                                                                                                          01/29/2019
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                    December 6, 2018 Session

       MARTHA RENNER v. TAKOMA REGIONAL HOSPITAL, ET AL.

                     Appeal from the Circuit Court for Greene County
                       No. CC-17-CV536       Alex E. Pearson, Judge


                                  No. E2018-00853-COA-R3-CV


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 Procedure1
prohibits the taking a voluntary nonsuit when a summary judgment motion is pending.
We affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                             Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which CHARLES D.
SUSANO, JR., J. and D. MICHAEL SWINEY, C.J. joined.

Kelly S. Street, Heidi A. Barcus, Brett N. Mayes, Knoxville, Tennessee, for the
appellants, Takoma Regional Hospital, Inc., Beth Bulawa, M.D., and Mark Andrew
Murray, M.D.

Elizabeth M. Hutton, Charles T. Herndon, IV, K. Justin Hutton, Johnson City, Tennessee,
for the appellant, Jim Brantner, M.D.

George Todd East, Kingsport, Tennessee, for the appellee, Martha Renner.



1
 “[E]xcept when a motion for summary judgment made by an adverse party is pending, the 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[.]”
                                                 OPINION

                                    I.      BACKGROUND

       Martha Renner (“Plaintiff”) filed this health care liability action on December 14,
2017, against Tacoma Regional Hospital, Inc. (“Hospital”); Beth Bulawa, M.D.; Mark
Andrew Murray, M.D., and James Brantner, M.D.2 (collectively “Defendants”). Her
claim arose from alleged malpractice committed on August 24, 2016, and September 11
through September 19, 2016.

        Defendants filed motions to dismiss in February 2018,3 alleging, inter alia, that
Plaintiff failed to attach a certificate of good faith in violation of Tennessee Code
Annotated Section 29-26-122.4 On February 9, Plaintiff filed a certificate of good faith,
dated December 14, 2017, with the court clerk via fax. Plaintiff also included a
certificate of service certifying delivery to the Defendants.

       In March 2018, Defendants filed motions for summary judgment, arguing that
they were entitled to judgment as a matter of law due to Plaintiff’s non-compliance with
Section 29-26-122(a). Three affidavits were attached to the motion filed by Hospital and
Drs. Bulawa and Murray, in which all parties attested that no certificate of good faith was
included with the original complaint.

       On April 6, Plaintiff filed a motion for voluntary nonsuit pursuant to Rule 41.01 of
the Tennessee Rules of Civil Procedure. Defendants objected, arguing that Rule 41.01
prohibits the taking a voluntary nonsuit when a summary judgment motion is pending.
Plaintiff responded by asserting that the “proper way” to challenge her noncompliance
with Section 29-26-122(a) was through a motion to dismiss, not summary judgment.5



2
 Suit was also filed against Patrick Costello, M.D. He too filed a motion to dismiss but never filed a
motion for summary judgment. Accordingly, he is not a party to this appeal.
3
    Some defendants filed their responsive pleadings separately from the other defendants.
4
  “(a) In any health care liability action in which expert testimony is required by § 29-26-115, the plaintiff
or plaintiff’s counsel shall file a certificate of good faith with the complaint. If the certificate is not filed
with the complaint, the complaint shall be dismissed, as provided in subsection (c), absent a showing that
the failure was due to the failure of the provider to timely provide copies of the claimant’s records
requested as provided in § 29-26-121 or demonstrated extraordinary cause.”
5
 Defendants note that this response was untimely filed and that Plaintiff also failed to respond to the
Defendants’ Statement of Undisputed Facts.
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      The case proceeded to a hearing, after which the trial court entered an order of
voluntary dismissal. The court explained its decision as follows:

       I’m going to find that the proper vehicle to challenge [compliance] is the
       motion to dismiss.

       I’m further going to find that the effort to file the motion for summary
       judgment, that it’s in fact just a restyled motion to dismiss in that there are
       no facts that are necessary there. Basically, all we’re doing is challenging
       the fact that the certificate wasn’t there, and so I’m just going to find that
       it’s a motion to dismiss and not a motion for summary judgment. Having
       made that finding, I’m going to enter the nonsuit that’s been moved
       forward by [Plaintiff].

This timely appeal followed.

                                         II.     ISSUE

      The sole and dispositive issue on appeal is whether the trial court erred in granting
the motion for voluntary dismissal when motions for summary judgment were pending.

                            III.   STANDARD OF REVIEW

       This case presents an issue of law, which we review de novo with no presumption
of correctness. Whaley v. Perkins, 197 S.W.3d 665, 670 (Tenn. 2006); Union Carbide
Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

                                   IV.         DISCUSSION

        As pertinent to this appeal, Tennessee Code Annotated section 29-26-122 provides
as follows:

       (a) In any health care liability action in which expert testimony is required
       by § 29-26-115, the plaintiff or plaintiff’s counsel shall file a certificate of
       good faith with the complaint. If the certificate is not filed with the
       complaint, the complaint shall be dismissed, as provided in subsection (c),
       absent a showing that the failure was due to the failure of the provider to
       timely provide copies of the claimant’s records requested as provided in §
       29-26-121 or demonstrated extraordinary cause.

