they raise four issues for review

as stated in their brief:

1. The Court erred when it failed to consider Plaintiffs’ Motion

to Amend the Complaint pursuant to Rule 15 of the Tennessee

Rules of Civil Procedure while a Rule 12.02(6) motion to

dismiss was pending.

2. The Court erred when it dismissed the case because

Plaintiffs, proceeding pro se, failed to serve copies of the

subpoenas on the Defendants.

3. The Court erred when it dismissed the case because Plaintiff

Heather Cohen, proceeding pro se, wrote a letter to the Court.

4. The Court erred when it dismissed the case on Defendants’

Rule 12.02(6) motion to dismiss for failure to state a claim for

defamation (libel) and based on the misplaced notion that

Plaintiffs did not plead damages.

3

As set out in its order, supra, the trial court granted both of the Appellees’ motions

to dismiss. In other words, the trial court’s dismissal of the Cohens’ lawsuit was based upon

two grounds. First, the court dismissed the lawsuit pursuant to Tennessee Rule of Civil

Procedure 12.02(6) for failure to state a claim for which relief may be granted. Next, the trial

(...continued) 2

claim, counterclaim, cross-claim, or third party claim, or when multiple

parties are involved, the court, whether at law or in equity, may direct the

entry of a final judgment as to one or more but fewer than all of the claims

or parties only upon an express determination that there is no just reason

for delay and upon an express direction for the entry of judgment. In the

absence of such determination and direction, any order or other form of

decision, however designated, that adjudicates fewer than all the claims or

the rights and liabilities of fewer than all the parties shall not terminate the

action as to any of the claims or parties, and the order or other form of

decision is subject to revision at any time before the entry of the judgment

adjudicating all the claims and the rights and liabilities of all the parties.

 We note that neither Appellee has filed a responsive brief in this appeal.

3

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court dismissed the case under Tennessee Rule of Civil Procedure 41.02 for violation of

Tennessee Rules of Civil Procedure 11 and 45. Because of this dual disposition, we perceive

that there are two issues in this case, which we state as follows:

1. Whether the trial court erred in granting Appellees’

Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss

for failure to state a claim upon which relief may be granted

when a motion to amend the complaint was pending.

2. If so, whether the trial court also erred in granting Appellees’

Tennessee Rule of Civil Procedure 41.02(1) motion to dismiss

on grounds of violation of Tennessee Rules of Civil Procedure

11 and 45?

Before addressing these issues, we first note that although they are represented by

counsel at the appellate level, the Cohens acted pro se throughout the proceedings in the trial

court. However, it is well settled that pro se litigants must comply with the same standards

to which lawyers must adhere. As explained by this Court:

Parties who decide to represent themselves are entitled to fair

and equal treatment by the courts. The courts should take into

account that many pro se litigants have no legal training and

little familiarity with the judicial system. However, the courts

must also be mindful of the boundary between fairness to a pro

se litigant and unfairness to the pro se litigant's adversary. Thus,

the courts must not excuse pro se litigants from complying with

the same substantive and procedural rules that represented

parties are expected to observe.

Jackson v. Lanphere, No. M2010–01401–COA–R3–CV, 2011 WL 3566978, at *3

(Tenn. Ct. App. Aug. 12, 2011) (quoting Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn.

Ct. App. 2003)).

Grant of Rule 12.02(6) Motion while Motion to Amend the Complaint was Pending

Appellants first contend that the trial court erred in granting the Appellees’ Tennessee

Rule of Civil Procedure 12.02(6) motion to dismiss the amended complaint before it ruled

on Appellants’ pending motion to file a second amended complaint filed on June 19, 2012.

Generally, trial courts must give the proponent of a motion to amend a full chance to

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be heard on the motion and must consider the motion in light of the policy to freely allow

amendments:

The grant or denial of a motion to amend a pleading is

discretionary with the trial court. Harris v. St. Mary's Med. Ctr.,

Inc., 726 S.W.2d 902, 904 (Tenn. 1987). Generally, trial courts

must give the proponent of a motion to amend a full chance to

be heard on the motion and must consider the motion in light of

the amendment policy embodied in Rule 15.01 of the Tennessee

Rules of Civil Procedure that amendments must be freely

allowed; and, in the event the motion to amend is denied, the

trial court must give a reasoned explanation for its action.

Henderson v. Bush Bros. & Co., 868 S.W.2d 236, 238 (Tenn.

