Jason Britt v. Richard Jason Usery

01/18/2024

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 3, 2023

JASON BRITT v. RICHARD JASON USERY ET AL.

Appeal from the Circuit Court for Henderson County

No. 17112-2 Judge Donald H. Allen

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No. W2022-00256-COA-R3-CV

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The Plaintiff hired the Defendant to build a concrete foundation for his new home. The

foundation was allegedly defective. The Plaintiff hired a third party to remove the concrete

and to properly complete the work. The Plaintiff then sued the Defendant, alleging breach

of contract, negligent construction, and fraud. The case languished for several years. The

trial court ordered the Plaintiff to provide dates on which the Defendant could inspect

certain evidence, but the Plaintiff failed to comply. The trial court then orally granted the

Defendant’s motion to dismiss with prejudice for failure to prosecute. Before the trial court

entered a written order, the Plaintiff filed a notice of voluntary dismissal. The trial court

concluded that the Plaintiff’s notice was untimely submitted, coming after the oral ruling

granting the motion to dismiss, and entered a written order dismissing the Plaintiff’s case

with prejudice for failure to prosecute. Concluding that the Plaintiff maintained his right

to a voluntary dismissal under Tennessee Rule of Civil Procedure 41.01(1), we reverse.

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

JEFFREY USMAN, J., delivered the opinion of the Court, in which JOHN W. MCCLARTY

and CARMA DENNIS MCGEE, JJ., joined.

Adam P. Nelson, Union City, Tennessee, for the appellant, Jason Britt.

Tamara Hill, Jackson, Tennessee, for the appellees, Richard Jason Usery and Jason Usery

Construction, LLC.

OPINION

I.

In March 2014, Jason Britt hired Richard Jason Usery of Jason Usery Construction,

LLC., to serve as the general contractor on the construction of a new home in Lexington,

Tennessee. Mr. Usery began construction of the concrete foundation, footer, and safe

room. These concrete sections were to be built with steel rebar. Mr. Britt inquired to

confirm that Mr. Usery was using rebar. Mr. Usery confirmed that he used rebar to

reinforce the foundation, footer, and safe room, and he sent an invoice for this work to Mr.

Britt, which was eventually paid. Mr. Britt claims he inspected the work in August 2017

and determined that no rebar was actually used, making the work with the foundation,

footer, and safe room defective. In response, Mr. Britt hired a third party to remove the

concrete, re-grade the land, and build a new foundation, footer, and safe room. This

generated additional costs for Mr. Britt, who had the concrete removed to an unimproved

parcel of land belonging to one of his neighbors.

Three years later, in August 2017, Mr. Britt filed a complaint alleging breach of

contract, negligent construction, and fraud. Mr. Usery answered, denying that he failed to

use rebar, and filed a motion to dismiss based primarily on a theory of spoliation. Mr.

Usery alleged that Mr. Britt had destroyed the primary evidence in the case—the

concrete—and moved it off-site. Mr. Britt responded, arguing that Mr. Usery was present

when the concrete was excavated and that the concrete was not destroyed. Rather, he

asserted that the concrete was simply moved to allow for the construction of his home and

that Mr. Usery could still inspect the concrete through the discovery process. The trial

court denied the motion to dismiss, but it did order Mr. Britt to allow Mr. Usery to view

and inspect the concrete. Mr. Usery then sent discovery requests, including an

interrogatory asking for the location of the discarded construction materials. Mr. Britt

responded that the concrete was located on property “owned by Justin Roach on Joy Lane,

Henderson County, TN.” No specific address or location on the property itself was

provided.

In March 2018, Mr. Usery’s counsel emailed Mr. Britt’s counsel asking to set a time

to inspect the concrete. After receiving no response, Mr. Usery sent a follow-up email a

couple of weeks later. Over the next few months, in a myriad of back-and-forth emails

related to other discovery issues, the inspection was referenced a few times but never

appeared to be a top priority for either party. In July, Mr. Usery sent another follow-up

email asking about inspection dates. Mr. Britt responded that same day with three proposed

dates for inspection. This time Mr. Usery did not respond but instead sent a follow-up in

November stating that they still needed to set a date to inspect the materials. Mr. Britt

again did not respond.

The case then languished until April 22, 2020, when the trial court held a remote

status hearing. At this hearing, the trial court noted that Mr. Britt had not taken steps to

move the case forward and that it had been on the docket since August 2017. Mr. Usery

brought up a continuing need to inspect the concrete materials. The trial court issued an

oral ruling requiring Mr. Britt to provide Mr. Usery with dates to inspect the concrete

within sixty days. After the hearing, Mr. Usery drafted a proposed order and sent a copy

to Mr. Britt via email. The email read, “Please let me know if I have approval to sign for

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you. If I haven’t heard by Friday, I will just send it in and you can send in your own if you

want.” Mr. Britt did not believe the order accurately represented the trial court’s

conclusion during the hearing. When Mr. Britt did not respond to the email, Mr. Usery

filed the order with the trial court. Mr. Britt states that he was not notified that the proposed

order was filed. The trial court then entered an order on June 9, 2020, in which it stated,

“Plaintiffs are to give Defendants dates to view the foundation that is the subject matter of

the complaint and such viewing shall be completed by June 30, 2020.” Mr. Britt also

claims that he was not notified when the order was entered.

