Trevor Adamson v. Sarah E. Grove

11/30/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 17, 2022 Session

TREVOR ADAMSON v. SARAH E. GROVE, ET AL.

Appeal from the Circuit Court for Sumner County
No. 83CC1-2020-CV-906, 83CC1-2020-CV-616, 83CC1-2020-CV-818
Joe Thompson, Judge
___________________________________

No. M2020-01651-COA-R3-CV
___________________________________

In this case, the plaintiff filed a complaint alleging defamation and related causes of action.
Before the defendants filed an answer or any other pleading, the plaintiff filed a notice of
voluntary dismissal, and the trial court entered an order of voluntary dismissal without
prejudice. Within thirty days, the defendants filed a combined motion to alter or amend
and petition to dismiss the complaint with prejudice pursuant to the Tennessee Public
Participation Act (TPPA), Tenn. Code Ann. § 20-17-101, et seq., seeking an award of
attorney fees and sanctions. The trial court ultimately entered an order altering or
amending the order of voluntary dismissal without prejudice, granting the defendants’
petition to dismiss with prejudice under the TPPA, and ordering the plaintiff to pay $15,000
in attorney fees in addition to $24,000 in sanctions. The plaintiff has appealed and raised
numerous issues, including a challenge to the trial court’s subject matter jurisdiction after
the nonsuit. For the following reasons, we reverse the trial court’s order granting the
motion to alter or amend, vacate the trial court’s order granting the appellees’ petition to
dismiss with prejudice and awarding attorney fees and sanctions, and remand.

Tenn. R. Civ. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in
Part, Vacated in Part, and Remanded

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

Kent T. Jones, Cleveland, Tennessee, for the appellant, Trevor Adamson.

Daniel A. Horwitz, Nashville, Tennessee, for the appellees, Karl S. Bolton, Sarah E. Grove,
and Deborah Ann Sangetti.

Jonathan T. Skrmetti, Attorney General and Reporter, Andrée Blumstein, Solicitor
General, and Janet M. Kleinfelter, Deputy Attorney General, for the appellee, State of
Tennessee.

OPINION

I. FACTS & PROCEDURAL HISTORY

On July 9, 2020, Plaintiff Trevor Adamson filed this lawsuit against Defendants
Sarah E. Grove, Deborah Ann Sangetti, and Karl S. Bolton. According to the complaint,
the suit arose out of allegedly defamatory Facebook posts and slanderous utterances made
by Defendants concerning Plaintiff. The complaint asserted several causes of action,
including defamation, invasion of privacy, intentional interference with business relations,
and other related claims. It sought $800,000 in compensatory and punitive damages, in
addition to injunctive relief and attorney fees. Plaintiff filed an amended complaint on
August 12. On August 13, Plaintiff’s counsel moved to withdraw. On August 20, Plaintiff
filed a notice of voluntary dismissal without prejudice pursuant to Tennessee Rule of Civil
Procedure 41.01. At that time, Defendants had not filed an answer or other pleading of any
sort. On August 24, the trial court entered an order dismissing the case without prejudice
pursuant to Rule 41.01.

On September 11, Defendants filed a combined motion to alter or amend and
petition to dismiss with prejudice pursuant to the Tennessee Public Participation Act, Tenn.
Code Ann. § 20-17-101, et seq., seeking an award of attorney fees and sanctions.
Defendants characterized Plaintiff’s lawsuit as a “SLAPP-suit” that was filed by a political
candidate in order to silence community activists who criticized him online. Thus, a brief
description of SLAPP suits is helpful at the outset.

This Court provided the following general overview of SLAPP suits and anti-
SLAPP legislation in Nandigam Neurology, PLC v. Beavers, 639 S.W.3d 651, 657-59
(Tenn. Ct. App. 2021):

The term “SLAPP” stands for “strategic lawsuits against public
participation,” meaning lawsuits which might be viewed as “discouraging
the exercise of constitutional rights, often intended to silence speech in
opposition to monied interests rather than to vindicate a plaintiff’s right.”
[Todd Hambidge, et al., Speak Up. Tennessee’s New Anti-SLAPP Statute
Provides Extra Protections to Constitutional Rights, 55 Tenn. B.J. 14, 15
(Sept. 2019)]; see also Sandholm v. Kuecker, 356 Ill.Dec. 733, 962 N.E.2d
418, 427 (Ill. 2012) (“‘SLAPPs . . . are lawsuits aimed at preventing citizens
from exercising their political rights or punishing those who have done so.’”
(quoting Wright Dev. Group, LLC v. Walsh, 238 Ill.2d 620, 345 Ill.Dec. 546,
939 N.E.2d 389, 395 (2010))). Regarding SLAPP lawsuits generally, the
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Illinois Supreme Court has aptly explained:

