Lacy v. Cox

• Decision Date: 22 November 2004
• Docket Number: No. E2003-00709-SC-R11-CV.,E2003-00709-SC-R11-CV.
• Citation: 152 S.W.3d 480
• Parties: Donald R. LACY v. Wesley B. COX, et al.
• Court: Tennessee Supreme Court

152 S.W.3d 480

Donald R. LACY v. Wesley B. COX, et al.

No. E2003-00709-SC-R11-CV.

Supreme Court of Tennessee, at Knoxville.

September 9, 2004 Session.

November 22, 2004.

George R. Garrison, Sevierville, Tennessee, for the appellant, Donald R. Lacy.

Dana Holloway, Knoxville, Tennessee, for the appellee, Jennifer L. Brandon.

OPINION

FRANK F. DROWOTA, III, C.J., delivered the opinion of the court, in which E. RILEY ANDERSON, JANICE M. HOLDER and WILLIAM M. BARKER, JJ., and J.S. "STEVE" DANIEL, Sp.J., joined.

In a jury trial, the plaintiff moved for and was granted voluntary dismissal without prejudice as of right while the jury was deliberating, and the jury was discharged before returning a verdict. The trial court later acknowledged that it had erred by granting the voluntary dismissal in contravention of Tennessee Rule of Civil Procedure 41.01. However, the trial court nevertheless sustained the voluntary dismissal without prejudice, denying both the defendant's post-trial motion to deem the dismissal to be with prejudice and the plaintiff's motion for a new trial. On appeal, the Court of Appeals held that although a plaintiff's free and unrestricted right to voluntary dismissal ends upon the jury's retirement, a trial court has discretion to grant a voluntary dismissal without prejudice after the jury has retired. However, the Court of Appeals deemed the plaintiff's voluntary dismissal to be with prejudice because the plaintiff had sought and was improperly granted voluntary dismissal as of right after the jury had retired. Reversing the Court of Appeals, we hold that a trial court has no authority to grant a voluntary dismissal without prejudice while the jury is deliberating. The unique aspects of Tennessee Rule of Civil Procedure 41.01, in particular the provision of up to two voluntary dismissals as of right which are available until a significantly late procedural stage, warrant more restriction of a trial court's discretion to grant voluntary dismissal than is required under Federal Rule of Civil Procedure 41and parallel state rules. Plaintiffs have other procedural avenues, such as the motion for a new trial, to remedy errors which may occur during jury deliberation. Further, allowing trial courts the discretion to grant voluntarily dismissal without prejudice while the jury is deliberating could allow plaintiffs to manipulate the forum and could waste judicial resources, and a trial court's abuse of discretion in that regard would be problematic to remedy adequately. Based on the foregoing, we affirm the judgment of the Court of Appeals that plaintiff's voluntary dismissal in this case shall be with prejudice.

Factual and Procedural Background

This lawsuit arises from a chain reaction automobile accident that occurred in Sevier County, Tennessee, on or about June 15, 2000. The plaintiff, Donald R. Lacy, while driving his Ford truck northward on State Highway 66, was followed in succession by two similarly northbound cars. According to the plaintiff, the rearmost car, driven by Jennifer L. Brandon, struck the middle car driven by Wesley B. Cox, thereby pushing the Cox vehicle into the plaintiff's truck from the rear.

The plaintiff brought a negligence action against both Brandon and Cox, seeking compensation for property damage and personal injury. After Cox settled, the plaintiff's claim against Brandon proceeded in a two-day trial. After all proof had been presented and the jury instructed, the jury retired to deliberate its verdict. During deliberation, the jury submitted to the trial court two written questions. First, the jury asked whether it could view certain photographs of the defendant's car which had been shown to it during trial. This request was denied because the photographs had not been entered into evidence. Second, approximately two hours after deliberations had begun, the jury asked whether it was obligated to award the plaintiff monetary damages if it concluded that the defendant was at fault. After the trial court answered this question, the plaintiff, perhaps anticipating an unfavorable verdict, moved for voluntary dismissal (or nonsuit) without prejudice. Despite the defendant's objection, the trial court granted the plaintiff's motion as if it were a matter of right.¹ The trial court then informed the jury that the plaintiff's action had been dismissed voluntarily and released the jury from service.

Soon thereafter, the defendant moved the trial court to deem the plaintiff's voluntary dismissal to be with prejudice. The defendant argued that Tennessee Rule of Civil Procedure 41.01(1) prohibits a plaintiff from taking a voluntary dismissal without prejudice once the jury has retired to deliberate; therefore, the trial court erred by granting plaintiff's nonsuit without prejudice.² In response, the plaintiff, conceding unabashedly that his motion had been untimely, asked the trial court for a new trial on the ground that the trial court had erred by granting the nonsuit.

