                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                  November 28, 2001 Session

        CHARLES W. SALSMAN and CHARLES M. DUKE, JR.
                               v.
    TEXCOR INDUSTRIES, INC., IRBY C. SIMPKINS, JR., WESLEY G.
     GRACE, JAMES A MASSEY, and BROWNLEE O. CURREY, JR.

                        Appeal from the Circuit Court for Shelby County
                        No. 303920-3 T.D.    Karen R. Williams, Judge



                      No. W2001-00730-COA-R9-CV - Filed July 29, 2002


This appeal arises out of a petition filed in Tennessee to enroll a Texas judgment. In this case, the
plaintiffs filed a petition to enroll the foreign judgment. While this was pending, the defendants filed
a motion for leave to amend their answer to assert a counterclaim. Three days later, before the trial
court had ruled on the motion to amend, the plaintiffs filed a notice of voluntary dismissal, including
a proposed order stating that no counterclaim had been pled. The trial court entered the proposed
order. Subsequently, in response to the defendants’ motion, the trial court vacated its earlier order
of dismissal and granted the defendants’ motion to amend to assert the counterclaim. In this
interlocutory appeal, we affirm, holding under Rule 41.01(1) of the Tennessee Rules of Civil
Procedure that the proposed counterclaim attached to the motion to amend is considered a “pleaded”
counterclaim, thereby permitting the defendants to elect to proceed on the counterclaim despite the
plaintiffs’ notice of voluntary dismissal.

    Tenn. R. App. P. 9 Appeal by Permission; Judgment of the Circuit Court Affirmed

HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J.,
W.S., and ALAN E. HIGHERS, J., joined.

John S. Golwen and Ashley S. Old, Memphis, Tennessee for the Appellants, Charles W. Salsman
and Charles M. Duke, Jr.

Steven C. Douse, Nashville, Tennessee and Lee S. Saunders, Somerville, Tennessee for the
Appellees, Texcor Industries, Inc., Irby C. Simpkins, Jr., Wesley G. Grace, James A. Massey, and
Brownlee O. Currey, Jr.
                                                    OPINION

         Plaintiff/appellants Charles W. Salsman and Charles M. Duke (collectively “plaintiffs”) are
Texas residents. Defendant/appellee Texcor Industries, Inc (“Texcor”) is a Texas corporation.
Defendant/appellees Irby Simpkins, Wesley Grace, James Massey and Brownlee Currey (collectively
“defendants”) are Tennessee residents who entered into a business venture with the plaintiffs in the
early 1990s in which the defendants purchased 50% of the stock of Texcor. The venture proved
unsuccessful. As a result, the parties filed two separate lawsuits in Texas. In October 1996, the
parties entered into a “Settlement Agreement and Mutual Release” resolving both Texas lawsuits.
In this Settlement Agreement, the defendants agreed to pay the plaintiffs $383,000 on or before June
30, 1999. In addition, the parties entered an “Agreed Final Judgment” to be held in escrow until the
Settlement Agreement was fully executed. However, the defendants failed to pay in accordance with
the Settlement Agreement. On July 2, 1999, the plaintiffs filed a petition in Texas seeking to have
the Agreed Final Judgment entered against the defendants. The Texas court signed and entered the
Agreed Final Judgment, giving the plaintiffs a judgment in excess of $383,000, plus attorney’s fees
and post-judgment interest. Thereafter, the Texas plaintiffs filed a petition in Shelby County,
Tennessee to enforce the Texas judgment. The Tennessee defendants filed responses to the
Tennessee petition, asserting that the Texas judgment violated the Tennessee confession of judgment
statute, Tennessee Code Annotated § 25-2-1011, and was therefore void and unenforceable. The
defendants’ responses to the petition also raised defenses to enforcement based on fraud and
misrepresentation. The defendants’ responses asserted no counterclaims against the plaintiffs. The
trial judge heard oral argument on the petition and took the matter under advisement.

        Subsequently, while the Tennessee petition was under advisement, the plaintiffs filed a new
lawsuit in Texas, in order to obtain a judgment free from any alleged violations of the Tennessee
confession of judgment statute. The plaintiffs’ Tennessee counsel was instructed to nonsuit the
previously filed Tennessee petition to enroll the first Texas judgment. However, on February 4,
2000, before the Tennessee petition was nonsuited, the defendants filed a motion seeking leave to
amend their answer to assert a counterclaim. This motion included the proposed counterclaim. On
the same day, the defendants faxed a copy of the motion to amend and the proposed counterclaim
to the plaintiffs’ counsel. Three days later, the plaintiffs filed with the Tennessee trial court a notice
of voluntary dismissal. It included a proposed order of dismissal which stated that “no. . .counter-
claim [has] been pled in this matter.” The trial judge signed the order of dismissal.