SLAPPs use the threat of money damages or the prospect of
the cost of defending against the suits to silence citizen
participation. The paradigm SLAPP suit is “one filed by
developers, unhappy with public protest over a proposed
development, filed against leading critics in order to silence
criticism of the proposed development.” Westfield Partners,
Ltd. v. Hogan, 740 F. Supp. 523, 525 (N.D. Ill. 1990). A
SLAPP is “based upon nothing more than defendants’ exercise
of their right, under the first amendment, to petition the
government for a redress of grievances.” Hogan, 740 F. Supp.
at 525. SLAPPs are, by definition, meritless. John C. Barker,
Common-Law and Statutory Solutions to the Problem of
SLAPPs, 26 Loy. L.A. L. Rev. 395, 396 (1993). Plaintiffs in
SLAPP suits do not intend to win but rather to chill a
defendant’s speech or protest activity and discourage
opposition by others through delay, expense, and distraction.
Id. at 403-05. “In fact, defendants win eighty to ninety percent
of all SLAPP suits litigated on the merits.” Id. at 406. While
the case is being litigated in the courts, however, defendants
are forced to expend funds on litigation costs and attorney fees
and may be discouraged from continuing their protest
activities. Id. at 404-06. “The idea is that the SLAPP
plaintiff’s goals are achieved through the ancillary effects of
the lawsuit itself on the defendant, not through an adjudication
on the merits. Therefore, the plaintiff’s choice of what cause
of action to plead matters little.” Mark J. Sobczak, Comment,
SLAPPed in Illinois: The Scope and Applicability of the Illinois
Citizen Participation Act, 28 N. Ill. U.L. Rev. 559, 561 (2008).
SLAPPs “masquerade as ordinary lawsuits” and may include
myriad causes of action, including defamation, interference
with contractual rights or prospective economic advantage, and
malicious prosecution. Kathryn W. Tate, California’s Anti–
SLAPP Legislation: A Summary of and Commentary on Its
Operation and Scope, 33 Loy. L.A. L. Rev. 801, 804-05
(2000). Because winning is not a SLAPP plaintiff’s primary
motivation, the existing safeguards to prevent meritless claims
from prevailing were seen as inadequate, prompting many
states to enact anti-SLAPP legislation. Id. at 805. These
statutory schemes commonly provide for expedited judicial
review, summary dismissal, and recovery of attorney fees for
the party who has been “SLAPPed.” Id.
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 Sandholm, 356 Ill. Dec. 733, 962 N.E.2d at 427-28 (some internal citations
omitted); see also Steidley v. Cmty. Newspaper Holdings, Inc., 383 P.3d 780,
786 (Okla. Civ. App. 2016) (citations omitted) (“SLAPP suits are designed
to intimidate the petitioners into dropping their initial petitions due to the
expense and fear of extended litigation. Libel is a common cause of action
in SLAPP suits.”).

Anti-SLAPP statutes have arisen in response to SLAPP lawsuits. See
Hambidge, supra, at 15 (“[A]nti-SLAPP statutes are not a recent
development[;] [s]tates began enacting anti-SLAPP statutes in the 1980s in
response to an increasing number of lawsuits that were filed for the purpose
of discouraging the exercise of constitutional rights.”); see also Liberty
Synergistics Inc. v. Microflo Ltd., 718 F.3d 138, 147 (2nd Cir. 2013) (“[T]he
point of the anti-SLAPP statute is that you have a right not to be dragged
through the courts because you exercised your constitutional rights.”). Over
thirty states now have anti-SLAPP statutes in place, and while the particular
language varies, the stated purpose of anti-SLAPP legislation is consistent.
See, e.g., Ga. Code Ann. § 9-11-11.1(a) (“[I]t is in the public interest to
encourage participation by the citizens of Georgia in matters of public
significance and public interest through the exercise of their constitutional
rights of petition and freedom of speech . . . [T]he valid exercise of the
constitutional rights of petition and freedom of speech should not be chilled
through abuse of the judicial process.”); Ark. Code Ann. § 16-63-501 (“[I]t
is in the public interest to encourage participation by the citizens of the State
of Arkansas in matters of public significance through the exercise of their
constitutional rights of freedom of speech . . . Strategic lawsuits against
political participation can effectively punish concerned citizens for
exercising the constitutional right to speak and petition the government for a
redress of grievances.”); Colo. Rev. Stat. § 13-20-1101 (“[I]t is in the public
interest to encourage continued participation in matters of public significance
and [ ] this participation should not be chilled through abuse of the judicial
process.”).

Id. at 657-59.

Tennessee’s Anti-SLAPP law, the Tennessee Public Participation Act, Tenn. Code
Ann. § 20-17-101, et seq., “is a relatively new creature of the legislature, having only been
codified in 2019.” Doe v. Roe, 638 S.W.3d 614, 617 (Tenn. Ct. App. 2021). However,
this Court has noted that “the statute is, on its face, consistent with the anti-SLAPP
legislation of many other states.” Nandigam, 639 S.W.3d at 660. The TPPA provides:

The purpose of this chapter is to encourage and safeguard the constitutional
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 rights of persons to petition, to speak freely, to associate freely, and to
participate in government to the fullest extent permitted by law and, at the
same time, protect the rights of persons to file meritorious lawsuits for
demonstrable injury. This chapter is consistent with and necessary to
implement the rights protected by the Constitution of Tennessee, Article I,
§§ 19 and 23, as well as by the First Amendment to the United States
Constitution, and shall be construed broadly to effectuate its purposes and
intent.

Tenn. Code Ann. § 20-17-102. The TPPA “is intended to provide an additional substantive
remedy to protect the constitutional rights of parties and to supplement any remedies which
are otherwise available to those parties under common law, statutory law, or constitutional
law or under the Tennessee Rules of Civil Procedure.” Tenn. Code Ann. § 20-17-109.

