               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 June 21, 2016 Session

       DALLAS K. HURLEY, JR. v. RYAN B. PICKENS, M.D., ET AL.

                     Appeal from the Circuit Court for Knox County
                       No. 2-262-15   William T. Ailor, Judge


           No. E2015-02089-COA-R3-CV-FILED-SEPTEMBER 29, 2016


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.

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

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and ARNOLD B. GOLDIN, JJ., joined.

Edward G. White, II and Joshua J. Bond, Knoxville, Tennessee, for the appellants, Ryan
B. Pickens, M.D., and University Urology, P.C.

D. Scott Hurley and Ryan N. Shamblin, Knoxville, Tennessee, for the appellee, Dallas K.
Hurley, Jr.
                                       OPINION

                                      Background

       Plaintiff filed the instant suit and a Certificate of Good Faith in May of 2015. The
Certificate of Good Faith disclosed zero prior violations of Tenn. Code Ann. § 29-26-
122, but did not state whether Plaintiff’s counsel had consulted with an expert competent
under Tenn. Code Ann. § 29-26-115 to express opinions in this case.

       Defendants answered Plaintiff’s complaint and filed a motion to dismiss.
Defendants’ motion to dismiss alleged that Plaintiff had failed to comply with Tenn.
Code Ann. § 29-26-121(a)(4) by failing to file an affidavit with regard to the mailing of
pre-suit notice and that Plaintiff also failed to comply with Tenn. Code Ann. § 29-26-122
due to the allegedly deficient Certificate of Good Faith.

       Plaintiff responded to the motion to dismiss and filed a “Notice of Filing of
Corrected/Amended Certificate of Good Faith and Corrected/Amended Affidavit of
Mailing” and a motion for extension of time in which to file a corrected Certificate of
Good Faith, or in the alternative, for leave to amend the Certificate of Good Faith.
Plaintiff also filed a motion for and notice of voluntary dismissal without prejudice
pursuant to Tenn. R. Civ. P. 41.

       A hearing was set on the pending motions. At the hearing, but prior to any
argument on Defendants’ motion to dismiss, Plaintiff announced that he wanted to take a
voluntary dismissal pursuant to Tenn. R. Civ. P. 41. The Trial Court heard argument on
the issue of whether Plaintiff could take a voluntary dismissal without prejudice when a
motion to dismiss was pending. The Trial Court then entered its order on October 16,
2015 allowing and granting Plaintiff a voluntary dismissal without prejudice pursuant to
Tenn. R. Civ. P. 41.01. Because the Trial Court allowed Plaintiff to take a voluntary
dismissal, the Trial Court did not address any of the other pending motions. Defendants
appeal to this Court.

                                       Discussion

       Although not stated exactly as such, Defendants raise two issues on appeal: 1)
whether the Trial Court erred in allowing Plaintiff to take a voluntary dismissal without
prejudice when a motion to dismiss was pending; and, 2) whether Plaintiff failed to
comply with Tenn. Code Ann. § 29-26-122 requiring dismissal of Plaintiff’s suit with
prejudice.



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       We first will address whether the Trial Court erred in allowing Plaintiff to take a
voluntary dismissal without prejudice when a motion to dismiss was pending. This issue
involves interpretation of Tenn. R. Civ. P. 41.01. “Interpretation of the Tennessee Rules
of Civil Procedure is a question of law,” which we review de novo with no presumption
of correctness. Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004).

       Defendants assert that the Trial Court erred by allowing Plaintiff to take a
voluntary dismissal over objection when their motion to dismiss was pending. They base
this assertion, in large part, on Tenn. Code Ann. § 29-26-122, which provides, in
pertinent part:

       (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. . . .

                                             ***

       (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 court may, upon motion, grant an extension within
       which to file a certificate of good faith if the court determines that a health
       care provider who has medical records relevant to the issues in the case has
       failed to timely produce medical records upon timely request, or for other
       good cause shown.

Tenn. Code Ann. § 29-26-122 (2012).

