### IN THE COURT OF APPEALS OF TENNESSEE AT KNOX VILLE Fe br ua ry 11, 200 8 S es sio n
CLUB LECO NTE v . CAROLINE SWANN

Direc t Appeal from the Circ uit Court for Knox County No. C-06- 360306 Hon. Wh eele r A. Rose nbal m , Circuit Judge

F iled March 20, 2008

No. E2007-00852-COA- R3-CV

I n the Trial Court, at t h e co n cl u s i o n of plaintiff’s pr oof, def endant moved f

or the e ntry

of an involuntary d ismiss al pursuant to Rule 41.02(2) , and bef ore the Trial Judge r

uled on that Motion plaintiff moved for

a voluntary

dismiss al which the T rial Court denie d , and g rante d defe ndant’s Motion for an involuntary dismiss al with prejudice

. On appea l, w e hold that the Trial Court erre d in r e fu sin g to g ra

nt p la int if f’ s Mo tio n f

or a vo lun tary

dis mis sa l.

Te nn. R . A pp. P .3 App e al a s o f Rig ht ; J udgm e nt of t he Ci r c uitCo ur t R e ve r se d.

H ER SCH EL P I CKE N S F RAN KS , P.J ., delivere d the opinion of the Court, in which S HAR ON G. L EE , J ., and D. K EL L Y T HOMAS , J R ., J ., joined.

B ra dle y L . H e nr y , K no xvill e , T e nn e sse e , f

or a pp e lla nt. Christopher D. He ag erty

and Kr isti M. Davis, Knox ville, Tennesse e, for appellee

.

OP IN ION

Th is a c tio n o ri g inate d in

Se ssi on s Court wh e n p la int if f f ile d a c ivi l summo ns a g a ins t de fe nd ant, se e kin g to c oll e c t f or g oo ds and

se rv ic e s, me mbe rs hip du e s, int e re st, and a tto rn e y ’s fe e s. A def ault judgme nt was ente red a g ainst defe ndant for $9,542.47, w hich J udg ment defe ndant appea led to Circuit Court.

Plaintiff then filed an A ffidavit of Sworn A ccount, by the club manag er, w ho stated
s h e wa s responsible for

keepingthe books of the Club, and that de fenda nt was delinquent in her-2-

a c c ount i n th e a mou

nt o f $ 9, 54 2. 47 fo r due s, g oo ds and se rv ic e s, and

pe na lti e s/i nte re st/ a tto rn e y fe e s.
A hear ing was held befor e the Trial J udg e on April 9, 2007, wher e the Court ente red
a Judg me nt, statin g tha

t pl a int if f b ro ug ht i ts c a

us e of a c tio n b a se d o n th e the or

y of br e a c h of c on tr a c t, and that “a fter the Court rec eived the evidenc e of Plaintiff, and at the close of t he Plaintiff’s ca se-inchief , the attorne y

for the de fenda

nt moved the Court for entry of an Involuntary Dismissal pursuant to Rule 41.02(2) of the Tenne ssee Rules of Civil Procedure . The Court hea rd fur ther a rg ument from the attorne y s for the pa

rties, and therea fter sustained the M otion of t he defenda nt.” The Court then dismiss ed plaintiff’ s claims with prejudice , and this appea l ensued.

The issues pre sented on a ppeal a re:
1. Whe the r t

he Tr ia l Co ur

t e rr e d in fa ili ng to a llo w the a pp e lle e ’s me mbe rs hip
c on tr a c t to be a dmi tte d in to evi de nc e a s a pr op e rl y a uth e nti c a te d b us ine ss re c or d k e pt i n th e or din ary c ou rs e of bu sin e ss?
2. Whether the Tr ial Court err ed in denying a j udg ment for unjust enric hment ag ainst the appe llee af

ter it was a dmitted that services w er e provided a nd
a p p e l l e e r e f

u s e d t o p ay?
3. Whether the Tr ial Court erre d in failing to gr ant a volu n tary dismiss al for
a pp e lla nt b e fo re the c a se wa s f

ina lly su bmi tte d to the Court ?
We will first consider the issue of w hether appellant should have been g rante d a
vo lun tary dis mis sa l.
Plaintiff asserts that the Tr ial Court erre d in failing to allow plaintiff to take a
vo l u n t ary d i s m i s s al af

t er t h e d ef en d an th adm ad e am o t i o nfo r i n v o l u n t ary d i s m i s s al