Mr. Britt did not provide dates to inspect the concrete as required by the order. On

July 6, 2020, after the June 30 deadline passed, Mr. Usery filed a motion to dismiss based

on Mr. Britt’s failure to prosecute and, especially, Mr. Britt’s failure to comply with the

court’s order providing a June 30 deadline. On July 13, Mr. Usery emailed a copy of the

motion to dismiss to Mr. Britt. The subject line read, “Britt v. Usery,” and the body of the

email stated, “Please find Defendant’s second motion to dismiss attached. It is set for

August 11.” As with the June 9 Order, Mr. Britt claims that he did not receive timely notice

of Mr. Usery’s motion to dismiss or of the hearing set for August 11. Mr. Britt states that

he only discovered the motion to dismiss on August 10 when Mr. Usery copied him on an

email to the court clerk to inquire about the upcoming hearing. After seeing this email,

Mr. Britt called Mr. Usery, who informed him that he had emailed a copy of the motion on

July 13. Mr. Usery forwarded the email to Mr. Britt again. Mr. Britt claims that only two

pages of the motion were attached and that it did not include the notice of hearing.

Therefore, Mr. Britt claims to have only seen the full motion the morning of the hearing

after the clerk provided a copy to him before the hearing.

There is no transcript of the August 11, 2020 hearing, but the parties agree that the

trial court orally ruled it was granting Defendant’s motion to dismiss. Two days later, on

August 13, before the trial court entered a written order of dismissal, Mr. Britt filed a Notice

of Voluntary Dismissal. On August 18, the trial court entered its written order granting

Mr. Usery’s motion to dismiss with prejudice. Mr. Britt then timely filed a motion to set

aside the order of dismissal. At the hearing on Mr. Britt’s motion to set aside, Mr. Britt

argued that he had not been properly notified of Mr. Usery’s motion to dismiss. When

questioned by the trial court, Mr. Britt admitted that he did receive Mr. Usery’s email on

July 13, 2020, which included a copy of the motion to dismiss and stated that the hearing

was set for August 11. He argued, however, that the email violated Tennessee Rule of

Civil Procedure 5.02(2) because the subject line of the email, which read, “Britt v. Usery,”

did not provide enough information to inform him that the email contained a filing in the

named case. Therefore, he asserted that he missed it amongst his numerous other emails.

He also argued that Mr. Usery never sent a mailed notice of the email, as required by Rule

5. The trial court asked Mr. Britt if he had raised these matters during the prior August 11

hearing on the motion to dismiss. Mr. Britt responded that he “tried to relay that to a certain

extent.”

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In response to Mr. Britt’s repeated arguments that Mr. Usery failed to serve the

motion to dismiss, the trial court stated,

Well, that’s assuming that I believe what you’re telling me. . . . You say it

wasn’t served. I mean, anybody can get up here and say, “Well, I didn’t get

it. I didn’t get it. I didn’t get it served.”

The trial court also noted that Mr. Britt had filed his notice of voluntary dismissal only after the

court had already orally dismissed the case.

I had already made a ruling prior to you filing the notice for voluntary

dismissal. I had already made a ruling to grant [Mr. Usery’s] motion to

dismiss for failure to prosecute.

When pressed about the timing of the notice of voluntary dismissal, Mr. Britt admitted that

he filed it because he did not like the court’s ruling at the hearing:

THE COURT: And so I made a ruling on August 11th. You didn’t like my

ruling, so you, then, on August 13th, came down to the courthouse and filed

a notice of voluntary dismissal.

[PLAINTIFF’S COUNSEL]: Correct.

The trial court also clarified its reasoning for granting the motion to dismiss. The trial court

judge stated that Mr. Britt failed to prosecute the case, that Mr. Britt failed to abide by the

court’s June 9 order, and that the court has the discretion to dismiss a case with prejudice

when a party does not follow court orders. The judge also explained that the parties had

failed to show up to six regularly scheduled docket calls between 2017 and 2019 where the

case could have been moved forward. Ultimately, the trial court denied Mr. Britt’s motion

to set aside in a written order entered on January 9, 2021.

Mr. Britt appealed, arguing that the trial court erred by declining to honor his notice

of voluntary nonsuit and instead entering a written order dismissing his case with prejudice

for failure to prosecute. Mr. Britt contends that the trial court erred because as of August

13, 2020, the date of filing of his notice, he retained the absolute right to voluntarily nonsuit

his case under Tennessee Rule of Civil Procedure 41.01(1). Mr. Usery counters that the

trial court’s oral ruling dismissing Mr. Britt’s case with prejudice deprived him of his right

to nonsuit his case under Rule 41.01(1).

II.

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Tennessee Rule of Civil Procedure 41.01(1) stands at the epicenter of the parties’

dispute in this case. Under Rule 41.01, the general rule is that a party has a free and

unrestricted right to voluntarily dismiss an action until trial. Rule 41.01 states:

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 . . . .

Tenn. R. Civ. P. 41.01(1). Accordingly, the text of the Rule 41.01 creates four exceptions

to the expansive right to nonsuit. Rule 23.05 places restrictions on voluntary nonsuits in

class action lawsuits, Rule 23.06 does the same for derivative actions by shareholders, and

Rule 66 applies when a receiver has been appointed. Additionally, a party does not have a

right to take a voluntary nonsuit in cases where the opposing party’s motion for summary

judgment is pending.1

The Tennessee Supreme Court in Lacy v. Cox noted three other limitations. 152

S.W.3d 480, 484 (2004). In addition to the express exceptions in Rule 41.01(1), the Lacy

Court noted that there is

an implied exception which prohibits nonsuit when it would deprive the

plaintiff of some vested right. . . . [Additionally,] [a] plaintiff is further

limited to taking no more than two nonsuits without prejudice, Tenn. R. Civ.

