IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 1, 2024

MICHAEL BEINKE, ET AL. v. ADAM ROBERSON D/B/A 38 

CONSTRUCTION, ET AL.

Appeal from the Circuit Court for Williamson County

No. 22CV-411 Michael Binkley, Judge

___________________________________

No. M2023-00637-COA-R3-CV

___________________________________

This appeal involves the right to a nonsuit pursuant to Tennessee Rule of Civil Procedure 

41.01. Two plaintiffs (an individual and a limited liability company) filed this lawsuit 

against several defendants, asserting eight causes of action arising out of a construction 

contract. The defendants filed a motion to dismiss. At a hearing, the trial judge orally 

ruled that the motion to dismiss was denied as to all claims, with one exception. The trial 

judge took under advisement whether Count 2, asserting a violation of the Tennessee 

Consumer Protection Act, was barred by the statute of limitations. Four days after the 

hearing, the plaintiffs filed a notice of voluntary dismissal without prejudice along with a 

proposed order to that effect. In response, the defendants filed a “motion in opposition” to 

the proposed order of voluntary dismissal, asking the trial court to delay entry of the order 

of voluntary dismissal until the trial court entered an order addressing the TCPA claim. 

The trial court ultimately ruled that the defendants had a “vested right” that prevented the 

plaintiffs from voluntarily dismissing the TCPA claim from the moment the trial court took 

the matter under advisement. The trial court then proceeded to analyze the TCPA claim. 

Although the issue taken under advisement related to the statute of limitations, the trial 

court sua sponte dismissed the TCPA claim asserted by the individual plaintiff because the 

court found that he did not meet the definition of a “consumer” pursuant to the TCPA. The 

trial court then considered the statute of limitations issue as it related to the TCPA claim 

asserted by the remaining plaintiff. The trial court found that the TCPA claim was not 

barred by the statute of limitations and denied the motion to dismiss on that basis. Having 

resolved the motion to dismiss as to the TCPA claim, the trial court ruled that the nonsuit 

then became “effective,” as of the date of the trial court’s order, resulting in voluntary 

dismissal of all claims except the individual plaintiff’s TCPA claim, which the trial court 

sua sponte dismissed with prejudice. The individual plaintiff appealed, asserting, among 

other things, that the trial court erred by concluding that the defendants had obtained a 

vested right and by delaying entry of the order of nonsuit so that the trial court could rule 

on the motion to dismiss. For the following reasons, we reverse the decision of the trial 

06/12/2024
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court to the extent it dismissed the individual’s TCPA claim with prejudice and remand for 

entry of an order under Rule 41.01 dismissing all claims without prejudice.

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

Remanded

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which D. MICHAEL 

SWINEY, C.J., and W. NEAL MCBRAYER, J., joined.

Sean C. Wlodarczyk, Nashville, Tennessee, for the appellant, Michael Beinke, and for the 

appellee, Beinke Builders, LLC.

Kristen M. Shields and Christopher A. Beverly, Mount Juliet, Tennessee, for the appellees, 

Adam Roberson d/b/a 38 Construction, Hermila Martinez d/b/a Martinez Construction, 

Danny Gray d/b/a Gray’s Electrical and Home Improvement, and Gray’s Electrical and 

Home Improvement, LLC.

OPINION

I. FACTS & PROCEDURAL HISTORY 

In August 2022, Michael Beinke and Beinke Builders, LLC, filed this lawsuit 

against Adam Roberson d/b/a 38 Construction, Hermila Martinez d/b/a Martinez 

Construction, Danny Gray d/b/a Gray’s Electrical and Home Improvement, and Gray’s 

Electrical and Home Improvement, LLC. The plaintiffs asserted eight causes of action 

relating to a construction contract and alleged a conspiracy to engage in unlicensed 

contracting. In October 2022, all defendants jointly filed a motion to dismiss.

A hearing on the motion to dismiss was held on January 5, 2023. A court reporter 

was not present at the hearing, and a dispute arose after the hearing as to the precise nature 

of the trial judge’s oral ruling. The trial judge would eventually resolve the dispute and 

confirm that he had orally denied the motion to dismiss as to all claims with one exception 

regarding Count 2, which alleged a violation of the Tennessee Consumer Protection Act. 

For that claim, the trial court had taken under advisement whether the TCPA claim was 

barred by the statute of limitations. We note this clarification at this point of our discussion 

in order to explain the actual procedural posture of the case at this point. However, as the 

following discussion illustrates, the parties continued to dispute what had occurred at the 

January 5 hearing for the next two months.

On January 9, 2023, four days after the hearing on the motion to dismiss, the 

plaintiffs filed a notice of voluntary dismissal without prejudice pursuant to Tennessee 

Rule of Civil Procedure 41.01, along with a proposed order of voluntary dismissal. Later 
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that same day, the defendants filed a “motion in opposition” to the order of voluntary 

dismissal. Although the defendants did not cite any legal authority for their position, they 

pointed out that the trial court had already held a hearing on the motion to dismiss before 

the notice of nonsuit was filed. The defendants contended that the trial judge, during the 

hearing, had “noted procedural issues with the Complaint, particularly a statutory bar to 

Count Two alleging Violation of the Tennessee Consumer Protection Act as untimely[.]”