Workers' Comp. Panel 1993). Although permission to amend

should be liberally granted, the decision “will not be reversed

unless abuse of discretion has been shown.” Welch v. Thuan,

882 S.W.2d 792, 793 (Tenn. Ct. App.1994). Factors the trial

court should consider when deciding whether to allow

amendments include “[u]ndue delay in filing; lack of notice to

the opposing party; bad faith by the moving party, repeated

failure to cure deficiencies by previous amendments, undue

prejudice to the opposing party, and futility of amendment.”

Merriman v. Smith, 599 S.W.2d 548, 559 (Tenn. Ct. App.

1979).

Cumulus Broadcasting, Inc. v. Shim, 226 S.W.3d 366, 374 (Tenn. 2007). As noted above,

although permission to amend a pleading should be liberally granted, the decision will not

be reversed unless an abuse of discretion has been shown. Id. Under the abuse of discretion

standard, the trial court's decision “will be upheld so long as reasonable minds can disagree

as to the propriety of the decision made.” Camp v. Camp, No. W2010-01037-COA-R3-CV,

2011 WL 2567542, at *5 (Tenn. Ct. App. June 29, 2011) (quoting Eldridge v. Eldridge, 42

S.W.3d 82, 85 (Tenn. 2001)). The abuse of discretion standard involves “a less rigorous

review of the lower court's decision and a decreased likelihood that the decision will be

reversed on appeal.” Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)

(citing Beard v. Bd. of Prof'l Responsibility, 288 S.W.3d 838, 860 (Tenn. 2009)). The

standard “reflects an awareness that the decision being reviewed involved a choice among

several acceptable alternatives.” Lee Medical, Inc., 312 S.W.3d at 524 (citing Overstreet v.

Shoney's, Inc., 4 S.W.3d 694, 708 (Tenn. Ct. App. 1999)). Accordingly, appellate courts are

not permitted to “second guess” the trial court's determinations or to substitute their judgment

for that of the trial court. Lee Medical, Inc., 312 S.W.3d at 524 (citing White v. Vanderbilt

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Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999)). “The abuse of discretion standard of

review does not, however, immunize a lower court's decision from any meaningful appellate

scrutiny.” Lee Medical, Inc., 312 S.W.3d at 524 (citing Boyd v. Comdata Network, Inc., 88

S.W.3d 203, 211 (Tenn. Ct. App. 2002)).Furthermore, as noted above, in the event a motion

to amend is denied, the trial court must give a reasoned explanation for its action. Cumulus

Broadcasting, 226 S.W.3d at 374; Tenn. R. Civ. P. 15.01.

We have reviewed the record and there is no indication that the trial court gave any

explanation for its failure to rule on the Cohens’ motion to file a second amended complaint.

In fact, it does not appear that the trial court ever gave the Cohens an opportunity to be heard

on the motion. Even in its order denying the Cohens’ motion to alter or amend the order of

dismissal, in which the Cohens specifically raised the issue of the trial court’s failure to rule

on their motion to amend, the trial court simply denies the motion to alter or amend without

explanation as to why it did not rule on the motion to amend. Implicitly, in failing to rule on

the motion to amend, the trial court denied that motion. Ostensibly, a trial court's denial of

a motion to amend is similar to the granting of a motion to dismiss a complaint pursuant to

Tennessee Rule of Civil Procedure 12.02(6) on the ground that it fails to state a claim upon

which relief can be granted. “In considering a motion to dismiss, courts should construe the

complaint liberally in favor of the plaintiff, taking all allegations of fact as true, and deny the

motion unless it appears that the plaintiff can prove no set of facts in support of her claim

that would entitle her to relief.” Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn.

1997) (citing Cook v. Spinnaker's of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn. 1994)).

In Henderson v. Bush Bros. & Co., 868 S.W.2d 236 (Tenn. Workers' Comp. Panel

1993), the Court set aside a trial court’s grant of summary judgment, concluding that the trial

court abused its discretion by granting summary judgment before considering a pending

motion to amend. Id. at 238. In so ruling, the Henderson Court cited the United States

Supreme Court’s opinion, Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d

222 (1962), wherein the Court stated:

[T]he grant or denial of an opportunity to amend is within the

discretion of the District Court, but outright refusal to grant the

leave without any justifying reason appearing for the denial is

not an exercise of discretion; it is merely abuse of that discretion

and inconsistent with the spirit of the Federal Rules.

4

 The Federal Rule of Civil Procedure 15(a) is essentially the same as the Tennessee Rule of Civil 4

Procedure 15.01, and even though federal decisions are not binding upon the state courts, we find assistance

in reviewing cases concerning rules of procedure that have been in effect in the federal courts for many years.

