The day before a hearing on a motion to dismiss for lack of prosecution was held, Plaintiff filed a notice of voluntary dismissal. Plaintiff did not appear at the hearing the following day. As such, the trial court granted the motion to dismiss and dismissed the case with prejudice. We reverse and remand for the entry of an order of dismissal without prejudice pursuant to Rule 41.01 of the Tennessee Rules of Civil Procedure.
Thursday, May 23, 2019
New Case on Voluntary Dismissals ("Nonsuits") under Tenn. R. Civ. P. 41.01
The Tennessee Court of Appeals recently issued its opinion in Lemonte v. Lemonte,No. 63CC1-2018-CV-154 (Tenn. Ct. App. May 17, 2019). The syllabus from the slip opinion reads:
Here is a link to the slip opinion:
NOTE: This is a great opinion and a must-read one for any lawyer who practices in the State of Tennessee's courts. It's a good reminder that, absent few exceptions, a plaintiff has a right to take a voluntary dismissal (a "nonsuit") in civil actions in Tennessee. No motion seeking leave to nonsuit needs to be filed as I have seen done in some cases; only a notice need be filed. An order can be submitted later; and the one year to refile under the saving statute runs from the entry of that order. Tenn. R. Civ. 41.01(3).
Further, even if a motion for summary judgment is pending, which is one of the exceptions to having a right to take nonsuit, a voluntary dismissal without prejudice can still be taken with court permission. Stewart v. Univ. of Tenn., 519 S.W.2d 591, 592–94(Tenn. 1974).