Thus, the defendants argued that the plaintiffs’ notice of nonsuit, “[g]iven its nature and 

timing,” appeared to be an effort to avoid any attorney fees “potentially awarded” to the 

defendants associated with the motion to dismiss. The defendants suggested that the trial 

court deny entry of the proposed order of voluntary dismissal “at this time” and that “the 

proposed Order [of voluntary dismissal] be held until after the Court issues an Order 

regarding the Motion to Dismiss.”

Days later, the plaintiffs filed an objection to a separate proposed order that was 

submitted by the defendants. The plaintiffs insisted that during the January 5 hearing on 

the motion to dismiss, the trial judge had determined that it would review whether the 

TCPA claim was timely filed within the statute of limitations and determine whether 

dismissal was appropriate or not, then prepare and issue its own order once it reached a 

ruling, which the court expected to be within ten days. Thus, according to the plaintiffs,

the court had taken that one matter under advisement and denied the remainder of the 

motion. However, the plaintiffs explained that the defendants had submitted a proposed 

order on the motion to dismiss that did not accurately reflect this ruling and instead stated 

that the court ruled the TCPA claim was barred by the statute of limitations. The plaintiffs 

stated that they were submitting their own proposed order that accurately reflected the trial 

court’s oral ruling. In support of their position, the plaintiffs filed the trial court’s own 

“docket notes” from the date of the hearing, which the clerk’s office had provided to the 

plaintiffs upon request. Those docket notes reflected the words: “‘Under Advisement’ 

memo + order within 10 days on statute of limitations.” The plaintiffs also filed a 

memorandum opposing any award of attorney fees in connection with the motion to 

dismiss. They argued that the trial court did not grant the motion to dismiss at the hearing, 

none of the exceptions to Rule 41.01 applied that would prevent them from taking a 

nonsuit, and the plaintiffs’ nonsuit could not be “disallowed” by the trial court.

During this timeframe, counsel for the plaintiffs emailed the trial judge’s “Judicial 

Assistant” stating that two competing orders had been submitted for consideration of the 

trial judge. The Judicial Assistant responded that the trial judge “simply does not have the 

time to compare information in competing orders and asks the attorneys in the case to 

confer on the wording of an order stemming from a hearing.” In the event an agreement 

could not be reached, she advised them to “file the proper pleadings and place the matter 

on a regularly-scheduled motion docket to be decided in open court.” In response, counsel 

advised the assistant that the attorneys would be discussing the matter by phone on January 

25 and would report back as to whether they had reached an agreement or if they needed 

to file a motion.
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On January 24, however, the trial court unexpectedly entered the defendants’ 

proposed order from the January 5 hearing, which stated that the TCPA claim asserted as 

Count 2 of the complaint was dismissed as time-barred. The plaintiffs then filed an 

additional response, reiterating that the trial court had only taken the issue under 

advisement at the hearing, and in the absence of any oral ruling in favor of the defendants, 

the plaintiffs had maintained their right to take a nonsuit. The plaintiffs noted that the 

defendants had not argued that any exceptions to Rule 41.01 were applicable. Thus, the 

plaintiffs asked the court to set aside the January 24 order dismissing the TCPA claim. In 

further support of their position, the plaintiffs filed a declaration from their attorney 

describing in detail the events that transpired during the January 5 hearing. Counsel noted 

that his recollection of the events that transpired was consistent with the trial court’s own 

docket notes reflecting that the matter was taken under advisement. In addition, the 

plaintiffs submitted the email thread reflecting the communication between the attorneys 

and the trial judge’s Judicial Assistant regarding their plan to discuss the matter on January 

25 in an attempt to reach an agreement, which had not yet occurred when the trial court 

entered the January 24 order.

On February 2, the trial judge held a hearing and instructed the parties to meet and 

confer with respect to the issues surrounding the nonsuit and to file affidavits of their 

counsel reflecting their recollection of the trial court’s oral ruling at the January 5 hearing 

on the motion to dismiss. It also directed them to file briefs addressing whether and to 

what extent the court could proceed with the case after the plaintiffs filed their notice of 

nonsuit. After the filing of the briefs and affidavits, the court would then “determine its 

ruling on this matter and issue its own order” on the defendants’ motion in opposition to 

the nonsuit.