P. 41.01(2), and nonsuit cannot be taken more than one year after an initial

dismissal.

Id.

Neither party asserts that any of these exceptions or exclusions apply to the present

case; rather, their argumentation singularly focuses on whether the litigation had reached a

point in proceedings that caused Mr. Britt to lose his right to a voluntary nonsuit. For jury

trial proceedings, “[a]s long as none of these exceptions and limitations serve to restrict

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

dismissal without prejudice before the jury retires.” Lacy, 152 S.W.3d at 484. For non-

jury trials, “the absolute right to voluntary dismissal without prejudice continues . . . ‘until

1

A pending motion for summary judgment removes the ability of a plaintiff to take a voluntary dismissal

as a matter of right, but the trial court may still permit in appropriate circumstances a voluntary dismissal

while a summary judgment motion is pending. See, e.g., Stewart v. Univ. of Tenn., 519 S.W.2d 591, 593

(Tenn. 1974); Autin v. Goetz, 524 S.W.3d 617, 631 (Tenn. Ct. App. 2017); Ewan v. Hardison L. Firm, 465

S.W.3d 124, 136 (Tenn. Ct. App. 2014).

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the matter has been finally submitted to the court for determination on the merits.’” Id. at

486 n.14 (quoting Weedman v. Searcy, 781 S.W.2d 855, 857 (Tenn. 1989)).

It is this last limitation that is the contested ground between the parties in this case.

Mr. Usery argues that this case moved beyond the terminus point for Mr. Britt to freely

exercise his right to voluntary nonsuit once the trial court orally granted his motion to

dismiss. He insists that the matter was submitted to the trial court for a decision “on the

merits” and ruled upon orally. Mr. Britt contends that the basis of the trial court’s order

did not actually constitute submission of the matter “on the merits” for purposes of

nonsuiting a case under Rule 41.01. Both parties agree that whether this motion was

granted on the merits is the determinative question in resolving whether Mr. Britt still had

a right to voluntarily nonsuit. We address this appeal solely on the basis framed by the

parties -- whether under the language of Rule 41.01(1) Mr. Britt still had a right to

voluntarily nonsuit his case -- without considering exceptions that the parties have agreed

are inapplicable.

III.

To help avoid missing the forest for the trees in considering the issue before us, we

begin with a brief exploration of the historical development of Tennessee’s handling of

voluntary dismissals. Under the earliest common law rule in Tennessee, parties had the

right to nonsuit their case even after the jury returned, up until the verdict was actually

recorded. Lacy, 152 S.W.3d at 487 n.16 (citing Graves v. Union Ry. Co., 177 Tenn. 699,

152 S.W.2d 1026, 1028 (1941)). Within the first decade of Tennessee statehood, however,

the legislature superseded the common law rule, bringing the right to nonsuit to a close

upon the retirement of the jury. Id. (citing Laws of Tenn., ch. 6, § 58 (1801) (“[E]very

person desirous of suffering a non-suit on trial at law, shall be barred therefrom, unless he

do so before the jury retire from the bar.”)); see also Darby v. Pidgeon Thomas Iron Co.,

144 Tenn. 298, 232 S.W. 75, 75 (1921) (observing that “[b]efore the passage of the . . .

statute a nonsuit could be taken after the verdict and before it was recorded”). The

Tennessee legislature subsequently addressed the handling of counterclaims and nonsuits

in bench trials. With regard to bench trials, the 1858 Code of Tennessee provided that “[i]f

the trial is by the court instead of the jury, the non-suit or dismissal . . . shall be made before

the cause is finally submitted to the court, and not afterwards.” Code of Tennessee § 2966

(Return J. Meigs & William F. Cooper, eds., E.G. Eastman & Co. 1858). Throughout the

1800s until the 1970s, nonsuits in Tennessee were governed by statutes that remained

largely unchanged. Staggs v. Vaughn, 325 S.W.2d 277, 278 (Tenn. 1959) (observing that

“[t]he right to take a non-suit is regulated by Statute”).2

2

The 1955 version of the Tennessee Code Annotated provided with regard to nonsuits the following:

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The central statutory provisions governing nonsuits were superseded, however, with

the adoption of Rule 41.01 of the Tennessee Rules of Civil Procedure and the repeal of

corresponding statutory provisions.3 In adopting the language of Rule 41 in 1970, the

Advisory Commission in embracing an expansive right to nonsuit, observed the following:

Prior practice in the circuit court permitted a claimant an unrestricted right to

take a voluntary nonsuit in jury cases at any time before final retirement of

the jury, and in nonjury cases until final submission of the case to the court

for decision. . . . In chancery court, the right to voluntary dismissal without

prejudice was more limited; generally permission of the court was required

after proof on the merits was taken. . . . The Committee felt that the more

liberal circuit court practice would probably be preferable to the Bar . . . .

Tenn. R. Civ. P. 41 Advisory Comm’n Cmt. Characterizing Tennessee’s approach to

nonsuits, the Tennessee Supreme Court has observed that Tennessee’s “rule on voluntary

dismissals . . . is much more liberal than that . . . in federal courts and in many other

jurisdictions” and that “the more liberal practice was preserved in the [Tennessee] Rules

of Civil Procedure, although modified in some respects.” Weedman, 781 S.W.2d at 856-

57.

