This is not a family law case, but it addresses a procedural issue that family-law attorneys sometimes face.

Facts: Plaintiff sued Defendants over a dispute about an easement.

A scheduling order was entered, but the case was delayed for some time because of Plaintiff’s actions. Defendants moved to dismiss the case for failure to prosecute per TRE 41.02(1).

The trial court denied the motion to dismiss but imposed sanctions against Plaintiff, ordering Plaintiff “to pay all of each Defendant’s attorney’s fees associated with Plaintiff’s delays, including attendance at prior hearings on motions to withdraw, today’s hearing, and all preparations for any such hearings.” Defendants’ counsel was ordered to submit affidavits itemizing their time.

Five days later, Plaintiff voluntarily dismissed the lawsuit. Defendants’ counsel subsequently filed affidavits for their fee claim and a motion to enforce the sanctions order.

Plaintiff argued the trial court lacked jurisdiction to rule on Defendants’ motion after Plaintiff’s voluntary dismissal. Defendants argued the trial court created a vested right in their favor when it awarded them the right to recover attorney’s fees as a sanction, with the amount to be determined later. They argued the trial court retained jurisdiction for the limited purpose of determining the amount of this vested right and to enforce it.

The trial court agreed with Defendants and entered an order directing Plaintiff to pay $7462.50 to Defendants for their attorney’s fees per the sanctions order.

Plaintiff appealed.

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

Plaintiff argued the trial court lost subject matter jurisdiction when he voluntarily dismissed his case because none of the exceptions to Plaintiff’s right to dismiss his case applied, e.g., Defendants did not file a counterclaim, there was no motion for summary judgment pending, etc.

Defendants argued the order of dismissal was not a final order because their claims for attorneys’ fees were pending. They argued this gave them a vested right to recover their attorney’s fees, which prevented Plaintiff from voluntarily dismissing the lawsuit.

TRCP 41.01 allows liberal use of voluntary nonsuits any time before “final submission” to the trial court for decision in a bench trial or any jury trial before the jury retires to deliberate. Rule 41.01 allows a voluntary dismissal regardless of the time or expense the parties may have expended. The right to a nonsuit under Rule 41.01 does not require a trial court’s permission or adjudication.

There are exceptions expressly stated in Rule 41.01(1), such as when a motion for summary judgment is pending, as well as an implied exception that prohibits a nonsuit when it would deprive the defendant of some vested right.

The protection of “vested rights” is rooted in due process, the principles of which prevent a plaintiff from voluntarily dismissing a lawsuit when doing so would deprive a defendant of some right that vested while the case was pending. A “vested right,” although difficult to define with precision, is one where “it is proper for the state to recognize and protect and of which an individual could not be deprived arbitrarily without injustice.”

A vested right is something more than a mere expectation. It requires a higher standard than the rule that applies when a nonsuit is sought while a motion for summary judgment is pending, where the court considers whether the nonsuit would cause “plain legal prejudice to the defendant.”

Here, the Court found that the interlocutory order imposing sanctions on Plaintiff, for which attorney’s fees were to be awarded to Defendants, was nothing more than a mere expectation as distinguished from a vested right:

Plaintiff’s nonsuit in this case did not deprive Defendant of some right that became vested during the pendency of the case. Accordingly, we hold that Defendants have failed to carry their burden of proof to show their expectancy of recovering their attorney’s fees as a Rule 37 sanction under the trial court’s interlocutory order bestowed upon them a vested right to recover such fees.

*     *     *     *     *

[Plaintiff] did not need the consent of Defendant’s or the trial court to dismiss this case…. [I]n the absence of any of the recognized exceptions, the plaintiff is the sole judge of the matter and the trial court has no control over it. All that is required to dismiss prior to the trial, in the absence of the existence of any of the exceptions [], if the filing of a written notice of dismissal. [Plaintiff] did just that. Accordingly, Defendants’ intent, or more accurately stated, desire to recover their attorney’s fees, is of no legal consequence to the legal effect of the filing of the notice of voluntary dismissal or the import of the order of dismissal in this case.

Finding that Defendants failed to establish that their expectation of recovering their attorney’s fees constituted a vested right, the Court held the case was effectively dismissed upon the filing of the notice of voluntary dismissal. Because the trial court lacked jurisdiction to award Defendants their attorney’s fees, the Court vacated that award.

Concurring: Judges Bennett and McGee filed a concurring opinion lamenting that while the Court’s opinion reflects existing law, they believe the law should be changed to prevent a plaintiff from avoiding sanctions for their bad actions taken before the nonsuit.

The sanction was ordered. Only the amount was yet to be determined. A voluntary nonsuit should not allow Plaintiff to escape responsibility for his actions or to prevent [Defendants] from being properly compensated for Plaintiff’s wrongdoing.

K.O.’s Comment: The concurring opinion makes sense. I hope the Advisory Commission on the Rules of Practice & Procedure will consider changing Rule 41.01 to fix this.

Source: Heerdink v. Osborne (Tennessee Court of Appeals, Middle Section, September 24, 2024).

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