The plaintiffs filed an affidavit from their attorney, along with a declaration of a 

third party who was present in the courtroom during the January 5 hearing and recalled the

oral ruling made by the trial judge taking the matter under advisement. In response, the 

defendants filed a brief in which they maintained that the trial judge had found the TCPA 

claim time-barred during the January 5 hearing. Counsel for the defendants submitted an 

affidavit detailing her recollection of the hearing. Given the defendants’ position that the 

trial judge had orally dismissed the TCPA claim, the defendants cited caselaw in which 

plaintiffs were not permitted to take nonsuits after trial judges had already issued oral 

rulings. They also quoted caselaw to the effect that a trial court “should not grant a nonsuit 

if doing so would ‘deprive the defendant of some right that became vested during the 

pendency of the case.’” Mack v. Cable Equip. Servs., Inc., No. W2020-00862-COA-R3-

CV, 2022 WL 391458, at *3 (Tenn. Ct. App. Feb. 9, 2022) perm. app. denied (Tenn. Aug.

3, 2022) (quoting Hamilton v. Cook, No. 02A01-9712-CV-00324, 1998 WL 704528, at *5

(Tenn. Ct. App. Oct. 12, 1998)). In sum, the defendants argued that the plaintiffs “should 

not be allowed to circumvent an award of attorney’s fees and expenses associated with the 

Motion to Dismiss and successful dismissal of Count Two as statutorily barred by filing a 
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Notice of Voluntary Dismissal after hearing and the Court’s ruling on Count Two.”

However, they stated that they were not opposed to voluntary dismissal of the remaining 

counts after entry of an order dismissing Count Two as time-barred.

On March 31, 2023, the trial court entered an order resolving all of the outstanding 

issues. The court first resolved the dispute regarding what occurred at the January 5 hearing 

on the motion to dismiss. Noting the trial judge’s usual practice as well as the docket notes 

taken by the deputy clerk, the trial judge concluded that he “took the TCPA claim under 

advisement and planned to enter a Memorandum and Order detailing its findings 

concerning the applicable statute of limitations,”1and he had denied the motion to dismiss 

as to all claims aside from the TCPA claim. The trial court noted that the plaintiffs filed a 

notice of voluntary dismissal pursuant to Tennessee Rule of Civil Procedure 41.01 on 

January 9. The court acknowledged that “Rule 41.01(1) clearly describes certain 

circumstances in which a voluntary dismissal of an action is unavailable,” but it found 

“none of which are applicable here.” The court also noted, however, that Rule 41.01 is 

subject to “an implied exception which prohibits nonsuit when it would deprive the 

defendant of some vested right.” Considering this implied exception, the trial court found 

that the “Defendants had a vested right preventing Plaintiffs from voluntarily dismissing 

the TCPA claim the moment this Court took said claim under advisement.” The trial court 

reasoned that the plaintiffs’ nonsuit “could not be effective as to its TCPA claim until this 

Court issued its ruling.” Thus, the court determined that “the TCPA claim in Count 2 . . . 

taken under advisement by this Court on January 5, 2023, . . . is ripe for determination as 

to Defendants’ Motion to Dismiss.”

Rather than beginning with a discussion of the statute of limitations, however, the 

trial court first addressed a separate matter sua sponte. The trial court found that the written 

contractor agreement at issue in this case was executed by plaintiff Beinke Builders, LLC, 

but the individual plaintiff, Mr. Beinke, was not a party to the agreement. The trial court

concluded that “[Mr.] Beinke cannot meet the definition of a ‘consumer,’ as defined by the 

TCPA, because he was not a party to the Agreement[.]” Accordingly, the trial court 

concluded that Mr. Beinke “cannot state a claim for relief” under the TCPA “because he 

was not a party to the Agreement at issue.”

Next, the trial court considered whether the TCPA claim was time-barred, which 

was necessary because the TCPA claim was still asserted by the other plaintiff, Beinke 

Builders, LLC. After examining the allegations of the complaint, the trial court concluded 

that the “Plaintiffs were well within the applicable one (1)-year statute of limitations when 

they filed their TCPA claim[.]” Thus, the TCPA claim was not time-barred, and the motion 

to dismiss on that basis was denied.

 

1 The parties agree that this order, explaining that the court had not in fact dismissed the TCPA 

claim as untimely, implicitly set aside its previous order to the contrary.
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In summary, the court explained, it partially granted the defendants’ motion to 

dismiss, but only with regard to the TCPA claim asserted individually by Mr. Beinke. The 

remainder of the motion to dismiss was denied. The trial court stated that the “Plaintiffs’ 

voluntary nonsuit ‘of this matter’ may now have full effect, including [Beinke Builders 

LLC’s] TCPA claim.” The trial court further found that the defendants were entitled to 

attorney fees with respect to the dismissal of Mr. Beinke’s TCPA claim pursuant to

Tennessee Code Annotated section 20-12-119. The trial court subsequently entered a 

separate order of nonsuit, reiterating that Mr. Beinke’s TCPA claim was dismissed with 

prejudice and that all remaining claims were dismissed without prejudice pursuant to the 

notice of voluntary dismissal. Mr. Beinke timely filed a notice of appeal.