Historically, in Tennessee the right to nonsuit existed until limitations emerged in

connection with an actual trial proceeding, whether before a jury or judge. A pre-trial

limitation on the right to voluntary dismissal emerged, however, in Tennessee Rule of Civil

Procedure 41.01(1) through the adoption of a similar limitation to Federal Rule of Civil

20–1311. Nonsuit before retirement of jury.—The plaintiff may, at any time before

the jury retires, take a nonsuit or dismiss his action as to any one or more defendants, but

if the defendant has plead a setoff or counterclaim, the latter may elect to proceed on such

counterclaim in the capacity of a plaintiff.

20–1312. Withdrawal of counterclaim.—The defendant may, in like manner,

withdraw his counterclaim at any time before the jury retires to consider of their verdict.

20–1313. Dismissal in nonjury trials.—If the trial is by the court instead of the

jury, the nonsuit or dismissal provided for in §§ 20–1311 and 20–1312 shall be made before

the cause is finally submitted to the court, and not afterwards.

3

The Tennessee Supreme Court adopted the Tennessee Rules of Civil Procedure by order on January 26,

1970 and provided for them to take effect on January 1, 1971. In re Estate of Boote, 198 S.W.3d 699, 712

n.21 (Tenn. Ct. App. 2005). The Tennessee General Assembly repealed multiple statutory provisions in

accordance with the adoption of the Rules of Civil Procedure including the nonsuit provisions. 1972 Tenn.

Pub. Acts Ch. 565 §1(11).

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Procedure 41(a)(1)(A)(i)4 as it relates to summary judgment motions. This restriction

removes the right of a party to nonsuit during a pending summary judgment motion from

an adverse party. Tenn. R. Civ. P. 41.01(1). Nevertheless, “[e]ven when a summary

judgment motion is pending,” a Tennessee “court may grant a voluntary nonsuit without

prejudice but to do so is discretionary with the court and plaintiff cannot move for dismissal

as a matter of right.” Nancy Fraas MacLean &, Matthew Jeffrey MacLean, 6 Tenn. Prac.,

Civil Procedure Forms § 41:2 (2022). Federal Rule of Civil Procedure 41(a)(1)(A)(i)

actually imposes a limitation on voluntary dismissals as soon as “the opposing party serves

either an answer or a motion for summary judgment.” Tennessee’s Rule 41.01 has no

comparable limitation involving the restriction of voluntary nonsuits in connection with

service of an answer. Though Tennessee’s Rule 41.01 does limit the ability to nonsuit

when a motion for summary judgment from an adverse party is pending, the Rule makes

no express reference to a limitation on an ability to nonsuit based upon a motion to dismiss.

In other words, in the text of Rule 41.01 the only pre-trial motion restricting the right to

voluntary nonsuit is a motion for summary judgment.

In the 1998 case of Hamilton v. Cook, this court was presented with a question of

whether under Rule 41.01 the plaintiffs retained their right to nonsuit after the court orally

announced its decision dismissing the case in response to a motion to dismiss but before

entering its written order. No. 02A01-9712-CV-00324, 1998 WL 704528, at *4 (Tenn. Ct.

App. Oct. 12, 1998). In an unpublished opinion, this court concluded that “[o]nce the case

finally has been submitted to the trial court for a determination on the merits, . . . the

plaintiff no longer can take a voluntary dismissal as a matter of right.” Id. The Hamilton

Court observed that the defendants’ motion to dismiss “already had been submitted to the

trial court for a determination on the merits and, in fact, the trial court had ruled on the

Defendants’ motion by announcing that it was dismissing the [Plaintiffs’] complaint.” Id.

Under these circumstances, the court concluded that the plaintiffs “lost the ability to take a

voluntary dismissal as a matter of right.” Id. Regarding the motion to dismiss, the court

noted it contained valid defenses to the plaintiffs’ claims. Id. at *5. The motion to dismiss

asserted, “inter alia, that the [plaintiffs’] complaint failed to state a claim upon which relief

could be granted, that the trial court lacked subject matter jurisdiction over the [plaintiffs’]

claims for declaratory and injunctive relief because the [the plaintiffs] had not exhausted

all available administrative remedies, that the [plaintiffs’] claims against the Defendants

were barred by the doctrine of sovereign immunity, and that the [plaintiffs’] claim for

damages against the individual Defendants was barred by the doctrine of qualified

immunity.” Id. at *2 (footnotes omitted). While conceding that the matter involved a non-

jury proceeding, the court reasoned that the circumstance was, nevertheless, “somewhat

analogous to the situation in a jury proceeding where the plaintiff attempts to take a

voluntary nonsuit after the trial court orally has granted the defendant’s motion for a

4

Federal Rule of Civil Procedure 41(a)(1)(A)(i) provides that “the plaintiff may dismiss an action without

a court order by filing . . . a notice of dismissal before the opposing party serves . . . a motion for summary

judgment . . . .”

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directed verdict.” Id. at *5. The court noted that “[s]uch a practice is forbidden by both

the rule and our case law.” Id. Ultimately, the Hamilton Court applied the same concept

to oral rulings on motions to dismiss that were upon the merits, concluding the plaintiff

had lost the right to nonsuit the case and would need court permission to do so. Id.

