FILED

September 2, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

1 September 2, 1997

2 FOR PUBLICATION

3

4 IN THE SUPREME COURT OF TENNESSEE

5

6 AT KNOXVILLE

7

8

9

10 MARY BLAKE, )

11 )

12 Plaintiff-Appellant, )

13 )

14 )

15 v . ) GREENE CHANCERY

16 )

17 PLUS MARK, INC., AND SUE ANN ) Hon. Dennis H. Inman, 

18 HEAD, DIRECTOR OF THE ) Chancellor

19 DIVISION OF WORKER’S )

20 COMPENSATION, TENNESSEE )

21 DEPARTMENT OF LABOR, )

22 ) 

23 Defendants-Appellees. ) No. 03-S-01-9512-CH-00137

24

25

26

27 For Plaintiff-Appellant : For Defendant-Appellee Plus Mark :

28

29 Bob McDaniel Green Gene P. Gaby 

30 Johnson City Milligan & Coleman

31 Greeneville

32

33 For Defendants-Appellees Sue 

34 Ann Head, Director of the 

35 Division of Worker’s Compensation

36

37 Anne T. Widseth

38 Tennessee Department of Labor

39 Knoxville

40

41 Sandra Keith

42 Tennessee Department of Labor

43 Nashville

44

45 O P I N I O N

46

47

48 JUDGMENT OF TRIAL COURT 

49 REVERSED; CASE REMANDED. REID, J.
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1 This is an appeal from the decision of the Chancery Court

2 in a workers’ compensation case, in which the trial court granted the

3 employee’s motion for non-suit and then entered a judgment of no

4 liability for the employer on its counterclaim. The judgment of the

5 trial court is reversed, and the case is remanded.

6

7 I

8

9 On September 25, 1992, Mary Blake filed a complaint for

10 workers’ compensation benefits against her employer, Plus Mark, Inc.,

11 and the Second Injury Fund. The complaint alleged a claim for

12 permanent partial disability benefits. The Second Injury Fund filed

13 an answer stating that it was without sufficient knowledge to respond

14 to the complaint and prayed that the claim against the Fund be

15 dismissed. The employer filed a pleading consisting of an answer and

16 a “counter-complaint.” In the answer, the defendant pled the statute

17 of limitations and lack of notice of the alleged injury, and

18 responded to the allegations of the complaint. In its counterclaim,

19 the employer “adopt[ed] the allegations of its answer,” and 

20 “[sought] a determination . . . of the rights, duties and obligations

21 of the parties” and general relief.

22

23 Following the dismissal of a motion by the employer for

24 summary judgment on August 27, 1993 and the decision of a workers’

25 compensation specialist filed on October 24, 1994, the case was set
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1 for trial on May 31, 1995. On the day of the trial, the employee

2 filed a motion for a continuance stating that she had not been able

3 to schedule the deposition of her medical expert. The court denied

4 the motion for a continuance. Thereupon, the employee made a motion

5 that her complaint be dismissed without prejudice, which was granted. 

6

7 According to the judgment entered in the trial court, the

8 case then “proceeded” on the employer’s counterclaim “for a

9 determination of the workers’ compensation benefits, if any, to which

10 Mary Blake was entitled from Plus Mark, Inc.” No proof was presented

11 by any party. The court entered judgment that the employee “recover

12 no workers’ compensation benefits for her claimed injury.” 

13

14 On appeal, the case initially was referred to a Special

15 Workers’ Compensation Appeals Panel for findings of fact and

16 conclusions of law. The case was withdrawn for review by the Court

17 pursuant to Tenn. Code Ann. § 50-6-225(e)(5)(A) (Supp. 1996). 

18

19 I I

20

21 The employee insists that the trial court erred in denying

22 her motion for a continuance, hearing the case on the employer’s

23 counterclaim and determining, without proof, that she was not

24 entitled to any benefits. 

25
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1 A .

2

3 The granting or denial of a motion for a continuance lies

4 in the sound discretion of the court. Morehead v. State , 219 Tenn.