II. ISSUES PRESENTED

Mr. Beinke presents the following issues for review on appeal:

1. Did the Trial Court commit error by delaying the entry of a voluntary 

nonsuit order so that it could rule on a motion to dismiss;

2. Did the Trial Court commit error by dismissing Plaintiff Michael 

Beinke’s TCPA claim when the facts pled in the Complaint, taken as 

true, establish the elements of the claim?

3. Did the Trial Court commit error by entering, and then failing to 

explicitly set aside, a party-prepared order that did not reflect the Trial 

Court’s ruling from the bench?

In their posture as appellees, the defendants raise an additional issue for review:

1. Did the Trial Court commit error by denying Appellees/Defendants’ 

Motion to Dismiss and by not ruling that all TCPA claims were time 

barred and outside of the statute of limitations period?

Although Beinke Builders did not file a notice of appeal, it joined in the reply brief filed 

by Mr. Beinke and also adopted Mr. Beinke’s initial brief. All claims asserted by Beinke 

Builders were voluntarily dismissed in the trial court, but Beinke Builders explained that 

the defendant-appellees had raised an issue that concerned Beinke Builders, so it joined in 

Mr. Beinke’s briefs at that point.

III. DISCUSSION

We begin with some general principles regarding a plaintiff’s right to take a nonsuit. 

“Generally, ‘[t]he plaintiff . . . is the master of his or her complaint.’” Stinson v. Vest Fam. 

Ltd. P’ship, No. M2021-00151-COA-R3-CV, 2022 WL 534058, at *5 (Tenn. Ct. App. Feb. 

23, 2022) (quoting Chimneyhill Condo. Ass’n v. Chow, No. W2020-00873-COA-R3-CV, 

2021 WL 3047166, at *13 (Tenn. Ct. App. July 20, 2021)). “For well over a century, 
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plaintiffs in Tennessee have enjoyed the right to voluntarily dismiss an action without 

prejudice[.]” Clark v. Werther, No. M2014-00844-COA-R3-CV, 2016 WL 5416335, at 

*3 (Tenn. Ct. App. Sept. 27, 2016) perm. app. denied (Tenn. Jan. 19, 2017) (citing Evans 

v. Perkey, 647 S.W.2d 636, 640 (Tenn. Ct. App. 1982)). “The Tennessee rule on voluntary 

dismissals . . . is much more liberal than that obtaining in federal courts and in many other 

jurisdictions.” Weedman v. Searcy, 781 S.W.2d 855, 856-57 (Tenn. 1989). Tennessee 

Rule of Civil Procedure 41.01 “‘embodies the policy of Tennessee jurisprudence that the 

right of the plaintiff to dismiss the action without prejudice is free and unrestricted except 

in limited and well-defined circumstances.’” Hurley v. Pickens, 536 S.W.3d 419, 422 

(Tenn. Ct. App. 2016) (quoting Robles v. Vanderbilt Univ. Med. Cntr., M2010-01771-

COA-R3-CV, 2011 WL 1532069, at *2-3 (Tenn. Ct. App. April 19, 2011)). “[E]xcept in 

very limited circumstances, a party can take a voluntary nonsuit without permission from 

the trial court.” Green v. Moore, 101 S.W.3d 415, 419-20 (Tenn. 2003). 

Tennessee Rule of Civil Procedure 41.01(1) provides, in pertinent part:

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. 

The Rule “permits liberal use of voluntary nonsuits at any time prior to ‘final submission’

to the trial court for decision in a bench trial or in a jury trial before the jury retires to 

deliberate.” Himmelfarb v. Allain, 380 S.W.3d 35, 40 (Tenn. 2012) (quoting Tenn. R. Civ. 

P 41.01 adv. comm. cmt.). “Thus, the Rule contemplates that a voluntary dismissal may 

be taken late in the proceedings, when both parties have expended significant time and 

expense.” Douglas v. Lowe, No. M2012-02276-COA-R3-CV, 2013 WL 6040347, at *7 

(Tenn. Ct. App. Nov. 12, 2013). However, as previously noted, “[a] plaintiff’s right to 

voluntary dismissal without prejudice is subject to the exceptions expressly stated in Rule 

41.01(1) as well as to an implied exception which prohibits nonsuit when it would deprive 

the defendant of some vested right.” Lacy v. Cox, 152 S.W.3d 480, 484 (Tenn. 2004)

(citing Anderson v. Smith, 521 S.W.2d 787, 790 (Tenn. 1975)). “As long as none of these 

exceptions and limitations serve to restrict dismissal, Rule 41.01(1) affords a plaintiff the 

free and unrestricted right to voluntary dismissal without prejudice before the jury retires.” 

Id.; see, e.g., Krajenta v. Westphal, No. W2021-00832-COA-R3-CV, 2022 WL 4483412, 

at *2 (Tenn. Ct. App. Sept. 27, 2022) (“Under the plain language of Rule 41.01, unless an 

exception applied, it was error for the trial court to deny Appellants’ voluntary nonsuits.”). 
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We reiterate that “‘in most situations a voluntary non-suit may be taken as a matter of 

right.’” Ewan v. Hardison LawFirm, 465 S.W.3d 124, 130 (Tenn. Ct. App. 2014) (quoting

Clevenger v. Baptist Health Systems, 974 S.W.2d 699, 700 (Tenn. Ct. App. 1997)).