This would not be the last occasion that this court confronted the intersection of the

right to voluntary nonsuit with a motion to dismiss. In a 2021 unpublished decision in Irvin

v. Green Wise Homes, LLC, this court was confronted with a strikingly similar

circumstance to that in Hamilton. No. M2019-02232-COA-R3-CV, 2021 WL 709782

(Tenn. Ct. App. Feb. 24, 2021), perm. app. denied (Tenn. June 9, 2021). As in Hamilton,

the trial court declined to permit claimants to voluntarily nonsuit their case without

prejudice when the claimants sought to do so after an adverse oral ruling granting a motion

to dismiss. Id. at *2. Again, as in Hamilton, the motion to dismiss was upon the merits,

having asserted a failure to state a claim under Tennessee Rule of Civil Procedure 12.02(6).

Id. Ultimately, citing the Hamilton decision, the Irvin Court concluded that the claimant

“lost the ability to take a nonsuit as a matter of right after the trial court orally granted

Appellee’s motion to dismiss [its] claims. At that point, [the claimant’s] case had been

decided on the merits.” Id. at *9 (footnote omitted).

This court has also arrived at the intersection between voluntary nonsuits and

motions to dismiss in multiple cases addressing whether the filing of a motion to dismiss

by an adverse party in-and-of-itself forecloses the right to voluntarily nonsuit. The

consistent holding of this court has been that the filing of a motion to dismiss does not in-

and-of-itself remove the right to a voluntary nonsuit. Westfield Grp. Ins. v. Embry, No.

M2022-01301-COA-R3-CV, 2023 WL 6314469, at *4 (Tenn. Ct. App. Sept. 28, 2023), no

perm. app. filed (“[T]he motion to dismiss was filed, but [the plaintiff] had not responded

to the merits of the motion, the parties had not presented argument before the trial court,

and the trial court had not provided its disposition of the motion through an oral ruling.

[The defendant] simply filed a motion to dismiss that had not been heard and, importantly,

the trial court had not yet opined on the merits of the motion.”); Hurley v. Pickens, 536

S.W.3d 419, 420 (Tenn. Ct. App. 2016) (“We find and hold that Plaintiff had the right to

take a voluntary dismissal even while a motion to dismiss was pending.”); Club Leconte v.

Swann, 270 S.W.3d 545, 550 (Tenn. Ct. App. 2008) (“[T]he Trial Court had not yet ruled

on the motion to dismiss[;] . . . plaintiff’s motion for voluntary dismissal should have been

granted.”).

Finally, this court has addressed the intersection between motions to dismiss and

nonsuits in a case raising the question of whether the trial court retains subject matter

jurisdiction after the filing of a notice of voluntary nonsuit following an oral ruling on a

motion to dismiss. This court rejected the contention that “the moment the plaintiff gives

effective notice of a Tennessee Rules of Civil Procedure, Rule 41.01 voluntary dismissal

(nonsuit) . . . the trial court lose[s] all subject matter jurisdiction to adjudicate any issue

affecting the nonsuiting plaintiff, save only the entry of a pro forma order confirming the

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already-effective voluntary dismissal (nonsuit).” Mack v. Cable Equip. Servs., Inc., No.

W2020-00862-COA-R3-CV, 2022 WL 391458, at *7 (Tenn. Ct. App. Feb. 9, 2022), perm.

app. denied (Tenn. Aug. 3, 2022). In reaching this conclusion, this court cautioned that

the plaintiffs did not seek review “of the merits of the trial court’s rulings that they were

no longer entitled to take a nonsuit as of right, that the court had discretion regarding

whether to permit a nonsuit, and that allowing a nonsuit after the trial court had issued an

oral ruling on the motion to dismiss would be unfairly prejudicial, in accordance with the

reasoning of Hamilton. As such, we do not reach those issues.” Id.

IV.

Turning to the circumstances of the present case, we conclude that an oral ruling on

a motion to dismiss for failure to prosecute does not eliminate a right to voluntarily nonsuit

a case. We reach this conclusion for four central reasons. One, the text of Rule 41.01(1)

does not support the conclusion that Mr. Britt lost his right to voluntarily nonsuit his case.

Two, until the trial court entered its written order, there was still a pending case to be

nonsuited. Three, in extending the limitations on voluntary nonsuit under Rule 41.01(1) to

motions to dismiss, the Hamilton and Irvin courts emphasized that the dismissals had been

upon the merits of the case. Four, the Tennessee Supreme Court and United States

Supreme Court have observed that “on the merits” in connection with failure to prosecute

does not truly mean a determination on the merits in the conventional sense of the term.

When interpreting a rule, it is a prudent to turn first to the text of the rule. Rule

41.01(1) states that “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 . . . .” The pre-trial motion

to dismiss based upon failure to prosecute and the notice of voluntary dismissal were

presented at a “time before the trial.” In fact, there was no trial in this case. Accordingly,

under the plain language of the rule, there is no limitation in Rule 41.01(1) that would have

eliminated Mr. Britt’s right to voluntarily nonsuit his case.

Continuing with the text of Rule 41.01(1), we note that the Rule does specifically

impose limitations upon voluntarily nonsuits with regard to another pre-trial motion -- a

motion for summary judgment -- while referencing no limitations arising from motions to

dismiss. Addressing pre-trial motions, Rule 41.01(a) specifically limits the ability to

nonsuit a case during the pendency of a summary judgment motion, providing that the right

to voluntary nonsuit applies “except when a motion for summary judgment made by an

adverse party is pending.” There is no corresponding reference, exclusion, or carve-out, in

other words no similar limitation, in the language of Rule 41.01(1) related to motions to

dismiss.

