Robert Clark v. John Werther

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

September 16, 2015 Session

ROBERT CLARK v. JOHN WERTHER, ET AL.

Appeal from the Circuit Court for Davidson County

No. 14C72 Carol Soloman, Judge

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No. M2014-00844-COA-R3-CV – Filed September 27, 2016

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The plaintiff, acting pro se, filed a complaint in this health care liability action without

attaching a certificate of good faith. Several defendants filed motions to dismiss based on the

missing certificate. The plaintiff responded to the motions and filed a notice of voluntary

nonsuit. Some of the defendants objected to the voluntary dismissal, arguing the complaint

should be dismissed with prejudice. The trial court dismissed the plaintiff‟s claims against

the non-objecting defendants without prejudice but dismissed the plaintiff‟s claims against

the objecting defendants with prejudice. The plaintiff appealed all of the court‟s dismissal

orders on numerous grounds. Upon review, we conclude that Rule 41.01 of the Tennessee

Rules of Civil Procedure afforded the plaintiff the right to a voluntary dismissal without

prejudice as to all defendants. Accordingly, we affirm in part, reverse in part, and remand to

the trial court for further proceedings consistent with this opinion.

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

Part, Reversed in Part, and Case Remanded

W. NEAL MCBRAYER, J., delivered the opinion of the Court, in which ANDY D. BENNETT and

RICHARD H. DINKINS, JJ., joined.

Robert L. Clark, Nashville, Tennessee, appellant, pro se.

Mark E. Nichols, Lexington, Kentucky, and Marty R. Phillips and Ashley D. Cleek, Jackson,

Tennessee, for the appellees, Dr. John Werther, Oral & Facial Surgery Group, P.C., Dr.

Keven West, and Oral & Maxillofacial Group of Nashville.

R. Dale Bay, Janet S. Hayes, and John Craig Howell, Nashville, Tennessee, for the appellees,

Dr. Daniel Price and Endodontic Associates, P.A.

Wendy L. Longmire, Nashville, Tennessee, for the appellee, Dr. Joseph Wiggs.

Timothy G. Wehner, Jackson, Tennessee, for the appellee Keith Thetford, D.D.S.

Phillip North and Renee Levay Stewart, for the appellees, Mark Deaton, M.D. and

Otolaryngology Associates of Tennessee, P.C.

Steven E. Anderson, Nashville, Tennessee, for the appellees, Vanderbilt University,

Dr. William Serafin, Dr. Steen Evelhoch, Dr. Sean Young, and Dr. John Ross.

Peter Robison, Nashville, Tennessee, for the appellee, Dr. Clayton Cummings.

Dulin Kelly, Hendersonville, Tennessee, for the appellee, Dr. Harry Lehrer.

Gail Vaughn Ashworth, Nashville, Tennessee, for the appellee, Dr. Laurel Brown.

John F. Floyd, Nashville, Tennessee, for the appellees, Dr. Jeffrey Bressman, D.D.S. and

Glenbrook Oral and Maxillofacial Surgery, Ltd.

OPINION

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from apparent complications from a tooth extraction in 2012. After

the extraction, Mr. Robert Clark alleged that he “experienced lingering symptoms of

swelling,” which caused him to seek additional treatment from other health care providers.

Subsequently, Mr. Clark began to experience what he believed were additional symptoms of

an infection, and he became convinced that the health care providers he visited were hiding

something from him. According to Mr. Clark, he had seventy-one medical appointments

related to his concerns over his tooth extraction and sought the advice of forty-six different

providers.

Four months after the initial extraction, Mr. Clark claimed a diagnostic imaging test

revealed a root tip fragment in his jaw. Unfortunately, Mr. Clark‟s symptoms were not

relieved by removal of the fragment. Mr. Clark believes that the initial dentist who removed

his tooth negligently left a root tip in the extraction site and failed to inform him. Again

according to Mr. Clark, the subsequent health care providers he consulted failed to properly

diagnose and treat his symptoms and tried to hide the initial negligence from him.