Tennessee’s Act contains a “burden-shifting mechanism.” Doe, 638 S.W.3d at 624.
“If a legal action is filed in response to a party’s exercise of the right of free speech, right
to petition, or right of association, that party may petition the court to dismiss the legal
action” by filing a petition “within sixty (60) calendar days from the date of service of the
legal action or, in the court’s discretion, at any later time that the court deems proper.”
Tenn. Code Ann. § 20-17-104(a)-(b). According to the Act,

(a) The petitioning party has the burden of making a prima facie case that
a legal action against the petitioning party is based on, relates to, or is in
response to that party’s exercise of the right to free speech, right to petition,
or right of association.
(b) If the petitioning party meets this burden, the court shall dismiss the
legal action unless the responding party establishes a prima facie case for
each essential element of the claim in the legal action.
(c) Notwithstanding subsection (b), the court shall dismiss the legal
action if the petitioning party establishes a valid defense to the claims in the
legal action.
(d) The court may base its decision on supporting and opposing sworn
affidavits stating admissible evidence upon which the liability or defense is
based and on other admissible evidence presented by the parties.
(e) If the court dismisses a legal action pursuant to a petition filed under
this chapter, the legal action or the challenged claim is dismissed with
prejudice.
(f) If the court determines the responding party established a likelihood
of prevailing on a claim:
(1) The fact that the court made that determination and the substance of
the determination may not be admitted into evidence later in the case; and
(2) The determination does not affect the burden or standard of proof in
the proceeding.
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Tenn. Code Ann. § 20-17-105. The TPPA further provides:

(a) If the court dismisses a legal action pursuant to a petition filed under
this chapter, the court shall award to the petitioning party:
(1) Court costs, reasonable attorney’s fees, discretionary costs, and other
expenses incurred in filing and prevailing upon the petition; and
(2) Any additional relief, including sanctions, that the court determines
necessary to deter repetition of the conduct by the party who brought the
legal action or by others similarly situated.

Tenn. Code Ann. § 20-17-107(a).

Again, in the case before us, Defendants filed a combined motion to alter or amend
the order of voluntary dismissal and petition for dismissal with prejudice pursuant to the
TPPA. They contended that Plaintiff had filed a frivolous SLAPP suit and that Plaintiff
had nonsuited it after Defendants retained counsel. Nevertheless, Defendants argued that
they had “a vested statutory right to a dismissal with prejudice under the [TPPA],” such
that the order of voluntary dismissal without prejudice should be altered or amended. They
argued that Plaintiff’s claims were all “speech-based” and fell squarely within the coverage
of the TPPA. Accordingly, Defendants claimed a vested statutory right to the “substantive
remedy” provided by the TPPA. See Tenn. Code Ann. § 20-17-109. Defendants argued
that their motion to alter or amend was timely filed within thirty days and that their TPPA
petition was also timely because it was filed within sixty days of the complaint in
accordance with Tennessee Code Annotated section 20-17-104. Thus, they argued that the
trial court “retain[ed] jurisdiction” to alter or amend its order of voluntary dismissal and to
adjudicate their TPPA petition.

Also within the combined petition, Defendants argued that Plaintiff was not entitled
to a nonsuit under Tennessee Rule of Civil Procedure 41.01(1), for several reasons. The
Rule provides, in pertinent part:

Subject to the provisions of Rule 23.05, Rule 23.06, or Rule 66 or of any
statute, and except when a motion for summary judgment made by an adverse
party is pending, the plaintiff shall have the right to take a voluntary nonsuit
to dismiss an action without prejudice by filing a written notice of dismissal
at any time before the trial of a cause and serving a copy of the notice upon
all parties, and if a party has not already been served with a summons and
complaint, the plaintiff shall also serve a copy of the complaint on that party;
or by an oral notice of dismissal made in open court during the trial of a
cause; or in jury trials at any time before the jury retires to consider its verdict
and prior to the ruling of the court sustaining a motion for a directed verdict.
If a counterclaim has been pleaded by a defendant prior to the service upon
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 the defendant of plaintiff’s motion to dismiss, the defendant may elect to
proceed on such counterclaim in the capacity of a plaintiff.

Tenn. R. Civ. P. 41.01. First, Defendants argued that Plaintiff’s right to take a nonsuit was
“[s]ubject to the provisions of . . . any statute,” which, Defendants argued, would include
their statutory rights under the TPPA. Next, Defendants cited caselaw recognizing that
“[a] plaintiff’s right to voluntary dismissal without prejudice is subject to the exceptions
expressly stated in Rule 41.01(1) as well as to an implied exception which prohibits nonsuit
when it would deprive the defendant of some vested right.” Lacy v. Cox, 152 S.W.3d 480,
484 (Tenn. 2004) (citing Anderson v. Smith, 521 S.W.2d 787, 790 (Tenn. 1975)). Thus,
Defendants claimed that they had a vested right to dismissal with prejudice under the TPPA
and to recover their attorney fees and any additional relief the court deemed appropriate,
including sanctions. They argued that these TPPA rights had “vested upon the filing of”
Plaintiff’s complaint against them and that it would undermine the purpose of the TPPA if
a plaintiff could simply nonsuit his claims after a defendant incurred the expense of
retaining counsel. Finally, Defendants argued that “the availability of statutory sanctions
under the TPPA [] would also—by itself—confer jurisdiction to adjudicate the Defendants’
sanctions claim following the Plaintiff’s nonsuit,” under the reasoning of Menche v. White
Eagle Property Group, LLC, No. W2018-01336-COA-R3-CV, 2019 WL 4016127 (Tenn.
Ct. App. Aug. 26, 2019). As such, they claimed that their substantive rights “must survive
a plaintiff’s non-suit.”