As for the second basis of our decision, there is still a pending suit for a party to

nonsuit where there is an oral pronouncement granting a motion to dismiss by a trial court

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but where the written order to that effect has not yet been entered. When a trial court orally

dismisses a case, the dismissal does not become final until the court enters a written order.

“It is well-settled that a trial court speaks through its written orders—not through oral

statements contained in the transcripts . . . .” Williams v. City of Burns, 465 S.W.3d 96,

119 (Tenn. 2015) (quoting Anil Const., Inc. v. McCollum, No. W2013-01447-COA-R3-

CV, 2014 WL 3928726, at *8 (Tenn. Ct. App. Aug. 7, 2014); In re Adoption of E.N.R., 42

S.W.3d 26, 31 (Tenn. 2001) (“[T]he court speaks through its order, not through the

transcript.”). One reason for this is that a trial court may modify or even reverse its oral

decision before entering the written order:

A judgment must be reduced to writing in order to be valid. It is inchoate,

and has no force whatever, until it has been reduced to writing and entered

on the minutes of the court, and is completely within the power of the judge

or Chancellor. A judge may modify, reverse, or make any other change in

his [or her] judgment that he [or she] may deem proper, until it is entered on

the minutes, and he [or she] may then change, modify, vacate or amend it

during that term, unless the term continues longer than thirty days after the

entry of the judgment, and then until the end of the thirty days.

Broadway Motor Co. v. Pub. Fire Ins. Co., 12 Tenn. App. 278, 280 (1930) (citing Gibson’s

Suits in Chancery, § 572). Simply stated, in connection with judgments, “no oral

pronouncement is of any effect unless and until made a part of a written judgment duly

entered.” Lewis v. Brooks, 66 S.W.3d 883, 886 (Tenn. Ct. App. 2001) (quoting Envtl.

Abatement, Inc. v. Astrum R.E. Corp., 27 S.W.3d 530, 536 (Tenn. Ct. App. 2000)).

As to the third basis of our decision, this court in Hamilton, seemingly, extended

nonsuit limitations to motions to dismiss by viewing dismissals on a substantive basis as

akin to a final substantive merits decision after a trial of a case. Dismissal based on failure

to prosecute, however, cannot be similarly understood. In reaching its conclusion, the

Hamilton Court cited three cases, all of which involved actual trials and in none of which

the proceedings reached a point where the party lost the right to voluntarily nonsuit: (1)

Weedman v. Searcy, 781 S.W.2d 855 (Tenn. 1989), (2) Harris v. Harris, No. 01-A-01-

9511-CV00518, 1996 WL 225702 (Tenn. Ct. App. May 3, 1996), and (3) Willbanks v.

Trousdale County Board of Education, 1986 WL 1663 (Tenn. Ct. App. Feb. 7, 1986).

In Weedman v. Searcy, the Tennessee Supreme Court observed the following:

In 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. In the non-jury case,

until the matter has been finally submitted to the trial judge for decision, the

“trial” of the case has not been concluded. The trial judge may order further

proof to be taken, may reopen the proof for various purposes, extend the time

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for filing briefs, and the like. Dismissal as a matter of right continues to be

available at least until written post-trial briefs have been filed pursuant to

order of the trial judge and until the matter has been finally submitted to the

court for determination on the merits. That point had not been reached in the

present case when the motion of appellee was made.

Weedman, 781 S.W.2d at 857. The Harris Court rejected the contention that a directed

verdict motion5 during a trial proceeding foreclosed a right to voluntary non-suit,

concluding that “[i]n a non-jury case, the plaintiff has the right of voluntary dismissal until

the case is finally submitted to the Court for consideration.” Harris, 1996 WL 225702, at

*5. In Willbanks v. Trousdale County Board of Education, this court concluded that the

right to voluntary dismissal had not been foreclosed despite the evidentiary portion of the

trial proceedings having ended. The Willbanks Court stated:

We hold that the phrase “during the trial of the cause” of Rule 41.01

covers any proceeding until the case is finally submitted to the trial court for

decision. . . .

Here, the case had not been finally submitted. The trial court gave the

parties additional time in which to file briefs and to return to court for oral

argument. If the trial court considered that the case had been finally

submitted for decision and that the case “was closed,” then the court was

asking the parties to engage in an exercise in futility. The record is clear that

the court had not taken the case under advisement for the purpose of

rendering a decision but, in fact, would not render a decision until such time

as briefs had been filed and such oral argument as the parties wished to make

had both been considered by the court. The trial in this case did not end with

submission of all of the proof.

Willbanks, 1986 WL 1663, at *3.

In endeavoring to understand the Hamilton Court’s application of Rule 41.01(1) to

oral rulings upon motions to dismiss, it appears that the Hamilton Court viewed a motion

to dismiss submitted and ruled upon based on the merits as a form of trying of the case on

the merits in which the case is found to be substantively without merit. The Irvin Court

similarly emphasized that dismissal had been sought and granted upon the merits. Failure

to prosecute a case cannot be thought of as analogous with trying a case upon the merits.

To the contrary, failure to prosecute is a failure to try a case, a failure to advance one’s

cause of action.

5

The Harris Court did note that “[a] motion for directed verdict has no place in a non-jury proceeding . . .

.” 1996 WL 225702, at *5.

