Facts: This is not a family-law case, but the opinion thoughtfully and thoroughly addresses a procedural issue all trial lawyers need to understand, including family-law attorneys.

Homeowner hired Contractor to build a home. Contractor built the concrete foundation and footer. Homeowner inquired to confirm Contractor was using rebar, and Contractor confirmed rebar was used.

When finished with the foundation, Contractor sent a bill to Homeowner, and Homeowner paid it.

Homeowner inspected the work and determined that no rebar was actually used, making the foundation and footer defective. Homeowner hired a third-party to remove the concrete, regrade the land, and build a new foundation and footer. The old concrete was removed to a different property.

Three years later, Homeowner sued Contractor for damages. Contractor responded and denied that he failed to use rebar.

Contractor immediately sought to inspect the concrete that was removed, and the trial court ordered Homeowner to allow Contractor to inspect the concrete. Several emails between the lawyers requesting to inspect the concrete were sent and ignored. Eventually, the trial court ordered Homeowner to provide Contractor with dates to inspect the removed concrete within 60 days.

Homeowner did not provide dates to inspect the concrete as ordered. After the deadline passed, Contractor filed a motion to dismiss for failure to prosecute, specifically citing Homeowner’s failure to comply with the court-ordered deadline for supplying dates to inspect the removed concrete.

At a hearing on the motion, the trial court orally ruled that Contractor’s motion to dismiss for failure to prosecute was granted. Two days later, before the trial court entered a written order of dismissal, Homeowner filed a notice of voluntary dismissal, also known to lawyers and judges as a “nonsuit.” The trial court’s written order dismissing Homeowner’s lawsuit with prejudice for failure to prosecute was entered five days later. (A dismissal “with prejudice” means the lawsuit cannot be refiled.)

The trial court later denied Homeowner’s motion to set aside the written order that was entered after the notice of voluntary dismissal was filed.

Homeowner appealed, arguing that he retained the right to voluntarily dismiss this case any time before the trial court’s written order was entered.

On Appeal: The Court of Appeals reversed the trial court.

Rule 41.01(1) provides that “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 the cause and serving a copy of the notice upon all parties….”

Even when a motion for summary judgment is pending, a Tennessee court may grant a voluntary nonsuit without prejudice, but to do so is discretionary with the court; the plaintiff is not entitled to move for dismissal as a matter of right.

In addition to the express exception in Rule 41.01(1), the Tennessee Supreme Court found that there is an implied exception that prohibits a nonsuit when it would deprive the plaintiff of some vested right. Also, a plaintiff cannot take more than two nonsuits without prejudice, and a nonsuit cannot be taken more than one year after an initial dismissal.

For jury trials, Rule 41.01(1) allows the plaintiff the unrestricted right to voluntary dismissal without prejudice before the jury retires to deliberate.

For bench trials, the plaintiff retains the absolute right to voluntary dismissal without prejudice “until the matter has been finally submitted to the court for determination on the merits.”

Contractor argued the case moved beyond the point where Homeowner could take a voluntary nonsuit because the trial court orally granted Contractor’s motion to dismiss. Contractor argues the matter was submitted to the trial court for a decision “on the merits” and ruled upon orally.

Homeowner argued the case was not heard “on the merits” before his notice of voluntary dismissal was filed.

So, when is a case heard “on the merits”? The Court explained:

We conclude that an oral ruling on a motion to dismiss for failure to prosecute does not eliminate a right to voluntarily nonsuit a case. We reach this conclusion for four central reasons. One, the text of Rule 41.01(1) does not support the conclusion that [Homeowner] lost his right to voluntarily nonsuit his case. Two, until the trial court entered its written order, there was still a pending case to be nonsuited. Three, in extending the limitations on voluntary nonsuit under Rule 41.01(1) to motions to dismiss, [previous opinions] emphasized that the dismissals had been upon the merits of the case. Four, the Tennessee Supreme Court and United States Supreme Court have observed that “on the merits” in connection with a failure to prosecute does not truly mean a determination on the merits in the conventional sense of the term.

*     *     *     *     *

The pretrial motion to dismiss based upon failure to prosecute and the notice of voluntary dismissal were presented at a “time before the trial.” In fact, there was no trial in this case. Accordingly, under the plain language of the rule, there is no limitation in Rule 41.01(1) that would have eliminated [Homeowner’s] right to voluntarily nonsuit his case.

[W]e note that the Rule doesn’t specifically impose limitations upon voluntary nonsuits with regard to another pretrial motion — a motion for summary judgment — while referencing no limitations arising from motions to dismiss. Addressing pretrial motions, Rule 41.01(a) specifically limits the ability to nonsuit a case during the pendency of a summary judgment motion, providing that the right to voluntary nonsuit applies “except for a motion for summary judgment made by an adverse party is pending.” There is no corresponding reference, exclusion, or carveout, in other words no similar limitation, in the language of Rule 41.01(1) related to motions to dismiss.

As for the second basis of our decision, there is still a pending suit for a party to nonsuit where there is an oral pronouncement granting a motion to dismiss by a trial court but where the written order to that effect has not yet been entered. When a trial court orally dismisses a case, the dismissal does not become final until the court enters a written order…. Simply stated, in connection with judgments, no oral pronouncement is of any effect unless and until made a part of a written judgment duly entered.

As to the third basis of our decision, this court in [a previous opinion] extended nonsuit limitations to motions to dismiss by viewing dismissals on a substantive basis as akin to a final substantive merits decision after a trial of the case. Dismissal based on a failure to prosecute, however, cannot be similarly understood.

*     *     *     *     *

Failure to prosecute a case cannot be thought of as analogous with trying a case upon the merits. To the contrary, failure to prosecute is a failure to try a case, a failure to advance one’s cause of action.

*     *     *     *     *

[T]he Tennessee Supreme Court and United States Supreme Court have both considered “on the merits” language in connection with failure to prosecute and concluded that it does not refer to the conventional understanding of a decision having been reached on the substance of the matter.

*     *     *     *     *

Neither motions to dismiss nor the “on the merits” language of [previous cases] appear anywhere in Rule 41.01(1), which liberally allows for nonsuits in Tennessee until trial…. A dismissal based upon a failure to prosecute, however, is not a determination that the parties claim is without merit. Dismissal based upon failure to prosecute is not akin to trying and rejecting a claim based on a lack of substantive merits; rather, it is a failure to advance, to try the case….

We are mindful that a contrary decision in this case may result in better policy outcomes. The text, however, of Rule 41.01(1) does not support a limitation upon a right to voluntarily nonsuit under the circumstances of the present case. Nor do we understand prior judicial precedents as having placed an interpretive gloss on Rule 41.01(1) that would result in loss of the right of voluntary nonsuit under the circumstances of the present case. To the contrary, our understanding of prior cases is that a distinction exists between merits determinations based on substance and procedural dismissals such as a failure to prosecute. While such policy considerations present a siren’s song, like Odysseus, we remain tied to the mast—or in this case the text of Rule 41.01(1).

Under the text of Rule 41.01(1), [Homeowner] maintained the right to voluntarily dismiss the case when he filed the notice of voluntary dismissal [before the trial court’s written order was entered].

The Court reversed the trial court’s decision to dismiss Homeowner’s case with prejudice.

Source: Britt v. Usery (Tennessee Court of Appeals, Western Section, January 18, 2024).

If you find this helpful, please share it using the buttons below.