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

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

Jurisdiction

(continued from page 9)

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)

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