Defendants’ combined motion to alter or amend and TPPA petition went on to
address the burden shifting mechanism set forth in the TPPA. Noting that the petitioning
party first has “the burden of making a prima facie case” that the legal action was based
on, related to, or in response to the exercise of the right to free speech, right to petition, or
right of association, Tenn. Code Ann. § 20-17-105(a), Defendants argued that the claims
in Plaintiff’s complaint involved the exercise of their right of free speech and were made
in connection with a matter of public concern within the meaning of the Act. So,
Defendants argued that they were entitled to dismissal under subsection (b) “unless the
responding party establishes a prima facie case for each essential element of the claim[s].”
Tenn. Code Ann. § 20-17-105(b). Additionally, however, they noted that
“[n]otwithstanding subsection (b), the court shall dismiss the legal action if the petitioning
party establishes a valid defense to the claims in the legal action.” Tenn. Code Ann. § 20-
17-105(c). Defendants’ petition analyzed several defenses, which, they claimed, barred
the claims asserted in the complaint. In light of this showing, Defendants argued that they
were entitled to dismissal of Plaintiff’s complaint with prejudice in addition to an award of
$15,000 for the attorney fees they had incurred and an award of sanctions, if the court
deemed it appropriate. They argued that this case warranted “severe sanctions” and sought
an award of $24,000, explaining that they calculated this sum as three percent of the amount
of damages sought in the complaint ($800,000). Defendants attached various documents
to their petition, including information regarding Plaintiff’s political activity, online
webpages and postings, Defendants’ engagement letters and retainer agreements with their
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attorney, and a fee petition analyzing the factors relevant to such awards.

Because Plaintiff’s counsel had moved to withdraw, Plaintiff filed a pro se response
to Defendants’ combined petition. It was entitled, “Verified Petition of Trevor Adamson
and Samantha Myers to Dismiss Tenn. R. Civ. P. 27.01(1).” The style of the case listed on
the document included Plaintiff’s fiancé as an additional petitioner and Defendants’
counsel as an additional respondent. It sought various forms of relief, including injunctive
relief, the opportunity to engage in discovery, dismissal of Defendants’ motion for attorney
fees, and an award of attorney fees to Plaintiff. The response suggested that, with limited
discovery, Plaintiff would be able to show that the case was not about free speech. Plaintiff
also argued that he had established a prima facie case of defamation. He attached many
online posts and emails as exhibits, along with other documents. The clerk assigned a new
docket number to this pro se filing, apparently because it purported to involve parties not
named in the original complaint.

Defendants filed a reply, construing Plaintiff’s pro se petition as a response to their
combined motion to alter or amend and TPPA petition. However, they contended that
Plaintiff’s response was not supported by admissible evidence to meet his burden under
the TPPA. Defendants argued that the response was meritless and failed to establish a
prima facie case for each element of the claims or overcome the defenses asserted by
Defendants. As a result, Defendants maintained that they were entitled to dismissal with
prejudice under either subsection (b) or subsection (c) of Tennessee Code Annotated
section 20-17-105.

At a hearing on October 5, 2020, Plaintiff indicated that he intended his pro se filing
to serve as his response to the Defendants’ combined motion to alter or amend and TPPA
petition. Accordingly, the trial court entered an order stating that it would treat the filing
as such a response. The order further provided that the two case numbers were
consolidated. However, the order also stated that because Plaintiff had voluntarily
dismissed his amended complaint, he could not add new parties or claims to it through his
response. Therefore, the court struck any claims regarding the additional parties. The trial
court allowed Plaintiff’s counsel to withdraw and gave Plaintiff thirty days to file any
further response to Defendants’ combined motion and petition.

Plaintiff subsequently filed an additional pro se response, stating that he had been
unable to retain an attorney. He maintained that his complaint did not relate to free speech
and argued that Defendants were attempting to spread falsehoods about him and curb his
own free speech rights. Plaintiff stated that he was attaching an article that “details the
circular arguments and constitutional questions surrounding Anti-SLAPP legislation like
the [TPPA].” He suggested that the TPPA effectively bars all defamation claims and
“would limit the first amendment rights of Tennesseans” rather than protect them. He also
attached online postings to his response. Defendants then filed an additional reply.

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 The trial court entered its final order on November 17, 2020. At the outset, the court
stated that Defendants had filed a “timely” motion to alter or amend and TPPA petition.
The trial court noted that Plaintiff had filed two responses to Defendants’ petition, but the
court found that neither response introduced admissible evidence that established a prima
facie case for each essential element of the speech-based claims asserted in the complaint.
It also found that neither response introduced admissible evidence sufficient to overcome
the valid defenses that Defendants established. “Accordingly, for the reasons set forth in
the Defendants’ Motion and TPPA Petition,” and the Defendants’ two replies, all of which
the court incorporated by reference, the court found that the combined motion to alter and
amend and TPPA petition was well taken and should be granted. It dismissed Plaintiff’s
amended complaint with prejudice pursuant to Tennessee Code Annotated section 20-17-
105(b) and (c), awarded Defendants $15,000 in attorney fees, and ordered Plaintiff to pay
$24,000 in sanctions “to deter repetition of the conduct” by him or others similarly situated.

