New Health Care Liability Action Opinion: Another Opinion Acknowledging That a Plaintiff Has the Right to Take a Voluntary Dismissal Without Prejudice Even If a Motion to Dismiss Is Pending

The Tennessee Court of Appeals has issued another opinion concerning a plaintiff's right to take a nonsuit in a health care liability action when a motion to dismiss is pending.  The case is Hurley v. Pickens, No. E2015-02089-COA-R3-CV (Tenn. Ct. App. Sept. 29, 2016).  The syllabus from the slip opinion states as follows:

Dallas K. Hurley, Jr. (“Plaintiff”) sued Ryan B. Pickens, M.D. and University Urology, P.C. (“Defendants”) alleging claims for health care liability. Defendants filed a motion to dismiss. While the motion to dismiss was pending, Plaintiff filed a notice of and motion for voluntary dismissal pursuant to Tenn. R. Civ. P. 41. The Circuit Court for Knox County (“the Trial Court”) granted Plaintiff a voluntary dismissal without prejudice. Defendants appeal to this Court raising issues regarding whether Plaintiff had the right to take a voluntary dismissal without prejudice when a motion to dismiss was pending and whether Plaintiff failed to comply with Tenn. Code Ann. § 29-26-122 requiring dismissal of Plaintiff’s suit with prejudice. We find and hold that Plaintiff had the right to take a voluntary dismissal even while a motion to dismiss was pending. Our resolution of this issue renders Defendants’ second issue moot. We, therefore, affirm the Trial Court’s order granting Plaintiff a voluntary dismissal.

Here's a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/hurleydkopn.pdf