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§47.6F Certificate of Good Faith - Ability to Take Voluntary Dismissal after Motion to Dismiss Has Been Filed

The Case: Davis v. Ibach, No. W2013-02514-COA-R3-CV, 2014 WL 3368847 (Tenn. Ct. App. July 9, 2014).

The Basic Facts: After filing his complaint, plaintiff timely filed a certificate of good faith, but failed to list that the executing party had zero violations of the statute. Defendants filed a motion to dismiss on the grounds that plaintiff failed to comply with § 29-26-122, and after the trial court conducted a hearing on the motion but before the court ruled, plaintiff filed a Notice of Voluntary Dismissal Without Prejudice, which the trial court granted.

The Bottom Line:


·      “The Defendants argued in their response that the trial court could not allow voluntary dismissal without prejudice of the Plaintiff’s claim because Section 29-26-122 requires dismissal with prejudice when the certificate of good faith does not comply with the statute. Because the certificate filed by the Plaintiff was plainly noncompliant with the statute, the Defendants argued, the trial court was without authority to allow a voluntary nonsuit without prejudice.” 2014 WL 3368847, at *1.


·       “The trial court in this case cited this Court’s holding in Robles as the primary basis for its decision. In Robles, the plaintiffs did not file a certificate of good faith at all, and the defendants filed a motion to dismiss on that basis. After the motion to dismiss was filed but before it was argued, the plaintiffs filed a notice of voluntary nonsuit. Based on the notice of voluntary dismissal, the trial court entered a judgment dismissing the case without prejudice. Robles, 2011 WL 1532069, at *1.” Id. at *2.


·        “As in the instant case, the defendants in Robles argued that, because the dismissal for noncompliance of the statute had to be with prejudice, ‘allowing the plaintiffs to voluntarily dismiss the action without prejudice is contrary to the statutory mandate.’ Id. at *2. The appellate court disagreed. After discussing the interplay between Section 29-26-122 and Rule 41.01, the Robles court held that dismissal of the action ‘with prejudice’ based on the language of Section 29-26-122 ‘is not automatic.’ Id. at *3. It reasoned, ‘Nothing in the statute operates to prevent a plaintiff from exercising the right to voluntarily dismiss the action without prejudice.’ Id.Id.


·         Robles has not been abrogated, and nothing in the statute governing certificates of good faith precludes a plaintiff from exercising the ‘free and unrestricted’ right to dismiss an action without prejudice provided in Tenn. R. Civ. P. 41.01. Robles, 2011 WL 1532069, at *3. Thus, under Robles, we find no error in the trial court’s decision to permit the Plaintiff to voluntarily dismiss the case without prejudice under these circumstances.”  Id. at *4.

Recent Cases: Robles v. Vanderbilt Univ. Med. Center, No. M2010-01771-COA-R3-CV, 2011 WL 1532069 (Tenn. Ct. App. April 19, 2011) (allowing plaintiff to voluntarily dismiss after failing to file a certificate of good faith).


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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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