Much activity transpired in the two years that followed. Plaintiff retained counsel
and filed a notice of appeal to this Court, but he designated only one docket number on his
notice of appeal. This Court dismissed the appeal because he “listed only one of the case
numbers from the consolidated cases in his notice of appeal” and “articulate[d] no issues
stemming from the dismissal of the case number he designated.” Adamson v. Grove, No.
M2020-01651-COA-R3-CV, 2021 WL 5919118, at *1 (Tenn. Ct. App. Dec. 15, 2021).
Accordingly, this Court concluded that it lacked jurisdiction to consider “the host of issues”
Plaintiff raised on appeal. Id. at *4. Plaintiff then filed an application for permission to
appeal to the Tennessee Supreme Court, raising numerous issues. The Tennessee Supreme
Court, by order, granted Plaintiff’s application, vacated the judgment of the Court of
Appeals, and remanded to this Court for further review. The Supreme Court concluded
that the trial court’s consolidation order had made it clear that the court was treating
Plaintiff’s pro se filing as a responsive document rather than a separate complaint. Thus,
under the particular facts of this case, the Supreme Court found that Plaintiff’s notice of
appeal was sufficient to provide Defendants with notice that Plaintiff was appealing the
final order entered on the combined motion to alter or amend and TPPA petition. The
Court explained that this “[gave] the Court of Appeals jurisdiction to hear the issues raised
by [Plaintiff] arising from that single final order.” The case was remanded “for further
review consistent with this Order.”

In the meantime, a supplemental record was filed in this Court reflecting that various
documents had also been filed in the trial court after the notice of appeal was filed. In
particular, Plaintiff had filed a motion to alter or amend or vacate the trial court’s final
order pursuant to Tennessee Rule of Civil Procedure 59 or 60. However, the motion was
filed on February 12, 2021, three months after the final order of November 17, 2020. The
motion stated that Plaintiff was approaching the trial court “[i]n an effort to provide judicial
efficiency . . . rather than unnecessarily burdening the appellate Court,” to provide the trial
court with an opportunity to correct mistakes and/or due to excusable neglect. It also stated
that Plaintiff was challenging the constitutionality of the TPPA on three grounds. The post-
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judgment motion asserted that the trial court had “dismissed this case in error” in violation
of Plaintiff’s constitutional rights, and it asked the trial court to vacate its order of dismissal.
Defendants filed a response in the trial court, asserting that Plaintiff’s Rule 59 or 60 motion
was untimely and meritless. Plaintiff filed an additional reply and affidavit. This Court
noted in its first opinion that Plaintiff had filed the Rule 59 motion “well past the 30-day
time period prescribed for such motions,” but in any event, we stated that “[n]o ruling on
the belated motion to alter or amend appears in the record on appeal.” Adamson, 2021 WL
5919118, at *4 n.5.

Oral argument was held before this panel of the Court on May 17, 2022, after
remand from the Tennessee Supreme Court. The day before oral argument, Defendants
filed a motion to supplement the record on appeal with even more documents reflecting
actions taken in the trial court in recent months. Defendants argued that recent orders were
“relevant to several issues that [Plaintiff] has purported to raise in this appeal.”
Specifically, Defendants claimed that the trial court had entered two orders, on February 3
and May 16, 2022, which were “relevant in many respects to the issues that this Court has
been tasked with adjudicating.”

During oral argument the following day, Plaintiff’s counsel argued that “the biggest
issue” in this case is whether Plaintiff’s nonsuit at the early stages of the litigation meant
that the parties were “out of the case” such that it could not “[keep] going” thereafter.
According to Plaintiff, the trial court did not have “jurisdiction after the nonsuit to continue
the case.” In response, Defendants’ counsel argued that even though Plaintiff’s counsel
had just described this as “the biggest issue,” he had not designated any issue in his initial
brief on appeal regarding the trial court’s “post-nonsuit subject matter jurisdiction” and
had only raised the issue in his reply brief. Defendants argued that the issue of post-nonsuit
jurisdiction was “actually litigated below and it was determined below,” and that the trial
court had “found post-nonsuit subject matter jurisdiction on two alternative bases.”
Defendants noted that those rulings were not challenged in the initial brief filed by Plaintiff
and suggested that the issue should be waived when it was raised for the first time in a
reply brief. Defendants’ counsel further argued that the “post-judgment proceedings” that
had occurred in the trial court after the filing of the notice of appeal impacted this Court’s
consideration of the matter and would result in those issues “fall[ing] away as a result.”
Thus, he asked this Court to grant his motion to supplement the record with the trial court’s
post-judgment orders.

