The Power of Tenn. R. Civ. P. 41 and Subject Matter Jurisdiction

The majority of us are well acquainted with a plaintiff’s right to voluntary dismissal of their cause of action under Tenn. R. Civ. P. 41. Most attorneys do not realize there is a latent power which can lay dormant throughout years of litigation. The use of Rule 41 is a wellknown and valid trial stratagem to preserve a client’s cause of action to toll the statute of limitations, for example, when the full quantum of a party’s damages are not yet known or are still accruing. Many attorneys simply think that a plaintiff has an unrestricted right to twice “nonsuit” their case under Rule 41 before jeopardy attaches, i.e., before the judge rules or when the jury starts deliberating.1 However, the Rule 41 is much more textured.

There are cases in which an extensive course of litigation has been dismissed completely for lack of subject matter jurisdiction under Tenn. R. Civ. P. 41 because a timely dismissal of the cause of action removes subject matter jurisdiction of the court over the issue. The filing of the notice of voluntary dismissal is the triggering event which removes subject matter jurisdiction from the trial court independent of any action by the trial court judge.

Subject matter jurisdiction is an issue that cannot be waived and may be raised at any point in litigation, even at the appellate levels.2 “Rule 41.01 permits a voluntary nonsuit notwithstanding the amount of time or expense that may have been expended by the parties.”3

Proper Instigation of Voluntary Dismissal Under Rule 41

The timely filing of a notice of voluntary dismissal without prejudice is the instigating action which halts further litigation and pre- serves a plaintiff’s cause of action. Though a plaintiff has unrestricted right to voluntary dismissal without action or adjudication by the court, said voluntary dismissal without prejudice must be followed by an order signed by the court and entered by the clerk.4

Accordingly, the plaintiff’s counsel must be exact in implementing a Rule 41 voluntary dismissal. The simple standard procedure of filing a proposed order of dismissal along with the required notice will preclude any further controversy on whether the voluntary dismissal is effective.

However, the plaintiff’s right to nonsuit is not unrestricted. While Tennessee courts have been meticulous in protecting a plaintiff’s right to voluntary nonsuit without prejudice, our courts have been equally stringent in protecting a defendant’s right to pursue a timely filed counterclaim to conclusion on the merits. A plaintiff’s right of voluntary nonsuit has been held inferior to a mere defendant’s motion to amend their answer to include a counterclaim.5

A defendant that has filed an answer and countercomplaint may elect to go forward “on such counterclaim in the capacity of a plaintiff.”6 Therefore, the defendant who files an answer and a counterclaim before the plaintiff files their order of voluntary dismissal, locks the parties into the litigation. The defendant’s right to go forward on their counterclaim and invalidate a proposed voluntary nonsuit centers around whether there is a “vested right” and what exactly is a “counterclaim.”7

A valid counterclaim cannot be “mere denials of the plaintiff’s cause of action.”8 The defendant’s counterclaim must state facts upon which affirmative relief can be granted and which arise out of the same subject matter of the original opposing party’s claim.9 However, mere survival of the counterclaim does not entitle party to judgment. To prevail on the merits to judgment requires actual submission of proof before the court on the defendant’s counterclaim.10

Returning to a plaintiff’s right to nonsuit, some fact patterns are rather extreme. For example, a plaintiff mother filed suit in general sessions court against her OB/ GYN on behalf of her infant son who was allegedly injured during childbirth. When finally brought to trial before the general sessions court, counsel for the defendant hospital attempted to file an order confessing to judgment in the general sessions jurisdictional limit of $25,000. The general session judge denied the hospital’s attempted confession of judgment and entered an order nonsuiting the matter. The next day, the plaintiff refiled the medical negligence suit in circuit court asserting $5,000,000.00 in damages. The hospital filed a motion for declaratory judgment combining it with the previously filed motion for summary judgment and/or partial summary judgment. The circuit court granted the hospital’s motion and certified entry as a final judgment under Rule 54.02, finding that the hospital “obtained a vested right to confess judgment which was paramount to the plaintiff’s right to nonsuit her case.”11 Regardless of the rather extensive course of the litigation, the court of appeals reversed the trial court’s finding based upon the fact that the plaintiff had sought dismissal of the case before the general sessions court entered an order on the asserted confession of judgment.12 The fulfillment of right to voluntary dismissal has been held to occur when even mere notice of voluntary dismissal has been filed and properly received.13

Guiding Principles:

1. Proper notice of voluntary dismissal, counterclaim, and/or summary judgment is vital to your client’s case, for the plaintiff or the defendant. Fortunately, with the current trend in electronic filing, documentation of the exact sequence of either parties’ notice filings is now straightforward.

2. A court loses jurisdiction over any matter or filings filed after properly granting the plaintiff’s motion for voluntary dismissal.14

3. Prior notice filed with the court, even without the actual filing of a motion either for voluntary dismissal or summary judgment will be found to be paramount to the opposing parties’ actions. Notice is everything.

Do not jeopardize your client’s course of litigation by failing to give proper notice of either voluntary dismissal or the defendant’s remedy.

I hope this article is informative and will help avoid any of those “Oh Gosh” moments that all litigating attorneys have experienced, usually late at night.

TIM ISHII has been a solo practitioner concentrating on appellate practice since 1996. His other interests include international travel, DSLR and drone photography. He may be reached at 615-326-4191 or timishii@ timishiiattorney.com

Endnotes

1 Tenn. R. Civ. P. 41.01(1)

2 Church of God in Christ, Inc. v. L. M. Haley Ministries, Inc., 531 S.W.3d 146, 157 (Tenn 2017).

3 Robert E. Lee v. City of Shelbyville, Tennessee, et al. Additional Party Names: Bedford

County. Listening Project, Stephanie Isaacs, No. M202200553COAR3CV, 2023 WL 2200729, at *9 (Tenn. CT. APP Feb. 24, 2023)

4 Id.; Tenn. R. Civ. P. 41.01(3).

5 Autin v. Goetz, 524 S.W.3d 617, 633–34 (Tenn. CT APP 2017).

6 T.R.C.P. 41.01(1)

7 Ross v. Grandberry, No. W2013-00671-COA-R3CV, 2014 WL 2475580, at *2 (Tenn. CT. APP May 30, 2014)

8 Blake v. Plus Mark, Inc., 952 S.W.2d 413, 416 (Tenn 1997).

9 Id.

10 Blake v. Plus Mark, Inc., 952 S.W.2d 413, 416 (Tenn 1997)

11 Ross v. Grandberry, No. W2013-00671-COAR3CV, 2014 WL 2475580, at *6 (Tenn. CT. APP May 30, 2014)

12 Id.

13 Ewan v. Hardison Law Firm, 465 S.W.3d 124, 130 (Tenn. CT. APP 2014)

14 Autin v. Goetz, 524 S.W.3d 617, 634 (Tenn. CT. APP 2017)