Maynord v. Norris ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT NASHVILLE
RONALD LEWIS MAYNORD and
BRENDA GAIL MAYNORD,
INDIVIDUALLY, AS NEXT OF KIN
)
)
)
FILED
OF AMY MAYNORD, DECEASED, ) December 12, 1997
AND IN THEIR REPRESENTATIVE )
CAPACITY AS CO-ADMINISTRATORS) Cecil W. Crowson
OF THE ESTATE OF AMY MAYNORD, ) Appellate Court Clerk
)
Plaintiffs/Appellees, ) Overton Circuit No. 3038
)
VS. ) Appeal No. 01A01-9704-CV-00179
)
LARRY NORRIS and JOYCE ANN )
NORRIS, JOINTLY AND )
INDIVIDUALLY, and d/b/a LARRY’S )
FULL SERVICE, )
)
Defendants/Appellants. )
APPEAL FROM THE CIRCUIT COURT OF OVERTON COUNTY
AT LIVINGSTON, TENNESSEE
THE HONORABLE JOHN MADDUX, JUDGE
JON E. JONES
LAW OFFICE OF JON E. JONES
Cookeville, Tennessee
Attorney for Appellants
ONNIE L. WINEBARGER
Byrdstown, Tennessee
Attorney for Appellees
JOHN HUBERT LITTLE
Livingston, Tennessee
Attorney for Appellees
DISMISSED AND REMANDED
ALAN E. HIGHERS, J.
CONCUR:
DAVID R. FARMER, J.
HEWITT P. TOMLIN, Sr. J.
Defendants Larry Norris and Joyce Ann Norris appeal from the notice of voluntary
dismissal filed by Plaintiffs/Appellees Ronald Lewis Maynord and Brenda Gail Maynord.
We dismiss this appeal based on the Norrises’ concession that no final judgment has yet
been entered by the trial court from which the Norrises can appeal.
The Maynords, individually and as co-administrators of the estate of their daughter,
Amy Maynord, filed this action against the Norrises seeking damages for injuries received
by Amy in an April 1994 vehicle accident. The Maynords’ theory of liability was that the
Norrises, doing business as Larry’s Full Service, sold beer to Amy, who was under the age
of twenty-one (21) years, and that such sale proximately caused Amy’s injuries. See
T.C.A. §§ 57-5-301, 57-10-102 (1989 & Supp. 1991).
At trial, the Norrises timely moved for a directed verdict on the issue of their liability
for Amy’s injuries in the April 1994 accident, which motion was denied by the trial court.1
See T.R.C.P. 50.01. At the trial’s conclusion, the jury announced that it was unable to
reach a verdict. Consequently, the trial court declared a mistrial and discharged the jury.
After the trial court entered its judgment reflecting these rulings, the Norrises filed a motion
for judgment in accordance with their previous motion for a directed verdict as permitted
by rule 50.02 of the Tennessee Rules of Civil Procedure. See T.R.C.P. 50.02.2
1
The Maynords also sued the Norrises for Amy’s wrongful death in a subsequent vehicle accident
which occurred in September 1994. The trial court granted the Norrises’ motion for directed verdict as to the
Ma ynords’ claim s arising fro m the S epte m ber 1 994 acc ident.
2
As pertine nt, rule 5 0.02 provides that:
W henever a m otio n fo r a d irecte d verdict m ade at the close of a ll
the evidence is denied or for any rea son is not granted, the court is deemed
to have submitted the action to the jury subject to a later determination of
the legal questions raised by the motion. W ithin thirty (30) days after the
entry of judgme nt a party who has m oved for a directed verdict m ay mo ve
to have the verdict and any judgment entered thereon set aside and to have
judgment entered in accordance with the party’s motion for a directed
verd ict; or if a verdict was not returned, such party, within thirty (30) days
after the jury has been discharged, may move for a judgment in accordance
with such party’s m otion for a d irected verdict. . . .
T.R.C.P. 50.02.
2
Before the trial court entered an order ruling on the Norrises’ post-trial motion, the
Maynords filed a notice of voluntary dismissal pursuant to rule 41.01. See T.R.C.P. 41.01.3
The Norrises then filed notice of this appeal, which purported to appeal “from the entry of
a voluntary dismissal entered by the Circuit Court for Overton County, . . . after a mistrial
was declared, but prior to any ruling by the Trial Court relative to post-trial motions.” The
notice of voluntary dismissal was not signed by the trial court.
At the oral argument held in this matter, the Norrises properly conceded that their
appeal is premature because the trial court has not yet ruled on their post-trial motion.
When a party timely files a post-trial motion pursuant to rule 50.02, the time for taking an
appeal does not begin to run until the trial court enters an order granting or denying such
motion. Evans v. Wilson, 776 S.W.2d 939, 941-42 (Tenn. 1989); T.R.A.P. 4(b).4 Inasmuch
as the trial court has not ruled on the Norrises’ post-trial motion for a directed verdict, the
Norrises presently cannot pursue this appeal.