After oral argument, Defendants filed a motion to consider post-judgment facts,
again referencing the trial court’s two recent orders. Defendants argued that the two orders
“arose out of a contempt proceeding,” and therefore, they were from an independent and
“sui generis” action, separate from the case on appeal. Because Plaintiff did not file any
notice of appeal following the entry of those orders, Defendants argued that the two orders
“now carry preclusive effect.” According to Defendants, one of those orders made an
independent finding regarding the trial court’s “post-nonsuit subject matter jurisdiction” to
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alter or amend the order of voluntary dismissal and adjudicate the TPPA petition. As such,
Defendants reasoned, the trial court’s recent “independent” ruling on subject matter
jurisdiction in the “contempt order” should have preclusive effect and bar this Court from
considering the issue of post-nonsuit subject matter jurisdiction on appeal. According to
Defendants, “this Court need not—and, indeed, it cannot—consider that jurisdictional
question anew, even if this Court believes the ruling was wrong.” This Court withheld its
ruling on the motions filed in this Court pending the issuance of this opinion.

II. ISSUES PRESENTED

The following issues were presented in Plaintiff’s brief on appeal:

1. Whether the Tennessee Public Participation Act, Tenn. Code Ann. §§
20-17-101 et seq., unconstitutionally denies litigants the right to a jury trial?
2. Whether the Tennessee Public Participation Act, Tenn. Code Ann. §§
20-17-101 et seq., is in inextricable conflict with the Tennessee Rules of Civil
Procedure?
3. Whether Defendants/Appellees were simply exercising the right of
free speech, the right to petition, or the right of association, or, instead
exercising an intention and desire to destroy and undermine
Plaintiff/Appellant’s business? See generally Tenn. Code Ann. § 20-17-104.
4. Whether Defendants/Appellees have made a prima facie case that
Plaintiff/Appellant’s legal action against them is based on, relates to, or is in
response to those parties’ exercise of the right to free speech, right to petition,
or right of association? See generally Tenn. Code Ann. § 20-17-105.
5. Whether Plaintiff/Appellant has made a prima facie case for each
essential element of his claim in the legal action? See generally Tenn. Code
Ann. § 20-17-105(b).
6. Whether Plaintiff/Appellant has submitted admissible evidence in
support of his claim? See generally Tenn. Code Ann. § 20-17-105(d).
7. Whether Defendant/Appellee’s Motion to Alter or Amend Judgment
was frivolous? See generally Tenn. Code Ann. § 20-7-107(b).
8. Whether Defendant/Appellee’s Tenn. Code Ann. § 20-17-104(a)
Petition to Dismiss the Plaintiff’s Complaint with Prejudice Pursuant to the
Tennessee Public Participation Act was frivolous? See generally Tenn. Code
Ann. §20-7-107(b).
9. Whether Defendants/Appellees were “presently unable to bring [their
action] or cause it to be brought.” See Tennessee Rule of Civil Procedure
27.01.
10. Whether Plaintiff/Appellant’s position was evaluated under the legal
standards mandated for pro se litigants?
11. Whether Defendants/Appellees’ counsel’s claim for Fifteen Thousand
Dollars ($15,000) in Attorney’s fees was backed up by legitimate, admissible
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 evidence, or instead, arbitrary and capricious?
12. Whether the sanction of Twenty-Four Thousand Dollars ($24,000)
was arbitrary, capricious and illegal?

In their posture as appellees, Defendants raised the following issues (omitting those
resolved by the Tennessee Supreme Court regarding the separate docket numbers and the
notice of appeal):

1. Whether the Appellant’s constitutional challenges to the Tennessee
Public Participation Act—and several other claims—are waived because he
has presented them for the first time on appeal.
2. Whether the Appellant’s failure to develop any argument in the body
of his briefing regarding several issues the Appellant has raised on appeal
results in waiver.
3. Whether the Appellant’s failure to contest the trial court’s dispositive
ruling that the Appellees established valid defenses to the Plaintiff’s speech-
based causes of action pretermits the Plaintiff’s merits issues.
4. Whether the Appellant failed to introduce admissible evidence
establishing a prima facie case for each essential element of his speech-based
tort claims.
5. Whether several of the issues identified in the Appellant’s Statement
of the Issues are waived due to the Appellant’s failure to present an argument
regarding them in the body of his Brief.
6. Whether the Appellant was treated improperly while acting pro se.
7. Whether the trial court’s attorney’s fee award—which represented
actual fees incurred—should be affirmed.
8. Whether the trial court’s sanctions award should be affirmed.
9. Whether the Defendants are entitled to an award of attorney’s fees
regarding this appeal.

The State of Tennessee also filed a brief on appeal to defend the constitutionality of the
TPPA. It presents the following issues:

1. Whether Plaintiff has waived its challenge to the constitutionality of
the Tennessee Public Participation Act, Tenn. Code Ann. §§ 20-17-101 to -
110, by not raising the issue in the trial court.
2. If the challenge is not waived, whether the Tennessee Public
Participation Act comports with the constitutional right to a jury trial and
with the separation of powers.

In addition, this Court must address the jurisdictional issue raised in connection with the
nonsuit and the outstanding motions filed in this Court regarding the preclusive effect of
the trial court’s recent orders.
- 12 -
 III. DISCUSSION

A. Outstanding Motions

To begin, we will consider the motion to supplement the record on appeal and the
motion to consider post-judgment facts, both of which pertain to the trial court’s orders of
February 3 and May 16, 2022. Defendants contend that these orders arose from a separate
contempt proceeding and that the trial court’s ruling in the latter order regarding subject
matter jurisdiction is entitled to res judicata effect on appeal. Upon reviewing the attached
orders, however, we disagree with this characterization.

