# FILED

September 2, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk September 2, 1997 1 FOR PUBLICATION 2 3 IN THE SUPREME COURT OF TENNESSEE 4 5 AT KNOXVILLE 6 7 8 9 MARY BLAKE, ) 10 ) 11 Plaintiff-Appellant, ) 12 ) 13 ) 14 v . ) GREENE CHANCERY 15 ) 16 PLUS MARK, INC., AND SUE ANN ) Hon. Dennis H. Inman, 17 HEAD, DIRECTOR OF THE ) Chancellor 18 DIVISION OF WORKER’S ) 19 COMPENSATION, TENNESSEE ) 20 DEPARTMENT OF LABOR, ) 21 ) 22 Defendants-Appellees. ) No. 03-S-01-9512-CH-00137 23 24 25 26 For Plaintiff-Appellant : For Defendant-Appellee Plus Mark : 27 28 Bob McDaniel Green Gene P. Gaby 29 Johnson City Milligan & Coleman 30 Greeneville 31 32 For Defendants-Appellees Sue 33 Ann Head, Director of the 34 Division of Worker’s Compensation 35 36 Anne T. Widseth 37 Tennessee Department of Labor 38 Knoxville 39 40 Sandra Keith 41 Tennessee Department of Labor 42 Nashville 43 44 

### O P I N IO N 45 46 47 JUDGMENT OF TRIAL COURT 48 REVERSED; CASE REMANDED. REID, J. 49-2- This is an appeal from the decision of the Chancery Court 1 in a workers’ compensation case, in which the trial court granted the 2 employee’s motion for non-suit and then entered a judgment of no 3 liability for the employer on its counterclaim. The judgment of the 4 trial court is reversed, and the case is remanded. 5 6

I 7 8 On September 25, 1992, Mary Blake filed a complaint for 9 workers’ compensation benefits against her employer, Plus Mark, Inc., 10 and the Second Injury Fund. The complaint alleged a claim for 11 permanent partial disability benefits. The Second Injury Fund filed 12 an answer stating that it was without sufficient knowledge to respond 13 to the complaint and prayed that the claim against the Fund be 14 dismissed. The employer filed a pleading consisting of an answer and 15 a “counter-complaint.” In the answer, the defendant pled the statute 16 of limitations and lack of notice of the alleged injury, and 17 responded to the allegations of the complaint. In its counterclaim, 18 the employer “adopt[ed] the allegations of its answer,” and 19 “[sought] a determination . . . of the rights, duties and obligations 20 of the parties” and general relief. 21 22 Following the dismissal of a motion by the employer for 23 summary judgment on August 27, 1993 and the decision of a workers’ 24 compensation specialist filed on October 24, 1994, the case was set 25-3-

for trial on May 31, 1995. On the day of the trial, the employee 1 filed a motion for a continuance stating that she had not been able 2 to schedule the deposition of her medical expert. The court denied 3 the motion for a continuance. Thereupon, the employee made a motion 4 that her complaint be dismissed without prejudice, which was granted. 5 6 According to the judgment entered in the trial court, the 7 case then “proceeded” on the employer’s counterclaim “for a 8 determination of the workers’ compensation benefits, if any, to which 9 Mary Blake was entitled from Plus Mark, Inc.” No proof was presented 10 by any party. The court entered judgment that the employee “recover 11 no workers’ compensation benefits for her claimed injury.” 12 13 On appeal, the case initially was referred to a Special 14 Workers’ Compensation Appeals Panel for findings of fact and 15 conclusions of law. The case was withdrawn for review by the Court 16 pursuant to Tenn. Code Ann. § 50-6-225(e)(5)(A) (Supp. 1996). 17 18

