Rule 41.04: Costs of Previously Dismissed Action.



If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the new action until the plaintiff has complied with the order.

Advisory Commission Comments.

41.01: Prior practice in the circuit court permitted a claimant an unrestricted right to take a voluntary nonsuit in jury cases at any time before final retirement of the jury, and in nonjury cases until final submission of the case to the court for decision. Tenn. Code Ann. § 20-1311 et seq. [repealed]. In chancery the right to a voluntary dismissal without prejudice was much more limited; generally permission of the court was required after proof on the merits was taken. Gibson's Suits in Chancery, § 612 (5th ed. 1955). The Committee felt that the more liberal circuit court practice would probably be preferable to the Bar, particularly since most cases are now tried on oral testimony even in chancery. The provisions of the second paragraph of the Rule, however, impose a limit upon the number of voluntary dismissals which can be taken as a matter of right.

41.02: The provisions of the second paragraph were designed to eliminate the harsh rule formerly applied in chancery cases to the effect that a defendant could not move for dismissal at the end of the complainant's proof without resting his case and waiving his right to offer evidence. The Committee felt that a party should be able to test the legal sufficiency of his adversary's proof without such drastic consequences.

Advisory Commission Comments [1991].

Rule 41.01(1) is amended to require service of both the written notice of nonsuit and a copy of the complaint on other parties.

Advisory Commission Comments [1992].

Rule 41.01(1) is amended to require service of a complaint only on those parties not already served by summons and complaint.

Advisory Commission Comments [1998].

Adding the [second] sentence in Rule 41.02(2) concerning reservation of a ruling was thought necessary in light of Tennessee's adoption of comparative fault.

Advisory Commission Comments [2002].

Added to the list of situations where a plaintiff cannot take a nonsuit is a shareholder's derivative action, provided for by Rule 23.06.

Advisory Commission Comments [2004].

New paragraph 41.01(3) mandates a court order after nonsuit. The order entry date would start the saving year running under Tenn. Code Ann. § 28-1-105. In rare cases, the date would trigger times for filing post-trial motions or a notice of appeal. See Green v. Moore, 101 S.W.3d 415 (Tenn. 2003).

Advisory Commission Comment [2005].

Plaintiffs and their counsel should note that in certain circumstances a case cannot be recommenced after the filing of a voluntary nonsuit. See e.g. Lynn v. City of Jackson, 63 S.W.3d 332, 337 (Tenn. 2001) (stating, “the general rule in Tennessee is that savings statutes may not be applied to extend the period within which an action must be filed under the [Governmental Tort Liability Act]”); In re Estate of Barnhill, 62 S.W.3d 139 (Tenn. 2001) (holding that a will contest action cannot be refiled after a voluntary nonsuit).

Advisory Commission Comment [2006].

Although Rule 41.01(2) allows two nonsuits without prejudice, a plaintiff must carefully consider the separate issue of whether the saving statute, T.C.A. § 28-1-105, authorizes a recommencement of the plaintiff’s action after a nonsuit. A plaintiff should note that taking a second nonsuit, which is permitted by Rule 41.01(2), does not initiate a second one-year period for recommencing the action under the saving statute. See Payne v. Matthews, 633 S.W.2d 494, 495-96 (Tenn. Ct. App. 1982) (stating, “It has long been held that after the taking of any nonsuit to the original action, any additional suits would have to be filed within one year of the first nonsuit to be within the purview of T.C.A. Sec. 28-1-105.”).

Advisory Commission Comment [2010].

The final sentence of Rule 4 1.02(2) deletes the requirement of a request for written findings of fact and conclusions of law. Instead, in conformity with Rule 52.01, findings of fact and conclusions of law are required without request.

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