The February 3 order found Plaintiff in contempt in relation to post-judgment
discovery requests in aid of execution, and it provided that Defendants “shall be awarded”
their attorney fees associated with the petition for contempt upon the filing of a fee
affidavit. However, the order “reserve[d] judgment on whether the Plaintiff shall be fined
for his contempt until after the Plaintiff’s outstanding Rule 59 motion is adjudicated.” As
noted earlier in this opinion, Plaintiff had filed a post-judgment Rule 59 or 60 motion in
February 2021, three months after the final order was entered and while this appeal was
pending, but it went unresolved for months. The second order that Defendants ask this
Court to consider, entered on May 16, 2022, states, “This matter came before the Court for
hearing on May 16, 2022, upon Defendants’ Motions: (1) To Deny Plaintiffs Long-
Outstanding Post-Judgment Motions for Failure to Prosecute; and (2) For Attorney’s Fees
Regarding Defendants’ Contempt Petition.” Addressing the second matter first, the order
stated that Defendants had withdrawn their claim for a fine arising from Plaintiff’s
contempt, so that claim was denied as moot, but the court awarded Defendants a certain
sum for attorney fees incurred in the prosecution of the contempt petition. Then, the order
concluded with the following paragraph:

The Court finds that the Plaintiff has failed to set any of his post-
judgment motions for hearing for well over a year. The Plaintiff’s failure to
set any of his post-judgment motions for hearing has also persisted: (a) after
this Court advised the Plaintiff of his responsibility to set his motions for
hearing when the Parties appeared before the Court on January 24, 2022; (b)
in contravention of this Court’s rules; and (c) over the Defendants’
objections. Accordingly, the Court having determined and reaffirmed its
post-nonsuit subject matter jurisdiction pursuant to the statutory and vested
rights exceptions to Tenn. R. Civ. P. 41.01(1), the Court finds that the
Plaintiff’s post-judgment motions—including the Plaintiff’s Jan. 20, 2021
Motion for Stay on Appeal and Feb. 12, 2021 Motion to Alter, Amend or
Vacate Order pursuant to Tenn. R. Civ. P. 59.04 and Tenn. R. Civ. P. 60.02—
and all claims asserted within them should be and are hereby DENIED WITH
PREJUDICE pursuant to Tenn. R. Civ. P. 41.02(1).
- 13 -
Clearly, then, the May 16, 2022 order addressed two separate matters – contempt and the
outstanding “post-judgment motions” in the original case. Defendants rely on the trial
court’s statement in the quoted paragraph above about “post-nonsuit subject matter
jurisdiction.” However, a careful reading of this order reveals that this statement was made
not in resolving the separate contempt proceeding but only as a basis for resolving the
pending post-judgment motions in the same underlying lawsuit that is at issue in this
appeal.

Again, the notice of appeal was filed in this case in 2020. As such, Plaintiff’s post-
judgment motion filed in February 2021 was untimely under Rule 59, and “[i]f a post-trial
motion is not timely, the trial court lacks jurisdiction to rule on the motion.” Ball v.
McDowell, 288 S.W.3d 833, 836 (Tenn. 2009). The post-judgment motion also mentioned
Rule 60; however, “a trial court has no jurisdiction to consider a Rule 60.02 motion during
the pendency of an appeal.” Spence v. Allstate Ins. Co., 883 S.W.2d 586, 596 (Tenn. 1994).
Once the notice of appeal is filed, the jurisdiction of the appellate court attaches, and,
correlatively, the trial court loses jurisdiction. Born Again Church & Christian Outreach
Ministries, Inc. v. Myler Church Bldg. Sys. of the Midsouth, Inc., 266 S.W.3d 421, 425
(Tenn. Ct. App. 2007). A party who wishes to seek relief from the judgment during the
pendency of an appeal must apply to the appellate court for an order of remand. Spence,
883 S.W.2d at 596. “Absent an application for remand, the trial court’s attempt to enter
further orders addressing a party’s Rule 60.02 motion is a nullity.” Born Again Church,
266 S.W.3d at 425.

In sum, the so-called “jurisdictional ruling” on which Defendants rely was stated by
the trial court in the context of its ruling on a post-judgment Rule 59 or 60 motion while
this case was pending on appeal.1 Therefore, the ruling is a nullity, and the order has no
bearing on this appeal. We hereby deny the motion to supplement the record and the
motion to consider post-judgment facts. See Holleman v. Holleman, No. E2018-00451-
COA-R3-CV, 2019 WL 2308066, at *10 (Tenn. Ct. App. May 30, 2019) (denying a motion
to supplement the record with a document related to a contempt proceeding when it had no
bearing on the appeal); see also Tenn. R. App. P. 14(a) (stating that consideration of post-
judgment facts “generally will extend only to those facts . . . affecting the positions of the
parties or the subject matter of the action”); Lovin v. State, 286 S.W.3d 275, 283 (Tenn.
2009) (“[B]oth this Court and the Court of Appeals have declined to invoke Tenn. R. App.
P. 14 with regard to [] facts that are irrelevant[.]”).2