. P l ai n t i ff arg

ues that in a non-jury case , “until the case has been f inally submitt ed to the trial c ourt for a decision, the plaintiff has a rig ht to a voluntary dismiss al.” W

eedm an v. Searc

y , 781 S.W .2d 855 (Tenn. 1989)

. Def endant c ounters that the c ase ha d been “ finally s u b m i t t ed ”, as the motion for involuntary dismiss al could have (and did) dispose of the ca se.
Te nn . R. Civ . P. 41 .0 1 s ta te s: Subject to the provisions of Rule 23.05, Rule 23.06, or Rule 66 or of a ny statute, and
ex ce p twh en a m o t i o nfo r s u m m ary j u d gm en t m ad e by an ad v er s e pa rt y i s p en d i n g, the plaintiff shall have the rig ht t o t ak e a v o l untary nonsuit to di smiss an action without prejudice by

filing a written notice of

dismiss al at any time befor e the trial of a c ause a

nd servinga copy o f t he notice upon a ll parties, and if a party has not alre ady been se rved w ith a summons and complaint, the p laintiff shall also serve a copy of the c omplaint on that party ; or by an ora l notice of dismissal made in open court duringthe trial of a

cause ; or in jury trials at any time befor e the jury retire s-3- to consider its ver dict and prior to the r uling of the cour t sustaining a motion for a direc ted ver dict.

I n the W eedm an , case , the Sup re m e Court interprete d this Rul e to mean that in the
case of a non-jury matter, “until the case has been finally submitt ed to the trial court f or a de cision, the pla int if

f h a s th e ri g ht to a vo lun tary dis mis sa l.

. . . un til the ma tte r ha s b e e n f ina lly su bmi tte d to the trial judg e for

decision, the “ trial” of the case has not be en conc luded. The tria l judge may order fu rt he r p ro of to b e take n, may re op e n the pr oo f fo r vari ou s pur po se s, e xten d th e tim e fo r f ili ngbr ie fs , and the like.” Thus, in W eedm an , wher e defenda

nts had made a mot ion for involunt ary dismiss al at the close of plaintiff’s proof, which was overr uled, and then other

evidenc e wa s prese nted and the Trial C ourt reque sted the fil ing of briefs on a lega l issue, the Trial Court ruled that plaintiff’s notice of voluntary

dismiss al filed duringthe brief ing pe riod was timely , and the Supre me Court aff irmed. Id. The Court noted that in adopting Tenn. R. Civ. P . 41, the Advisory Commi ttee pointed out that it was attempting to resolve the c onflicting prior pra ctices used in Circ uit a nd Chance ry

Courts, and had adopte d the more liber al pra ct i ce t h at h ad obtained in Circuit Court, which was ba sed on a former statute. Id.; se e also Te nn . R. Civ . P. 41 Ad vis or y Com mit te e Com me nts

. Prior to the enac tment of the Tenne ssee Rul es of Civil Procedur e, our Supreme Court explained that a plainti ff had to take his nonsuit before the ca se re ache d that point where the rig ht of dec ision had passed to the jury or judg e, and that time had been r eac hed whe n the rig ht of furthe r argument or ac tion by

the par ties is gone

. Grave

s v. Union Ry. Co. , 152 S.W .2d 1026 (Tenn. 1941)

. I n jury case s, it was held that when a defe ndant m ade a motion for direc ted ver dict, the plaintiff could still t ake a

nonsuit up to t he time the cour t an n o u n ce d a def

inite decision on defe ndant’s motion. Id.; se e al

s o O’Brien v. Southern Bell Tel. & Tel. Co. , 259 S.W .2d 554 (Tenn. Ct. App. 19 52 ); Jones v. Ford Motor Co. , 345 S.W .2d 681 (Tenn. Ct. App. 1960). This was true even if the
c ourt ha d e xpre sse d d ou

bt a s to the e xiste nc e of

a jur y qu e sti on , s o lo nga s th e c ourt ha d n ot a c tua lly
announce d its ruling. Phipps v. Carmichael , 376 S.W .2d 499 (Tenn. Ct. App. 1963).