I I 19 20 The employee insists that the trial court erred in denying 21 her motion for a continuance, hearing the case on the employer’s 22 counterclaim and determining, without proof, that she was not 23 entitled to any benefits. 24 25-4- A . 1 2 The granting or denial of a motion for a continuance lies 3 in the sound discretion of the court. Morehead v. State , 219 Tenn. 4 271, 409 S.W.2d 357, 358 (1966). The ruling on the motion will not 5 be disturbed unless the record clearly shows abuse of discretion and 6 prejudice to the party seeking a continuance. State v. Strouth , 620 7 S.W.2d 467, 472, (Tenn. 1981), cert. denied , 455 U.S. 983 (1982). 8 This case had been filed for more than two and a half years when the 9 court denied the motion for a continuance. The case had been 10 continued previously because, in the words of the trial court, the 11 plaintiff was “looking for a doctor.” In support of the motion for a 12 continuance, the plaintiff attached a letter in which a physician 13 described the employee’s medical condition, which included cervical 14 disc herniation at three levels, and stated that she had been 15 disabled since 1991. However, the letter contained no statement as 16 to causation of the condition described. The letter did not state 17 that the physician would testify as to causation, or even that he 18 would testify at all. Consequently, the employee has failed to 19 demonstrate that the court abused its discretion in denying the 20 motion for continuance or that the employee was prejudiced by the 21 denial. See e.g. Commissioner of the Dept. of Transp. v. Hall , 635 22 S.W.2d 110 (Tenn. 1982). 23 24 25-5- B . 1 2 The right of the employee to take a nonsuit and the order 3 granting the nonsuit without prejudice is not contested. The 4 employee insists that proceeding further on the employer’s prayer for 5 a declaratory judgment was error. She insists that since the 6 counterclaim asserted no grounds for relief other than the denial of 7 liability, dismissal of the complaint required the dismissal of the 8 counterclaim as well as the answer. The provisions of Tenn. Code 9 Ann. § 50-6-225 and Tenn. R. Civ. P. 41.01(1), do not support the 10 employee’s position. 11 12 Tenn. Code Ann. § 50-6-225 (Supp. 1993) authorizes the 13 employee and also the employer to submit a workers’ compensation 14 controversy to the court for determination. Subsection (a)(1) 15 provides: 16 17 In case of a dispute over or failure to agree 18 upon compensation under the Workers’ Compensation 19 Law between the employer and employee or the 20 dependents of the employee, either party may 21 submit the entire matter for determination to the 22 judge or chair of the county court in which the 23 accident occurred, and such judge or chair is 24 vested with jurisdiction to hear and determine 25 the issues and render and enforce judgment. 26 27 28 Subsection (b) provides: 29 301Rule23.05 states that a “class action shall not be voluntarily dismissed or compromised without the approval of the court....”

2Rule66 states that an “action wherein a receiver has been appointed shall not be dismissed except by order of the court....”

-6- The party invoking the power of the court shall 1 file a petition setting out the facts on which 2 the claim is based under the Workers’ 3 Compensation Law. 4 5 Under this statute, any dispute between the employer and the employee 6 will be resolved upon a suit by either party “setting out the facts 7 on which the claim is based under the Workers’ Compensation Law.” In 8 this case, the employer asserted that right in the form of a 9 counterclaim. 10 11 Rule 41.01(1) states the circumstances under which a 12 plaintiff may voluntarily dismiss a complaint without prejudice and 13 the effect such a dismissal has on a counterclaim. It states: 14 15 Subject to the provisions of Rule 23.05 1or Rule 16 6 6 2or any statute, and except when a motion for 17 summary judgment made by an adverse party is 18 pending, the plaintiff shall have the right to 19 take a voluntary nonsuit to dismiss an action 20 without prejudice . . . . If a counterclaim has 21 been pleaded by a defendant prior to the service 22 upon the defendant of plaintiff’s motion to 23 dismiss, the defendant may elect to proceed on 24 such counterclaim in the capacity of a plaintiff. 25 26 27 28 Since a defendant may proceed on a counterclaim even though the 29 plaintiff has taken a nonsuit, the question is whether the employer’s 30-7-

