                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                   August 18, 2003 Session

                   DONALD R. LACY v. WESLEY B. COX, ET AL.

                       Appeal from the Circuit Court for Sevier County
                         No. 2001-386-II   Richard R. Vance, Judge
                                   Filed October 31, 2003

                                 No. E2003-00709-COA-R3-CV


Donald R. Lacy (“Plaintiff”) sued Jennifer Brandon for damages arising from an automobile
accident. After deliberating for approximately two hours, the jury asked the Trial Court if they were
required to award Plaintiff any monetary damages if they found fault on the part of Brandon. Based
on the question, Plaintiff surmised the jury’s deliberations were not going his way. As a result,
Plaintiff moved for a voluntary dismissal without prejudice, believing he was entitled to do so as a
matter of right. The Trial Court, also believing Plaintiff was entitled to dismiss his lawsuit without
prejudice as a matter of right even though the jury was deliberating, granted the motion. We
conclude Plaintiff was not entitled to voluntarily dismiss his lawsuit without prejudice as a matter
of right at that stage in the proceedings, and as a consequence the dismissal is with prejudice.


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


D. MICHAEL SWINEY, J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR., J.,
and WILLIAM H. INMAN , SR. J., joined.

Dana C. Holloway, Knoxville, Tennessee, for the Appellant Jennifer L. Brandon.

George R. Garrison, Sevierville, Tennessee, for the Appellee Donald R. Lacy.


                                             OPINION

                                            Background

                 This lawsuit arises out of an automobile accident which occurred in Sevier County.
Plaintiff claims his vehicle was struck from behind by a vehicle driven by Wesley Cox. Plaintiff also
claims that, at the same time, the Cox vehicle was struck from behind by a vehicle driven by Jennifer
Brandon. Plaintiff sued both Cox and Brandon. In her answer, Brandon admits the accident
occurred, but denies she was at fault. Brandon claims both Plaintiff and Cox were negligent under
comparative fault principles.

                A two-day trial took place in July of 2002. By that time, the only remaining
defendant was Brandon (“Defendant”). After all of the proof was presented and the jury was
instructed, the jury retired and began deliberating toward a verdict. The jury asked the Trial Court
two questions during deliberations. First, the jury asked whether they could view certain
photographs of Defendant’s vehicle which had been shown to them during the trial. This request
was denied because the photographs had not been entered into evidence. After deliberating for
approximately two hours, the jury submitted a second question to the Trial Court. Specifically, the
jury wanted to know if they were required to award Plaintiff any monetary damages if they
concluded Defendant was at fault. Based on this question, Plaintiff obviously sensed a less than
favorable verdict was looming. In an attempt to circumvent this expected outcome, Plaintiff, prior
to the jury rendering its verdict, made an oral motion to voluntarily dismiss his lawsuit without
prejudice. Despite Defendant’s objection, the Trial Court allowed Plaintiff to voluntarily dismiss
his lawsuit without prejudice. The Trial Court then informed the jury that Plaintiff’s claim had been
voluntarily dismissed and released the jury from service.

               Approximately one week later, Defendant filed a motion requesting the Trial Court
to deem Plaintiff’s voluntary dismissal as a dismissal “with prejudice.” In this motion, Defendant
claimed that Tenn. R. Civ. P. 41.01(1) prohibited Plaintiff from taking a voluntary dismissal without
prejudice after the jury retired and began to deliberate toward a verdict. Defendant argued that
because the nonsuit was requested after the jury had retired, the dismissal should be considered with
prejudice thereby barring Plaintiff from refiling his lawsuit in the future.

                Plaintiff then filed a Motion for New Trial. In this motion, Plaintiff unabashedly
asserted that the Trial Court had improperly granted his request for a voluntary dismissal because
the jury had already retired and began deliberations. According to Plaintiff, “the Court may not enter
an Order of Voluntary Dismissal under T.R.C.P. 41 at this stage of the trial.” Plaintiff requested the
Trial Court set aside the Order of Voluntary Dismissal and grant him a new trial.