        In their brief on appeal, Defendants rely heavily on 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” language of the statute to argue that Plaintiff’s
suit should not have been voluntarily dismissed without prejudice. In the case now
before us, Plaintiff filed a Certificate of Good Faith with his complaint, but the certificate
allegedly was deficient due to failure to comply with Tenn. Code Ann. § 29-26-122(a)
with regard to the contents of the certificate.

      Plaintiff asserts that he had an absolute right to take a voluntary dismissal pursuant
to Tenn. R. Civ. P. 41.01, which provides, as pertinent:
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      Subject to the provisions of Rule 23.05, Rule 23.06 or Rule 66 or any
      statute, and except 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, . . . ; or by an oral notice of dismissal made in
      open court during the trial of a cause; or in jury trials at any time before the
      jury retires to consider its verdict and prior to the ruling of the court
      sustaining a motion for a directed verdict. . . .

Tenn. R. Civ. P. 41.01(1).

        This Court already has addressed the issue of whether a plaintiff in a health care
liability action may take a voluntary dismissal when a motion to dismiss is pending in
Robles v. Vanderbilt Univ. Med. Cntr. wherein we stated:

              Defendants contend that the trial court’s action in allowing plaintiff
      to voluntarily dismiss the action without prejudice is contrary to the
      statutory mandate; their argument is premised on the contention that the
      complaint was “due to be dismissed with prejudice” due to the failure of
      plaintiff to file the certificate of good faith with the complaint. We do not,
      however, construe Tenn. Code Ann. § 29–26–122 as imposing an exception
      or limitation on the right of a plaintiff to voluntarily dismiss an action
      without prejudice under Rule 41.01.

              Tenn. R. Civ. P. 41 grants a plaintiff an absolute right to voluntarily
      dismiss an action, without prejudice to its refiling; the right, however, is
      “[s]ubject to the provisions of Rule 23.05, Rule 23.06, or Rule 66 or of any
      statute . . . .” Tenn. R. Civ. P. 41.01. This rule embodies the policy of
      Tennessee jurisprudence that the right of the plaintiff to dismiss the action
      without prejudice is “free and unrestricted” except in limited and well-
      defined circumstances. See Lacy v. Cox, 152 S.W.3d 480, 484 (Tenn.
      2004); Stewart v. Univ. of Tenn., 519 S.W.2d 591, 592 (Tenn. 1974).
      Although the rule does not identify a particular statute to which it applies,
      consideration of Rules 23.05, 23.06 and 66 leads to the conclusion that
      exceptions to the right of a plaintiff to voluntarily dismiss an action without
      prejudice are limited, should result from a clear application of the rule or
      statute at issue, and should not be inconsistent with the fact that the right of
      voluntary dismissal without prejudice is “absolute.” See 4 NANCY

                                             4
FRAAS MACLEAN, TENNESSEE PRACTICE, Author’s Cmt. 41:2 at 99
(4th ed. 2006).

       Tenn. R. Civ. P. 23.05 and 23.06 are not at issue in this appeal and
apply only to actions which are brought by a plaintiff in a representative
capacity, where decisions as to the continued prosecution of the case may
bind or otherwise affect others not named or participating as parties to the
suit. Under such circumstance, the right of the plaintiff to otherwise
voluntarily dismiss the action is limited by the fact that the plaintiff also
pursues the action in a representative capacity. The rules require the court
to make a determination that the rights of those whose rights might be
affected are not jeopardized by the voluntary dismissal and that notice of
the proposed dismissal be given to unrepresented parties. Rule 66 provides
that an action in which a receiver has been appointed can only be dismissed
by order of the court; this is consistent with the fact that, once appointed,
the receiver is an officer of the court and, with respect to the property under
control, acts subject to the court’s instruction. See 4 NANCY FRAAS
MACLEAN, TENNESSEE PRACTICE, Author’s Cmt. 66:1 at 775–77
(4th ed. 2006). The specified rules do not address the question of whether
the voluntary dismissal is with or without prejudice.