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In support of his contention that this case is akin to Hamilton, Mr. Usery argues that

the language of Tennessee Rule of Civil Procedure 41.02(3) is determinative as to whether

Mr. Britt retained a right to voluntarily nonsuit his case. Rule 41.02(3) provides that

“[u]nless the court in its order for dismissal otherwise specifies, a dismissal under this

subdivision and any dismissal not provided for in this Rule 41, other than a dismissal for

lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as

an adjudication upon the merits.” Accordingly, under Rule 41.02(3) a dismissal for failure

to prosecute “operates as an adjudication on the merits.” Based on this language of Rule

41.02(3), Mr. Usery contends that a motion to dismiss for failure to prosecute constitutes a

submission of the case “on the merits” to the trial court, thereby foreclosing a plaintiff’s

right to nonsuit his or her case.

Mr. Usery’s argument dovetails into the fourth basis of our decision: that, while not

specifically addressing nonsuits, the Tennessee Supreme Court and United States Supreme

Court have both considered “on the merits” language in connection with failure to

prosecute and concluded that it does not refer to the conventional understanding of a

decision having been reached on the substance of the matter. The Tennessee Supreme

Court, specifically, has circumscribed the reach of the 41.02(3) language, upon which Mr.

Usery grounds his argument, that dismissal for failure to prosecute “operates as an

adjudication on the merits.” In Henry v. Goins, 104 S.W.3d 475 (Tenn. 2003), the

Tennessee Supreme Court determined the appropriate standard to be applied when a trial

court considers and an appellate court reviews a ruling upon a Tennessee Rule of Civil

Procedure 60.02 motion for relief in light of a dismissal for failure to prosecute. Though

the Henry Court acknowledged that Tennessee Rule of Civil Procedure 41.02(3) states

“that an involuntary dismissal for failure to prosecute ‘operates as an adjudication upon the

merits’ unless the trial court otherwise directs,” the Tennessee Supreme Court,

nevertheless, concluded that a dismissal for failure to prosecute was a not determination on

the merits for purposes of considering a Rule 60.02 motion. Id. at 478 (quoting Tenn. R.

Civ. P. 41.02(3)). The Henry Court reasoned that instead “[a] dismissal for failure to

prosecute is analogous to a default judgment. When a defendant fails to answer a

complaint, the plaintiff may obtain a default judgment without a hearing on the merits.

When a plaintiff fails to prosecute the case, the defendant may receive a judgment of

dismissal without a hearing on the merits.” Id. at 481. The court added that “[d]ismissals

based on procedural grounds like failure to prosecute and default judgments run counter to

the judicial system’s general objective of disposing of cases on the merits.” Id. The Court

ultimately applied a standard more favorable to affording relief under 60.02 than would

exist if the case had actually been decided on the merits. Id.

Addressing the “on the merits” language in the context of res judicata determination,

the Tennessee Supreme Court interpreted the “operates as an adjudication on the merits”

as akin to a with prejudice determination. In Regions Bank v. Prager, the Tennessee

Supreme Court assessed whether a trial court’s dismissal for failure to prosecute “otherwise

specified” that it was not on the merits for purposes of res judicata. 625 S.W.3d 842 (Tenn.

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2021). In Prager, the trial court dismissed a case for failure to prosecute and orally

specified that the dismissal would not bar the plaintiff from refiling the case. Id. at 845.

The Court noted that the language of Rule 41.02(3) “certainly is clear that such a dismissal

operates as an adjudication on the merits.” Id. at 850. But, due to the trial court’s ruling

that the dismissal would not bar a refiling of the suit, the Tennessee Supreme Court held

that the order otherwise specified that it was not on the merits under Rule 41.02(3). Id. at

852. Therefore, because the original dismissal was not on the merits, res judicata did not

bar the subsequent refiling. Id. Similar to Henry, the analysis interpreted the “on the

merits” language of Rule 41.02(3) to mean something akin to “with prejudice,” rather than

going to the underlying substantive merits. Id.; see also Patrick v. Dickson, 526 S.W.2d

449, 453 (Tenn. 1975) (holding that a dismissal for failure to prosecute was not “on the

merits” and that the phrase “with prejudice” was a nullity).

The federal courts have similarly noted that “on the merits” has two distinct

meanings and purposes. One usage of “on the merits,” the more prototypical one, refers to

resolution of a case upon its substantive merits, rather than a procedural basis, while the

other usage of “on the merits” is more limited in scope serving as an indication that an

adverse judgment is entered with, rather than without, prejudice. The United States

Supreme Court has interpreted the “adjudication upon the merits” language found within

Federal Rule of Civil Procedure 41(b) as using the language in the narrower sense, that it

simply means “with prejudice.” Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497,

505-06 (2001). Explaining the meaning of “adjudication upon the merits” in the context

of Rule 41(b), the Supreme Court stated, that an adjudication upon the merits, as used in

Rule 41(b) “is the opposite of a dismissal without prejudice—that is, it is a dismissal that

prevents refiling of the claim in the same court.” Id. at 505 (quoting 18 Wright & Miller §

4435, at 329, n. 4 for the proposition that “[b]oth parts of Rule 41 . . . use the phrase

‘without prejudice’ as a contrast to adjudication on the merits,” and 9 Wright & Miller, §

2373, at 396, n. 4 for the proposition that “‘[W]ith prejudice’ is an acceptable form of

shorthand for ‘an adjudication upon the merits’”). Exploring the two different meanings,

