### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE October 15, 2001 Se ssion MARK ALLEN WISHON and w ife, TAMMY WISHON, v. EAR, NOSE, & THROAT ASSOCIA TES, PC, MA RK A. HOWELL, M D, DAVID S. HAYNES, MD, SAINT THOMAS HOSPITAL, a nd BAPTIST HOSPITAL

Direct Appeal from the Circuit Court for Washington County No. 20355 Hon. Thomas J. Seeley, Jr., Circuit Judge

FILED NOVEMBER 29, 2001 No. E2001-01031-COA-R3-CV

Plaintiffs appeal from

summary judgments in medical malpractice case g ranted to defendants, and from the Trial Court’s refusal to grant them a voluntary dismissal during the penden cy o f the summary judgmen t motions. We

affirm. Tenn. R. App.P.3 Appe al as of Right ; Judgme nt of the Cir

cuit Cour

t Affirme d. H ERSCHEL P ICKENS F RANKS , J ., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and C HARLES D. S USANO , J R ., J., joined. Bob McD . Green , and Walte r Le e Davis, Johnson City , Tennes see, for Appellan ts. Jim E. Brading, Johnson City, Tenne ssee, for Appellees, Ear, Nose & Throat Associa tes, P.C., and Mark A. Howell, M.D. John C. Hayworth, Nashville, Tennessee , for Appellee, David S. Hay nes, M.D. Mary Martin Sc haffne

r, Nashville, Ten

nessee, for Appe

llee, Sai nt Thomas H ospital. Jeffrey Zage r, Nashville, Ten

nessee, for Appe

llee, Ba ptist Hospital.

OPINION

In this action, the Trial Court granted defendants summary

judgment, after refusing to grant plaintiffs’ voluntary dismissal pursuant to Tenn. R. Civ. P. Rule 41.02(3). Plaintiffs have appealed.-2- The Trial Court, in its Order granting summary judgmen t and deny

ing plai ntiffs’ Motion, suc cinctly

sets fort h the salie

nt facts f or consid eration on appea l: [t]his lawsuit was filed on Mar ch 13, 2000. The record further refle cts that Defend ants Ear, Nose & Throat Associates, P.C. and Mark A. H owell, M.D. filed their motion for summary judgme nt on April 22, 2000, and that Defendants Dr. Hay nes, Saint Thoma s Hospital and Bap tist Hospita

l a ll filed their

respective motions for summary judgme

nt in August 2000. By

notice filed on October 18, 2000, all four of these moti ons we re set for hea ring before thi s Court on the December 18, 2000 motion docket. . . . Th e Court held a hearing on these motions on December 18, 2000. A t that h earing the rec ord ref

lected th at (i) all of the mot ions were properl y su pported b y affida vits establishing that no genuine issues of material fact ex ist and t hat the respective defendants are entitled to judgment as a matter of law; (ii) Plaintiffs have filed no papers or sworn proof in oppositio n to the moti ons; and (iii) Plaintiffs have notmoved to voluntarily dismiss the case or otherwise attempted to non-suit the case prior to the scheduledhearing. At the hearing, Plaintiffs’ c ounsel informed the Court that on Friday, D ecember 15, 2000, Plaintiffs’ counsel contacted c o unsel for Defend ants Ear, Nos e & Throat Associates, P.C. and Mark A. Howell, M.D. to seek an agree d continua

nce in or der to co nduct disco very, which r equest was denied. Plaintiffs’ counsel then informed the Court that Plaintiff s would like

to volunta

rily dismiss the

case without prejudice and contended that no pr

ejudice would re sult to Defendants were Plaintiffs allowed to do so. . . . Based upon the Defendants’ motion papers, the sworn aff idavi ts filed in su pport ther eof, and the arguments of counsel, the Court–taking into account the Defend ants’ effortsand expen se in preparation and presentation of their respective motions and other

wisedefending this case, the existence of excessive delay a

nd lack of diligence on the part of the Plaintiffs in prosecuting the action, and an insufficient or no explanation for the need to take a dismissal–concludes that Defend ants would s uffer legal prejudice if the Court were to allow the Plaintiffs to now vo luntaril y dismiss this case. . . . Finally, the Court furthe r concludes that no genuine issues of material fact exist in this case and that Defend ants are enti tled to judg

ment as a matter of law. Appellat e courts review discreti onary rulings withthe presumption that the decision is correc t, viewing

the evide nce in the light most

favorable to the decision. A lower court’s decision will not be dist

urbed on appeal, sim ply because it did not choose an a lternati ve that the appell ate courts would have chosen. Though not entirely immune from appellate scrutiny , discretionary rulin gs are subj ected to

less rig orous app ellate

scrutiny , and will b e set asid e only if they are

based on a misappli cation of

controlli ng leg al princ iples or o n a clearly erroneous assessment of the evidence. The discr

etionar y decision wil l stand if

reasonable judicial minds can differ concerning-3-

its propriety. Overstreet v. Sho ney’s, Inc. , 4 S.W.3d 694 , 708-709 (Tenn. Ct . App. 199 9). Thus, reversal for abuse of discretion occurs when “it af firmatively appe ars that

the trial court’s decision was agains t logi c or rea soni ng, and caused an injustice or injury to the party complaining .” Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996).