I n n on -j ur y c a se s, a pr ior statut e (T e nn . Co de Ann. §2 0- 13 13 ) state d that the no ns uit “shall be ma de bef

ore the cause is f

inally submitt ed to the cour

t, and not afte rwa

rds.” Huggins v. Nic ho ls , 440 S.W .2d 618 (Tenn. Ct. App. 19 6 8). Thus, in the Huggins case , wher e the pr oof had been c ompleted conc luded and c losing a rg uments done, an d the trial cour t beg an to make
c on c lus ion s o n th e iss ue s, and state d th a t pl a int if f h a d f a ile d to make ou t a

c a se in c e rt a in r e sp e c ts, bu t ha d n ot a

nn ounc e d a fi na l de c isi on , p la int if f w a s a llo we d to take a

vo lun tary

dis mis sa l, a

nd thi s Court affir

med that ac tion.
Simi larly , as stated a

bove, since enac tm e nt o f

th e T e nn e s s e e Ru le s o f

Ci v il Proc edure , the plaintiff ca

n take a voluntary

dismiss al until the case has been finally submitt ed to the court for deter mination. See W

eedm an. The Supreme Court in W eedm an indicated that the c ase ha d not been “fina lly submitt ed” until there is no further a ction that could be taken by the par ties or soug ht by

the Court.

I n an unreported de cision of this Court, it was e x pressly held that a voluntar

y-4-

dismiss al could be taken by the plaintiff while d efendant’s motion for involuntary dismiss al was pending , so long a s the court ha d not y et g rante d defe ndant’s motion. Jack son v. Dotson , 1 9 9 8 WL 761845 (Tenn. Ct. App. Oc t. 30, 1998). I n Jack son , a bench tr ial was he ld and at the c onclusion of plaintiffs’ ca se, def

endants moved f

or an involuntary

dismiss al. Id. The c ourt did not r ule on the motion im mediately , but rather allowed plaintiffs to re open their pr oof and p rovi de additional evidenc e. Id . After

plaintiffs rested for the second tim e, defenda nts rene wed their

motion, and the court told plaintiffs’ c ounsel that it could n o t fi n d t hat plaintiffs had c arr ied the burde n of proof

. Id . Plaintiffs then asked to take a nonsuit, and the c ourt stated that since it h ad not y et “sa id the mag ic words” (i.e. rule d on defe ndants’ motion), it would allow the plaintiffs to take a nonsuit. Id

.

I n Jack son defe ndants then filed a Rule 60 motion, asking the court to amend its order to make the dismissal with prejudice, w hich the cour t did. On appea l, this C ourt stated:

We are of the opinion that th e trial court e rre d in gr anting the Rule 60 motion. Cle arl y , the tr ans c ri pt of the pr oc e e din g s d e mon str a te s th a t th e c ourt wa s se ri ou sly consider in g g r an ti n g th e d e f e n d an ts ' mo ti o nf

o r aninv o lu

n ta r y d is mi s s a l. T he motion was not, how ever , g rante d nor wa s the court r equire d to gr ant the motion at that tim e
. Rul e 41 .0 2( 2) , Te nn e sse e Rul e s of Civ il Pr oc e dure , p ro vid e s a s f oll ow s: (2) After the plaintiff, in a

n action tried by the court without a jury , has complete d the prese ntation of plaintiff' s evidenc e, the defenda nt, without waiving the rig ht to offer evidenc e in the eve nt the motion is not gr anted, may move for dismissal on the g round that upon the fac ts a nd the law the pla intiff has shown no rig ht to relief. The court a s trier of the fa cts may then deter

mine them and re nder judg ment ag ainst the plaintiff or may decline to re nder any judgment until the close of all the ev idence ; .... (Emphasis adde d.)

