The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs February 16, 2011
C.P. (minor) by and through his mother,
MARILYN POWELL v. KEVIN SHEPHERD
Direct Appeal from the Circuit Court for Blount County
No. L-16732/L-16733 Jon Kerry Blackwood, Senior Judge
No. E2010-00726-COA-R3-CV - Filed March 24, 2011
This is a consolidated appeal from the grant of Defendants/Appellees’ Tenn. R. Civ. P.
12.02(6) motions to dismiss. We are asked on appeal to determine whether each of
Plaintiff/Appellant’s complaints states a claim upon which relief can be granted. We
conclude that they do. Reversed and remanded.
Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Reversed and
Remanded
J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and D AVID R. F ARMER, J., joined.
Marilyn Powell, Alcoa, Tennessee, Pro Se.
Kevin W. Shepherd, Maryville, Tennessee, Pro Se.
William L. Gribble, II, Maryville, Tennessee, Pro Se.
MEMORANDUM OPINION 1
1
Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
This Court, with the concurrence of all judges participating in the case, may affirm, reverse
or modify the actions of the trial court by memorandum opinion when a formal opinion
would have no precedential value. When a case is decided by memorandum opinion it shall
be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited
or relied on for any reason in any unrelated case.
This is a consolidated appeal of two separate final orders, each granting motions to
dismiss for failure to state a claim upon which relief can be granted. The record on appeal
is scant, as are the relevant facts provided in the record. The Plaintiff, C.P.2 , a minor, by and
through his mother, Marilyn Powell, pro se, filed separate complaints against attorneys
William L. Gribble and Kevin W. Shepherd (together “Defendants” or “Appellees”). Both
complaints were filed August 10, 2009, in the Circuit Court for Blount County, and though
brought in the name of C.P., were executed by Marilyn Powell in her representative capacity
and without the assistance of counsel. The complaints are both styled “COMPLAINT FOR
INEFFECTIVE ASSISTANCE OF COUNSELOR AND FRAUD ON THE COURT”; and
stem from attorneys Gribble and Shepherd’s respective roles in representing C.P. in a
juvenile proceeding and subsequent de novo appeal to the circuit court.
Defendants Gribble and Shepherd, each acting pro se in this matter, filed separate
motions to dismiss pursuant to Tenn. R. Civ. P. 12.02(6) for failure to state a claim upon
which relief can be granted. After a hearing on February 19, 2010, the trial court granted
both attorneys’ motions and dismissed both complaints with prejudice.
Plaintiff timely appealed both orders of dismissal. By order of this Court, entered
August 17, 2010, the cases were consolidated for appeal.3 All parties on appeal are acting
pro se, and we are asked to determine whether the trial court erred in dismissing the
complaints for failure to state a claim upon which relief can be granted.
In Young v. Barrow, 130 S.W.3d 59 (Tenn. Ct. App. 2003), then Judge, now Justice,
Koch succinctly described the standards for reviewing claims of pro se litigants as follows:
Parties who decide to represent themselves are entitled to
fair and equal treatment by the courts. Whitaker v. Whirlpool
Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000); Paehler v.
Union Planters Nat'l Bank, Inc., 971 S.W.2d 393, 396 (Tenn.
Ct. App. 1997). The courts should take into account that many
pro se litigants have no legal training and little familiarity with
the judicial system. Irvin v. City of Clarksville, 767 S.W.2d 649,
652 (Tenn. Ct. App. 1988). However, the courts must also be
mindful of the boundary between fairness to a pro se litigant and
2
The Plaintiff’s name has been redacted to protect his identity as both complaints allege that he is
a minor.
3
The consolidated trial court case numbers are No. E2010-00726-COA-R3-CV and No. E2010-
00727-COA-R3-CV.
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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. Edmundson v. Pratt, 945 S.W.2d 754, 755
(Tenn. Ct. App. 1996); Kaylor v. Bradley, 912 S.W.2d 728, 733
n. 4 (Tenn. Ct. App. 1995).
The courts give pro se litigants who are untrained in the
law a certain amount of leeway in drafting their pleadings and
briefs. Whitaker v. Whirlpool Corp., 32 S.W.3d at 227; Paehler
v. Union Planters Nat'l Bank, Inc., 971 S.W.2d at 397.
Accordingly, we measure the papers prepared by pro se litigants
using standards that are less stringent than those applied to
papers prepared by lawyers. Hughes v. Rowe, 449 U.S. 5, 9-10,
101 S.Ct. 173, 176, 66 L.Ed.2d 163 (1980); Baxter v. Rose, 523
S.W.2d 930, 939 (Tenn. 1975); Winchester v. Little, 996
S.W.2d 818, 824 (Tenn. Ct. App. 1998).