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On January 7, 2014, Mr. Clark1 filed a complaint against fourteen individual

defendants, their associated medical practice groups, and Vanderbilt University Medical

Center for various causes of action. For each defendant, Mr. Clark specified that his alleged

causes of action met “the requirements of medical malpractice (health care liability), pursuant

to [Tennessee Code Annotated] § 29-26-115(a).” In the Tennessee Health Care Liability Act,

a plaintiff in a health care liability action must give specific notice to the named health care

providers sixty days before filing the action and file a certificate of good faith with the

complaint, confirming that the plaintiff has a good faith basis to maintain the action. Tenn.

Code Ann. §§ 29-26-121, -122 (2012). When he filed his complaint, Mr. Clark included

proof that he had provided the required notice, but he did not file a certificate of good faith.

On January 21, 2014, Vanderbilt University Medical Center and its affiliated doctors

filed a motion to dismiss the complaint based on the lack of a certificate of good faith.

Shortly thereafter, several additional defendants2 filed similar motions to dismiss. On

February 10, 2014, before any hearing on the defendants‟ motions to dismiss, Mr. Clark filed

a notice of voluntary nonsuit and a proposed order. See Tenn. R. Civ. P. 41.01. Several

defendants3 opposed Mr. Clark‟s notice of nonsuit on the ground that his complaint should be

dismissed with prejudice because of the missing certificate of good faith.

The court held a hearing on the defendants‟ motions to dismiss on February 14, 2014.

At the hearing, Mr. Clark asked to withdraw his notice of nonsuit, but the court denied his

request. The court dismissed without prejudice Mr. Clark‟s claims against the defendants4

who did not object to the notice of nonsuit and scheduled another hearing to consider

whether the claims against the remaining defendants should be dismissed with prejudice

under Rule 12.02 or without prejudice under Rule 41.01.

1

Mr. Clark has represented himself throughout the pendency of this case.

2

In addition to the Vanderbilt defendants, motions to dismiss were filed by Dr. John Werther; Oral &

Facial Surgery Group, P.C.; Kevin West, DMD; Maxillofacial Surgery of Nashville; Dr. Joseph Wiggs;

Dr. Laurel Brown; Dr. Daniel Price; Endodontic Associates, P.C.; Dr. Keith Thetford; Dr. Jeffrey Bressman;

and Glenbrook Oral and Maxillofacial Surgery, Ltd. Dr. Clayton Cummings filed a motion to dismiss on the

same grounds as the other defendants after Mr. Clark filed his notice of voluntary nonsuit.

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The following defendants opposed Mr. Clark‟s notice of nonsuit: Dr. John Werther; Oral & Facial

Surgery Group, P.C.; Kevin West, DMD; Maxillofacial Surgery of Nashville; Dr. Keith Thetford; Dr. Daniel

Price; Endodontic Associates, P.A.; and Dr. Joseph Wiggs.

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The court dismissed the following defendants without prejudice: Dr. Laurel Brown; Vanderbilt

University Medical Center; Dr. William Serafin; Dr. John Ross; Dr. Sean Young; Dr. Steven Evelhoch;

Dr. Mark Deaton; and Otolaryngology Associates of Tennessee, P.C. Subsequently, the court also dismissed

without prejudice Mr. Clark‟s suit against Dr. Harry Lehrer; Dr. Clayton Cummings; Dr. Jeffrey Bressman; and

Glenbrook Oral and Maxillofacial Surgery, LTD.

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Mr. Clark argued that the court should excuse the absence of the good faith certificate

for two reasons. First, his cause of action fit within the common knowledge exception to the

requirement for expert testimony. Second, he believed that his case presented extraordinary

cause justifying excusing the requirement. Mr. Clark explained that it was obvious that he

would be unable to find an expert witness to testify on his behalf considering he had been

unable to find a medical professional to treat or diagnose his symptoms.

The court refused to excuse Mr. Clark‟s failure to file a certificate of good faith and

dismissed his claims against the remaining defendants5 with prejudice. Specifically, the court

found he had failed to prove extraordinary cause for his failure to file a certificate of good

faith or to establish that his claims fell within the common knowledge exception to the expert

testimony requirement for medical malpractice actions.