I t is significa

nt to note that the availabili t y o f vol untary dismiss als is much g reater now than bef

ore the adoption of the pre sent rules of c ivil procedure . I n W i l l b a n k s v

. Tro us da le County Board of Education , 1986 WL 1663 (Tenn.A pp. Fe b 7, 1986), the c ourt noted cor rec tly that

" Rul e 41 .0 1 f

oll ow s th e lib e ra l pr a c tic e of a llo wi ng vo lun tary dis mis sa ls that e xiste d in the c ir c uit
c ourt be fo re the a do pti on

of the Te nn e sse e Rul e s o f C ivi l Pr oc e dure. Th e dra ft e rs of the Rul e intended that the Rule not be restric tive but that the liberal prac tice of the circ uit court be e x tended to the chanc ery

court." There fore , with this pr o position i n mind, we ca n look to cases involving "motions for directed verdict" in the circuit courts for g uidance as to when a voluntary dismiss al ca

n be take n.
Def

endants re ly

upon the Trial Court’s state ments to support its pos ition. The Court
s t at edt h at i t“t o l d

p l ai n t i ff ’s co u n s el t h at p ro o f s u gges t edd ef en d an tm i gh to we p l ai n t i ff s o m et h i n g, but inquired whether the plaintiff’s proof was sufficie nt to enable the Court to determine the proper amount of a judg ment”.

The Court continued:-5- More spe cifica l l y , t h e C ourt inquired whe ther a valid judgme nt could be base d on pla int if f’ s Re g ist e r R e c e ipt

(E xhibi t 3) wh ic h s ho we d c ha rg e s o f $ 6, 63 3. 00 , b ut a zero balanc e; or whe ther a j u d gm en t could be base d on plaintiff’s stateme nt of an
a c c ount f or $1 7, 71 3. 17 , a

n amou nt a lle g e dly

de ri ve d f

ro m r e c or ds of

a re g ula rl y conducte d activity which had not be en esta blished acc ording to the require ments of Rule 803(6) o f t h e T ennessee Rules of Evidenc e. The Court also inquired of plaintiff’s counse l how a judgm en t could be gr anted f or the a lleg ed ac count of $1 7, 71 3. 17 wh e n th a t amou nt i nc lud e d c la ims fo r u ns pe c if ie d lat e fee s, du e s, attorney ’s fe es and e x penses that we re not e x plained or suppor t by evidenc e.
A ver batim rec ord, if ava ilable, would show that the Court didn’t re ceive satisfac tory answe rs to the numerous que stions s p aw n ed by the lack of

clar ity , specific ity

and completene ss of plaintiff’s proof, and by plaintiff’s fa ilure to prove its ca se by competent e vidence

. After it became appar ent to plaintiff’s counse l that the Court was g rave ly conce rned about the suff

iciency of plaintiff’s proof in chief, pla intiff’s counse l then moved for
a voluntary dismiss al. Def endant objected and the Court c oncluded that the motion
came too late; the matter ha d been fully and completely submitt ed to the C ourt. The Court denied the motion for a voluntary

dismiss al, not on l y by

saying so, but by dismiss ing pla intiff’s ac tion on the merits. (Emphasis supplied). Appellee s rely

on W eedm an as authority for their position that the plaintiff’ s motion
c a me too la te

. We b e lie ve , h ow e ve r, that W eedm an is more appr opriate a uthority for the position of the a ppellant. I n W

eedm an , the Supreme Court stated the following proposition:

I n a non-jury

case , until the case ha s finally been submitted t o t h e t ri al court for a de c isi on , th e pla int if

f ha s a rig ht to a volu

nta ry dis mis sa l..

.. I n the no n-

jur y c a se , unti l the matter ha s been f

inally submitt ed to the trial judge for decision, the "tr ial" of the
case has not be en conclude d. The trial judge may order further proof t o b e t aken, may reope n the proof for various purposes, extend the time for filing briefs, a nd the like. Dismissal as a matter of rig ht continues t o b e available at lea st until written post-trial brief

s have be en filed pur suant t o o rd er of the trial judg e and until the matter ha s been f

inally submitt ed to the court for deter mination on the merits. That point had not been r eac hed in the pre sent ca se whe n the m o t i o n o f ap pellee w as made.
Id. at 857

I n the instant case , the Trial Court had a nnounced only that it could not find that the plaintiffs had c arr ied their burde n of proof and beg an to expla i n h o w they had not done so. The Court, at this point , h ad not ex erc ised its discretion to dismi ss the case , allow the proof to be reope ned by

the plaintiff or he ar the defe ndant' s proof if the de fenda nt wish ed t o p re s en t any , or-6-

or de r t he fi lin g of

po st tri a l br ie fs

. Perhaps the r

ule is best stated in Bellisomi v. Kenny , 185 Tenn. 551, 206 S.W.2d 787 (Tenn.1947) : ... The judg e is

