# Heather Michele Cohen and Adam Cohen v. Trisha Clarke and Michelle Julian

> Court of Appeals of Tennessee · January 10, 2014

URL: https://www.frixlaw.com/law-library/cases/2649434

## Case

- **Court:** Court of Appeals of Tennessee
- **Decided:** January 10, 2014
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge J. Steven Stafford
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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. 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.

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.1 As discussed

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

1
(...continued)
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.

-2-
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

2
Tennessee Rule of Civil Procedure 54.02 provides that:

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

-3-
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

2
(...continued)
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.
3
We note that neither Appellee has filed a responsive brief in this appeal.

-4-
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

-5-
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

-6-
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

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

-7-
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 court should 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

-8-
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2649434. Public record. Not legal advice.