              A hearing was conducted on the pending motions. At this hearing, Defendant’s
counsel argued:

               The basis of my motion is essentially that there is only one way under
               the Rules of Civil Procedure to get a voluntary dismissal without
               prejudice and that only way is contained in Rule 41.01 that says that
               you can take a voluntary nonsuit at any time in a jury trial before the
               jury retires to consider … [its] verdict.… [Plaintiff] cannot take a
               voluntary nonsuit without prejudice after the jury retires to consider
               … [its] verdict. That’s in direct contravention to that rule.… My
               client had gone through trial, they went through two days of trial, they
               put on the proof, they tried their case and when that case goes to the


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                jury, it’s over.… We acquired a vested right in having that case
                decided by that jury.… And then the jury comes back with an
                unfavorable question and [Plaintiff’s counsel] wants a Mulligan. He
                wants a do-over.

After hearing oral arguments on the motions, the Trial Court acknowledged that it should not have
granted Plaintiff’s motion for voluntary dismissal without prejudice as a matter of right inasmuch
as the request for dismissal came too late in the proceedings. The Trial Court stated that it was not
until the jury already had been dismissed before it was able to obtain a copy of Rule 41.01, at which
time the Trial Court realized its mistake. Although not exactly stated as such, the Trial Court clearly
originally believed Plaintiff was entitled to voluntarily dismiss his lawsuit without prejudice as a
matter of right. Specifically, the Trial Court stated:

                I did it because at the time I knew of no reason why you couldn’t
                because if we all go through cases we have tried, we’ve seen it over
                and over and over at almost any time a nonsuit is taken and there’s
                nothing the other side can do about it.

After discussing possible ways to remedy the situation, the Trial Court eventually concluded the best
way to proceed was to leave intact its previous, albeit erroneous, ruling allowing Plaintiff to
voluntary dismiss his lawsuit without prejudice. Accordingly, the Trial Court denied Defendant’s
motion to have the dismissal deemed with prejudice, as well as Plaintiff’s motion for a new trial.

               Defendant appeals, claiming the Trial Court erred in allowing Plaintiff to voluntary
dismiss his lawsuit after the jury had been deliberating for two hours. Defendant further claims the
only adequate remedy is to deem Plaintiff’s voluntary dismissal as a voluntary dismissal “with
prejudice.” Plaintiff now claims on appeal that the Trial Court had discretion to allow him to
voluntarily dismiss his lawsuit even after the jury had retired to consider its verdict. Plaintiff further
contends the Trial Court did not abuse this discretion and, therefore, the judgment should be
affirmed.

                                              Discussion

                The factual findings of a trial court are accorded a presumption of correctness, and
we will not overturn those factual findings unless the evidence preponderates against them. See
Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). With respect to legal
issues, our review is conducted “under a pure de novo standard of review, according no deference
to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County
Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

                As relevant to this appeal, Tenn. R. Civ. P. 41.01 provides as follows:




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                         Rule 41.01 Voluntary Dismissal – Effect Thereof. – (1)
                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.… (emphasis added).

                  The first issue raised on appeal is whether the Trial Court had discretion to grant a
voluntary dismissal without prejudice after the jury had retired to consider its verdict. In Tennessee,
a plaintiff has the option to voluntarily dismiss without prejudice his lawsuit as a matter of right at
various stages in the litigation. We also know that at certain other times, the granting of such a
voluntary dismissal is a matter of discretion with the trial court. For example, in Stewart v.
University of Tennessee, 519 S.W.2d 591 (Tenn. 1974), the plaintiff requested and was granted a
nonsuit after the defendant filed a motion for summary judgment. An order of dismissal was entered
later with the approval of all counsel. Id. at 592. When the plaintiff refiled the lawsuit, the
defendant moved for summary judgment arguing the first dismissal was with prejudice because it
had been entered while the original motion for summary judgment was still pending. The trial court
agreed and dismissed the second lawsuit. Id. In reversing the trial court, our Supreme Court stated
that, with certain specified exceptions, Rule 41.01(1) “provides for the free and unrestricted right of
the plaintiff (at various stages of the proceedings) to take a voluntary nonsuit or to dismiss his action
without prejudice ….” Id. The Court concluded that while Rule 41.01 barred the plaintiff from
taking a voluntary dismissal as a matter of right when a motion for summary judgment was pending,
the Trial Court nevertheless had discretion to grant or deny such a motion at that particular stage in
the proceedings. Specifically, the Court stated that “[a]side from the assent of counsel to the
voluntary dismissal order, the trial judge, in the exercise of his sound judicial discretion, had the
authority to grant plaintiff’s motion [for voluntary dismissal], upon a proper showing. From the
record before us, we cannot say, nor is it inferred, that the trial judge abused his discretion.” Id. at
593.