... left a sound discretion to be ex erc ised acc ording to what he thinks

is require d of a tribuna l eng ag ed primar ily in dispensing justice. I f he thinks the purpose c an best be serve d by cutting of

f the rig ht to a non-suit, then ... he ca n announce his formal dec ision im mediately afte r the motion for a dire cted ve rdict and argument there on, if any , and then, if he choose, g ive the re asons f or his decision. Upon the other

hand, if he thinks t h at justice requir es, he c an leave that rig ht te mpo ra ri ly int a c t by fi rs t disc us sin g the iss ue s of law an d fa c t, w ith ho ldi ngde fi nit e action on the motion until he has conclude d, ... all in the expectation that the plaintiff wi ll a nti c ipate the de c isi on

and take a dv anta g e of the op po rt un ity thu s a ff

or de d h im if he c are to do so. (Citation om itted.)
* * * *

To sum up, the judge can cut off the rig ht to a non-suit by

a def inite announce ment of his decision, either

befor e or a fter a di scussion of his rea sons, ... or, following the making of the motion and the discussion wi t h respe ct there to, if any , he may withhold a formal a

nnounceme nt of hi s d ec i s i o n until he makes it in directing the jury to return a

verdic t. But in either e vent, it i s the definite f ormal announc ement of the de cision ... which ends the r ight to a non- suit .... (Emphasis added.)

I t is significa

nt to note that availability of voluntary dismiss als is muc h g reater now than bef ore the adoption of the pre sent Rules of Civil P roce dure.
Id. at 789.

I n view of the cited authorities, and for the rea sons stated, we be lieve the Tr ial Court
err ed in amendingthe final judgment to ref lect a dismissal with prejudice . We, there fore , reve rse the judg ment of the trial court and rema nd the ca se for

such other and fur ther a ction require d consistent with this opi nion.
Id. 789.
Simi larly , in this case , plaintiff had conclude d its proof, and de fenda nt had made a motion for dismiss al. The Court the n questioned plaintiff’s attorney reg ardingits proof, and stated that, “[a]fter it became appa rent to plaintiff’s c ounsel that the Court was gra v ely conce rned a

bout the sufficie ncy of plaintiff’s proof in c hief, plaintiff’ s counsel then moved f or a voluntar

y dismiss al”, and the c ourt denied same. (Emphasis supplied). Significa ntly , the Court had not y et ruled on the-7-

motion to dismiss when plaintiff a sked for a nonsuit. More importantly , if the Tria l Court had not g rante d the motion to dis miss, then defe ndant could have g one forwa rd with its proof, or the Court could have asked pla intiff to put on further pr oof, or numer ous other a ctions could have been taken. Thus, the ca se had not be en fina lly submitt ed to the Court for de termination at t he ti me t hat plaintiff asked f or a nonsuit.
Our re su lt is in a c c or d wi th the Ad vis or y Com mit te e Com me nts to T e nn . R. Civ . P. 41, which s t ates that Rul e 41 wa s intended to take a more libera l approa ch in g ranting voluntary dismiss als. Also, this is i n acc ord with W eedm an , Jack

son and Huggins, wh e re in it w a s e sse nti a lly held that so long as there wer e still actions that could be take n in t h e t ri al , and so l ong as the trial
c ourt ha d n ot y e t r

ule d, a vo lun tary dis mis sa l c ou ld be take n. As e xpla ine d a bo ve , e ve n in j ur

y c a se s, wher e a de fenda

nt has made a

motion for directed verdic t, the plaintiff ca n still take a

voluntary dismiss al up until the court ac tually rules on the dire cted ve rdict motion. I n this case , the Trial Court ha d n ot y e t ru le d on the mot ion to dis mis s, and sin c e the re wa s st ill fu

rt he r a c tio n th a t c ou ld have be en take n, plaintiff’s motion for voluntary dismiss al should have be en g rante d. Since we hold that the voluntarily dismiss al was a

ppropriate , the other issues r aised
are moo t, a

nd we re mand

the c a se fo r e ntr

y of a Judg me nt g ra

nti ngthe vo lun tary

di smi ssa l to plaintiff. The c ost of the appe al is assessed to de fenda nt Caroline Swann.

______________________________ H ER SCH EL P I CKE N S F RAN KS , P

. J.