Notably, in this case, the trial court found that “Rule 41.01(1) clearly describes 

certain circumstances in which a voluntary dismissal of an action is unavailable, none of 

which are applicable here.” (emphasis added). Instead of relying on the exceptions 

expressly stated in the Rule, the trial court relied on the “implied exception which prohibits 

nonsuit when it would deprive the defendant of some vested right.” It concluded that 

“Defendants had a vested right” in this case. Accordingly, in their brief on appeal, the 

plaintiffs thoroughly analyzed the “vested rights” exception to Rule 41.01 and argued that 

“no ‘vested right’ existed in this case.” However, the defendant-appellees’ brief on appeal 

never even mentions the term “vested right.” Instead of analyzing the exception the trial 

court found applicable, the defendants argue on appeal that a nonsuit was not available 

pursuant to the language in Rule 41.01 that permits the filing of a written notice of dismissal 

“at any time before the trial of a cause.” (emphasis added). The defendants no longer 

dispute that the timeliness of the TCPA claim was taken under advisement at the January 

5 hearing, so they now argue that the plaintiffs’ notice of nonsuit “was not made ‘before 

the trial of a cause’ but instead, was done after the ‘jury’ and judge retired to make their 

final decision.” In their reply brief on appeal, the plaintiffs acknowledge this change in the 

defendants’ argument. Specifically, they state that the defendants’ brief on appeal “does 

not attempt to support the Trial Court’s determination that a ‘vested right’ prevented 

Plaintiffs from nonsuiting,” and “[i]nstead, Defendants now claim Plaintiffs could not 

nonsuit because the Rule 12.04 Preliminary Hearing below was really a ‘trial.’” According 

to the plaintiffs, the defendants “abandoned the Trial Court’s unsupportable rationale for 

delaying entry of Plaintiffs’ nonsuit.”

We agree with the plaintiffs that the defendants have presented no argument on 

appeal regarding the “vested rights” exception and have instead attempted to raise a 

different argument. Again, in the trial court, the defendants opposed the plaintiffs’ effort 

to take a nonsuit but did not initially cite any legal authority for their position, nor did they 

argue that any particular exception to Rule 41.01 was applicable. After the trial court 

instructed the parties to file briefs, the defendants filed a brief noting that the trial court had 

posed certain questions to them: “First, can a plaintiff file a notice of nonsuit when a matter 

is under advisement?” The defendants’ answer to this question was: “A plaintiff can file a 

notice of nonsuit, but it does not become instantly effective or halt all proceedings and 

pending orders.” They continued to insist that the trial court had orally dismissed the TCPA 

claim and that the plaintiffs’ notice of nonsuit had no impact on that oral ruling. Thus, 

their brief stated, “Defendants do not – and have never – disagreed with Plaintiffs’ right to 

file a notice of nonsuit, but the right to file is not synonymous with the date in which the 

dismissal becomes effective.” They insisted that the plaintiffs’ nonsuit could not “instantly 

halt . . orders in progress.” The defendants asked the court to “merely hold the order 

regarding voluntary nonsuit only for the time being” until entry of the order confirming the 
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supposed oral ruling dismissing the TCPA claim as time-barred. They also quoted a single 

sentence stating that a court “should not grant a nonsuit if doing so would deprive the 

defendant of some right that became vested during the pendency of the case.” They argued 

that the plaintiffs “should not be allowed to circumvent an award of attorney’s fees and 

expenses associated with the Motion to Dismiss and successful dismissal of Count Two as 

statutorily barred by filing a Notice of Voluntary Dismissal after hearing and the Court’s 

ruling on Count Two.” There was no mention of the language in Rule 41.01 which states, 

“before the trial of a cause.” Simply put, the defendants steadfastly denied that the trial 

court had taken the matter under advisement, so they never argued to the trial court that 

taking a matter under advisement is equivalent to a “trial.”

“[A]s a general rule, ‘issues raised for the first time on appeal are waived.’” Martin 

v. Rolling Hills Hosp., LLC, 600 S.W.3d 322, 336 (Tenn. 2020) (quoting State v. Rowland, 

520 S.W.3d 542, 545 (Tenn. 2017)). Thus, we decline to address the defendants’ new 

argument on appeal. Instead, we will consider the applicability of the implied exception 

the trial court considered regarding vested rights. This Court recently employed a similar 

approach when analyzing Rule 41.01 in Britt v. Usery, No. W2022-00256-COA-R3-CV, 

2024 WL 195879 (Tenn. Ct. App. Jan. 18, 2024). In that case, we explained that “the text 

of Rule 41.01 creates four exceptions to the expansive right to nonsuit,” and in addition to 

the express exceptions in the Rule, the Tennessee Supreme Court has noted “three other 

limitations,” including “an implied exception which prohibits nonsuit when it would 

deprive the plaintiff of some vested right.” Id. at *3 (quoting Lacy, 152 S.W.3d at 484). 

