Lacy v. Cox, E2003-00709-COA-R3-CV.
| Decision Date | 31 October 2003 |
| Docket Number | No. E2003-00709-COA-R3-CV.,E2003-00709-COA-R3-CV. |
| Parties | DONALD R. LACY v. WESLEY B. COX, ET AL. |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Sevier County No. 2001-386-II. Richard R. Vance, Judge.
Judgment of the Circuit Court Reversed; Case Remanded.
Dana C. Holloway, Knoxville, Tennessee, for the Appellant Jennifer L. Brandon.
George R. Garrison, Sevierville, Tennessee, for the Appellee Donald R. Lacy.
OPINION
Donald R. Lacy ("Plaintiff") sued Jennifer Brandon for damages arising from an automobile accident. After deliberating for approximately two hours, the jury asked the Trial Court if they were required to award Plaintiff any monetary damages if they found fault on the part of Brandon. Based on the question, Plaintiff surmised the jury's deliberations were not going his way. As a result, Plaintiff moved for a voluntary dismissal without prejudice, believing he was entitled to do so as a matter of right. The Trial Court, also believing Plaintiff was entitled to dismiss his lawsuit without prejudice as a matter of right even though the jury was deliberating, granted the motion. We conclude Plaintiff was not entitled to voluntarily dismiss his lawsuit without prejudice as a matter of right at that stage in the proceedings, and as a consequence the dismissal is with prejudice.
This lawsuit arises out of an automobile accident which occurred in Sevier County. Plaintiff claims his vehicle was struck from behind by a vehicle driven by Wesley Cox. Plaintiff also claims that, at the same time, the Cox vehicle was struck from behind by a vehicle driven by Jennifer Brandon. Plaintiff sued both Cox and Brandon. In her answer, Brandon admits the accident occurred, but denies she was at fault. Brandon claims both Plaintiff and Cox were negligent under comparative fault principles.
A two-day trial took place in July of 2002. By that time, the only remaining defendant was Brandon ("Defendant"). After all of the proof was presented and the jury was instructed, the jury retired and began deliberating toward a verdict. The jury asked the Trial Court two questions during deliberations. First, the jury asked whether they could view certain photographs of Defendant's vehicle which had been shown to them during the trial. This request was denied because the photographs had not been entered into evidence. After deliberating for approximately two hours, the jury submitted a second question to the Trial Court. Specifically, the jury wanted to know if they were required to award Plaintiff any monetary damages if they concluded Defendant was at fault. Based on this question, Plaintiff obviously sensed a less than favorable verdict was looming. In an attempt to circumvent this expected outcome, Plaintiff, prior to the jury rendering its verdict, made an oral motion to voluntarily dismiss his lawsuit without prejudice. Despite Defendant's objection, the Trial Court allowed Plaintiff to voluntarily dismiss his lawsuit without prejudice. The Trial Court then informed the jury that Plaintiff's claim had been voluntarily dismissed and released the jury from service.
Approximately one week later, Defendant filed a motion requesting the Trial Court to deem Plaintiff's voluntary dismissal as a dismissal "with prejudice." In this motion, Defendant claimed that Tenn. R. Civ. P. 41.01(1) prohibited Plaintiff from taking a voluntary dismissal without prejudice after the jury retired and began to deliberate toward a verdict. Defendant argued that because the nonsuit was requested after the jury had retired, the dismissal should be considered with prejudice thereby barring Plaintiff from refiling his lawsuit in the future.
Plaintiff then filed a Motion for New Trial. In this motion, Plaintiff unabashedly asserted that the Trial Court had improperly granted his request for a voluntary dismissal because the jury had already retired and began deliberations. According to Plaintiff, "the Court may not enter an Order of Voluntary Dismissal under T.R.C.P. 41 at this stage of the trial." Plaintiff requested the Trial Court set aside the Order of Voluntary Dismissal and grant him a new trial.
A hearing was conducted on the pending motions. At this hearing, Defendant's counsel argued:
The basis of my motion is essentially that there is only one way under the Rules of Civil Procedure to get a voluntary dismissal without prejudice and that only way is contained in Rule 41.01 that says that you can take a voluntary nonsuit at any time in a jury trial before the jury retires to consider … [its] verdict.… [Plaintiff] cannot take a voluntary nonsuit without prejudice after the jury retires to consider … [its] verdict. That's in direct contravention to that rule.… My client had gone through trial, they went through two days of trial, they put on the proof, they tried their case and when that case goes to the jury, it's over.… We acquired a vested right in having that case decided by that jury.… And then the jury comes back with an unfavorable question and [Plaintiff's counsel] wants a Mulligan. He wants a do-over.