II. ANALYSIS

While Mr. Clark raises numerous issues on appeal, we view one issue as dispositive:

whether the trial court erred in failing to enter an order dismissing this case without prejudice

as to all defendants after Mr. Clark filed his notice of voluntary nonsuit under Rule 41.01 of

the Tennessee Rules of Civil Procedure. The trial court ruled that the failure to file a

certificate of good faith with a health care liability complaint precludes a plaintiff from

exercising his right to a voluntary dismissal without prejudice. Consequently, the trial court

granted the defendants‟ Rule 12.02(6) motions to dismiss with prejudice.

A. STANDARD OF REVIEW

In evaluating a Rule 12.02(6) motion to dismiss, the court reviews the pleadings to

determine whether the plaintiff has stated a claim upon which relief may be granted. Tenn.

R. Civ. P. 12.02(6). A Rule 12.02(6) motion challenges the legal sufficiency of the

plaintiff‟s claim, not the evidence. Webb v. Nashville Area Habitat for Humanity, Inc., 346

S.W.3d 422, 426 (Tenn. 2011). In reviewing the trial court‟s decision, “we must take the

factual allegations contained in the complaint as true and review the lower court‟s legal

conclusions de novo with no presumption of correctness.” Moreno v. City of Clarksville, 479

S.W.3d 795, 802 (Tenn. 2015).

B. VOLUNTARY DISMISSAL

For well over a century, plaintiffs in Tennessee have enjoyed the right to voluntarily

dismiss an action without prejudice and refile the action within one year of the dismissal.

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Mr. Clark‟s claims against these defendants were dismissed with prejudice: Dr. John Werther; Oral

& Facial Surgery Group P.C.; Dr. Joseph Wiggs; Endodontic Associates, P.A.; Dr. Daniel Price; Dr. Keith

Thetford; Oral & Maxillofacial Surgery of Nashville; and Dr. Kevin West.

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Evans v. Perkey, 647 S.W.2d 636, 640 (Tenn. Ct. App. 1982). This right is now reflected in

Rule 41.01 of the Tennessee Rules of Civil Procedure. Rule 41.01 provides:

(1) Subject to the provisions of Rule 23.05, Rule 23.06, or Rule

66 or of 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, and if a party has not already been served with a

summons and complaint, the plaintiff shall also serve a copy of

the complaint on that party; 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. 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.

(2) Notwithstanding the provisions of the preceding paragraph, a

notice of dismissal operates as an adjudication upon the merits

when filed by a plaintiff who has twice dismissed in any court

an action based on or including the same claim.

(3) A voluntary nonsuit to dismiss an action without prejudice

must be followed by an order of voluntary dismissal signed by

the court and entered by the clerk. The date of entry of the order

will govern the running of pertinent time periods.

Tenn. R. Civ. P. 41.01.

Rule 41.01 precludes a party from taking a voluntary nonsuit in a class action case, in

a shareholder derivative action, in a case in which a receiver has been appointed, or while an

opposing party‟s motion for summary judgment is pending. Himmelfarb v. Allain, 380

S.W.3d 35, 40 (Tenn. 2012). A plaintiff‟s right to a voluntary nonsuit is also limited by “an

implied exception which prohibits nonsuit when it would deprive the defendant of some

vested right.” Lacy v. Cox, 152 S.W.3d 480, 484 (Tenn. 2004). Other than these exceptions,

“Rule 41.01(1) affords a plaintiff the free and unrestricted right to voluntary dismissal

without prejudice before the jury retires.” Id.

The effect of a valid notice of nonsuit is immediate. Our Supreme Court has stated

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that “[t]he lawyer for the plaintiff is the sole judge of the matter and the trial judge has no

control over it.” Rickets v. Sexton, 533 S.W.2d 293, 294 (Tenn. 1976). Although the rule

requires the court to enter an order of dismissal, the order is simply for “ministerial and

procedural purposes.” Lacy, 152 S.W.3d at 484. See Green v. Moore, 101 S.W.3d 415, 419-

20 (Tenn. 2003) (stating that “except in very limited circumstances, a party can take a

voluntary nonsuit without permission from the trial court”). As long as Mr. Clark‟s notice

met the requirements of Rule 41.01, the trial court‟s job was simply to enter the order of

dismissal without prejudice.