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The Henderson Court further cited the Sixth Circuit case of Marks v. Shell Oil Co.,

830 F.2d 68, 69 (6th Cir. 1987), wherein the Court noted:

Given the policy of liberality behind Rule 15(a), it is apparent

that when a motion to amend is not even considered, much less

not granted, an abuse of discretion has occurred. The court in

Espey [ v. Wainwright, 734 F.2d 748 (11th Cir. 1984) ]

determined that unless the district court's reason for dismissing

the motions to amend were “readily apparent” the dismissal

could not be sustained. 734 F.2d at 750. Because the district

court did not consider the motion, we can discern no such

“readily apparent” reasons here . . . .

Therefore, we hold that dismissal of the suit based upon

the original complaint without first considering the motion to

amend was an abuse of discretion. The district courtshould have

evaluated Marks' motion in light of Fed. R. Civ. P. 15(a) and its

liberal policy of amendment.

Marks, 830 F.2d at 69–70 (footnote omitted).

Likewise, this Court has held that trial courts should not grant dispositive motions

without first considering any pending motion to amend the pleadings. See, e.g., Knight v.

Hospital Corp. of America, No. 01A01-9509-CV-00408, 1997 WL 5161 (Tenn. Ct. App.

Jan. 8, 1997).

The above reasoning is persuasive, and it is our opinion that the trial court must give

the proponent of a motion to amend a full chance to be heard on the motion, must consider

the motion in light of the amendment policy embodied in Tennessee Rule of Civil Procedure

15.01 that amendments must be freely allowed; and in the event the motion to amend is

denied, the trial court must give a reasoned explanation for its action. From the record, the

trial court has failed to meet any of the foregoing requirements. Accordingly, in the absence

of any explanation as to why the trial court did not rule on the motion to amend prior to

granting the Appellees’ Tennessee Rule 12.02(6) motion, which action was implicitly a

denial of the motion to amend, we vacate the trial court’s grant of the Rule 12.02(6) motion

to dismiss. This holding, however, does not end our inquiry because the trial court also

granted dismissal based upon Tennessee Rule of Civil Procedure 41.02. As discussed , infra,

the Rule 41.02 motion was granted based solely upon an ex parte letter that was sent by the

Cohens to the trial court, and upon the Cohens’ failure to notify the opposing parties when

they sent out discovery subpoenas. Accordingly, unlike the Rule 12.02(6) motion, the Rule

41.02 motion was not dependent upon the contents of the complaint; thus, the question of

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whether amendment should have been allowed prior to the court’s ruling is not dispositive

vis the Rule 41.02 disposition. We now turn to address the question of whether dismissal on

the Rule 41.02 ground was error.

Tennessee Rule of Civil Procedure 41.02 Motion

Tennessee Rule of Civil Procedure 41.02(1) allows a defendant to move for

involuntary dismissal of the plaintiff’s lawsuit if the plaintiff fails to comply with the Rules

of Civil Procedure: “For failure of the plaintiff . . . to comply with these rules . . . a defendant

may move for dismissal of an action or of any claim against the defendant.” A dismissal

under Rule 41.02 is considered an adjudication on the merits, unless the trial court’s order

indicates otherwise: “Unless the court in its order for dismissal otherwise specifies, a

dismissal under this subdivision . . . operates as an adjudication upon the merits.” Tenn. R.

Civ. P. 41.02(3). This Court reviews a motion to dismiss a complaint pursuant to rule

41.02(1) of the Tennessee Rules of Civil Procedure under an abuse of discretion standard.

See Stalsworth v. Grummon, No. M2000-02352-COA-R3-CV, 2001 WL 513885 (Tenn. Ct.

App. May 15, 2001). Thus, this Court will uphold a motion to dismiss a complaint pursuant

to Rule 41.02(1) of the Tennessee Rules of Civil Procedure unless the “trial court acted

unreasonably, arbitrarily, or unconscionably by dismissing the complaint.” Id. at *9 (citing

Reynolds v. Metro. Gov’t of Nashville & Davidson County, No. 01 A01-9059-CV-00406,

1996 WL 76322 (Tenn. Ct. App. Feb. 23, 1996)).

The basis for the trial court’s dismissal under Rule 41.02 was two-fold. First, an ex

parte letter to the court from Ms. Cohen. The letter, dated April 26, 2012 states, in pertinent

part, as follows:

I am writing in regards to the above referenced matter. As

someone who is familiar with the court system and due process,

I am confident in the validity of this case. Further, in consulting

with many attorneys . . . I have been reassured that what I am

dealing with is “text book defamation.” However, I have

experienced first hand the reality of economics and, because my

defendants do not have money to collect on, I have been unable

to obtain representation. In short, I’ve been told that I have a

very strong case but collectability [sic] is going to be an issue.

