# FILED
December 12, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECTION AT NA SHVILLE
RONALD LEWIS MA

YNORD and ) BRENDA

GA IL MA

YNORD, ) INDIVIDUA LLY, A

S NEXT OF K IN ) OF AMY MAY NORD, DECEASED, ) AN D IN THEIRREPRESENTA TIVE ) CA PAC ITY AS CO-A DMINISTR AT ORS) OF THE ESTATE OF A MY MA YNORD, )

) Plaintiffs/App ellees, ) Over ton Circu it No. 3038 ) VS. ) A ppeal No. 01A 01-9704-CV-001 79 ) LARRY NORRIS and JOYCE AN N ) NORRIS, JOINTLY AND ) INDIVIDUA LLY, and d/b/a LA RRY’S ) FULL SERVI CE, ) ) Defendants/Ap pellants. ) APPEAL FROM THE CI RCUI T COUR T OF OVE RTON C OUNTY

AT LIVINGSTON, TENN ESSEE THE HONORABLE JOHN MAD DUX, JU DGE

JON E. JONES LA W OFFICE OF JON E. JONES Cookevil le, Tennessee Attorney for Appellants

ONNIE L. WIN EBA RGER Byrdstow n, Tennessee Attorney for Appellees JOHN HUBERT LITTLE Living ston, Tennessee Attorney for Appellees

DISMISSED A ND REMA NDED

ALAN E. HIGHERS , J.

CONCUR: DAVID R. FA RMER, J. HEWITT P. TO MLIN, Sr. J.1 The Maynords al so sued the Norri ses for Amy’ s wrongful death i n a subsequent vehi cle acci dent

which occurred in Sept ember 1994. The tr ial court grant ed the Nor ri ses’ moti on for d ir ected v erdi ct as t o the Ma ynord s’ claim s aris ing fro m the S epte m ber 1 994 acc iden t.

2 As pertine nt, rule 5 0.02 prov ides that:

W henever a m otio n fo r a d ire cte d v er dic t m ad e a t the clo se of a ll the evi dence i s denie d or for an y rea so n is not gr anted, the court i s deemed to have s ubmitt ed the act ion t o the j urysubjectto a l aterdeter minati on of the legal questi ons rai sed by th e motion. W it hin t hirty (30) d ays af ter the entry of judgme nt a party who has m oved for a directed verdict m ay mo ve to have t he verdi ct and any j udgment entere d thereon set aside and to have judgment enter ed in accordance wi th t he part y’ s motion fo r a di recte d verd ict; or i f a ver dictwas not r etur ned , such pa rty, w ithin thir ty (3 0) da ys after the j uryhas been dischar ged, may move for a judgment in a ccordance with s uch party’s m otion f or a d irecte d ve rdict. . . . T.R.C.P. 50.02. 2 Defendants Larry N orris and J oyce Ann Norris appeal from the notice of voluntary dis missal filed by Plaintiffs/App ellees Ronald Lewis Maynord and Brenda Gail M aynord

. We dismiss thi s appeal based on the Nor rises’ co ncession that no final judgment

has yet been entered by the trial court from which the Norrises can appeal.

The Maynords, individ ually and as co-administr

ators of the estate of their daughter, Amy Maynord, filed this action against the Norri ses seeking damages for injuries received byAmy in an Apr il 1994 vehi cle accident. The Maynord s ’ theo ry of liabi lity was that the Norrises, doing business as Larry ’s Full Se rvice, sold beer to Amy , who was under the age of twenty -one (21) years, and that s uch sale prox imately cau sed Amy’s i njuries. See T.C.A. §§ 57-5-301, 57 -10-102 (1989 & Supp. 19 91).

At trial, the Norrises

timely moved for a directed verdict on the issue of their liabilit y for Amy’s injuries in the April 1994 accident, which motion was denied by the tri al court. 1 See T.R.C.P. 50.01. At t he trial’s c onclusion, the jury announced that it was unable to reach a verdic

t. Consequent ly, the tr ial court dec lared a mistr ial and discharg ed the j ury. After the trial court entered its judgment reflecting these ruling s, the Norr ises filed a moti on for judgment in accordance with their previous motion for a directed verdict as per mitted by rule 50. 02 of the Tennessee Rules of Civil Procedure. See T.R.C.P. 50.02. 23 As pertine nt, rule 4 1.01 prov ides that: Subj ect to the p rovis ions of R ule 23 .05 o r Ru le 66 o r any s tatu te , and except when a motion f or sum m ary jud gm ent m ade by an a dve rse party is pendi ng, t he p l aintiff sh all have the righ t to tak e a vo luntar y nons uit to dismiss an acti on wit hout pr ejudi ce by f il ing a wri tt en noti ce of di smissal at any ti me before the tr ial of a cause and servi ng a copyof t he noti ce up on all part ies,

. . . ; or by

an oral noti ce of di smissal made in o pen courtduri ng the tri al of a ca use ; or in jury trials a t any tim e be fore the ju ry retires to conside r its verdi ct and pr ior

to t he rul ing ofthe court sus tai ning a m otion for a direc ted ve rdict. . . . T.R.C .P. 41.01(1).