In exerc ising its discretionary a uthority to gra

nt a non-suit, c ourts will consider factor s such as the defendant’s time, expense and effort, plaintiff’s de lay or lack of

diligence in prosecuting his action, i nsuffic ient explan ation of th e need f or the non -suit, an d whethe r the non- suit is solely to avoid an adverse result. Grover by Grover v. Eli Lilly & Co. , 33 F.3d 716, 718 (6 th Cir. 1994); Radiant Te chnology

Corp. v. El

ectrove rt USA Corp ., 122 F.R.D. 201 (N.D. Tex. 1988). Tennessee Rules of Civil Procedure 41.01 prohibits the taking of a voluntar y no n-suit without prejudice as a matter of righ t, when a mo tion for su

mmary judgmen t is pendin g. Appe

llants’ sole authority to support their contention that the trial cour t has discretion to grant a non-suit without pr ejud ice, is Stewart v. University of Tennessee , 519 S.W.2d 591 (Tenn. 1974). Stewart does ackno wledge even if a voluntary dismissal as a matter of right i s not available under Rule 41.02, there may be

circumstances where a voluntary dismissal is proper

under Rule 41.02(3). The Stewart Co urt held i t was no abuse of discretion to grant plaintiffs’ oral motion to non-suit made at the summary judgmen t hearin g. All de

fendant s were p

rese nt at the he aring, none obje cted and all counsel affirma

tively asse nt ed by

approvin g the or

der of no n-suit. Ob viously , these f acts substantia lly distingu ish Stewart

from the c ase bef

ore us, where a

ll defen dants object to plain tiffs’ attempt to non-suit o n the date

of hear ing of th e summary

judgmen t motions.
In the present case, appellants gave no plausible reason for

thei r need to

non-suit, other than obtaining their medical expert and ta king testimony. They

had initiated no discovery since filing the complaint, and had notresponded to discovery served upon them. Upon these facts, the Trial Court did not abuse its discretion in disallowing plaintiffs’ motion for a voluntar y di smissal. Our review o f the gr

anting o f the summa

ry judgmen t is a ques ti on of law. Staples v. CBL & Assoc., Inc

. , 15 S.W.3d 83, 88-89 (Tenn. 2000). Summary judgment is appropriate where no genuine issue with regard to any material fact

appears, and the applicable law to those undisputed facts warrants judgment for the movant. Bain v. W ells , 936 S.W.2d 618 (Tenn. 1997). Appellan ts argue that appellees’ motions are inade quately supported by the ir own phy sician/de

fendant s’ affidavit. However, a phy sician’s own affidav it is sufficie nt by itself to support a m otion for summary judg ment, despite the fact that he is a party to the suit. Smith v

. Graves , 672 S.W.2d 787, 790 (Tenn. Ct. App. 1984).

The defenda nts s et forth in their motion for summary judg ment material facts by affida vits, which establishedthe basis for summary judgment, and failure of the plaintiffs to respond to the m ot ion for summary judgment precludes consideration of any factual issues, since the defenda nts’ materia

l facts a re left u ndisputed . Where the undisput ed fact s mandate

a judgme

nt, summary judgmen t will be granted to the moving party

. Bradley v. McLeod , 984 S.W.2d 929, (Tenn.-4-

Ct. App. 1998). As in this case, the recipients of a motion for summary judgmen t in Bradley filed no thi ng in response. Judge Koch, writing for the Br adley Court, aff

irmed the summary judgment and issued a stern rebuke:

Summary judgm ents p roceed ings are not d isfavor ed procedural sho

rtcuts, but rather are usefu l procee dings tha t provide an expedit

ious and inexpensive

means to conclude litigation when there are no material fa ctual disputes. The practicing bar has now been on notice for more than two decade s that summary judgment motions should not be ta ke n l ig ht ly. They have also been admonished repeatedly that parties facing a summary judg ment motion cannot rest on the mere

allega tions or de

nials in their pleading s but rather must respon d with app ropriate evidenti ary

materia ls demonstr ating th at there

is a gen uine issue for tria l. Un fo rt un at el y, not al l lawyers heed Te nn. R . Civ . P. 5 6.06's clear w arnin g. With increasing frequency , they do not take a motion for summar y judgment seriously until after it has bee n granted. Id. at 932. For

the foregoing reasons, we affirm the judgment of the Tria l Court, and remand, with the cost of the appeal assessed to Mark Allen Wishon and Tammy Wishon.

_________________________ H ERSCHEL P ICKENS F RANKS , J.