Justice Scalia writing for the Supreme Court in Semtek International Incorporated drew a

divide between the “with prejudice” understanding and what he described as “[t]he original

connotation of an ‘on the merits’ adjudication,” which “is one that actually ‘pass[es]

directly on the substance of [a particular] claim’ before the court.” 531 U.S. at 501-02

(quoting Restatement (Second) of Judgments § 19, Comment a, p. 161 (1980)). Justice

Scalia observed that the latter “connotation remains common to every jurisdiction of which

we are aware.” Id. at 502; see also Krekelberg v. City of Minneapolis, 991 F.3d 949, 954-

55 (8th Cir. 2021) (stating that “the Supreme Court explained in Semtek . . . that the phrase

‘adjudication on the merits’ in Rule 41(b) means ‘with prejudice’ and should not be equated

with a ‘prototypical judgment on the merits’—'one in which the merits of a party’s claim

are in fact adjudicated for or against the party after trial of the substantive issues.’”). In

sum, on the merits has two distinct meanings. One is related to a determination turning

upon the substance of a claim, and the other is a means of communicating that a

determination is with prejudice. The former, a decision turning upon an assessment of the

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substance of a claim, is the more prototypical usage. The dismissal in this case was not a

decision based upon the substantive merits of the case but instead a procedural dismissal

based upon a failure to prosecute; accordingly, it was not “on the merits” in the prototypical

use of the term.

Neither motions to dismiss nor the “on the merits” language of Hamilton appear

anywhere in Rule 41.01(1), which liberally allows for nonsuits in Tennessee until trial.

The intersection between Rule 41.01(1) and the Hamilton decision is sufficiently

complicated that a visual analogy may prove useful. We can think of the textual limitations

upon a right to voluntary nonsuit in Rule 41.01(1) as creating a house. In this analogy, this

court’s Hamilton decision can be understood as having built an awning extending the

limitations on the right to voluntary nonsuit beyond the walls of the house to cover oral

grants of motions to dismiss on the merits. The Hamilton Court’s “on the merits” language

in connection with a motion to dismiss is, however, the awning attached to the house, not

the Rule 41.01(1) house itself. In constructing this awning, the Hamilton Court seemingly

treated a motion to dismiss that raised substantive bases for dismissal of a suit as akin to a

substantive determination based upon the merits of the claim after a trial. See Semtek Int’l

Inc., 531 U.S. at 501 (quoting Restatement (Second) of Judgments § 19, Comment a, p.

161 (1980)). A dismissal based upon a failure to prosecute, however, is not a determination

that the party’s claim is without merit. Dismissal based upon failure to prosecute is not

akin to trying and rejecting a claim based on a lack of substantive merits; rather; it is a

failure to advance, to try the case. This distinction runs through cases like Henry v. Goins

and Regions Bank v. Prager and was also recognized in Semtek International Incorporation

v. Lockheed Martin Corporation. If this court were to extend Hamilton to the present case,

we would be building a shaky unsupported addition that was attached to the Hamilton

awning, not the Rule 41.01(1) house.

We are mindful that a contrary decision in this case may result in better policy

outcomes. The text, however, of Rule 41.01(1) does not support a limitation upon a right

to voluntarily nonsuit under the circumstances of the present case. Nor do we understand

prior judicial precedents as having placed an interpretive gloss on Rule 41.01(1) that would

result in loss of the right of voluntarily nonsuit under the circumstances of the present case.

To the contrary, our understanding of prior cases is that a distinction exists between merits

determinations based on substance and procedural dismissals such as a failure to prosecute.

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Accordingly, while such policy considerations present a siren’s song, like Odysseus, we

remain tied to the mast6 — or in this case the text of Rule 41.01(1).7

Accordingly, under the text of Rule 41.01(1) the Plaintiff maintained the right to

voluntarily dismiss the case when he filed the notice of voluntary dismissal on August 13,

2020. We reverse the trial court’s order dismissing the case with prejudice. Because we

find that Plaintiff’s notice of voluntary dismissal was effective, we need not reach the

remaining issues on appeal.

IV.

For the reasons discussed above, we reverse the judgment of the Circuit Court for

Henderson County. Costs of the appeal are taxed to the appellees, Richard Jason Usery

and Jason Usery Construction, LLC., for which execution may issue if necessary.

________________________________

JEFFREY USMAN, JUDGE

6

The story of Odysseus and the Sirens is a useful (if mythical) example of . . . a binding pre-

commitment. The Sirens were creatures with magically captivating voices that used their

singing to lure sailors toward them and onto hidden rocks that would sink their ships and

drown them all. The course which Odysseus and his band needed to sail would take them

within the Siren’ range. Following the advice of Circe, Odysseus had his crew put wax in

their ears to make them deaf to the singing. Wishing to hear the beautiful music himself,

Odysseus did not use the wax, but had himself tied securely to the mast of the ship. He

extracted a promise from all his crewmembers not to untie him, no matter how hard he

begged or pleaded . . . . [H]e was creating a rule to protect himself from the mistakes of

his will in the heat of the moment. And of course, once the song was in his ears, Odysseus

begged his crew to set him free-which would have led to their destruction. His crew tied

him only tighter. He was protected from himself and they from him.

Jennifer A. Drobac & Oliver R. Goodenough, Exposing the Myth of Consent, 12 Ind. Health L. Rev. 471,

501 (2015).

7

Those policy concerns may suggest that how motions of dismiss, of various types, and rulings thereupon

should impact voluntary dismissals would be worthy of consideration by Advisory Commission on the

Rules of Practice & Procedure.

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