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Specificity Requirements in Pleadings and Motions
When I was a baby law professor in the '60s, specificity reigned. But adoption of the Tennessee Rules of Civil Procedure changed things effective Jan. 1, 1971. Following the federal model, our Rules allowed generalities. For example, a plaintiff only need plead a short and plain statement of the claim. The defendant can respond with a short and plain statement of defenses.
Yet specificity requirements remain. Let us take a look. If you represent a plaintiff suing for fraud or mistake, Rule 9.02 requires that the "circumstances ... shall be stated with particularity."
If you represent a defendant and decide to move for dismissal for failure to state a claim, read Rule 7.02 carefully:
An application to the court for an order shall be by motion which ... shall state with particularity the grounds ... .
Including the grounds in a memorandum of law will not hack it. See Judge Bennett's recent opinion in Shomo v. City of Franklin. The court cut the defense lawyer some slack but warned against repetition of the error.
Because Rule 7.02 applies to all motions, keep in mind motions to dismiss for lack of jurisdiction, for insufficiency of service of process, and for the other grounds listed in Rule 12.02.
Tennessee Rule 56.03 is titled "Specifying Material Facts." The rule requires specificity by both plaintiff and defendant in summary judgment motion practice. The movant must list material facts not genuinely at issue, "supported by a specific citation to the record." The opponent must list the facts disputed, also with citation to the record.
See also Rule 56.06. Faced with a summary judgment motion, the opponent must serve and file opposing affidavits that "set forth specific facts showing that there is a genuine issue for trial."
Once motions are overruled, the defendant must serve an answer. Never fail to reread the affirmative defenses listed in Rule 8.03. These must be specified in the answer as a condition to introducing evidence at trial. For example, if I fail to plead the plaintiff's comparative fault in my answer, I cannot prove it in the courtroom.
Extremely important Appellate Rule 3(e) needs to be added to the foregoing Civil Rules. If you lose a jury trial, please be sure to file a motion for new trial specifying each and every trial error. "Otherwise such issues shall be treated as waived."
In summary, even though the Rules freed us from the grip of formalistic common law pleading, there are still specificity traps for the unwary. Be careful out there.
Author's Note: Federal Rule 7(b) also requires that a motion "state with particularity the grounds." But Form 40 in the Appendix, made sufficient by Federal Rule 84, simply and briefly states that "the complaint fails to state a claim upon which relief can be granted." That is insufficient in Tennessee practice. In addition to Shomo v. City of Franklin see Willis v. Tennessee Department of Correction, 113 S.W.3d 706 (Tenn. 2003) at footnote 2, and Finchum v. ACE, USA, 156 S.W.3d 536 (Tenn. Ct. App. 2004).
1. 13 TAM 13-22 (Tenn. Ct. App., M.S., Feb. 22, 2008), perm. app. denied Oct. 6, 2008.
2. See George v. Alexander, 931 S.W.2d 517 (Tenn. 1996).
DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, Bickers, and Tillman LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, Tennessee Judicial Conference, and UT College of Law. He is reporter to the Supreme Court Advisory Commission on Rules of Practice and Procedure.