FILED

December 12, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

WESTERN SECTION AT NASHVILLE

RONALD LEWIS MAYNORD and )

BRENDA GAIL MAYNORD, )

INDIVIDUALLY, AS NEXT OF KIN )

OF AMY MAYNORD, DECEASED, )

AND IN THEIR REPRESENTATIVE )

CAPACITY AS CO-ADMINISTRATORS)

OF THE ESTATE OF AMY MAYNORD, ) 

)

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.
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

Maynords’ claims arising from the September 1994 accident. 

2As pertinent, rule 50.02 provides that:

W henever a m otion for a directed verdict made at the close of all

the evidence is denied or for any reason 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. Within thirty (30) days after the

entry of judgment a party who has moved for a directed verdict may move

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

verdict; 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 directed verdict. . . .

T.R.C.P. 50.02.

2

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
3As pertinent, rule 41.01 provides that:

Subject to the provisions of Rule 23.05 or Rule 66 or any statute,

and except when a motion for sum mary judgment m ade 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, . . . ; 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. . . .

T.R.C.P. 41.01(1).

4

This rule also applies to motions filed pursuant to rules 52.02, 54.04(2), 59.02, and 59.04. See

T.R.A.P. 4(b).

3

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
4

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
5But see Parker 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 commencement of the

time within which a [rule] 59 motion or notice of appeal must be filed”).

5

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.