While conceding that their appeal is premature, the Norrises explained that, as a
precautionary measure, they filed their notice of appeal within thirty days of the Maynords’
notice of voluntary dismissal in light of the supreme court’s decision in Rickets v. Sexton,
533 S.W.2d 293 (Tenn. 1976). There, the supreme court stated that:
[Rule 41.01] specifies that a plaintiff “shall have the right
to take a voluntary nonsuit or to dismiss an action without
prejudice by filing a written notice of dismissal at any time
before the trial of a cause”. This portion of [rule 41.01] is not
dependent upon the determination of the trial judge. The
lawyer for the plaintiff is the sole judge of the matter and the
trial judge has no control over it. It is not necessary that [the
3
As pertine nt, rule 4 1.01 provides that:
Subject to the p rovisions of R ule 23 .05 or Ru le 66 o r any statute,
and except when a motion for sum m ary judgm ent m ade by an a dverse party
is pending, the plaintiff sh all have the righ t to take a vo luntary nons uit 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, . . . ; or by an oral notice of dismissal made in open court during the
trial of a cause ; or in jury trials a t any tim e be fore the jury retires to consider
its verdict and prior to the ruling of the court sustaining a m otion for a
directed ve rdict. . . .
T.R.C .P. 41.01(1).
4
This rule also applies to motions filed purs uan t to rules 52.02, 54.04(2 ), 59.02, and 59 .04. See
T.R.A.P. 4(b).
3
trial judge] approve the action of plaintiff’s counsel by signing
any order; nor may [the trial judge] nullify the rules by an order
“disallowing” the nonsuit. All that is required to dismiss prior to
the trial, in the absence of the existence of any of the
exceptions [specified in rule 41.01], is the filing of a written
notice of dismissal.
Rickets v. Sexton, 533 S.W.2d at 294.
We do not construe the foregoing language to mean that a notice of voluntary
dismissal filed by a plaintiff constitutes a final, appealable order. A trial court speaks only
through its written orders which have been properly entered in accordance with the
Tennessee Rules of Civil Procedure. Ladd ex rel. Ladd v. Honda Motor Co., 939 S.W.2d
83, 104 (Tenn. App. 1996); Evans v. Perkey, 647 S.W.2d 636, 641 (Tenn. App. 1982);
T.R.C.P. 58. Rule 3 of the Tennessee Rules of Appellate Procedure permits appeals as
of right in civil actions only from final judgments which have been entered by the trial court.
See T.R.A.P. 3(a). Here, the notice of voluntary dismissal was filed by the Maynords, but
the notice neither was signed by the trial court nor purported to be an order of the trial court
dismissing the action. Cf. Rickets v. Sexton, 533 S.W.2d at 294 (wherein plaintiffs filed
pleading captioned “motion for voluntary dismissal” which was actually in form of order
tendered for trial court’s signature).
Moreover, in construing the Rickets decision, this court previously has held that,
although a plaintiff has a right to take a voluntary nonsuit or to dismiss an action without
prejudice by filing a written notice of dismissal, such notice does not constitute an order or
judgment which finally adjudicates the case. Evans v. Perkey, 647 S.W.2d 636 (Tenn.
App. 1982). In Evans v. Perkey, this court explained:
We construe the Rickets court to be saying that the plaintiff in
that case had done all that was required to be done when he
gave written notice of his intention to take a nonsuit. It was not
necessary for the [trial] court to grant permission or enter an
order permitting it to be done. However, we do not find the
[supreme] court to be saying that a judgment or decree need
not be entered [by the trial court] for final adjudication of a
case.
Evans v. Perkey, 647 S.W.2d at 641; accord Lillard v. Pinckley, No.
01A01-9506-CV-00268, 1995 WL 656886, at *3 n.5 (Tenn. App. Nov. 9, 1995) (citing
4
Evans v. Perkey for the proposition that “the savings statute begins to run from the date
of the entry of the order dismissing the suit without prejudice, not from the date of the filing
of the notice” of voluntary dismissal); Wynne v. Bikas, 1993 WL 127050, at *2 (Tenn. App.
Apr. 23, 1993) (citing Evans v. Perkey for the proposition that “a dismissal pursuant to
voluntary nonsuits is effective on the date of entry of the order of dismissal and not from
the date of filing the notice of nonsuit”). 5
The Norrises’ appeal is hereby dismissed without prejudice, and this cause is
remanded to the trial court for further proceedings. Costs of this appeal are taxed to the
Norrises, for which execution may issue if necessary.
HIGHERS, J.
CONCUR:
FARMER, J.
TOMLIN, Sr. J.
5
But see Parke r v. Vanderbilt Univ., 767 S.W .2d 412, 422 n .3 (Tenn. App. 1988) (wherein the court,
without mentioning Evans v. Perkey, construed Rickets to mean that “[i]t is the date of the filing of the written
notice of voluntary dismissal, not the entry of the confirmatory order, that triggers the comm encement of the
time within which a [rule] 59 motion or notice of appe al mus t be filed”).
5