                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                             May 10, 2004 Session

    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.

                   Direct Appeal from the Circuit Court for Knox County
                   No. 2-628-02   Hon. Wheeler Rosenbalm, Circuit Judge



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


 The Trial Court dismissed the Complaint on a Motion filed pursuant to Tenn. R. Civ. P.
12.02(6). We vacate and remand because the Motion to Dismiss did not comply with the Rules of
Civil Procedure.


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


HERSCHEL PICKENS FRANKS , P.J., delivered the opinion of the court, in which D. MICHAEL SWINEY,
J., joined. CHARLES D. SUSANO, JR., J., Dissented and filed an opinion.


Paul T. Gillenwater, Knoxville, Tennessee, for Appellant.

Gerald V. Weigle, Jr., Cincinnati, Ohio for Appellee, Liberty Mutual Insurance Co.

J. Thomas Jones, Knoxville, Tennessee, and James E. Rocap, III, Washington, DC, for Appellee,
Travelers Casualty and Surety Co.



                                            OPINION


                In this contract action, the Trial Court, responding to a Motion to Dismiss pursuant
to Tenn. R. Civ. P. 12.02(6), dismissed plaintiff’s Complaint for failure to state a cause of action.
Plaintiff has appealed.
                 Counsel argued the Motion to Dismiss on March 21, 2003, as well as several other
motions not germane to this Appeal. The Trial Court granted defendants’ Motion to Dismiss and
the Order subsequently entered on April 14, 2003 attached and incorporated by reference the
transcript of the Court’s ruling at the hearing. It is clear from the transcript that the Court treated this
as an action in contract and dismissed the claim for failure to state a cause of action.

               We do not reach the merits of the appeal because we hold that the Motion to Dismiss
is procedurally deficient and does not comply with the Tennessee Rules of Civil Procedure. The
Motion to Dismiss states:

                Pursuant to Tennessee Rules of Civil Procedure 12.02(6), defendants hereby move
                to dismiss the claim raised by the plaintiff’s Complaint. A Memorandum in support
                of this Motion is attached.

               A motion to dismiss for failure to state a claim upon which relief can be granted,
pursuant to Tenn. R. Civ. P. 12.02(6) is designed to test the legal sufficiency of the complaint, not
the strength of the plaintiff’s case. Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999); Riggs v.
Burson, 941 S.W.2d 44, 47 (Tenn. 1997).

        As the functional equivalent of the old common law demurrer, Rule 12.02(6) motion to
dismiss is subject to the same strict rules of construction. Gore v. Tenn. Dept. Of Correction, 132
S.W.3d 369, 373 (Tenn. Ct. App. 2003). The common law demurrer could not “speak,” i.e., state
or introduce a new fact to support it; but the rule 12.02(6) motion is not so limited. If it does “speak”
it becomes converted into a Tenn. R. Civ. P. 56 motion for summary judgment by the express
provisions of rule 12.02, and must be adjudicated pursuant to the standard for summary judgment
under Rule 56. Id. at 374.

                Defendants attached as an exhibit to their memorandum of authorities the Settlement
Agreement in the original personal injury action executed by a representative of the Center for
Claims Resolution1 and rely upon it extensively in their brief. Under the modern rules of civil
procedure, the trial court retains the discretion to consider extrinsic evidence outside the pleadings,
Hixson v. Stickley, 493 S.W.2d 471, 473 (Tenn.1973), but, if it does it "shall be treated as one for
summary judgment and disposed of as provided in Rule 56." Tenn. R. Civ. P. 12.02; Hunt v. Shaw,
946 S.W.2d 306, 307 (Tenn. Ct. App.1996). It is clear from the record that the Trial Court did not
consider the settlement document attached to the motion to dismiss. Furthermore, it is clear that the
Trial Court did not consider anything other than the face of the complaint, including the release
attached to the complaint, in reaching its decision to grant the Motion to Dismiss.

                A motion to dismiss must comply with Tenn. R. Civ. P. 7.02(1) and “state with



        1
          Center for Claims Resolution is composed of a consortium of 16 member companies defending claims
primarily asbestos m anufacturers and distributors.

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particularity the grounds therefor.”2 Our Supreme Court has held that stating the grounds for the
motion in an accompanying memorandum of law does not fulfill this requirement, Willis v.
Tennessee Dept. of Corr., 113 S.W.3d 706, 709 n.2 (Tenn. 2003); accord, Hicks v. Campbell, 2003
WL 22438441 (Tenn. Ct. App. 2003); Ivy, 2003 WL 22383613 (Tenn. Ct. App. 2003).

                 The Supreme Court declared with unmistakable clarity the correct procedure to follow
for Rule 12.02(6) motions. In Willis, the Attorney General filed a motion to dismiss for failure to
state a claim, then filed a second motion attaching a memorandum of law, because the first motion
was not accompanied by a memorandum. Before turning to constitutional issues, the Court
commented upon this procedure:

                      The Attorney General’s motion simply asserted that the petition should be dismissed
                      “[p]ursuant to Tenn. R. Civ. P. 12.02(1) and (6).” This motion fails to meet the basic
                      requirements of Tennessee Rule of Civil Procedure 7.02(1) which requires that
                      motions must ‘state with particularity the grounds therefor.’ For the purposes of a
                      Tennessee Rule of Civil Procedure 12.02(6) motion, the moving party must state in
                      its motion why the plaintiff has failed to state a claim for which relief can be granted.
                      Including the grounds for a rule 12.02(6) motion in a separate memorandum of law
                      does not comply with Rule 7.02(1).

Id. at 709 n.2.


              The Supreme Court in Willis sets forth the proper procedure for filing motions to
dismiss and the correct composition of the record ultimately submitted to the appellate court for
review.3


          2
          W hile this issue has not been raised on ap peal, for the sak e of procedural consistency Appe llate Co urts will
sua spon te require proper procedures to be followed. See Culbreath v. First Tenn. Bank, 44 S.W. 3d 518 at 528-29
(Tenn. 2000 ).

          3
              Willis reversed the majo rity of the Court of Appeals, Judge Koch dissenting. Judge Koch’s articulate Dissent
stated:

          The Mo tion to Dismiss simply asserts that the petition should be dismissed pursuant to Tenn. R. Civ.
          P. 12.06(1) and (6). This Motion, like most of the motions filed by the Civil Rights and Claims
          Division in cases of this sort, fail to comply with the rudimentary requirements of m otion practice
          under Tennesse e Rules of Civil Pro cedure, in terms that even first year law students can understand.
          Tenn. R. Civ. P. 7.01 re quires the mo tion must state, with p articularity the grounds therefor, and for
          the purpose of T enn. R . Civ. P. 12.0 6 this means tha t the mo ving party must state in its motion why
          the plaintiff has failed to state a claim for which relief can be granted. Willis v. Tenn. Dept. O f Corr.,
          2002 W L 1189 730 at *16 (T enn. Ct. App. 2002).




                                                             -3-
               Since the Motion to Dismiss did not comply with the Tennessee Rules of Civil
Procedure, the Trial Court should not have considered the Motion. Accordingly, we vacate the
Judgment of the Trial Court and remand for further proceedings.

              The cost of the appeal is assessed to defendants.




                                                    ______________________________
                                                    HERSCHEL PICKENS FRANKS , P.J.




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