                                                ***
                                                -3-
       (c) The failure of a plaintiff to file a certificate of good faith in compliance
       with this section shall, upon motion, make the action subject to dismissal
       with prejudice.

The Tennessee Supreme Court has held that the “proper way” to challenge a plaintiff’s
compliance with the healthcare liability statutes is through a Tennessee Rule of Procedure
12.02(6) motion to dismiss. Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307 (Tenn.
2012). Our court then provided the following further guidance:

       In the motion, the defendant should state how the plaintiff has failed to
       comply with the statutory requirements by referencing specific omissions in
       the complaint and/or by submitting affidavits or other proof. Once the
       defendant makes a properly supported motion under this rule, the burden
       shifts to the plaintiff to show either that it complied with the statutes or that
       it had extraordinary cause for failing to do so.

Id. (Emphasis added.). However, the Tennessee Rules of Civil Procedure also provides a
plaintiff with the “right” to take a voluntary nonsuit before the trial, except when a
motion for summary judgment is pending. See Tenn. R. Civ. P. 41.01 (“[E]xcept when a
motion for summary judgment made by an adverse party is pending, the 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[.]”).

       Defendants argue that the court erroneously relied upon the language in Myers in
considering the motion for summary judgment as a “restyled” motion to dismiss.
Defendants explain that the Court in Myers did not address whether a defendant may
alternatively seek summary judgment. They assert that they were entitled to request
summary judgment at their own discretion and that once filed, the matter was no longer
subject to an unrestricted right of voluntary dismissal. They cite a variety of cases in
support of their assertion and note that their filing of the summary judgment motion
should have been considered by the trial court pursuant to Rule 41.01. See Runions v.
Jackson-Madison Cty. Gen. Hosp. Dist., 549 S.W.3d 77, 85 (Tenn. 2018) (considering
the plaintiff’s compliance in the context of a motion for summary judgment); Kirby v.
Sumner Reg’l Med. Ctr., No. M2015-01181-COA-R3-CV, 2016 WL 3914189, at *3
(Tenn. Ct. App. Jul. 12, 2016) (considering the plaintiff’s compliance in the context of a
motion for summary judgment because documents attached to the motion to dismiss
necessarily converted the motion into one for summary judgment); and West v. Amisub
(SFH), Inc., No. W2012-00069-COA-R3-CV, 2013 WL 1183074, at *3-4 (Tenn. Ct.

                                             -4-
App. Mar. 21, 2013) (considering the plaintiff’s compliance in the context of a motion for
summary judgment).

        This appears to be an issue of first impression not yet specifically addressed by our
courts. While Defendants found cases in which summary judgment was considered,
based in part on a plaintiff’s failure to comply with the health care liability statutes, these
cases either did not address the language in Myers or are easily distinguishable by the
facts presented. See Runions, 549 S.W.3d at 80-81 (requesting summary judgment, in
part, because the defendant provided no medical care to the plaintiff); Kirby, 2016 WL
3914189, at *1-2 (considering a claim of extraordinary cause with supportive
documentation). Here, both the motions to dismiss and for summary judgment related
solely to the failure to file the certificate of good faith. The affidavits submitted to
support summary judgment also related solely to the failure to file the required certificate
and provided no new information concerning Plaintiff’s compliance or additional grounds
in support of the request for summary judgment. Under these circumstances, we
conclude that the court did not err in treating the motions for summary judgment as
restyled motions to dismiss pursuant to the Court’s direction in Myers. See generally
Ferguson v. Brown, 291 S.W.3d 381, 387 (Tenn. Ct. App. 2008) (providing that a trial
court is not bound by the title of the pleading or motion but has the discretion to treat the
pleading in accordance with the actual relief sought). We further conclude that Plaintiff’s
right to take a voluntary nonsuit was not disturbed pursuant to Rule 41.01 and that the
court did not err in entering an order of voluntary dismissal. See Hurley v. Pickens, 536
S.W.3d 419, 425 (Tenn. Ct. App. 2016) (affirming the court’s entry of an order of
voluntary dismissal while a motion to dismiss was pending).

                                  V.      CONCLUSION

       The judgment of the trial court is affirmed, and the case is remanded for such
further proceedings as may be necessary. Costs of the appeal are taxed equally to the
appellants, Takoma Regional Hospital, Inc., Beth Bulawa, M.D., Mark Andrew Murray,
M.D., and Jim Brantner, M.D.


                                                   _________________________________
                                                   JOHN W. McCLARTY, JUDGE




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