                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

A LAN E. H IGHERS, P.J., delivered the opinion of the Court, in which D AVID R. F ARMER, J.
and H OLLY M. K IRBY, 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.   F ACTS & P ROCEDURAL H ISTORY

       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

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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.     I SSUES P RESENTED

        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.   D ISCUSSION

                               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.

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                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. § 19-425,1 which applies to general sessions courts as well as to
        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.



        1
           Section 19-425 is now codified at Tennessee Code Annotated section 16-15-729. It contains nearly
identical language, but the phrase “justice of the peace” has now been replaced with “general sessions court,”
and the current statute also provides that the trial shall be de novo, “including damages.”

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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 general sessions 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, provides that
“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.3 Because Plaintiff’s civil warrant merely alleged that Defendants were being sued
“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

        2
          Of course, “[t]he parties may, . . . without the court’s direction, file pleadings, engage in discovery,
and take advantage of the procedural flexibility in the Tennessee Rules of Civil Procedure.” Ware, 898
S.W.2d at 185.
        3
          At least one author has reached the same conclusion. See 1 Pivnick, Tenn. Cir. Ct. Prac. § 3:11
(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.    C ONCLUSION

       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.




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