Session August 21, 2019
from the Circuit Court for Loudon County No. 2017-CV-78
Walter C. Kurtz, Senior Judge 
Justice and Kim Nelson are the divorced parents of a minor
child. They have been in litigation over the child since
2004. This appeal arises from a lawsuit filed by Mr. Justice
(plaintiff) against Ms. Nelson, Robert Bodine, and two
unidentified co-conspirators (defendants). In his original
complaint, plaintiff alleged that defendants were liable for:
conspiracy to commit the crime of extortion, intentional
infliction of emotional distress, and tortious interference
with parental rights. Defendants filed motions to dismiss,
which the trial court granted. Exactly thirty days later,
plaintiff filed an amended complaint. He alleged additional
facts and new causes of action, including: fraud, coercion,
attempted tortious interference with parental rights, and
violations of the Racketeering Influenced and Corrupt
Organization Act. Defendants filed a "response" to
the amended complaint. They argued that the court should deny
plaintiff leave to amend his original complaint. The court
treated defendants' "response" as a motion to
dismiss the amended complaint, which the court then granted.
We hold that the court erred when it treated defendants'
"response" as a motion to dismiss the amended
complaint. We also hold that the court failed to provide
adequate justification for dismissing the amended complaint
sua sponte. Accordingly, we vacate the order of dismissal and
remand for further proceedings.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Vacated; Case Remanded
Guerrero, Knoxville, Tennessee, for the appellant, Loring E.
McFarland, Kingston, Tennessee, for the appellees, Kim Nelson
and Robert Bodine.
Charles D. Susano, Jr., J., delivered the opinion of the
court, in which D. Michael Swiney, C.J., and John W.
McClarty, J., joined.
CHARLES D. SUSANO, JR., JUDGE
filed his original complaint on June 1, 2017. Defendants
filed motions to dismiss pursuant to Tenn. R. Civ. P.
12.02(6). On May 17, 2018, the trial court entered a
memorandum and order granting defendants' motions to
dismiss. The memorandum and order carefully explained why
plaintiff's complaint failed to state a claim upon which
relief can be granted.
thirty days later, plaintiff filed a "First Amended
Complaint." The amended complaint contained additional
factual allegations and new causes of action. Defendants
filed a "Response in Opposition to Plaintiff's First
Amended Complaint." In their "response,"
defendants set forth the relevant factors a court should
consider in deciding whether to grant a motion to amend.
See Welch v. Thuan, 882 S.W.2d 792, 793 (Tenn. Ct.
App. 1994). Defendants argued that four factors weighed in
favor of denying plaintiff leave to amend his original
complaint. Defendants concluded by asserting that
plaintiff's amended complaint should "be denied and
that the Plaintiff be prohibited by the Court, in its
discretion, from filing any additional pleadings and/or
motions to amend in this case."
September 4, 2018, the trial court entered an order
clarifying that "Mr. Justice filed a First Amended
Complaint not a motion to be allowed to file an
amended complaint." (Emphasis in original.) The court
was reminding defendants that "[a] party may amend the
party's pleadings once as a matter of course at any time
before a responsive pleading is served[.]" See
Tenn. R. Civ. P. 15.01; see also Adams v. Carter Cty.
Memorial Hosp., 548 S.W.2d 307, 308-09 (Tenn. 1977)
(holding that the plaintiff could file an amended complaint
as a matter of course after the trial court granted the
defendants' motion to dismiss and before that order of
dismissal became a final judgment). Despite finding that
"[t]here was never a motion to dismiss the amended
complaint[, ]" the trial court ruled that "[t]he
response to the amended complaint reads like a motion to
dismiss and the Court will consider it a motion to
dismiss." The court also requested additional briefing
on the issue.
requested, both parties submitted briefs. Defendants simply
doubled down on their argument that plaintiff "clearly .
. . would have to file a Motion to Amend his Complaint that
has been dismissed." Their brief failed to address
plaintiff's additional factual allegations and new tort
claims in any way. Plaintiff's brief argued that
defendants waived the opportunity to seek dismissal of the
amended complaint because they failed to follow the
court's instruction to file a brief in support of a Rule
12.02(6) motion to dismiss.
September 28, 2018, the court entered another memorandum and
order. After reciting the relevant procedural history, the
court stated the following:
In this 16-page First Amended Complaint[, ] Mr. Justice has
done his imaginative best to put life back into his 2017
complaint based on this 2012 incident. He has reworded some
of his causes of action, injected further detail, and has
even gone so far as to add a RICO claim. All this based on
what must be described as non-assaultive and all too common
incidents between two (2) people engaged in a bitter custody
The Court has considered this latest complaint and all its
asserted claims and reaches the same conclusion it did in its
May 17, 2018 Memorandum and Order. On these alleged
facts there are no viable causes of action in this case.
For the reasons stated above, the motion to dismiss is
granted. This case is dismissed and any outstanding court