                 Other limitations to a plaintiff’s free and unrestricted right to take a voluntary
dismissal as a matter of right occur when the granting of a voluntary dismissal would deprive the
defendant of a vested right or result in plain legal prejudice to the defendant. See Anderson v. Smith,
521 S.W.2d 787, 790 (Tenn. 1975) (“Though not stated in the rule, the right of plaintiff to a nonsuit
is subject to the further restriction that the granting of the nonsuit will not deprive the defendant of
some right that became vested during the pendency of the case.”); Oliver v. Hydro-Vac Servs., Inc.,
873 S.W.2d 694, 696 (Tenn. Ct. App. 1993) (“The general rule is that where the right to take a
voluntary dismissal is in the discretion of the trial court, it should be granted absent some showing
of plain legal prejudice to the defendant.… The possibility of one being subjected to a second


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lawsuit is insufficient legal prejudice.”)(quoting Price v. Boyle Inv. Co., No. 1, 1990 Tenn. App.
LEXIS 337, at *7 (Tenn. Ct. App. May 11, 1990), perm. app. denied June 11, 1990).

                 Defendant argues that once the case was submitted the jury, Plaintiff was prohibited
from voluntarily dismissing his lawsuit and the Trial Court had no discretion to grant such a request.
Defendant relies on cases such as Weedman v. Searcy, 781 S.W.2d 855 (Tenn. 1989) wherein our
Supreme Court stated that “[i]n a non-jury case, until the case has finally been submitted to the trial
court for a decision, the plaintiff has a right to a voluntary dismissal. The right does not continue
in a jury case after the jury retires.” Id. at 857. In our opinion, the Court in Weedman was stating
nothing more than a plaintiff’s option to voluntarily dismiss his lawsuit as a matter of right no longer
exists once the jury retires. This language cannot fairly be read to mean either that a trial court does
or that it does not have discretion to grant a motion for voluntary dismissal after the jury retires.

               Defendant also relies on the not-so-recent case of Nashville, Chattanooga, & St. Louis
Ry. v. Sansom, 113 Tenn. 683, 84 S.W. 615 (1904), wherein the Supreme Court was interpreting
various statutory provisions, including Shannon’s Code § 4689, which permitted a plaintiff to take
a nonsuit “at any time before the jury retires ….” In so doing, the Supreme Court stated:

                We are of [the] opinion the legislature intended that the right to take
                a nonsuit in a jury case should finally cease when the jury should
                properly begin "to consider of their verdict," under the law as above
                stated, whether there should be an actual withdrawal from the jury
                box or not. The substance of the matter is that there shall be no
                nonsuit allowed after a case has been fully committed to the
                consideration of the jury.

Sansom, 113 Tenn at 687, 84 S.W. at 616.

                In Liggins v. Padawer, 14 Tenn. App. 201 (1931), the plaintiff attempted to
voluntarily dismiss the lawsuit after the jury had been deliberating for several hours. During
deliberations, the jury asked the trial court “who would win if neither party was found guilty of any
negligence.” The trial court informed the jury in that event, the defendant would win. Liggins, 14
Tenn. App. at 201. This question prompted the plaintiff to move for a voluntary dismissal, which
the trial court denied. Relying in large part on Sansom, this Court affirmed the trial court after
holding that the plaintiff’s motion for a voluntary dismissal simply came too late. Id. at 204.