       On February 9, 2000, the Tennessee defendants received copies of the notice of voluntary
dismissal as well as the order of dismissal. On February 10, 2000, the defendants filed a motion to


        1
            Tennessee Code Annotated § 25-2-101 (a) prov ides:

            Any powe r of attorney or au thority to co nfess judg me nt which is given before an ac tion is
            instituted and before the service of process in such action, is declared void; and any judgment
            based on such power of attorney or authority is likewise declared void.



                                                         -2-
modify the trial court’s order to reflect that only the plaintiffs’ original claims were dismissed and
that the defendants would be allowed to proceed with their counterclaim. The motion was argued
and the trial court took the matter under advisement.

        On January 19, 2001, the trial court vacated its original order dismissing the entire Tennessee
lawsuit.2 On March 16, 2001, the Tennessee trial court entered an order granting the defendants’
leave to amend to assert a counterclaim. In response, the plaintiffs sought permission to take an
interlocutory appeal, and a stay of prosecution of the defendants’ counterclaim. Permission for
interlocutory appeal was granted by the trial court, and the stay was granted as well. Subsequently,
permission for interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate
Procedure was granted by this Court as well.

         On appeal, the plaintiffs argue that the trial court erred in vacating its original order of
dismissal and in granting the defendants’ motion to amend to assert a counterclaim. The plaintiffs
first argue that the defendants had not pleaded a counterclaim prior to being served notice of the
plaintiffs’ voluntary dismissal. Therefore, they assert, the counterclaim did not survive the voluntary
dismissal. This is governed by Rule 41.01(1) of the Tennessee Rules of Civil Procedure, which
provides:

         [T]he plaintiff shall have the right to take a voluntary nonsuit to dismiss an action
         without prejudice by filing a written notice of dismissal at any time before the trial
         of a cause and serving a copy of the notice upon all parties. . .If a counterclaim has
         been pleaded by a defendant prior to the service upon the defendant of plaintiff’s
         motion to dismiss, the defendant may elect to proceed on such counterclaim in the
         capacity of a plaintiff.

(emphasis added). The plaintiffs argue that the counterclaim had not been “pleaded” under Rule
41.01(1). It is undisputed that the defendants’ motion to amend to add the counterclaim was filed
prior to the filing of the plaintiffs’ notice of voluntary dismissal.

        Our review of this case involves the interpretation of the Tennessee Rules of Civil Procedure.
“[T]he Rules of Civil Procedure are to be construed in the same way and manner as statutes are
construed.” First Tenn. Bank, N.A. v. Dougherty, 963 S.W.2d 507, 508 (Tenn. Ct. App. 1997).
Therefore, this Court’s review is de novo without a presumption of correctness for the trial court’s
legal findings. See Freeman v. Marco Transp. Co., 27 S.W.3d 909, 911 (Tenn. 2000).

        This case presents an issue of first impression, namely, under Rule 41.01(1) of the Tennessee
Rules of Civil Procedure, whether a counterclaim is deemed “pleaded” within the meaning of the
Rule if a motion for leave to amend to add the counterclaim has been filed but not yet granted. Most


         2
          Although the defendan ts’ motion soug ht on ly to vacate the portion of the order of d ismissal wh ich w ould
operate to dismiss the counterclaim, the trial court’s order appears to vacate the order of dismissal in its entirety.

                                                         -3-
courts in other jurisdictions considering this issue under the state rules of civil procedure have
concluded that “where the defendant’s motion to add a counterclaim is pending when the plaintiff
moves to voluntarily dismiss the action, the pendency of the motion for a counterclaim should defeat
dismissal.” 24 Am. Jur. 2d Dismissal § 86 (1998) (citing Our Gang, Inc. v. Commvest Sec., Inc.,
608 So. 2d 542 (Fla. Dist. Ct. App. 1992). See also Worthen v. Jones, 240 S.E.2d 842, 844 (Ga.
1977) (finding that “a motion to intervene as a defendant accompanied by a counterclaim is
sufficient to satisfy the [pleaded] counterclaim requirement. . . and preclude the plaintiff from
voluntarily dismissing his suit pending decision on the motion to intervene”). But see Chinook
Research Labs., Inc. v. U.S., 22 Cl. Ct. 853, 855 n. 1 (Cl. Ct. 1991) (stating, in dicta, that a motion
for leave to file a counterclaim was not a pleaded counterclaim for purposes of F.R.C.P. 41(a)(2)).


       In addition, a decision by the Tennessee Supreme Court regarding Rule 3 of the Tennessee
Rules of Civil Procedure is instructive. In Frazier v. East Tennessee Baptist Hospital, Inc., 55
S.W.3d 925 (Tenn. 2001), the Court considered the following issue:

       The issue before this Court is whether the filing of a proposed amended complaint
       and motion to amend with the clerk of the trial court commenced an action within the
       meaning of Rule 3 of the Tennessee Rules of Civil Procedure and Section 18-1-105
       of the Tennessee Code Annotated.

