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Wednesday, January 30, 2019

New Health Care Liability Action Opinion: Plaintiff Allowed to Take a Nonsuit Despite the Fact That a Certificate of Good Faith Was Not Filed with the Complaint

The Tennessee Court of Appeals recently released its opinion in Renner v. Takoma Regional Hospital, No. E2018-00853-COA-R3-CV (Tenn. Ct. App. Jan. 29, 2019).  The syllabus from the slip opinion reads as follows:
This is a health care liability action in which the defendants filed a motion to dismiss based upon the plaintiff’s failure to file a certificate of good faith with the complaint. The plaintiff then filed the required certificate. The defendants responded with motions for summary judgment with attached affidavits, attesting that a certificate of good faith was not attached to the original complaint. The plaintiff moved for voluntary dismissal. The court granted the plaintiff’s motion and filed an order of voluntary dismissal. The defendants appeal, claiming that Rule 41.01 of the Tennessee Rules of Civil Procedure prohibits the taking a voluntary nonsuit when a summary judgment motion is pending. We affirm.
(Footnote omitted.)

Here is a link to the slip opinion: 

NOTE: Some things to take with you after reading this opinion: first, if a motion for summary judgment is not pending, a plaintiff, in a Tennessee state court civil action, has a right to take a nonsuit (a.k.a. a voluntary dismissal without prejudice) without having to file a motion.  Tenn. R. Civ. P. 41.01.  Second, if a motion for summary judgment is pending, a plaintiff may still take a nonsuit with a court's permission.  Stewart v. Univ. of Tenn., 519 S.W.2d 591,593–94 (Tenn. 1974).  

However, if a nonsuit is taken against a governmental entity, suit cannot be refiled under the saving statue because it does not save the action.  That subject is for a post on another day.

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