                 Although many cases cited by the parties are helpful, we believe the issue of whether
the Trial Court had discretion to allow Plaintiff to voluntarily dismiss his case, without prejudice,
after the jury retired to consider its verdict is controlled by our Supreme Court’s opinion in Panzer
v. King, 743 S.W.2d 612 (Tenn. 1988), a decision which neither party cites in their brief. In Panzer,
the jury awarded the plaintiff a verdict in the amount of $15,200.09, which the plaintiff considered
to be inadequate. The plaintiff moved for a new trial on the basis of jury misconduct including, but
not limited to, several jurors making an unauthorized visit to the accident scene and conducting


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“their own tests” regarding the incline of the road, etc. Id. at 613. The trial court granted the
plaintiff’s motion for a new trial. After being granted a new trial, the plaintiff filed a motion for
voluntary dismissal, which the trial court also granted. The issue on appeal was whether the trial
court erred in permitting the plaintiff to take a voluntary dismissal, thereby depriving the defendant
of the ability to seek appellate review of the trial court’s granting of a new trial to the plaintiff. Id.
at 614. In addressing this issue, the Supreme Court stated:

                        In this state, our rules and our case law are silent with respect
                to a plaintiff's right to take a non-suit after the grant of a new trial.
                The majority of our sister states terminate the absolute right of a
                plaintiff to take a voluntary non-suit without prejudice at some point
                in the first trial, and thereafter, the granting of such a dismissal is
                within the sound discretion of the trial judge. The trial judge should
                bear in mind the position of the defendant at the time of plaintiff's
                motion and may impose such conditions on the plaintiff as may be
                appropriate to prevent defendant from being unfairly affected by such
                dismissal. See Annotation, Construction, as to Terms and Conditions,
                of State Statute or Rule Providing for Voluntary Dismissal Without
                Prejudice Upon Such Terms and Conditions as State Court Deems
                Proper, 34 A.L.R.4th 778 (1984).… The trial court should impose
                only those conditions such as costs, attorneys fees, reasonable
                expenses of preparing for trial, etc., that are necessary to alleviate
                harm to defendant, and the court's discretion is reviewable only for
                abuse of discretion. In conformity with the majority of jurisdictions
                we adopt the rule as stated herein, applicable at all times subsequent
                to the retirement of the jury to consider its verdict at the first trial.
                (emphasis added).

Panzer, 743 S.W.2d at 615-16. The Supreme Court then remanded the case for a determination on
whether the trial court erred in granting a new trial, the resolution of which could certainly impact
whether the granting of a voluntary dismissal was proper.

                The Court in Panzer was addressing a plaintiff’s ability to voluntarily dismiss a
lawsuit after a motion for a new trial was granted, a situation which is factually dissimilar to the
present case. However, the Court discussed the majority rule in other jurisdictions to the effect that
once the ability of a plaintiff to voluntarily dismiss an action as a matter of right ends, thereafter “the
granting of such a dismissal is within the sound discretion of the trial judge.” Panzer, 743 S.W.2d
at 615. After adopting this rule, the Court then unequivocally stated that the rule applies “at all times
subsequent to the retirement of the jury to consider its verdict at the first trial.” Id. at 616.
Admittedly, the issues in Panzer were altogether different from the issues in the present case.
However, this Court cannot overlook Panzer on that basis when one of the issues herein falls
squarely within the rule as adopted in that case. If the Court in Panzer did not intend to give a trial
court discretion to grant a motion for voluntary dismissal while the jury is deliberating, then it is for


                                                   -6-
that Court to so hold. This Court is not at liberty to limit a rule adopted by the Supreme Court. In
light of the foregoing, we hold that the Trial Court had discretion to grant a motion for voluntary
dismissal without prejudice even after the jury retired to consider its verdict.