We can quickly dispense with most of the limitations to voluntary dismissal described

in Rule 41.01. This is Mr. Clark‟s first notice of voluntary dismissal. It is undisputed that he

filed a written notice of nonsuit on February 10, 2014, and served a copy of the notice on all

parties. At that time, no motions for summary judgment were pending, and the case had not

reached the stage of jury deliberations. Although motions to dismiss were pending, Rule

41.01 makes no exception for motions to dismiss. See Rickets, 533 S.W.2d at 294 (upholding

the right of a plaintiff to take a voluntary nonsuit “in the face of the resistance of his

adversary”); see also Willbanks v. Trousdale Cty. Bd. of Educ., 1986 WL 1663, at *2 (Tenn.

Ct. App. Feb. 7, 1986) (“We find nothing in Rule 41.01 which takes away plaintiffs‟ right to

a voluntary nonsuit when defendant had moved to dismiss plaintiffs‟ suit.”). All parties

agree that Rules 23.05, 23.06, and 66 are inapplicable to this case. Moreover, the defendants

conceded at oral argument that they had no vested rights that would be affected by a

voluntary dismissal without prejudice.

The defendants‟ sole argument is that Mr. Clark‟s right to a voluntary dismissal

without prejudice is precluded by a statute, specifically, Tennessee Code Annotated § 29-26-

122, which requires all plaintiffs in health care liability actions to file a certificate of good

faith with the complaint. Tenn. Code Ann. § 29-26-122(a). The Supreme Court has held that

the certificate of good faith requirement is mandatory and necessitates strict compliance.

Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 309 (Tenn. 2012). Thus, the defendants

argue that Mr. Clark‟s failure to file a certificate precludes his right to a voluntary nonsuit.

The defendants‟ reliance on the Myers decision is misplaced.

Although compliance with the good faith certificate statute is mandatory, dismissal

with prejudice is not automatic. See Robles v. Vanderbilt Univ. Med. Ctr., No. M2010-

01771-COA-R3-CV, 2011WL 1532069, *3 (Tenn. Ct. App. Apr. 19, 2011). Under certain

circumstances, the court may excuse the failure to file the certificate or extend the time

within which to file the certificate. Tenn. Code Ann. § 29-26-122(a), (c); see also Myers,

382 S.W.3d at 307 (“If the trial court determines that the plaintiff has not complied with the

statutes, then the trial court may consider whether the plaintiff has demonstrated

extraordinary cause for its noncompliance.”). Nothing in the certificate of good faith statute

expressly “precludes a plaintiff from exercising the „free and unrestricted‟ right to dismiss an

action without prejudice provided in Tenn. R. Civ. P. 41.01.” Davis v. Ibach, No. W2013-

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02514-COA-R3-CV, 2014 WL 3368847, *4 (Tenn. Ct. App., July 9, 2014), aff’d on other

grounds, 465 S.W.3d 570 (Tenn. 2015).

While a plaintiff‟s right to a voluntary nonsuit is “[s]ubject to the provisions of Rule

23.05, 23.06, or Rule 66 or of any statute,” we conclude the phrase “of any statute” does not

include the certificate of good faith statute. We apply the well-known rules of statutory

construction to the interpretation of procedural rules. Lind v. Beaman Dodge, Inc., 356

S.W.3d 889, 895 (Tenn. 2011). If the language of the rule is capable of more than one

meaning, we “must seek a reasonable construction in light of the purposes, objectives, and

spirit of the [rule] based on good sound reasoning.” Scott v. Ashland Healthcare Ctr., Inc.,

49 S.W.3d 281, 286 (Tenn. 2001) (quoting State v. Turner, 913 S.W.2d 158, 160 (Tenn.

1995)). The reference to “any statute” is part of a list which includes Rules 23.05, 23.06, and

66. Each of the listed rules expressly limits a party‟s right to take a voluntary nonsuit in

certain types of cases.6 When a general phrase follows a more specific list, we construe the

general phrase to refer to only the same general class of items as those enumerated. See State

v. Marshall, 319 S.W.3d 558, 561-62 (Tenn. 2010) (explaining that the canon of ejusdem

generis operates to limit the breadth of a general phrase following a list of specific items).

