                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                            October 15, 2001 Session

 MARK ALLEN WISHON and wife, TAMMY WISHON, v. EAR, NOSE, &
   THROAT ASSOCIATES, PC, MARK A. HOWELL, MD, DAVID S.
 HAYNES, MD, SAINT THOMAS HOSPITAL, and BAPTIST HOSPITAL

                Direct Appeal from the Circuit Court for Washington County
                   No. 20355    Hon. Thomas J. Seeley, Jr., Circuit Judge

                                      FILED NOVEMBER 29, 2001

                                No. E2001-01031-COA-R3-CV


Plaintiffs appeal from summary judgments in medical malpractice case granted to defendants, and
from the Trial Court’s refusal to grant them a voluntary dismissal during the pendency of the
summary judgment motions. We affirm.

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

HERSCHEL PICKENS FRANKS , J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and CHARLES D. SUSANO, JR., J., joined.

Bob McD. Green, and Walter Lee Davis, Johnson City, Tennessee, for Appellants.

Jim E. Brading, Johnson City, Tennessee, for Appellees, Ear, Nose & Throat Associates, P.C., and
Mark A. Howell, M.D.

John C. Hayworth, Nashville, Tennessee, for Appellee, David S. Haynes, M.D.

Mary Martin Schaffner, Nashville, Tennessee, for Appellee, Saint Thomas Hospital.

Jeffrey Zager, Nashville, Tennessee, for Appellee, Baptist Hospital.



                                            OPINION


                In this action, the Trial Court granted defendants summary judgment, after refusing
to grant plaintiffs’ voluntary dismissal pursuant to Tenn. R. Civ. P. Rule 41.02(3). Plaintiffs have
appealed.
              The Trial Court, in its Order granting summary judgment and denying plaintiffs’
Motion, succinctly sets forth the salient facts for consideration on appeal:

               [t]his lawsuit was filed on March 13, 2000. The record further reflects that
               Defendants Ear, Nose & Throat Associates, P.C. and Mark A. Howell, M.D. filed
               their motion for summary judgment on April 22, 2000, and that Defendants Dr.
               Haynes, Saint Thomas Hospital and Baptist Hospital all filed their respective motions
               for summary judgment in August 2000. By notice filed on October 18, 2000, all four
               of these motions were set for hearing before this Court on the December 18, 2000
               motion docket. . . .

                        The Court held a hearing on these motions on December 18, 2000. At that
               hearing the record reflected that (i) all of the motions were properly supported by
               affidavits establishing that no genuine issues of material fact exist and that the
               respective defendants are entitled to judgment as a matter of law; (ii) Plaintiffs have
               filed no papers or sworn proof in opposition to the motions; and (iii) Plaintiffs have
               not moved to voluntarily dismiss the case or otherwise attempted to non-suit the case
               prior to the scheduled hearing. At the hearing, Plaintiffs’ counsel informed the Court
               that on Friday, December 15, 2000, Plaintiffs’ counsel contacted counsel for
               Defendants Ear, Nose & Throat Associates, P.C. and Mark A. Howell, M.D. to seek
               an agreed continuance in order to conduct discovery, which request was denied.
               Plaintiffs’ counsel then informed the Court that Plaintiffs would like to voluntarily
               dismiss the case without prejudice and contended that no prejudice would result to
               Defendants were Plaintiffs allowed to do so. . . .

                       Based upon the Defendants’ motion papers, the sworn affidavits filed in
               support thereof, and the arguments of counsel, the Court–taking into account the
               Defendants’ efforts and expense in preparation and presentation of their respective
               motions and otherwise defending this case, the existence of excessive delay and lack
               of diligence on the part of the Plaintiffs in prosecuting the action, and an insufficient
               or no explanation for the need to take a dismissal–concludes that Defendants would
               suffer legal prejudice if the Court were to allow the Plaintiffs to now voluntarily
               dismiss this case. . . . Finally, the Court further concludes that no genuine issues of
               material fact exist in this case and that Defendants are entitled to judgment as a
               matter of law.

                Appellate courts review discretionary rulings with the presumption that the decision
is correct, viewing the evidence in the light most favorable to the decision. A lower court’s decision
will not be disturbed on appeal, simply because it did not choose an alternative that the appellate
courts would have chosen. Though not entirely immune from appellate scrutiny, discretionary
rulings are subjected to less rigorous appellate scrutiny, and will be set aside only if they are based
on a misapplication of controlling legal principles or on a clearly erroneous assessment of the
evidence. The discretionary decision will stand if reasonable judicial minds can differ concerning


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its propriety. Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 708-709 (Tenn. Ct. App. 1999). Thus,
reversal for abuse of discretion occurs when “it affirmatively appears that the trial court’s decision
was against logic or reasoning, and caused an injustice or injury to the party complaining.” Ballard
v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996).

