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LeMonte v. LeMonte

Court of Appeals of Tennessee, Nashville

May 17, 2019

RONALD R. LEMONTE, JR.
v.
ELKE LEMONTE, ET AL.

          Session May 7, 2019

          Appeal from the Circuit Court for Montgomery County No. 63CC1-2018-CV-154 Ross H. Hicks, Judge

         The day before a hearing on a motion to dismiss for lack of prosecution was held, Plaintiff filed a notice of voluntary dismissal. Plaintiff did not appear at the hearing the following day. As such, the trial court granted the motion to dismiss and dismissed the case with prejudice. We reverse and remand for the entry of an order of dismissal without prejudice pursuant to Rule 41.01 of the Tennessee Rules of Civil Procedure.

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

          Ronald R. LeMonte, Jr., Woodlawn, Tennessee, Pro se.

          Robert T. Bateman, Clarksville, Tennessee, for the appellees, Elke LeMonte, and Bonnie Alice Castor.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Richard H. Dinkins and Carma D. McGee, JJ., joined.

          OPINION

          J. STEVEN STAFFORD, JUDGE

         Background

         On August 29, 2017, Plaintiff/Appellant Ronald R. LeMonte, Jr. ("Plaintiff") filed a civil warrant in the Montgomery County General Sessions Court against Defendants/Appellees Bonnie Alice Castor and Elke LeMonte ("Defendants") for fraud. Plaintiff failed to appear at trial on January 10, 2018, and the case was dismissed with prejudice. On January 22, 2018, Plaintiff filed a notice of appeal to the Montgomery County Circuit Court.[1] Trial in circuit court was set for July 12, 2018. The matter was not heard on this date. On October 18, 2018, Defendants filed a motion to dismiss for failure to prosecute, or in the alternative, for a more definite statement. The hearing on this motion was set for November 7, 2018. On November 6, 2018, Plaintiff filed a notice of voluntary dismissal.[2] The hearing on the motion to dismiss occurred as scheduled on November 7, 2018; Plaintiff did not appear. As such, on November 21, 2018, the trial court entered an order dismissing Plaintiff's case with prejudice for failure to prosecute. Plaintiff thereafter filed a timely notice of appeal.

         Discussion

         Plaintiff raises a number of issues on appeal.[3] However, we discern that the dispositive issue is whether the trial court erred in dismissing Plaintiff's case with prejudice notwithstanding his prior filing of a notice of voluntary dismissal.[4]

         A brief review of the law concerning voluntary dismissal is helpful. "In Tennessee, the plaintiff has a right to voluntarily dismiss his or her lawsuit under certain circumstances, which are outlined in Rule 41.01 of the Tennessee Rules of Civil Procedure[.]" Ewan v. Hardison Law Firm, 465 S.W.3d 124, 129 (Tenn. Ct. App. 2014) (footnote omitted). According to Rule 41.01,

(1) Subject to the provisions of Rule 23.05, Rule 23.06, or Rule 66[5] 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 ...

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