Pro se litigants should not be permitted to shift the
burden of the litigation to the courts or to their adversaries. They
are, however, entitled to at least the same liberality of
construction of their pleadings that Tenn. R. Civ. P. 7, 8.05, and
8.06 provide to other litigants. Irvin v. City of Clarksville, 767
S.W.2d at 652. Even though the courts cannot create claims or
defenses for pro se litigants where none exist, Rampy v. ICI
Acrylics, Inc., 898 S.W.2d 196, 198 (Tenn. Ct. App. 1994), they
should give effect to the substance, rather than the form or
terminology, of a pro se litigant's papers. Brown v. City of
Manchester, 722 S.W.2d 394, 397 (Tenn. Ct. App. 1986); Usrey
v. Lewis, 553 S.W.2d 612, 614 (Tenn. Ct. App. 1977).
Young v. Barrow, 130 S.W.3d at 62-63.
With these standards in mind, we turn to Plaintiff’s assertion that the trial court erred
in dismissing the complaints. It is well settled that a Tenn. R. Civ. P. 12.02(6) motion to
dismiss a complaint for failure to state a claim upon which relief can be granted tests the
legal sufficiency of the complaint. Lanier v. Rains, 229 S.W.3d 656, 660 (Tenn. 2007). It
admits the truth of all relevant and material allegations, but asserts that such allegations do
not constitute a cause of action as a matter of law. See Riggs v. Burson, 941 S.W.2d 44, 47
(Tenn. 1997). These motions are not favored and are rarely granted in light of the liberal
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pleading standards contained in the Tennessee Rules of Civil Procedure. Dobbs v. Guenther,
846 S.W.2d 270, 273 (Tenn. Ct. App. 1992).
When considering a motion to dismiss for failure to state a claim upon which relief
can be granted, we are limited to an examination of the complaint alone. See Wolcotts Fin.
Serv., Inc. v. McReynolds, 807 S.W.2d 708, 710 (Tenn. Ct. App. 1990). The basis for the
motion is that the allegations in the complaint, when considered alone and taken as true, are
insufficient to state a claim as a matter of law. See Cornpropst v. Sloan, 528 S.W.2d 188
(Tenn. 1975). In short, a Tenn. R. Civ. P. 12.02(6) motion to dismiss seeks only to determine
whether the pleadings state a claim upon which relief can be granted, and such a motion
challenges the legal sufficiency of the complaint, not the strength of the plaintiff's proof.
Bell ex rel. Snyder v. Icard, 986 S.W.2d 550, 554 (Tenn. 1999). In considering such a
motion, the court should construe the complaint liberally in favor of the plaintiff, taking all
the allegations of fact therein as true. See Cook ex. rel. Uithoven v. Spinnaker's of
Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn. 1994). However, we are not required to accept
as true factual inferences or conclusions of law. Riggs v. Burson, 941 S.W.2d 44, 47-48
(Tenn. 1997). An appellate court should uphold the grant of a motion to dismiss only when
it appears that the plaintiff can prove no set of facts in support of a claim that will entitle him
or her to relief. Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003).
Tenn. R. Civ. P. 12.02(6) motions are not designed to correct inartfully drafted
pleadings. Dobbs v. Guenther, 846 S.W.2d 270, 273 (Tenn. Ct. App. 1992). However, a
complaint should not be dismissed, no matter how inartfully drafted, if it states a cause of
action. Id. (citing Paschall's, Inc. v. Dozier, 407 S.W.2d 150, 152 (Tenn. 1966); Collier v.
Slayden Bros. Ltd. Partnership, 712 S.W.2d 106, 108 (Tenn. Ct. App. 1985)). Nevertheless,
while we should not endeavor to create claims where none exist, we must always look to the
substance of the pleading rather than its form. Dobbs, 846 S.W.2d at 273 (citing Donaldson
v. Donaldson, 557 S.W.2d 60, 62 (Tenn. 1977); Usrey v. Lewis 553 S.W.2d 612, 614 (Tenn.
Ct. App. 1977)).
Both complaints in this case are poorly drafted. The factual allegations are difficult
to understand and, at times, rambling and syntactically flawed. However, looking at the
substance of the pleadings, we have determined that neither complaint is totally lacking in
clarity and that each complaint makes out at least one intelligible claim for relief.