                In exercising its discretionary authority to grant a non-suit, courts will consider factors
such as the defendant’s time, expense and effort, plaintiff’s delay or lack of diligence in prosecuting
his action, insufficient explanation of the need for the non-suit, and whether the non-suit is solely
to avoid an adverse result. Grover by Grover v. Eli Lilly & Co., 33 F.3d 716, 718 (6th Cir. 1994);
Radiant Technology Corp. v. Electrovert USA Corp., 122 F.R.D. 201 (N.D. Tex. 1988).

                Tennessee Rules of Civil Procedure 41.01 prohibits the taking of a voluntary non-suit
without prejudice as a matter of right, when a motion for summary judgment is pending. Appellants’
sole authority to support their contention that the trial court has discretion to grant a non-suit without
prejudice, is Stewart v. University of Tennessee, 519 S.W.2d 591 (Tenn. 1974). Stewart does
acknowledge even if a voluntary dismissal as a matter of right is not available under Rule 41.02,
there may be circumstances where a voluntary dismissal is proper under Rule 41.02(3). The Stewart
Court held it was no abuse of discretion to grant plaintiffs’ oral motion to non-suit made at the
summary judgment hearing. All defendants were present at the hearing, none objected and all
counsel affirmatively assented by approving the order of non-suit. Obviously, these facts
substantially distinguish Stewart from the case before us, where all defendants object to plaintiffs’
attempt to non-suit on the date of hearing of the summary judgment motions.

                In the present case, appellants gave no plausible reason for their need to non-suit,
other than obtaining their medical expert and taking testimony. They had initiated no discovery since
filing the complaint, and had not responded to discovery served upon them. Upon these facts, the
Trial Court did not abuse its discretion in disallowing plaintiffs’ motion for a voluntary dismissal.

                Our review of the granting of the summary judgment is a question of law. Staples
v. CBL & Assoc., Inc., 15 S.W.3d 83, 88-89 (Tenn. 2000). Summary judgment is appropriate where
no genuine issue with regard to any material fact appears, and the applicable law to those undisputed
facts warrants judgment for the movant. Bain v. Wells, 936 S.W.2d 618 (Tenn. 1997).

              Appellants argue that appellees’ motions are inadequately supported by their own
physician/defendants’ affidavit. However, a physician’s own affidavit is sufficient by itself to
support a motion for summary judgment, despite the fact that he is a party to the suit. Smith v.
Graves, 672 S.W.2d 787, 790 (Tenn. Ct. App. 1984).

                The defendants set forth in their motion for summary judgment material facts by
affidavits, which established the basis for summary judgment, and failure of the plaintiffs to respond
to the motion for summary judgment precludes consideration of any factual issues, since the
defendants’ material facts are left undisputed. Where the undisputed facts mandate a judgment,
summary judgment will be granted to the moving party. Bradley v. McLeod, 984 S.W.2d 929, (Tenn.


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Ct. App. 1998). As in this case, the recipients of a motion for summary judgment in Bradley filed
nothing in response. Judge Koch, writing for the Bradley Court, affirmed the summary judgment
and issued a stern rebuke:

              Summary judgments proceedings are not disfavored procedural shortcuts, but rather
              are useful proceedings that provide an expeditious and inexpensive means to
              conclude litigation when there are no material factual disputes. The practicing bar
              has now been on notice for more than two decades that summary judgment motions
              should not be taken lightly. They have also been admonished repeatedly that parties
              facing a summary judgment motion cannot rest on the mere allegations or denials in
              their pleadings but rather must respond with appropriate evidentiary materials
              demonstrating that there is a genuine issue for trial.

                      Unfortunately, not all lawyers heed Tenn. R. Civ. P. 56.06's clear warning.
              With increasing frequency, they do not take a motion for summary judgment
              seriously until after it has been granted.

Id. at 932.

               For the foregoing reasons, we affirm the judgment of the Trial Court, and remand,
with the cost of the appeal assessed to Mark Allen Wishon and Tammy Wishon.




                                                     _________________________
                                                     HERSCHEL PICKENS FRANKS , J.




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