                 Unfortunately, this does not end our review of this case given its procedural history.
Plaintiff moved for a voluntary dismissal clearly because of the jury’s second question to the Trial
Court, a question which led Plaintiff to believe the jury was not going to award him any monetary
damages. Plaintiff erroneously believed he was entitled to a voluntary dismissal without prejudice
as a matter of right at that time, even though the jury was deliberating toward a verdict. Based on
the language used by the Trial Court while discussing how the motion came to be granted, Plaintiff
apparently presented to the Trial Court that he was so entitled. The Trial Court incorrectly agreed
with Plaintiff and permitted the lawsuit to be voluntarily dismissed without prejudice, thinking there
was “nothing the other side [could] do about it.” Because both Plaintiff and the Trial Court
incorrectly believed Plaintiff could voluntarily dismiss his lawsuit without prejudice as a matter of
right, the Trial Court never exercised its discretion in granting Plaintiff’s motion. It is, therefore,
impossible for this Court to determine whether the Trial Court abused its discretion when that
discretion never was used.

                It seems quite clear to us that the fact that the jury’s deliberations likely were going
against Plaintiff forms no basis whatsoever to allow Plaintiff to voluntarily dismiss his lawsuit. If
we were to allow plaintiffs in general to have a “Mulligan” or “do-over” under these circumstances,
the end result would be a legal nightmare often resulting in multiple complete jury trials, except for
the verdict, before a trial court could obtain a jury verdict.

                We have located no Tennessee authority guiding us on how to properly remedy the
error made in this case. There is authority from other jurisdictions which is helpful. A case quite
similar to the present case is Dade County v. Peachey, 181 So. 2d 353 (Fla. App. 1965), cert den.
193 So. 2d 166 (Fla. 1966). In Peachey, due to an overcrowded courtroom, counsel for plaintiff was
able to overhear some of the jury’s deliberations. Apparently, the jury was discussing the wrong
standard of proof, believing the plaintiff was required to prove his civil case for damages beyond a
reasonable doubt. Obviously, this heightened standard worked to the detriment of the plaintiff. In
any event, the plaintiff moved for and was granted a nonsuit. The issue on appeal was whether the
dismissal should be considered a dismissal with prejudice. Peachey, 181 So. 2d at 354-55. On
appeal, the plaintiff argued that if the trial court erred in granting the nonsuit, the case should
nevertheless be returned to the trial court because: “(1) the plaintiff and the trial judge acted under
a misapprehension of the law, and (2) if the plaintiff or the trial judge had known that the plaintiff
did not have the procedural right he claimed, the court would have denied the motion, and the
plaintiff would then have elected to proceed with the trial.” Id. at 355. In rejecting this argument,
the majority of the Florida Court of Appeals stated as follows:

                        We find that we are not at liberty to adopt the course
                suggested by the appellee … because in the instant case the jury had
                retired from the bar and no possible ground for a dismissal without


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               prejudice was given by the plaintiff at the time he moved for a
               nonsuit. The trial court could not have granted a dismissal without
               prejudice upon the ground that the plaintiff knew that the jury's
               deliberations were going against him. In effect, the plaintiff simply
               refused to proceed with the case. It may well be true that the plaintiff
               would have taken a different position if the trial judge had informed
               him of the true state of the law, but we find no authority for the
               proposition that the trial judge must correctly advise a party upon the
               law. Of course, the duty is upon counsel to correctly advise the court.

                      The plaintiff-appellee's insistence upon his right to a nonsuit,
               which must now be considered a motion for dismissal without
               prejudice, when there was no recognizable ground for the granting of
               a dismissal without prejudice, must be considered as a failure to
               prosecute and dismissal with prejudice must follow.

Peachey, 181 So. 2d at 356.