As noted above, both complaints are styled “COMPLAINT FOR INEFFECTIVE
ASSISTANCE OF COUNSELOR AND FRAUD ON THE COURT.” It is well settled that
courts are to give effect to the substance of a pleading or motion rather than its terminology
or form. Norton v. Everheart, 895 S.W.2d 317, 319 (Tenn. 1995); Bemis Co. v. Hines, 585
S.W.2d 574, 576 (Tenn. 1979). Thus, although the complaints are captioned as suits for
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ineffective assistance of counsel and fraud; these are not necessarily the only claims that can
be made out in the body of the complaint. Without determining whether either complaint
states a claim for ineffective assistance of counsel or fraud, we have concluded that the
substance of each complaint includes the minimum necessary components to make out a
prima facie claim for legal malpractice.
While we concede that the subject complaints are inartfully drafted, this fact alone
does not call for their dismissal, so long as the complaints state a cause of action. See Dobbs
v. Guenther, 846 S.W.2d 270, 273 (Tenn. Ct. App. 1992); Collier v. Slayden Bros. Ltd.
Partnerhip, 712 S.W.2d 106, 108 (Tenn. Ct. App. 1985); see also Lawrence A. Pivnick,
Tennessee Circuit Court Practice, Vol 1. § 11:3 (2011). A plaintiff in a legal malpractice
action has the burden of proving: (1) the employment of the attorney; (2) neglect by the
attorney of a reasonable duty; and (3) damages resulting from the neglect. Smith v.
Goodson, No. 03A01-9605-CV-00168, 1996 WL 599697, at *2 (Tenn. Ct. App. Oct. 21,
1996) (citing Jamison v. Norman, 771 S.W.2d 408 (Tenn. 1989); Sammons v. Rotroff, 653
S.W.2d 740 (Tenn. Ct. App. 1983)); see also Blackmon v. Glaser, No. 01-A-01-9410-
CV00504, 1995 WL 89711, at *2 (Tenn. Ct. App. March 3, 1995).
Turning to the complaint filed against Defendant Gribble, which stems from his
representation of C.P. in a juvenile proceeding, the complaint states, that “[o]n March 27,
2009 I hired William Gribble to represent my son [C.P.] and myself. [C.P.’s] charge was
violation of probation.” Later, the complaint states, verbatim, that “[o]n May 12, 2009 I
requested Counsel Gribble to file an appeal, because Judge Denton was bias, he did not. . .
. Plaintiff would show that Counsel was ineffective (Legal Malpractice) and committed fraud
on the Court.” The complaint prays for damages of one-hundred million dollars due to
“monitory [sic], physical, emotional and punitive damages” and seeks the immediate release
of C.P.
By its plain language, this complaint alleges that Marilyn Powell, on behalf of C.P.,
hired Defendant Gribble, for representation in Juvenile Court, and was dissatisfied with the
results. The complaint further alleges that Ms. Powell requested Defendant Gribble to file
an appeal, which he allegedly did not do. The complaint also clearly requests damages based
upon the allegations of malpractice. Failure to file an appeal may or may not rise to the level
of legal malpractice depending on the facts of a particular case. However, in the context of
a Tenn. R. Civ. P. 12.02(6) motion to dismiss, we believe that these allegations meet the
minimum standard of a sufficiently plead complaint. See Blackmon, 1995 WL 89711, at *3.
We turn now to the complaint against Defendant Shepherd. This complaint alleges
that “[o]n May 29, 2009 I hired Kevin W. Shepherd to file an appeal in Circuit Court for
[C.P.] on an Order dated May 5, 2009.” The complaint then alleges that Defendant Shepherd
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filed an appeal with the Blount County Circuit Court, but later filed a notice of voluntary
dismissal of appeal without the consent of C.P. or Marilyn Powell. The complaint prays for
damages of seventy-five million dollars due to “monitory [sic], physical, emotional and
punitive damages” and seeks the immediate release of C.P. On its face, this complaint, like
that filed against Defendant Gribble, not only sufficiently alleges the existence of an
employment relationship with the attorney, but also clearly alleges neglect of a reasonable
duty by that attorney. This complaint also states a claim for damages resulting from the
neglect. From our reading of the complaint, we conclude that it is sufficient to withstand a
Tenn. R. Civ. P. 12.02(6) motion to dismiss.
For the reasons discussed above, the judgment of the trial court is reversed and both
cases are remanded. Costs of this appeal are assessed one-half to Appellee, William L.
Gribble, and one-half to Appellee, Kevin W. Shepherd.
_________________________________
J. STEVEN STAFFORD, JUDGE
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