However, we emphasized that “[n]either party asserts that any of these exceptions or 

exclusions apply to the present case; rather, their argumentation singularly focuses on 

whether the litigation had reached a point in proceedings that caused [the plaintiff] to lose 

his right to a voluntary nonsuit.” Id. at *3. Thus, we addressed the issues on appeal “solely 

on the basis framed by the parties -- whether under the language of Rule 41.01(1) [the 

plaintiff] still had a right to voluntarily nonsuit his case -- without considering exceptions 

that the parties have agreed are inapplicable.” Id. We will likewise confine our review to 

the particular exception that was argued before the trial court and found applicable in the 

trial court’s final order – the vested rights exception. We do not consider, and express no 

opinion, as to whether any of the other exceptions and limitations were applicable in this 

case.2

As noted earlier in this opinion, “[a] plaintiff’s right to voluntary dismissal without 

prejudice is subject to the exceptions expressly stated in Rule 41.01(1) as well as to an 

 

2 We note that the same sequence of events occurred, procedurally, in Davis v. Ibach, No. W2013-

02514-COA-R3-CV, 2014 WL 3368847, at *1 (Tenn. Ct. App. July 9, 2014), aff’d on other grounds sub 

nom. Davis ex rel. Davis v. Ibach, 465 S.W.3d 570 (Tenn. 2015), in which a trial court conducted a hearing 

on motions to dismiss and “took the matter under advisement,” and the next day, before any ruling, the 

plaintiff filed a notice of voluntary dismissal. This Court ultimately found no error in the trial court’s 

decision to permit the plaintiff to voluntarily dismiss the case without prejudice. Id. at *4. However, there 

is no indication that the “vested rights” exception was argued, as it was in this case.
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implied exception which prohibits nonsuit when it would deprive the defendant of some 

vested right.” Lacy, 152 S.W.3d at 484 (citing Anderson, 521 S.W.2d at 790). “‘Though 

not stated in the rule, the right of plaintiff to a nonsuit is subject to the further restriction 

that the granting of the nonsuit will not deprive the defendant of some right that became 

vested during the pendency of the case.’” Id. at 484 n.8 (quoting Anderson, 521 S.W.2d at 

790). For instance, in Anderson, 521 S.W.2d at 790, the Tennessee Supreme Court 

examined caselaw “dealing with the question of what state of [a condemnation] proceeding 

the condemner can or cannot take a voluntary nonsuit.” The Court had recognized “three 

separate stages of a condemnation suit brought under T.C.A. s 23-1401 et seq., where it is 

too late for the condemner to take a nonsuit.” Id. From these cases and Rule 41.01, the 

Court explained that “the condemner has the right to take a nonsuit at any time prior to the 

case being submitted to the trier of fact for decision, unless the condemner has taken 

possession of the property under court order issued under circumstances leaving nothing 

to be decided by the court except the compensation to be paid the owner for the land taken.” 

Id. at 791 (emphasis added). Applying that rule to the facts before it, the Court held that 

“when the appellee obtained a court order for possession of the property being condemned, 

leaving nothing to be decided except the compensation to be paid appellants for the land 

taken, the appellee lost its right to take a nonsuit[.]” Id.

In contrast, the Supreme Court did not find any vested rights in Rickets v. Sexton, 

533 S.W.2d 293, 294-95 (Tenn. 1976). The chancellor had held that a nonsuit would be 

prejudicial and “disallowed” the same, “apparently pitching his decision on the age and 

infirmity of one of the parties defendant.” Id. at 294. The Supreme Court explained:

The right of a plaintiff to take a nonsuit is subject to the further 

qualification that it must not operate to deprive the defendant of some right 

that vested during the pending of the case. Anderson v. Smith, 521 S.W.2d 

787 (Tenn. 1975). No such right vested in the instant case.

Defendants resisted the nonsuit upon the grounds that it would deprive 

them of unspecified ‘substantive rights concerning their defenses which 

would not be available in a second suit’; that they would be prejudiced by 

delay; and that one of them was ‘totally disabled and has been under extreme 

tension during the pendency of the suit.’ The Chancellor evidently was 

influenced by the fact that one of the defendants was 69 years old and in poor 

health. This is regrettable but is not a basis for denying plaintiffs their clear 

right to a dismissal without prejudice.

Id. at 294-95.

Since Anderson, this Court has observed that “it is hard to pin down the definition 

of a ‘vested right.’” State ex rel. Stanley v. Hooper, No. M2000-00916-COA-R3-CV, 2001 

WL 27378, at *2 (Tenn. Ct. App. Jan. 11, 2001). We noted that one court had defined it 

as a right “‘which it is proper for the state to recognize and protect and of which [an] 
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individual could not be deprived of arbitrarily without injustice.’” Id. (quoting Morris v. 

