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England v. Schnur

Court of Appeals of Tennessee, Knoxville

November 29, 2017

MEGAN C. ENGLAND
v.
SONYA SCHNUR ET AL.

          August 10, 2017 Session

         Appeal from the Circuit Court for Hamilton County No. 16C1207 W. Neil Thomas, III, Judge

         Megan England filed a petition for a restraining order, protective order and injunctive relief against Sonya Schnur, Roswell Schnur, and Lisa Schnur, alleging, among other things, that the respondents had taken actions that caused her to fear for her safety. The trial court granted her a temporary restraining order. Three days later, respondents filed motions to dismiss under Tenn. R. Civ. P. 12.02(6) for failure to state a claim upon which relief can be granted. Respondents subsequently filed two affidavits in support of the motions. Shortly thereafter, petitioner filed a notice of voluntary nonsuit asking for dismissal of her petition without prejudice. Respondents opposed the dismissal unless it was entered with prejudice. Contrary to the respondents' request, the court dismissed the action without prejudice. We hold that the trial court did not consider matters outside the pleadings in making its decision. As a consequence, the motion of the respondents was not converted into a motion for summary judgment. In the alternative, even if the conversion occurred, the trial court had discretion to grant the petitioner's request without prejudice under the authority of Stewart v. Univ. of Tenn., 519 S.W.2d 591, 593 (Tenn. 1974). The trial court did not abuse its discretion in declining to make its dismissal with prejudice. Accordingly, we affirm.

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

          John P. Konvalinka, Chattanooga, Tennessee, for the appellants, Sonya Schnur, Roswell Schnur, and Lisa Daniela Schnur.

          Bill W. Pemerton, Chattanooga, Tennessee, for the appellee, Megan C. England.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which John W. McClarty and Thomas R. Frierson, II, JJ., joined.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE

         I.

         Petitioner was the appointed guardian ad litem for Lisa Schnur's minor son in another and separate legal action. Sonya and Roswell Schnur are Lisa Schnur's parents. The action involving the child was apparently protracted and contentious ‒ the petition states that "throughout 2016 the parties have engaged in approximately twelve days of trial." Petitioner alleged several actions by respondents that she perceived as aggressive and threatening, and stated as follows:

Due to the nature of the proceeding, the conduct of the Respondents, and the suspicious nature of the happenings referenced in this Petition, Petitioner is in fear of her own safety, in fear of retaliation by the parties for attempting to fulfill her duties as Guardian ad Litem, and has great concerns regarding the continued efforts by the Respondents to intimidate her and cause damage to her reputation for merely fulfilling her duties in her court appointed role.

         (Italics in original.) On the same day the petition was filed, October 17, 2016, the trial court entered an ex parte TRO stating that "for good cause shown, " respondents or their agents were enjoined from coming about petitioner, her home, and her place of business, and also from "making untrue and derogatory remarks about the Petitioner."

         On October 20, 2016, Sonya and Roswell Schnur each filed a motion to dismiss. They sought to dissolve the TRO. Each motion was captioned in part "motion to dismiss" and each recited that it was filed pursuant to Tenn. R. Civ. P. 12. Four days later, Lisa Schnur followed suit with her own motion to dismiss. On October 28, 2016, Sonya Schnur filed an affidavit disputing some of the factual allegations in the petition. The same day, Lisa Schnur filed an affidavit alleging numerous procedural defects in the manner the petition had been filed and granted. On November 7, 2016, petitioner filed a notice of nonsuit pursuant to Tenn. R. Civ. P. 41.01, asking for dismissal without prejudice. The trial court dismissed the action without prejudice, stating, in pertinent part, as follows:

Under Rule 41 of the Tennessee Rules of Civil Procedure, a plaintiff may voluntarily dismiss its complaint without prejudice unless two circumstances exist: the case has been submitted to the jury or unless a motion for summary judgment ...

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