Robert Clark v. John Werther
M2014-00844-COA-R3-CV
| Tenn. Ct. App. | Sep 27, 2016Background
- Pro se plaintiff Robert Clark sued multiple dental and medical providers and Vanderbilt University in Jan. 2014 alleging health-care-liability claims after a 2012 tooth extraction and subsequent complications.
- Clark served the statutorily required 60-day pre-suit notices but did not file the Tennessee Health Care Liability Act certificate of good faith with his complaint.
- Several defendants moved to dismiss for failure to file the certificate; before hearings, Clark filed a written notice of voluntary nonsuit under Tenn. R. Civ. P. 41.01.
- Some defendants objected and asked the court to dismiss with prejudice; the trial court dismissed non-objecting defendants without prejudice and dismissed objecting defendants with prejudice for failure to comply with the certificate requirement.
- On appeal the Court of Appeals considered whether the statutory certificate requirement barred Clark’s Rule 41.01 right to a voluntary nonsuit and concluded Rule 41.01 required dismissal without prejudice as to all defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to file statutory certificate of good faith prevents a Rule 41.01 voluntary nonsuit | Clark argued he validly filed a written nonsuit before trial and thus had an unfettered right to dismiss without prejudice | Defendants argued the mandatory certificate statute (Tenn. Code Ann. § 29-26-122) precludes use of Rule 41.01 and requires dismissal with prejudice | Court held the certificate statute does not negate the Rule 41.01 right; Clark’s nonsuit required dismissal without prejudice as to all defendants |
| Whether the trial court properly dismissed with prejudice versus allowing nonsuit | Clark asserted he should be allowed nonsuit; he also argued common-knowledge or extraordinary-cause exceptions to the certificate requirement | Defendants urged strict statutory enforcement and sought prejudice due to noncompliance | Court rejected dismissal with prejudice and reversed that portion of the order |
| Whether any other Rule 41.01 exceptions applied (e.g., pending summary judgment, vested rights) | Clark noted none of the enumerated Rule 41.01 exceptions applied | Defendants suggested the certificate statute functioned as a statutory exception | Court held none of the Rule 41.01 exceptions applied and the certificate statute was not the type of statute that limits nonsuit rights |
| Whether trial court could exercise discretion to excuse noncompliance with certificate | Clark argued inability to obtain experts might justify excuse or extension | Defendants asserted compliance is mandatory and prejudice warranted dismissal with prejudice | Court noted courts may excuse or extend under statute but here the procedural right to nonsuit controlled; remanded for entry of nonsuit without prejudice |
Key Cases Cited
- Evans v. Perkey, 647 S.W.2d 636 (Tenn. Ct. App. 1982) (historic right to voluntary nonsuit and refiling)
- Rickets v. Sexton, 533 S.W.2d 293 (Tenn. 1976) (plaintiff’s right to nonsuit is not subject to trial judge control)
- Lacy v. Cox, 152 S.W.3d 480 (Tenn. 2004) (Rule 41.01 preserves broad right to nonsuit except limited circumstances)
- Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300 (Tenn. 2012) (certificate-of-good-faith requirement is mandatory; courts may consider extraordinary cause)
- Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422 (Tenn. 2011) (12.02(6) motion standard: accept complaint allegations as true)
- Green v. Moore, 101 S.W.3d 415 (Tenn. 2003) (limitation on nonsuit is narrow)
- Lind v. Beaman Dodge, Inc., 356 S.W.3d 889 (Tenn. 2011) (interpretation of procedural rules with statutory text in mind)
- Scott v. Ashland Healthcare Ctr., Inc., 49 S.W.3d 281 (Tenn. 2001) (rule interpretation requires reasonable construction aligned with purpose)