       Rule 41.01, however, expressly grants a plaintiff “the right to take a
voluntary nonsuit to dismiss an action without prejudice . . . .” (emphasis
added). The only role for the court in this regard is to determine whether a
suit which has been re-filed is barred under the circumstances presented in
Rule 41.01(2) or to enter the order required by Rule 41.01(3). Any other
dismissal is involuntary, calls for court involvement, and operates as an
adjudication on the merits. See Tenn. R. Civ. P. 41.02–.03.

        Under Tenn. Code Ann. § 29–26–122, the dismissal of the complaint
mandated by subsection (a) must be “as provided in subsection (c)”; that
section provides that failure to file the certificate “make[s] the action
subject to dismissal with prejudice.” (emphasis added). In both sections of
the statute, the failure to file the certificate with the complaint may be
excused and not result in dismissal of the action with prejudice: under (a)
upon a finding that the provider has failed to provide records in accordance
with the statute or upon a showing of “demonstrated extraordinary cause,”
and under (c) where the court is given discretion to extend the time for
filing the certificate “for other good cause shown.” In short, the statute
allows for the late filing of a certificate; dismissal of the action with
prejudice based on the fact that the certificate was not filed with the
                                      5
       complaint is not automatic. Nothing in the statute operates to prevent a
       plaintiff from exercising the right to voluntarily dismiss the action without
       prejudice and the trial court did not abuse its discretion in overruling
       defendants’ motion to set aside the Order of Nonsuit.

               Defendants argue that plaintiff’s action in taking the nonsuit was a
       “blatant attempt” to avoid the dismissal of the action and that allowing the
       nonsuit to stand “frustrates” the intent of Tenn. Code Ann. § 29–26–122 “to
       discourage the filing of baseless medical malpractice lawsuits” and to
       “impos[e] stiff penalties on both parties and attorneys who file suit without
       complying with the good faith certification requirements.” Rule 41.01,
       however, grants an absolute right to the plaintiff; the reason for the
       plaintiff’s action is not a proper scope of inquiry for the court.

                                            ***

       While the requirements to file and prosecute a medical malpractice suit are
       rigorous, nothing in the legislative history or the statute itself reveals an
       intent that medical malpractice cases should not proceed in accordance with
       the rules applicable to all actions, including Tenn. R. Civ. P. 41.

Robles v. Vanderbilt Univ. Med. Cntr., M2010-01771-COA-R3-CV, 2011 WL 1532069,
at **2-3 (Tenn. Ct. App. April 19, 2011), Rule 11 appl. perm. appeal denied Aug. 25,
2011 (footnotes omitted). We can say it no better or clearer than this Court did in Robles
v. Vanderbilt Univ. Med. Ctr.

        Furthermore, in Davis v. Ibach, our Supreme Court made a statement pertinent to
an analysis of the issue of whether a plaintiff may take a voluntary dismissal pursuant to
Tenn. R. Civ. P. 41 when a motion to dismiss is pending. Davis v. Ibach, 465 S.W.3d
570 (Tenn. 2015). The Davis case involved facts strikingly similar to the ones in the
instant case, i.e., plaintiff filed a health care liability action, defendants filed motions to
dismiss based upon alleged deficiencies in the certificate of good faith, before the trial
court ruled on the motions to dismiss plaintiff took a voluntary dismissal pursuant to
Tenn. R. Civ. P. 41, defendants appealed alleging that plaintiff did not have a right to
take a voluntary dismissal when motions to dismiss were pending and that the case
should have been dismissed with prejudice for failure to comply with Tenn. Code Ann. §
29-26-122. The Court of Appeals in Davis affirmed the trial court’s holding that it had
the authority to voluntarily dismiss the case without prejudice pursuant to Tenn. R. Civ.
P. 41. The Supreme Court analyzed the alleged deficiencies in the certificate of good
faith, found that the certificate was not deficient, and also stated:

                                              6
              Because there were no prior violations to disclose, the certificate of
       good faith filed by the Plaintiff in the instant case did not violate section
       29-26-122(d)(4), and nothing in the statute prevented the trial court from
       granting the Plaintiff’s request for voluntary dismissal without prejudice.
       Therefore, we affirm the judgment of the Court of Appeals, albeit on
       different grounds.