5 271, 409 S.W.2d 357, 358 (1966). The ruling on the motion will not

6 be disturbed unless the record clearly shows abuse of discretion and

7 prejudice to the party seeking a continuance. State v. Strouth , 620

8 S.W.2d 467, 472, (Tenn. 1981), cert. denied , 455 U.S. 983 (1982). 

9 This case had been filed for more than two and a half years when the

10 court denied the motion for a continuance. The case had been

11 continued previously because, in the words of the trial court, the

12 plaintiff was “looking for a doctor.” In support of the motion for a

13 continuance, the plaintiff attached a letter in which a physician

14 described the employee’s medical condition, which included cervical

15 disc herniation at three levels, and stated that she had been

16 disabled since 1991. However, the letter contained no statement as

17 to causation of the condition described. The letter did not state

18 that the physician would testify as to causation, or even that he

19 would testify at all. Consequently, the employee has failed to

20 demonstrate that the court abused its discretion in denying the

21 motion for continuance or that the employee was prejudiced by the

22 denial. See e.g. Commissioner of the Dept. of Transp. v. Hall , 635

23 S.W.2d 110 (Tenn. 1982).

24

25
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1 B .

2

3 The right of the employee to take a nonsuit and the order

4 granting the nonsuit without prejudice is not contested. The

5 employee insists that proceeding further on the employer’s prayer for

6 a declaratory judgment was error. She insists that since the

7 counterclaim asserted no grounds for relief other than the denial of

8 liability, dismissal of the complaint required the dismissal of the

9 counterclaim as well as the answer. The provisions of Tenn. Code

10 Ann. § 50-6-225 and Tenn. R. Civ. P. 41.01(1), do not support the

11 employee’s position.

12

13 Tenn. Code Ann. § 50-6-225 (Supp. 1993) authorizes the

14 employee and also the employer to submit a workers’ compensation

15 controversy to the court for determination. Subsection (a)(1)

16 provides:

17

18 In case of a dispute over or failure to agree

19 upon compensation under the Workers’ Compensation

20 Law between the employer and employee or the

21 dependents of the employee, either party may

22 submit the entire matter for determination to the

23 judge or chair of the county court in which the

24 accident occurred, and such judge or chair is

25 vested with jurisdiction to hear and determine

26 the issues and render and enforce judgment.

27

28

29 Subsection (b) provides:

30 
1

Rule 23.05 states that a “class action shall not be voluntarily

dismissed or compromised without the approval of the court....”

2

Rule 66 states that an “action wherein a receiver has been appointed

shall not be dismissed except by order of the court....”

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1 The party invoking the power of the court shall

2 file a petition setting out the facts on which

3 the claim is based under the Workers’

4 Compensation Law.

5

6 Under this statute, any dispute between the employer and the employee

7 will be resolved upon a suit by either party “setting out the facts

8 on which the claim is based under the Workers’ Compensation Law.” In

9 this case, the employer asserted that right in the form of a

10 counterclaim. 

11

12 Rule 41.01(1) states the circumstances under which a

13 plaintiff may voluntarily dismiss a complaint without prejudice and

14 the effect such a dismissal has on a counterclaim. It states:

15

Subject to the provisions of Rule 23.05 116 or Rule

6 6 2

17 or any statute, and except when a motion for

18 summary judgment made by an adverse party is

19 pending, the plaintiff shall have the right to

20 take a voluntary nonsuit to dismiss an action

21 without prejudice . . . . If a counterclaim has

22 been pleaded by a defendant prior to the service

23 upon the defendant of plaintiff’s motion to

24 dismiss, the defendant may elect to proceed on

25 such counterclaim in the capacity of a plaintiff.

26

27

28

29 Since a defendant may proceed on a counterclaim even though the

30 plaintiff has taken a nonsuit, the question is whether the employer’s
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1 pleading set forth a counterclaim within the meaning of the rule. 

2 Apparently, this precise issue has not been considered previously by

3 an appellate court in this jurisdiction.

4

5 Historically, in equity practice, the dismissal of an

6 original bill ordinarily carried with it the dismissal of a cross

7 bill or an answer filed as a cross bill, unless the answer or cross

8 bill set up grounds for affirmative relief. Henry R. Gibson, Suits

9 in Chancery § 726 (2nd ed. 1907); McDowell v. Hunt Contracting Co. ,

10 133 Tenn. 437, 181 S.W. 680, 681 (1916). The general rule is that 

11

12 [a]s used in a particular statute or rule

13 precluding dismissal where the adverse party has

14 sought affirmative relief, the term “affirmative

15 relief” requires the allegation of new matter

16 that, in effect, amounts to a counterattack. The

17 relief sought, if granted, must operate not as a

18 defense, but affirmatively and positively to

19 defeat the plaintiff’s cause of action. Thus,

20 where the pleadings in a counterclaim constitute

21 mere denials of the plaintiff’s cause of action

22 and state no facts on which affirmative relief

23 could be granted, the plaintiff’s right to

24 voluntary termination of the suit is not

25 affected. 

