                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE

    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.

                        Appeal from the Circuit Court for Knox County
                                         No. 2-628-02



                  No. E2003-00982-COA-R3-CV - FILED AUGUST 23, 2004



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 upon 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 plaintiff’s 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 Willis-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 plaintiff’s complaint, as
amplified by the release document attached to it, “fail[s] to state a claim upon which relief can be



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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.




                                                    __________________________
                                                    CHARLES D. SUSANO, JR., JUDGE




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