4 T his rul e also appli es to moti ons f il ed purs uan t to rules 52.0 2, 54 .04(2 ), 59.0 2, an d 59 .04. See T.R.A.P. 4(b). 3 Before the trial court entered an or der ruling o n the Norrises ’ post-tri al motion, the Maynordsfiled a notice of v oluntary di smissal purs uant to rule 41.0 1. See T.R.C.P. 41.01. 3 The Norrises then filed notice of th is appeal, which pur ported to appeal “ from the entry of
a voluntary

dismissal entered by th e Circuit Court for Ov

erton County , . . . after a mistrial
was declared, but

prior to any

ruling by the Trial Court rel ative to post-trial mot ions.” The notice of volu ntary dis missal was not signe d by the tr ial 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 thei r post-tri al motion. When a party timelyfiles a post-t rial motion pu rsuant to rul e 50.02, the time for taki ng an appeal does not begi n to run until the trial court enters an order granting or denying such motion. Evans v . Wilson , 776 S.W .2d 939, 941-42 (Te nn. 1989); T.R.A.P. 4(b ). 4 Inasmuch
as the trial cour

t has notruled on the N orrises’ post-trial motion for a directed verdi ct, the Norrises presently cannot pursue this appeal.

W hile conceding t hat their appeal is premature, the Norrises explained that, as a precautionary measure, they filed their not ice of appeal within thirty days ofthe 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 s upreme court st ated that:

[Rule 41.01] specifiesthat a plaintiff “shal l have the r ight to tak e a vol untary nonsui t or to dismi ss an action w ithout prejudice by filing a writ t en notic e of dis missal at any time before the tri al o f a cause”. This portion of [rul e 41.01] is not de pendent upon the determinat ion of the trial judge. Th e lawyer for the plainti ff is the sole judg e of the matt er a nd the trial judge has no cont rol over i t. It is not necessary that [the4 trial judg e] approve th e action of plaint iff’s counsel by signing any order; nor may

[the trial judg e] nullify t he rules by an order “disallo wing” the nonsuit. Al l that is required todismiss pr ior to the tri al, in t he ab senc e of t he ex ist enceof an y of t h e exceptions[specified in r ule 41.01], is the filing of a w ritten notice of dismissal. Rickets v . Sexton , 533 S.W.2d at 294.

We do not construe the fo regoing language to mean that a notice of voluntary dismissal filed by a plaintiff constitu tes a final, appealable ord er. A trial court speaks only through its written orders which have been properly entered in acc ordanc e with the Tennessee Rules of Civ il Procedure. Ladd ex rel. Ladd v. Honda

Motor Co. , 939 S.W.2d 83, 104 (Tenn. App. 1996) ; Evans v . Pe rkey , 647 S.W .2d 636, 641 (Tenn . App. 1982); T.R.C.P. 58. Rule 3 of the Tennessee Rules of Appel late Procedure per mits appeals as of right in civil actions only from final judgments

which hav

e been entered by

the trial court. See T.R.A.P. 3(a) . Here, the notice ofvoluntary dismissal was filed by

the Maynords , but the notice neither

was sig ned by the trial court nor purported to be an order of the trial court dismissing the action. Cf

. Ricke ts v. Sexton , 53 3 S.W.2d at 294 (wherein pl aintiffs filed pleading captioned “motion f or voluntary dismissal” which was actually in for m of order tendered for trial court’s signature).

Moreover, in construi ng the Ricketsdecision, thi s cou rt prev iously has held that, althou gh a plaintiff has a r ight to takea voluntar y nonsuit or

to dismiss a n action w ithout prejudice by filing a written notice of dismissal, such notice does not constitute an or der or judgmentwhich finallyadj udicates the cas e. Evans v . Perkey , 647 S.W.2d 636 (Tenn. App. 1982). In Evans v . Perkey , this court explained: We construe the Ricketscourt to besay ing that the p lai ntiff in that case had done all that wasrequired to be done when he gave writte n notice of his i ntention to take a nonsuit. It w

as not necessary for the [t rial] cou rt to gran t permission or enter an order permitt ing i t to be done. How ever, we do not find the [supreme] court tobe saying that a judgment or decree need not be entered [by the trial court] for f inal adju di cati on 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) (citi ng5 But see Parke r v. Vanderbilt Univ. , 767 S.W .2d 4 12, 4 22 n .3 (Tenn. App. 1988) (wh erein the c ourt,

wit hout mentioni ng Evans v. Perkey , const rued Ric ke ts to mean that “ [i ]t is t he date o f th e fi li ng of t he wri tt en noti ce of vol untary di smissal, not t he entry ofthe confi rmatoryorder, thattr igger s the comm encement of the time within which a [rule] 59 motion or notice of appe al mus t be fil ed”). 5 Evans v. Perkey

for the proposit ion that “the s avings statute begins to run from the date of the entry of the order dismi ssing the s uit with out 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, 199 3) (citing Evans v . Perkey for the prop osition that “ a dismissal pursuant to voluntary

nonsuits is

effective on thedate of entry of theorder of dismis sal and not from the date of f iling the notice of nonsuit”). 5

The Norrises’ appeal is hereby dismissed without preju dice, and this cause is remanded to the trial court for further proceedin gs. Costs of this appeal are taxed to the Norri ses, for wh ich e xecut ion m ay issu e if n eces sary.

HIGHERS, J.

CONCUR:

FARMER, J.

TOMLIN, Sr. J.