Gross, 572 S.W.2d 902, 907 (Tenn. 1978)). We added, 

In a more general sense a vested right

[m]ust be something more than a mere expectation based upon 

an anticipated continuance of the existing law; it must have 

become a title, legal or equitable, to the present or future 

enjoyment of property or to the present or future enjoyment of 

a demand, or a legal exemption from a demand made by 

another; and if before such rights become vested in particular 

individuals, the convenience of the state induces amendment 

or repeal of certain laws, these individuals have no cause to 

complain.

16B Am.Jur.2d Constitutional Law § 703.

Id. In Stanley, this Court acknowledged that the appellant had a “statutory right” to a jury 

trial in a paternity case, “[b]ut that statutory right was not a vested right that would survive 

the appellee’s non-suit.” Id. We have also recognized that showing that a nonsuit would 

“deprive the defendant of some vested right” is a “higher standard” than the rule that 

applies when a nonsuit is sought while a motion for summary judgment is pending, when 

the court considers whether the nonsuit would cause “plain legal prejudice to the 

defendant.” Ewan, 465 S.W.3d at 136-37.

This Court found the existence of vested rights in Shell v. Shell, No. E2007-01209-

COA-R3-CV, 2008 WL 2687529 (Tenn. Ct. App. July 9, 2008). In that divorce case, the 

parties had participated in mediation and resolved all issues in a signed mediated 

settlement, the mediator had filed the final report with the court, and the defendant had 

filed a motion to enforce the mediated agreement, when the plaintiff attempted to take a 

voluntary nonsuit. Id. at *1-3. The trial court initially entered an order of nonsuit but set 

it aside and approved the mediated settlement agreement. Id. at *3. On appeal, this Court 

recognized the “implied exception” from Anderson, which provides that “if the defendant 

is deprived of a right that became vested during the pendency of the litigation, a nonsuit 

was prohibited.” Id. The defendant argued that “his rights to the property awarded to him 

under the Mediation Agreement became vested” during the course of the lawsuit and that 

“the nonsuit would deprive him of his right to the property.” Id. We noted that there was 

“no question that a Mediated Agreement is enforceable as a contract under general 

principles of contract law.” Id. at *3 n.3. We also noted that the trial court ultimately 

found the agreement to be valid and enforceable. Id. at *3. Thus, “[a]fter these in court 

proceedings, the plaintiff’s attempt to take a voluntary nonsuit was too late after the 

defendant’s Motion to Enforce the Mediation Agreement.” Id.
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We also found vested rights arising out of a contractual obligation in J.E.T., Inc. v. 

Hasty, No. M2023-00253-COA-R3-CV, 2024 WL 1156558 (Tenn. Ct. App. Mar. 18, 

2024). During the litigation in that case, the parties had established a discovery deadline 

and agreed that failure to meet that deadline would result in dismissal with prejudice, and 

they filed an agreed order to that effect that was approved by the trial court. Id. at *1. The 

defendant asserted that the plaintiff had failed to meet the new deadline and sought 

dismissal with prejudice, then the plaintiff filed a notice of nonsuit. Id. The defendant 

argued that a contractual right to dismissal with prejudice had already vested, and so the 

vested rights exception to Rule 41.01 barred the nonsuit. Id. at *2. We explained that the 

vested rights exception “has been repeatedly recognized by the Tennessee Supreme Court 

and this court” and noted “the Tennessee Supreme Court’s embrace of the vested rights 

exception as an enduring implied exception to freely allowed nonsuits.” Id. at *4, *6. The 

plaintiff did not dispute that “agreements between the parties related to the litigation that 

are contractual in nature can form the basis for a finding the existence of vested rights that 

constrain the ability to dismiss a case without prejudice,” such as in the Shell case. Id. at 

*4 n.3. Moreover, we noted that Tennessee courts have viewed agreed orders approved by 

courts as being contractual in nature. Id. at *4. Thus, we concluded that if the plaintiff did 

not meet the terms of the agreement, then the defendant had “a vested right barring [the 

plaintiff] from obtaining a voluntary dismissal without prejudice.” Id. at *7.

In Haynes v. Cumberland Builders, Inc., 546 S.W.2d 228, 231 (Tenn. Ct. App. 

1976), this Court rejected a defendant’s argument that voluntary dismissal was improper 

“because it deprived him of his vested right to assert the Deadman’s Statute.” We 

recognized that Anderson “stands for the proposition that a plaintiff’s right to take a nonsuit 

against a defendant under Rule 41 of the Tennessee Rules of Civil Procedure is subject to 

the qualification that the granting of the nonsuit cannot deprive the defendant of a right 

which has vested during the pendency of the case.” Id. However, we noted that the 

Anderson case involved vested property rights. Id. We added, “[t]he availability of a legal 

defense is not a ‘vested right’ within the purview of Anderson.” Id.