pleading set forth a counterclaim within the meaning of the rule. 1 Apparently, this precise issue has not been considered previously by 2 an appellate court in this jurisdiction. 3 4 Historically, in equity practice, the dismissal of an 5 original bill ordinarily carried with it the dismissal of a cross 6 bill or an answer filed as a cross bill, unless the answer or cross 7 bill set up grounds for affirmative relief. Henry R. Gibson, Suits 8 in Chancery§ 726 (2nd ed. 1907); McDowell v. Hunt Contracting Co. , 9 133 Tenn. 437, 181 S.W. 680, 681 (1916). The general rule is that 10 11 [a]s used in a particular statute or rule 12 precluding dismissal where the adverse party has 13 sought affirmative relief, the term “affirmative 14 relief” requires the allegation of new matter 15 that, in effect, amounts to a counterattack. The 16 relief sought, if granted, must operate not as a 17 defense, but affirmatively and positively to 18 defeat the plaintiff’s cause of action. Thus, 19 where the pleadings in a counterclaim constitute 20 mere denials of the plaintiff’s cause of action 21 and state no facts on which affirmative relief 22 could be granted, the plaintiff’s right to 23 voluntary termination of the suit is not 24 affected. 25 26 27 24 Am. Jur. 2d Dismissal§ 66 (1983). This general rule is 28 consistent with the language of Tenn. R. Civ. P. 13. Under Rule 29 13.01 a compulsory counterclaim is “any claim, other than a tort 30 claim, which at the time of serving the pleading the pleader has 31 against any opposing party, if it arises out of the . . . occurrence 32 that is the subject matter of the opposing party’s claim. . . .” 33-8- The employer’s statutory right to file suit and “submit the 1 entire matter for determination” by the court, Tenn. Code Ann. § 50- 2 6-225(a)(1), can be asserted as a counterclaim under Rule 41.01. The 3 counterclaim in this case incorporates the material contained in the 4 answer, identifies the parties, acknowledges that the employee has 5 filed a claim for worker’s compensation benefits, and sets forth 6 additional information regarding the conditions of the employee’s 7 employment. The employer’s pleadings assert that any claim is barred 8 by the one year statute of limitation and that the employee did not 9 give notice within 30 days of the alleged injury. The pleadings 10 assert that the employee has not sustained a work-related injury in 11 the course of her employment and she is not entitled to any benefits. 12 These allegations by the employer are more than “mere denials of the 13 plaintiff’s cause of action.” They would have been sufficient to 14 state a claim for relief under the workers’ compensation statute as 15 an original complaint filed by the employer. Consequently, they are 16 sufficient to state a counterclaim under Rule 41.01. 17 18

C . 19 20 However, this finding that the counterclaim survived the 21 dismissal of the employee’s complaint does not conclude the matter to 22 be decided. The trial court erred in awarding judgment for the 23 employer without hearing proof. After the complaint was dismissed, 243Theemployee’s response to the employer’s counterclaim, as required b yTenn. R. Civ. P. 7.01, is not included in the record presented to this Court; however, this is not raised as anissue by the parties. No responsive pleadings by the Se cond Injury Fund, aside from the initial answer to the complaint, appear in therecord, nor did that party participate at the trial or on appeal.

4Tenn. Code Ann. §§ 29-14-100 to29-14-113 (1980). See alsoTenn. R. Civ. P. 57.

-9- the case was pending on the employer’s pleadings. 3The pleading 1 party has the burden of proving that the controversy is justiciable 2 and of establishing the facts needed to bring an action. Although 3 the counterclaim was filed under the authority of the workers’ 4 compensation statute and not under the Declaratory Judgment Act, 4it 5 is in the nature of an action for declaratory judgment. 6 7 [The majority view is that] the burden of 8 proof in a declaratory judgment action is the 9 same as in ordinary actions at law or suits in 10 equity, and the plaintiff bringing a declaratory 11 judgment action must, in order to succeed, prove 12 his case in accordance with and within the 13 meaning of such rules, and this rule is not 14 affected by the fact that a negative declaration 15 is sought - of nonliability. It may be stated as 16 a general rule, that the burden of proof is upon 17 the plaintiff to show that conditions exist to 18 justify the court in exercising its discretionary 19 powers to grant declaratory relief pursuant to 20 the declaratory judgment statute. It seems that 21 an applicant for a declaratory judgment has the 22 burden of showing that present justiciable 23 controversy exists, and if this fact is not shown 24 then a cause of action for declaratory relief is 25 not established. . . . 26 27 28 29 2 Walter H. Anderson, Actions for Declaratory Judgments§ 375 (2d ed. 30 1951). See also Jared v. Fitzgerald , 183 Tenn. 682, 195 S.W.2d 1,4 31-10-

(1946); Century Indus., Inc. v. Wenger Corp ., 851 F. Supp. 1260, 1263 1 (S.D. Ind. 1994). 2 3 The employer had the burden of proving the allegations set 4 forth in its pleadings - jurisdictional facts, the issue in 5 controversy and the circumstances that gave rise to the controversy. 6 The employee will be entitled to such benefits, if any, as this 7 evidence may show, unless the employee produces evidence which shows 8 that she is entitled to additional benefits. Consequently, even 9 though the employer’s pleading alleging a counterclaim was not 10 dismissed with the employee’s complaint, the pleading, without proof, 11 does not entitle the employer to a judgment. 12 13 The judgment of the trial court is reversed, and the case 14 is remanded to the trial court for further proceedings. 15 16 Costs of the appeal are taxed to Plus Mark, Inc. 17 18

___________________________ 19 Reid, J. 20 21 22 Concur: 23 24 Anderson, C.J., Drowota, Birch, and 25 Holder, JJ. 26