During a hearing on the motions, the trial court acknowledged that it had erred by granting voluntary dismissal without prejudice after the jury had retired. Due to the difficulty the trial court had in conceiving of an adequate remedy for its error,³ the court decided simply to leave intact the voluntary dismissal without prejudice in spite of its impropriety. Consequently, the trial court denied the defendant's motion to deem the voluntary dismissal to be with prejudice and also denied the plaintiff's motion for a new trial.

The defendant appealed the judgment to the Court of Appeals, arguing that the only adequate remedy for the trial court's error was to deem the plaintiff's voluntary dismissal to be with prejudice. In another near reversal of legal position, the plaintiff contended that although his unqualified right to take a nonsuit under Tennessee Rule of Civil Procedure 41.01(1) admittedly ended once the jury had retired, the trial court nevertheless had discretion at that procedural stage to grant a voluntary dismissal without prejudice. The plaintiff sought to validate the trial court's judgment on the basis that the court did not abuse its discretion.

The Court of Appeals held that although nonsuit as a matter of right is no longer available once the jury has retired, a trial court nevertheless has discretion to grant a voluntary dismissal without prejudice even while the jury is deliberating. The Court of Appeals based this holding on Panzer v. King, 743 S.W.2d 612 (Tenn.1988). In Panzer, this Court held that a trial court has discretion to grant plaintiff a nonsuit after a motion for new trial has been properly granted. Id. at 615-16. However, the Court of Appeals relied upon language in Panzer that extended Panzer's holding beyond the limited procedural context of the granting of a new trial. Specifically, the Court of Appeals appropriately emphasized Panzer's statement that its holding applies "at all times subsequent to the retirement of the jury to consider its verdict at the first trial." Id. at 616. Although the Court of Appeals criticized Panzer in this regard,⁴ it pointed out that, as an intermediate appellate court, it "is not at liberty to limit a rule adopted by the Supreme Court."

The Court of Appeals encountered difficulty in crafting an appropriate remedy for the instant case. Given that the trial court granted the nonsuit as if it were a matter of right, the Court of Appeals found it "impossible ... to determine whether the [t]rial [c]ourt abused its discretion when that discretion was never used." Further, concerning how to remedy the trial court's particular error, the Court of Appeals found no guidance in Tennessee case law. Based on analogous decisions from other states⁵ and Tennessee Rule of Appellate Procedure 36(a),⁶ the Court of Appeals reversed the trial court, holding that the plaintiff's voluntary dismissal was to be with prejudice.

Standard of Review

Conclusions of law are subject to de novo review on appeal with no presumption of correctness. Southern Constructors, Inc. v. Loudon Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.2001); Presley v. Bennett, 860 S.W.2d 857, 859-60 (Tenn.1993). Interpretation of the Tennessee Rules of Civil Procedure is a question of law. Dial v. Harrington, 138 S.W.3d 895, 897 (Tenn.Ct.App.2003), per. app. denied (Tenn. Mar. 22, 2004); see Green v. Moore, 101 S.W.3d 415, 418 (Tenn.2003).

Analysis

The issue before this Court is whether in a jury trial a trial court has discretion to grant a plaintiff voluntary dismissal without prejudice while the jury is deliberating. Voluntary dismissal is governed by Tennessee Rule of Civil Procedure 41.01, which states in relevant part:

[T]he 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 ...; 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 directed verdict.

Tenn. R. Civ. P. 41.01(1) (emphasis added). A plaintiff's right to voluntary dismissal without prejudice is subject to the exceptions expressly stated⁷ in Rule 41.01(1) as well as to an implied exception which prohibits nonsuit when it would deprive the defendant of some vested right. Anderson v. Smith, 521 S.W.2d 787, 790 (Tenn.1975).⁸ A plaintiff is further limited to taking no more than two nonsuits without prejudice, Tenn. R. Civ. P. 41.01(2), and nonsuit cannot be taken more than one year after an initial dismissal.⁹ As long as none of these exceptions and limitations serve to restrict dismissal, Rule 41.01(1) affords a plaintiff the free and unrestricted right to voluntary dismissal without prejudice before the jury retires. Rickets v. Sexton, 533 S.W.2d 293, 294 (Tenn.1976); Stewart v. Univ. of Tenn., 519 S.W.2d 591, 592 (Tenn.1974); s...