Id. at 927. In Frazier, the plaintiff had taken a nonsuit against one defendant, a hospital, while the
plaintiffs’ claims against a second defendant remained pending. Id. at 926. The plaintiff later sought
and obtained leave of court to amend her complaint to rejoin the hospital as a defendant. Id. at 926-
927. However, the defendant hospital filed a motion to dismiss, arguing that the time for re-filing
under the one-year savings statute, Tennessee Code Annotated § 28-1-105,3 had expired two days
prior to entry of the trial court’s order granting the plaintiffs’ motion to bring the hospital back in
as a defendant. Id. at 927. The motion to dismiss was granted by the trial court. On appeal, the
Tennessee Supreme Court was required to determine whether “the commencement of a new action
was untimely. . .because, although the motion to amend and proposed amended complaint were filed
prior to the running of the saving statute’s one-year limitation period, the order granting the motion
to amend was filed after the saving period had expired.” Id. at 929. Although leave of court was
required in order for the plaintiff to amend her complaint, the Frazier Court rejected the defendant



       3
           Tennessee Code Annotated § 28-1-105(a) pro vides in part:

           If the action is co mm enced w ithin the time limited by a ru le or statute of limitation, but the
           judgment or decree is rendered against the plaintiff upon any ground not concluding the
           plaintiff’s right of action, or where the judgmen t or decree is rendered in favor of the plaintiff,
           and is arrested, or reversed on appeal, the plaintiff, or the plaintiff’s representatives and p rivies,
           as the case may be, may, from time to time, comm ence a new action within one (1) year after
           the reversa l or arre st.

                                                            -4-
hospital’s argument that the action against the hospital was not commenced until entry of the trial
court’s order granting the plaintiff’s motion for leave to amend. Id. at 930. The Court held:

       [W]hen the motion to amend the complaint and a proposed amended complaint are
       filed prior to the running of the statute of limitations, the motion to amend stands in
       place of the actual amended complaint while the motion is under review by the court.
       The fact that an order granting the motion to amend is entered after expiration of the
       statute of limitations does not make the amended complaint untimely.

Id. (emphasis added).

        In this case, the plaintiffs correctly note that the defendants’ motion to amend its response
to include a counterclaim required leave of the trial court under Rule 13.06 of the Tennessee Rules
of Civil Procedure. This was true of the motion to amend in Frazier as well. In Frazier, the Court
held that a motion to amend the complaint “stands in place of the actual amended complaint while
the motion is under review by the court.” Frazier, 55 S.W.3d at 930. This reasoning must also be
applied to interpret Rule 41.01(1) of the Tennessee Rules of Civil Procedure. Thus, we hold that
a motion to assert a counterclaim which is pending at the time the plaintiff files a notice of voluntary
dismissal is considered a pleaded counterclaim under Rule 41.01(1) where, as here, the motion for
leave to amend is later granted.

         The plaintiffs argue that the trial court did not have jurisdiction to grant the defendants
permission to amend their answer to assert a counterclaim once the trial court’s order of dismissal.
became final. However, the defendants filed a “Motion to Vacate Order of Dismissal” three days
after the trial court’s order of dismissal was entered. This motion was, in effect, a motion to modify
or set aside the judgment before the judgment became final. See Tenn. R. Civ. P. 59.04. Under Rule
59.04, it is well settled that “any order or judgment of the Circuit Court is subject to the control of
the trial judge and may be modified or set aside by him at any time before becoming final.” Newport
Hous. Auth., Inc. v. Hartsell, 533 S.W.2d 317, 320 (Tenn. Ct. App. 1975). Therefore, the trial court
had jurisdiction to modify its previously issued order of dismissal to permit the defendants to assert
their counterclaim.

         The plaintiffs also argue that the entire lawsuit, including the proposed counterclaim, was
terminated automatically upon their filing of a notice of voluntary dismissal and, therefore, the trial
court lacked jurisdiction to grant the defendants’ motion to amend to assert the counterclaim. While
it is true that “[t]he court has no jurisdiction over a counterclaim filed after the suit is voluntarily
dismissed,” see 24 Am. Jur. 2d Dismissal § 86 (1998), in this case, the motion to amend to assert the
counterclaim was filed before the notice of the voluntary dismissal. As noted above, the defendants’
motion to amend to assert a counterclaim is considered a pleaded counterclaim for purposes of Rule
41.01(1), where the motion to amend is later granted. Therefore, notwithstanding the plaintiffs’
notice of voluntary dismissal, the trial court retained jurisdiction over the defendants’ motion to
amend. Therefore, the trial court did not err in vacating its order of dismissal and in granting the
defendants’ motion for leave to amend to assert their counterclaim.

                                                  -5-
         The decision of the trial court is affirmed. Costs of this appeal are taxed against the
appellants, Charles W. Salsman and Charles M. Duke, and their surety, for which execution may
issue if necessary.




                                                    ___________________________________
                                                    HOLLY KIRBY LILLARD, JUDGE




                                              -6-