Tennessee appellate courts have declined to find vested rights in other cases as well. 

See, e.g., Weedman, 781 S.W.2d at 856 (noting the defendants’ argument that “they had a 

vested right to preserve the record of the evidentiary hearing for appellate review” but 

concluding that they “had acquired no vested rights of any sort in the trial transcript, insofar 

as appellate review was concerned”); Peoples Bank v. Troutman, No. E2014-01150-COAR3-CV, 2015 WL 4511540, at *4 (Tenn. Ct. App. July 27, 2015) (rejecting the contention 

that the defendants “maintained a vested right to: (1) receive a grant of summary judgment 

due to the [plaintiff’s] lack of expert testimony regarding the standard of care or (2) seek 

interlocutory or extraordinary appeal of the trial court’s denial of their motion for summary 

judgment”); Douglas, 2013 WL 6040347, at *4 n.2, *7 (concluding the defendants failed 

to show they were deprived of a vested right where they claimed that a decision by the jury 

of view vested them with an assurance that an easement would not be placed on their 

property); Trull v. Ridgeway, No. W2004-02026-COA-R3-CV, 2005 WL 1307855, at *2 
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(Tenn. Ct. App. May 27, 2005) (finding no vested right that would prevent defendants from 

nonsuiting a counterclaim even though it barred the plaintiffs “from raising adverse 

possession as a defense”); Wynne v. Bikas, 1993 WL 127050, at *2 (Tenn. Ct. App. Apr. 

23, 1993) (noting that the defendants had already filed a motion to dismiss but stating that 

“[w]e fail to see any vested right that the defendants have merely by plaintiff’s 

announcement that he intended to take a voluntary nonsuit”).

Finally, this Court recently considered whether a defendant’s request for attorney 

fees in connection with a pending motion to dismiss created a “vested right” preventing the 

plaintiff from voluntarily dismissing its case in Westfield Grp. Ins. v. Embry, No. M2022-

01301-COA-R3-CV, 2023 WL 6314469, at *1 (Tenn. Ct. App. Sept. 28, 2023). In that 

case, the defendant had filed a Rule 12.02(6) motion to dismiss and requested an award of 

attorney fees pursuant to Tennessee Code Annotated section 20-12-119, but before the 

hearing was held, the plaintiff filed a proposed order of voluntary nonsuit. Id. The 

defendant objected on the basis that the plaintiff was not entitled to a nonsuit while a motion 

to dismiss was pending. Id. Still, the trial court entered the order of nonsuit. Id. On 

appeal, we explained that the plaintiff retained its right to voluntarily dismiss its complaint 

even though a motion to dismiss had been filed, and we further rejected the defendant’s

argument that “her request for attorneys’ fees created a ‘vested right’ preventing [the 

plaintiff] from voluntarily dismissing its case.” Id. at *3-4. We explained:

The plain language of Tenn. Code Ann. § 20-12-119(c)(3) belies this 

assertion:

An award of costs pursuant to this subsection (c) shall [be]

made only after all appeals of this issue of the granting of the 

motion to dismiss have been exhausted and if the final outcome 

is the granting of the motion to dismiss.

(Emphasis added). [The defendant’s] motion to dismiss was never heard or 

granted by the trial court. Therefore, there was no “vested right” to attorneys’ 

fees in this matter. [The plaintiff] was not deprived of its right to voluntarily 

dismiss its case even though [the defendant’s] motion to dismiss and request 

for attorneys’ fees was pending.

Id. at *4-5.

Keeping these principles in mind, it is clear that the defendants in this case did not 

have any “vested right,” within the meaning of the implied exception to Rule 41.01, that 

prevented the plaintiffs from taking a nonsuit. Although the trial judge had taken a limited 

issue under advisement and planned to enter an order detailing its findings concerning the 

applicable statute of limitations, it had not made any ruling on that issue. In fact, when the 

trial court did ultimately consider whether the TCPA claim was time-barred, it found the 
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claim was not. Thus, permitting a nonsuit, at the point when the notice of nonsuit was 

filed, would not have deprived the defendants of “some right that became vested during 

the pendency of the case.” See Anderson, 521 S.W.2d at 790. Therefore, the trial court 

erred in concluding that the vested rights exception was applicable and should have entered 

the order of voluntary dismissal without prejudice. 

IV. CONCLUSION

For the aforementioned reasons, we reverse the decision of the trial court to the 

extent it dismissed Mr. Beinke’s TCPA claim with prejudice and remand for entry of an 

order under Rule 41.01 dismissing all claims without prejudice. All other issues are 

pretermitted. Costs of this appeal are taxed to the appellees, Adam Roberson d/b/a 38 

Construction, Hermila Martinez d/b/a Martinez Construction, Danny Gray d/b/a Gray’s 

Electrical and Home Improvement, and Gray’s Electrical and Home Improvement, LLC, 

for which execution may issue if necessary.

_________________________________

CARMA DENNIS MCGEE, JUDGE