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Wednesday, October 12, 2016

New Health Care Liability Action Opinion: Plaintiff Allowed to Take a Voluntary Dismissal Without Prejudice Despite Pending Motion to Dismiss

Recently the Tennessee Court of Appeals issued its opinion in Clark v. Werther, No. M2014-00844-COA-R3-CV (Tenn. Ct. App. Sept. 27, 2016).  The syllabus from the slip opinion states as follows:
The plaintiff, acting pro se, filed a complaint in this health care liability action without attaching a certificate of good faith. Several defendants filed motions to dismiss based on the missing certificate. The plaintiff responded to the motions and filed a notice of voluntary nonsuit. Some of the defendants objected to the voluntary dismissal, arguing the complaint should be dismissed with prejudice. The trial court dismissed the plaintiff‟s claims against the non-objecting defendants without prejudice but dismissed the plaintiff‟s claims against the objecting defendants with prejudice. The plaintiff appealed all of the court‟s dismissal orders on numerous grounds. Upon review, we conclude that Rule 41.01 of the Tennessee Rules of Civil Procedure afforded the plaintiff the right to a voluntary dismissal without prejudice as to all defendants. Accordingly, we affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.
Here's a link to the slip opinion:

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