* * *

My defendants are not taking this seriously. They have refused

to answer my Interrogatories and Request for Production of

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Documents. . . .

. . . I do have an Associates Degree in Paralegal Studies and

have worked as a paralegal. However, I feel that I am getting in

over my head but I cannot afford the retainer fees of the other

attorneys that I’ve spoken with. I would appreciate any advice

that you can offer me in regards to how I can properly prepare

for trial.

I assure you that I have plenty . . . of screenshots and printed

emails to offer into evidence to support my claims. I have

attached a couple of screenshots for you to get an idea of what

I was dealing with. . . . If they do file a motion to dismiss, I ask

that you deny it and give me my day in court to prove their guilt.

As I stated before, it’s about accountability and I believe that it

is very important to send a message to these people that making

attempts to ruin someone’s life is not a Constitutional right.

As set out in its order granting the Rule 41.02 motion to dismiss, supra, the trial court

ruled that the foregoing letter was a violation of Tennessee Rule of Civil Procedure 11. From

the court’s order, it appears that the trial court determined that the Cohens’ letter violated

Tennessee Rule of Civil Procedure 11.02, which states, in relevant part, that:

By presenting to the court (whether by signing, filing,

submitting, or later advocating) a pleading, written motion, or

other paper, an attorney or unrepresented party is certifying that

to the best of the person's knowledge, information, and belief,

formed after an inquiry reasonable under the circumstances, —

(1) it is not being presented for any improper purpose, such as

to harass or to cause unnecessary delay or needless increase in

the cost of litigation

We infer from the trial court’s order that the “improper purpose” was the Cohens’ attempt

to solicit, ex parte, the trial court’s help in their case.

Tennessee Supreme Court Rule 10(A) provides that “[a] judge shall not . . .permit, or

consider ex parte communications, or consider other communications made to the judge

outside the presence of the parties or their lawyers, concerning a pending or impending

matter.” However, a party’s attempt at ex parte communication may not rise to the level of

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warranting dismissal of the lawsuit. As held by this Court in the context of an administrative

hearing, “[a]s a general matter, ‘[t]he party claiming bias as a result of ex parte

communications must prove both the existence and content of the alleged communication,

and the record may negate any claim that the communication created undue bias in the

decisionmaker.’” Wright v. Tennessee Bd. of Examiners in Psychology, No.

M2003-01654-COA-R3-CV, 2004 WL 3008881 (Tenn. Ct. App. Dec. 28, 2004) (citing 73

C.J .S. Public Administrative Law and Procedure § 127 (2004)).

The second basis for the trial court’s dismissal under Tennessee Rule of Civil

Procedure 41.02 was the Cohens’ failure to serve certain subpoenas on the Appellees in

violation of Tennessee Rule of Civil Procedure 45.03. Rule 45.03 provides, in relevant part,

that: “Service of the subpoena shall be made by delivering or offering to deliver a copy

thereof to the person to whom it is directed.” Although the trial court’s order, supra, does

not elaborate on the specific violations of Rule 45.03, we find guidance in the Appellees’

motion to dismiss pursuant to Rule 41.02, which states, in relevant part:

Plaintiffs have already issued several subpoenas for the

production of documents and have served them on the party

from whom they wish to obtain the information. (Court Docket

Report). However, neither Michelle Julian nor her counsel has

received a copy of any of these subpoenas or the documents

procured thereby. Neither have counsel or Julian been served

with any notice that the documents are available for inspection

or copying. . . . Ms. Julian and her counsel (1) have the right to

be served a copy of the subpoena in order to determine whether

a motion to quash may be appropriate and (2) have the right to

inspect the documents that plaintiffs have procured. As

Plaintiffs have so brazenly violated the clear letter of this rule,

this court should dismiss their action.

While the Cohens concede that their actions in sending the letter and in failing to

notice Appellees of the subpoenas or information obtained thereunder were in violation of

the Rules of Civil Procedure, they contend that dismissal for these failures is too harsh a

result. We agree. As stated by this Court in the case of Pegues v. Illinois Central R.R. Co.,

288 S.W.3d 350 (Tenn. Ct. App. 2008):

[T]he inherent powers of the court to impose sanctions are most

effective when utilized with discretion and restraint. Id. “[T]he

punishment must fit the offense.” Id. “[T]he power to sanction

should be used sparingly. It should not be used like a sword and

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used frequently ... to do so would diminish the significance

when sanctions are imposed.” Id. Thus, although dismissal is

appropriate where there has been intentional disregard of the

trial court's orders or where a party has “flout[ed]” the court's

discovery order, it is a drastic measure which the court wisely

imposes with discretion. Id.; Holt v. Webster, 638 S.W.2d 391,

394 (Tenn. Ct. App. 1982). As we noted in Holt, “[d]ismissal is

a harsh sanction.” Holt, 638 S.W.2d at 394.