26

27

28 24 Am. Jur. 2d Dismissal § 66 (1983). This general rule is

29 consistent with the language of Tenn. R. Civ. P. 13. Under Rule

30 13.01 a compulsory counterclaim is “any claim, other than a tort

31 claim, which at the time of serving the pleading the pleader has

32 against any opposing party, if it arises out of the . . . occurrence

33 that is the subject matter of the opposing party’s claim. . . .” 
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1 The employer’s statutory right to file suit and “submit the

2 entire matter for determination” by the court, Tenn. Code Ann. § 50-

3 6-225(a)(1), can be asserted as a counterclaim under Rule 41.01. The

4 counterclaim in this case incorporates the material contained in the

5 answer, identifies the parties, acknowledges that the employee has

6 filed a claim for worker’s compensation benefits, and sets forth

7 additional information regarding the conditions of the employee’s

8 employment. The employer’s pleadings assert that any claim is barred

9 by the one year statute of limitation and that the employee did not

10 give notice within 30 days of the alleged injury. The pleadings

11 assert that the employee has not sustained a work-related injury in

12 the course of her employment and she is not entitled to any benefits. 

13 These allegations by the employer are more than “mere denials of the

14 plaintiff’s cause of action.” They would have been sufficient to

15 state a claim for relief under the workers’ compensation statute as

16 an original complaint filed by the employer. Consequently, they are

17 sufficient to state a counterclaim under Rule 41.01. 

18

19 C .

20

21 However, this finding that the counterclaim survived the

22 dismissal of the employee’s complaint does not conclude the matter to

23 be decided. The trial court erred in awarding judgment for the

24 employer without hearing proof. After the complaint was dismissed,
3

The employee’s response to the employer’s counterclaim, as required

b y Tenn. R. Civ. P. 7.01, is not included in the record presented to this

Court; however, this is not raised as an issue by the parties. No responsive

pleadings by the Se cond Injur y Fund, aside from the initial answer to the

complaint, appear in the record, nor did that party participate at the trial

or on appeal.

4

Tenn. Code Ann. §§ 29-14-100 to 29-14-113 (1980). See also Tenn. R.

Civ. P. 57.

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the case was pending on the employer’s pleadings. 31 The pleading

2 party has the burden of proving that the controversy is justiciable

3 and of establishing the facts needed to bring an action. Although

4 the counterclaim was filed under the authority of the workers’

compensation statute and not under the Declaratory Judgment Act, 45 it

6 is in the nature of an action for declaratory judgment. 

7

8 [The majority view is that] the burden of

9 proof in a declaratory judgment action is the

10 same as in ordinary actions at law or suits in

11 equity, and the plaintiff bringing a declaratory

12 judgment action must, in order to succeed, prove

13 his case in accordance with and within the

14 meaning of such rules, and this rule is not

15 affected by the fact that a negative declaration

16 is sought - of nonliability. It may be stated as

17 a general rule, that the burden of proof is upon

18 the plaintiff to show that conditions exist to

19 justify the court in exercising its discretionary

20 powers to grant declaratory relief pursuant to

21 the declaratory judgment statute. It seems that

22 an applicant for a declaratory judgment has the

23 burden of showing that present justiciable

24 controversy exists, and if this fact is not shown

25 then a cause of action for declaratory relief is

26 not established. . . .

27

28

29

2 Walter H. Anderson, Actions for Declaratory Judgments 30 § 375 (2d ed.

31 1951). See also Jared v. Fitzgerald , 183 Tenn. 682, 195 S.W.2d 1,4
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1 (1946); Century Indus., Inc. v. Wenger Corp ., 851 F. Supp. 1260, 1263

2 (S.D. Ind. 1994).

3

4 The employer had the burden of proving the allegations set

5 forth in its pleadings - jurisdictional facts, the issue in

6 controversy and the circumstances that gave rise to the controversy. 

7 The employee will be entitled to such benefits, if any, as this

8 evidence may show, unless the employee produces evidence which shows

9 that she is entitled to additional benefits. Consequently, even

10 though the employer’s pleading alleging a counterclaim was not

11 dismissed with the employee’s complaint, the pleading, without proof,

12 does not entitle the employer to a judgment.

13 

14 The judgment of the trial court is reversed, and the case

15 is remanded to the trial court for further proceedings. 

16

17 Costs of the appeal are taxed to Plus Mark, Inc.

18

19 ___________________________

20 Reid, J.

21

22

23 Concur:

24

25 Anderson, C.J., Drowota, Birch, and

26 Holder, JJ.