Thus, “of any statute” must refer to statutes that specifically limit a party‟s right to obtain a

voluntary nonsuit or otherwise relate specifically to the effect of a voluntary nonsuit.7 This

construction complies with the purpose of Rule 41.01, which was to preserve the historically

liberal practice of allowing voluntary nonsuits in circuit court. See Evans, 647 S.W.2d at

640. Because the good faith certificate statute does not expressly preclude a plaintiff from

taking a voluntary nonsuit and, by its terms, allows a court the discretion to excuse

noncompliance under certain circumstances, the statute does not preclude Mr. Clark from

taking a voluntary nonsuit.

We conclude the trial court erred in dismissing Mr. Clark‟s claims against the

objecting defendants with prejudice. Rule 41.01 preserves the right of plaintiffs to obtain a

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Rule 23.05 specifies that “[a] certified class action shall not be voluntarily dismissed or compromised

without approval of the court.” Tenn. R. Civ. P. 23.05. Rule 23.06 precludes voluntary dismissal or

compromise in a shareholder derivative action without the approval of the court. Tenn. R. Civ. P. 23.06.

Similarly, Rule 66 prohibits voluntary dismissal in an action “wherein a receiver has been appointed.” Tenn.

R. Civ. P. 66.

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For example, in a suit for the abatement of a nuisance, a Tennessee statute prohibits voluntary

dismissal. See Tenn. Code Ann. § 29-3-107 (2012) (“No such proceeding shall be voluntarily dismissed

except upon a written, sworn statement of the relator or relators of the reasons for dismissal.”). Other statutes

specify the effect of a voluntary dismissal in certain types of cases. See id. §§ 20-6-306 (2009) (determining

the prevailing party in cases involving contractual claims for attorney‟s fees), 20-12-110 (2009) (specifying the

successful party for allocation of costs). A plaintiff‟s right to refile the action after taking a voluntary nonsuit

is limited by the saving statute. Id. § 28-1-105 (2000). See Payne v. Matthews, 633 S.W.2d 494, 496 (Tenn.

Ct. App. 1982) (“While Rule 41.01 T.R.C.P. gives a litigant the right to take two voluntary nonsuits, this right

is subject to the provisions „of any statute,‟ namely T.C.A. [§] 28-1-105.”).

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voluntary dismissal without prejudice except in limited circumstances, none of which are

present in this case. Because Mr. Clark met the requirements of Rule 41.01, the court‟s job

was simply to enter the order required by Rule 41.01(3).8

III. CONCLUSION

For the foregoing reasons, we affirm the decision of the trial court to the extent it

granted Mr. Clark‟s request for a voluntary dismissal. We reverse the decision of the trial

court to the extent it dismissed Mr. Clark‟s claims with prejudice and remand for further

proceedings consistent with this opinion. On remand, the trial court should enter an order

under Rule 41.01 of the Tennessee Rules of Civil Procedure dismissing Mr. Clark‟s claims

against defendants Dr. John Werther; Oral & Facial Surgery Group P.C.; Dr. Joseph Wiggs;

Endodontic Associates, P.A.; Dr. Daniel Price; Dr. Keith Thetford; Oral & Maxillofacial

Surgery of Nashville; and Dr. Kevin West without prejudice.

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W. NEAL MCBRAYER, JUDGE

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We note that, although Mr. Clark had the right to a voluntary dismissal without prejudice, he does not

necessarily enjoy the right to refile this action. As the Advisory Commission has commented, “[a]lthough Rule

41.01(2) allows two nonsuits without prejudice, a plaintiff must carefully consider the separate issue of

whether the saving statute, T.C.A. § 28-1-105, authorizes a recommencement of the plaintiff‟s action after a

nonsuit.” Tenn. R. Civ. P. 41.01 cmt. (emphasis in original).

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