After hearing oral arguments on the motions, the Trial Court acknowledged that it should not have granted Plaintiff's motion for voluntary dismissal without prejudice as a matter of right inasmuch as the request for dismissal came too late in the proceedings. The Trial Court stated that it was not until the jury already had been dismissed before it was able to obtain a copy of Rule 41.01, at which time the Trial Court realized its mistake. Although not exactly stated as such, the Trial Court clearly originally believed Plaintiff was entitled to voluntarily dismiss his lawsuit without prejudice as a matter of right. Specifically, the Trial Court stated:
I did it because at the time I knew of no reason why you couldn't because if we all go through cases we have tried, we've seen it over and over and over at almost any time a nonsuit is taken and there's nothing the other side can do about it.
After discussing possible ways to remedy the situation, the Trial Court eventually concluded the best way to proceed was to leave intact its previous, albeit erroneous, ruling allowing Plaintiff to voluntary dismiss his lawsuit without prejudice. Accordingly, the Trial Court denied Defendant's motion to have the dismissal deemed with prejudice, as well as Plaintiff's motion for a new trial.
Defendant appeals, claiming the Trial Court erred in allowing Plaintiff to voluntary dismiss his lawsuit after the jury had been deliberating for two hours. Defendant further claims the only adequate remedy is to deem Plaintiff's voluntary dismissal as a voluntary dismissal "with prejudice." Plaintiff now claims on appeal that the Trial Court had discretion to allow him to voluntarily dismiss his lawsuit even after the jury had retired to consider its verdict. Plaintiff further contends the Trial Court did not abuse this discretion and, therefore, the judgment should be affirmed.
The factual findings of a trial court are accorded a presumption of correctness, and we will not overturn those factual findings unless the evidence preponderates against them. See Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). With respect to legal issues, our review is conducted "under a pure de novo standard of review, according no deference to the conclusions of law made by the lower courts." Southern Constructors, Inc. v. Loudon County Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).
As relevant to this appeal, Tenn. R. Civ. P. 41.01 provides as follows:
Rule 41.01 Voluntary Dismissal — Effect Thereof. — (1) Subject to the provisions of Rule 23.05, Rule 23.06, or Rule 66 or any statute, and except when a motion for summary judgment made by an adverse party is pending, the plaintiff shall have the right to take a voluntary nonsuit to dismiss an action without prejudice by filing a written notice of dismissal at any time before the trial of a cause and serving a copy of the notice upon all parties 8230; or by an oral notice of dismissal made in open court during the trial of a cause; or in jury trials at any time before the jury retires to consider its verdict and prior to the ruling of the court sustaining a motion for a directed verdict.… (emphasis added).
The first issue raised on appeal is whether the Trial Court had discretion to grant a voluntary dismissal without prejudice after the jury had retired to consider its verdict. In Tennessee, a plaintiff has the option to voluntarily dismiss without prejudice his lawsuit as a matter of right at various stages in the litigation. We also know that at certain other times, the granting of such a voluntary dismissal is a matter of discretion with the trial court. For example, in Stewart v. University of Tennessee, 519 S.W.2d 591 (Tenn. 1974), the plaintiff requested and was granted a nonsuit after the defendant filed a motion for summary judgment. An order of dismissal was entered later with the approval of all counsel. Id. at 592. When the plaintiff refiled the lawsuit, the defendant moved for summary judgment arguing the first dismissal was with prejudice because it had been entered while the original motion for summary judgment was still pending. The trial court agreed and dismissed the second lawsuit. Id. In reversing the trial court, our Supreme Court stated that, with certain specified exceptions, Rule 41.01(1) "provides for the free and unrestricted right of the plaintiff (at various stages of the proceedings) to take a voluntary nonsuit or to dismiss his action without prejudice 8230;." Id. The Court concluded that while Rule 41.01 barred the plaintiff from taking a voluntary dismissal as a matter of right when a motion for summary judgment was pending, the Trial Court...
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