                In Pardue v. Darnell, 557 S.E.2d 172 (N.C. Ct. App. 2001), the North Carolina Court
of Appeals was called upon to interpret N.C. R. Civ. P. 41(a)(1) which allows a plaintiff to
voluntarily dismiss a claim as a matter of right at any time “before the plaintiff rests his case,” and
Rule 41(a)(2) which further allows for voluntary dismissals by order of the court after a finding that
justice so requires. Pardue, 557 S.E.2d at 174. The plaintiff in Pardue entered a Notice of
Voluntary Dismissal Without Prejudice after resting his case. The plaintiff did not obtain leave of
court and, consequently, there was no finding that justice so required the entry of a voluntary
dismissal. When the plaintiff refiled his lawsuit, the defendant moved for and was granted summary
judgment. The North Carolina Court of Appeals affirmed, concluding the plaintiff lacked authority
to file a voluntary dismissal under Rule 41(a)(1) because he had rested his case. Furthermore, the
plaintiff did not comply with Rule 41(a)(2) and obtain leave of court. Accordingly, “the dismissal
taken by plaintiffs was a voluntary dismissal with prejudice, barring them from refiling suit against
defendant.” Pardue, 557 S.E.2d at 176.

                 In pertinent part, Tenn. R. App. P. 36(a) provides: “Nothing in this rule shall be
construed as requiring relief be granted to a party responsible for an error or who failed to take
whatever action was reasonably available to prevent or nullify the harmful effect of an error." See,
e.g., In re: Adoption of D.P.M., 90 S.W.3d 263, 266 (Tenn. Ct. App. 2002). As stated above,
Plaintiff was responsible for the error when he believed, and so convinced the Trial Court, that he
was entitled to voluntarily dismiss his lawsuit without prejudice at that stage in the proceedings as
a matter of right. This conclusion is even more apparent when considering the altogether insufficient
basis for which he sought the voluntary dismissal. Because Plaintiff was responsible for the error,
he is not entitled to a Mulligan. Accordingly, we reverse that portion of the Trial Court’s judgment
granting Plaintiff a voluntary dismissal insofar as it deems that dismissal to be without prejudice.
We hold that Plaintiff’s voluntary dismissal is “with prejudice.”


                                                 -8-
                 In our opinion and as is evident from our struggle to devise a remedy to correct the
Trial Court’s error in this case, there are inherent difficulties in allowing a trial court discretion to
grant a voluntary dismissal without prejudice after the jury retires to consider its verdict. For
example, let’s assume a trial court exercises its discretion and grants a plaintiff’s motion for
voluntary dismissal without prejudice simply because it is apparent from the jury’s questions to the
trial court that the jury is about to rule against the plaintiff. In such a situation, we likely would
quickly and easily conclude the trial court abused its discretion. The difficult part would be trying
to fashion an appropriate remedy. An appellate court would be unable to give the defendant that to
which she would be entitled, i.e. a verdict by the particular jury which, in all likelihood, was on the
verge of ruling in her favor. At the same time, if we allowed the voluntary dismissal without
prejudice to stand, the plaintiff would be getting exactly what he is not entitled to, i.e., a new trial
by a different jury, or a “do-over.” The third option is to deem the plaintiff’s dismissal as a dismissal
with prejudice, which certainly is a harsh result in those situations where, unlike the present case,
the error was occasioned not by the plaintiff but instead by a trial court’s abuse of discretion. In
short, there is no adequate way to remedy a trial court’s abuse of discretion when granting a motion
for voluntary dismissal without prejudice after a jury retires to consider its verdict. We respectfully
suggest our Supreme Court, perhaps by amendment to Rule 41.01, consider revisiting the rule
announced in Panzer insofar as that rule gives trial courts discretionary authority to grant a plaintiff’s
motion for voluntary dismissal without prejudice after a jury retires to consider its verdict.

                                              Conclusion

               The judgment of the Trial Court is reversed insofar as it deems Plaintiff’s voluntary
dismissal to be without prejudice, and, therefore, the dismissal is with prejudice. This cause is
remanded to the Trial Court for further proceedings as necessary, if any, consistent with this
Opinion, and for collection of the costs below. The costs on appeal are assessed against the
Appellee, Donald R. Lacy.




                                                         ___________________________________
                                                         D. MICHAEL SWINEY, JUDGE




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