Davis, 465 S.W.3d at 574 (emphasis added).

        We read Davis to state, perhaps as obiter dictum, that nothing in Tenn. Code Ann
§ 29-26-122 prevents a trial court from granting a voluntary dismissal pursuant to Tenn.
R. Civ. P. 41.01 even if the defendant has a pending motion to dismiss claiming the
certificate of good faith is not satisfactory. If, however, we read too much into Davis,
what is certain is that our Supreme Court in Davis held only that Tenn. Code Ann. § 29-
26-122 does not prevent a trial court from granting a plaintiff’s request for a voluntary
dismissal without prejudice if the certificate of good faith is satisfactory. Davis does not
hold that Tenn. Code Ann. § 29-26-122 prevents a trial court from granting a plaintiff’s
request for voluntary dismissal without prejudice if defendant has a pending motion to
dismiss based upon plaintiff’s alleged violation of Tenn. Code Ann. § 29-26-122.

        In the instant case, Defendants attempt to rely upon Phillips v. Casey in support of
their argument that Plaintiff was not allowed to take a voluntary dismissal while the
motion to dismiss was pending. Phillips v. Casey, No. E2014-01563-COA-R9-CV, 2015
WL 4454781 (Tenn. Ct. App. July 21, 2015), no appl. perm. appeal filed. In their brief
on appeal, Defendants quote from Phillips wherein it states: “The General Assembly
clearly expressed differing treatment for violations of sections 29-26-121 and -122, just
as it did under Rule 41.01 for the case when a motion for summary judgment is pending.”
Id. at *7. Defendants have missed the point. First, the case now before us does not
involve a summary judgment motion. Second, and most important, the fact that our
legislature provided for differing treatment for violations of the statutory sections does
not automatically lead to the conclusion that a plaintiff is precluded from taking a
voluntary dismissal pursuant to Tenn. R. Civ. P. 41 while a motion to dismiss is pending.

       Furthermore, Defendants completely ignore the paragraph in Phillips directly
before the language they quote, which states:

       Nothing within a plain language interpretation of Tennessee Code
       Annotated sections 29-26-121 or -122 supports the conclusion that a
       plaintiff in a health care liability action is not allowed to re-file a claim after
       taking a voluntary dismissal. A plain language interpretation of Rule 41.01
       of the Tennessee Rules of Civil Procedure results in the same conclusion.
                                               7
Id. at *7. While the Phillips case addressed the issue with regard to Tenn. Code Ann. §
29-26-121 and not with regard to § 29-26-122, making the assertion about § 29-26-122
obiter dicta, we agree with the statement in Phillips that a plain language interpretation of
§ 29-26-122 reveals nothing preventing a plaintiff from re-filing a claim after taking a
voluntary dismissal and that interpretation of Tenn. R. Civ. P. 41.01 leads to the same
conclusion. As such, Phillips provides far more support for Plaintiff’s position in this
case than for Defendants’.

       Having been presented with no compelling reason to depart from this Court’s
holding in Robles v. Vanderbilt Univ. Med. Ctr., we find and hold that nothing in Tenn.
Code Ann. § 29-26-122 prevented the Plaintiff from taking, and the Trial Court from
granting, a voluntary dismissal without prejudice pursuant to Tenn. R. Civ. P. 41.01
while Defendants’ motion to dismiss was pending. We, therefore, affirm the Trial
Court’s October 16, 2015 order granting Plaintiff a voluntary dismissal without prejudice.
Our resolution of this issue renders Defendants’ second issue moot.

                                        Conclusion

       The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellants, Ryan B. Pickens, M.D., and University Urology, P.C., and their surety.




                                          _________________________________
                                          D. MICHAEL SWINEY, CHIEF JUDGE




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