RONALD R. LEMONTE, JR.
ELKE LEMONTE, ET AL.
Session May 7, 2019
from the Circuit Court for Montgomery County No.
63CC1-2018-CV-154 Ross H. Hicks, Judge
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
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Reversed and Remanded
R. LeMonte, Jr., Woodlawn, Tennessee, Pro se.
T. Bateman, Clarksville, Tennessee, for the appellees, Elke
LeMonte, and Bonnie Alice Castor.
Steven Stafford, P.J., W.S., delivered the opinion of the
court, in which Richard H. Dinkins and Carma D. McGee, JJ.,
STEVEN STAFFORD, JUDGE
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. 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. 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.
raises a number of issues on appeal. 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
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 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