Id. at 354 (citing Alexander v. Jackson Radiology Assoc., P.A., 156 S.W.3d 11, 14 (Tenn.

Ct. App.2004)). The Tennessee Supreme Court has stated that cases should be decided on

their merits whenever possible. See Bates v. Sanders, 79 S.W.2d 41, 42 (Tenn. 1935).

However, Tennessee courts have recognized that “trial judges must be able to control their

dockets . . . they must have available the most severe spectrum of sanctions not merely to

penalize those whose conduct warrants sanctions but also to deter others who might be

tempted to engage in similar conduct if the sanction did not exist.” Manufacturers

Consolidation Service, Inc. v. Rodell, 42 S.W.3d 846, 864 (Tenn. Ct. App. 2000), perm. to

app. denied (Tenn. 2000). Nonetheless, the Court went on to state “dismissal is a harsh

sanction that generally is not favored in circumstances where lesser sanctions are available.”

Id. Accordingly, “Appellate courts do not treat decisions to dismiss cases pursuant to . .

.Tenn. R. Civ. P. 41.02(1) lightly.” Kotil v. Hydra-Sports,Inc., No. 01-A-01-9305-CV00200,

1994 WL 535542, at *3 (Tenn. Ct. App. Oct. 5, 1994) (citation omitted).

Rule 41.02(2) states that “[i]f the court grants the motion for involuntary dismissal,

the court shall find the facts specially and shall state separately its conclusion of law and

direct the entry of the appropriate judgment.” Here, and as set out in its order above, the trial

court merely states the uncontested facts that it received ex parte communication, and that

the Cohens failed to serve the opposing parties with notice of the subpoenas the Cohens

issued. Based upon these uncontested violations of the Rules of Civil Procedure, the trial

court dismissed the Cohens’ lawsuit. In the opinion of this Court, and in line with our

previous opinion in Pegues, we conclude that when imposing the harshest of penalties, i.e.,

dismissal of the lawsuit, the trial court must endeavor to explain not only the violations, but

also how those violations prejudiced or otherwise affected the complaining parties so as to

justify dismissal. While we concede that there are cases in which mere violation of the rules

of civil procedure may be sufficient to warrant dismissal of the lawsuit, see, e.g., Holt v.

Webster, 638 S.W.2d 391 (Tenn. Ct. App.1982) (involving failure to timely and completely

respond to discovery), we are not convinced at this juncture that this is one of those cases.

Had the trial court’s order set out its reasoning more thoroughly, we could review the bases

for the dismissal under Rule 41.02; however, the order does not elaborate. In addition, we

cannot glean the effect, if any, of the Rule 11 and Rule 45 violations on the opposing parties

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due to the fact that this record does not contain a transcript of the hearing on the motion.

Therefore, we cannot perform a meaningful review of the Rule 41.02 dismissal. In the

absence of any information concerning the effect of the Cohens’ civil procedure violations

on the Appellees’ case, and in the absence of any indication that the ex parte communication

resulted in prejudice, or that the Cohens intentionally usurped the court’s authority, we

conclude that the trial court acted outside its discretion in imposing the harshest of penalties

without specific explanation, and without exploring less drastic options for addressing the

Cohens’ rules violations. Accordingly, we also vacate the portion of the trial court’s order,

granting the Rule 41.02 dismissal.

In summary, upon remand the trial court should hear arguments on the Cohens’

motion to amend the complaint, and should not rule on the Tennessee Rule of Civil

Procedure 12.02(6) motion until it has adjudicated the request for amendment. Concerning

the Rule 41.02 dismissal, should the trial court reach the same conclusion upon remand, i.e.,

that dismissal is the appropriate sanction, it should explain its reasoning more thoroughly in

order to justify that decision. Otherwise, the trial court should fashion a less harsh sanction

for the Cohens’ civil procedure violations.

For the foregoing reasons, we vacate the order of the trial court and remand for such

further proceedings as may be necessary and are consistent with this Opinion. Costs of the

appeal are assessed equally to each of the Appellees, Trisha Clarke and Michelle Julian, for

which execution may issue if necessary.

_________________________________

J. STEVEN STAFFORD, JUDGE

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