1
To the extent that the trial court’s ruling could be construed as also resolving other “post-
judgment” matters raised in a January 2021 motion for a stay or the February 2021 motion to alter, amend,
or vacate, we note that these “post-judgment” motions still did not arise from the contempt proceeding,
which was not filed until almost a year later, in December 2021.
2
Plaintiff had also filed a motion to dismiss Defendants’ motion to consider post-judgment facts.
We hereby deny this motion as moot.
- 14 -
 B. Nonsuit

We now consider both parties’ arguments regarding Plaintiff’s nonsuit. We begin
by returning to the language of Rule 41.01(1):

Subject to the provisions of Rule 23.05, Rule 23.06, or Rule 66 or of any
statute, and except when a motion for summary judgment made by an adverse
party is pending, the plaintiff shall have the right to take a voluntary nonsuit
to dismiss an action without prejudice by filing a written notice of dismissal
at any time before the trial of a cause and serving a copy of the notice upon
all parties, and if a party has not already been served with a summons and
complaint, the plaintiff shall also serve a copy of the complaint on that party;
or by an oral notice of dismissal made in open court during the trial of a
cause; or in jury trials at any time before the jury retires to consider its verdict
and prior to the ruling of the court sustaining a motion for a directed verdict.
If a counterclaim has been pleaded by a defendant prior to the service upon
the defendant of plaintiff’s motion to dismiss, the defendant may elect to
proceed on such counterclaim in the capacity of a plaintiff.

Tenn. R. Civ. P. 41.01. Although Plaintiff did not raise any issue regarding Rule 41.01 in
his initial brief, Defendants described in detail the procedural history of the case pertaining
to the nonsuit in their brief as appellees. Defendants noted that Plaintiff had taken a
nonsuit, but Defendants explained that they had argued to the trial court that they could
still exercise their rights under the TPPA “notwithstanding the Plaintiff’s nonsuit” based
on the “statutory exception” and the “vested rights” exception to Rule 41.01, in addition to
public policy reasons. Thus, Defendants claimed in their brief that they had “timely
exercised their vested statutory rights” under the TPPA, and “the issue of whether the trial
court retained jurisdiction to adjudicate the Defendants’ TPPA claims was fully litigated
and determined by the trial court.” Specifically, Defendants took the position that the trial
court had agreed with and adopted their “jurisdictional” arguments that “the rights afforded
to the Defendants by the TPPA could be exercised within the statute’s 60-day period
notwithstanding the Plaintiff’s nonsuit,” due to the “statutory exception” and “vested
rights” exception to Rule 41. Defendants’ brief further claimed that their “theory of
jurisdiction . . . was not novel” and that it was supported by caselaw from other
jurisdictions, which they cited. However, Defendants further argued that Plaintiff had not
contested “the trial court’s post-nonsuit jurisdiction” in his initial brief. They argued that
the trial court’s unappealed “jurisdictional” ruling was preclusive and entitled to res
judicata effect on appeal.3

3
This argument appeared to be tied to the issue regarding the separate notices of appeal, which has
already been resolved. We note, however, that res judicata does not apply on appeal with respect to the
trial court’s ruling below regarding jurisdiction. See Thomson v. Genesis Diamonds, LLC, No. M2021-
00634-COA-R3-CV, 2022 WL 3220872, at *4 (Tenn. Ct. App. Aug. 10, 2022).
- 15 -
 In his reply brief, Plaintiff also addressed the issues surrounding the nonsuit. He
argued that his ability to take a nonsuit should have been controlled by the last sentence of
Rule 41.01 regarding counterclaims, which states, “If a counterclaim has been pleaded by
a defendant prior to the service upon the defendant of plaintiff’s motion to dismiss, the
defendant may elect to proceed on such counterclaim in the capacity of a plaintiff.” Tenn.
R. Civ. P. 41.01(1) (emphasis added). According to Plaintiff, “[t]he [TPPA] Petition to
Dismiss was the counterclaim,” so “under Rule 41.01, the seminal question was whether
the counterclaim was pleaded” prior to service upon the defendant of the plaintiff’s motion
to voluntarily dismiss. Plaintiff noted that he gave notice of his nonsuit on August 20,
2020, and the order of voluntary dismissal was entered on August 24, 2020. Because there
was no service of Defendants’ TPPA petition prior to the dismissal, Plaintiff argued that
Defendants’ counterclaim under the TPPA was untimely and “the TPPA action is moot.”
He further argued during oral argument that the trial court had no jurisdiction to continue
the case after the nonsuit.

Defendants filed their own reply brief, after the filing of Plaintiff’s reply brief, in
which Defendants maintained that Plaintiff’s late-raised argument in his reply brief
regarding Rule 41.01 “was expressly rejected below on two grounds and which the Plaintiff
did not appeal or identify in his Statement of the Issues thereafter,” and therefore, the issue
was waived. Likewise, during oral argument, Defendants’ counsel argued that Plaintiff
had not designated any issue in his initial brief regarding the trial court’s “post-nonsuit
subject matter jurisdiction.” He claimed that the issue of post-nonsuit jurisdiction was
“actually litigated below and it was determined below” and that the trial court had “found
post-nonsuit subject matter jurisdiction on two alternative bases.” Defendants further
explained their position on the issue in the context of their motion to consider post-
judgment facts, in which they stated:

During the initial Circuit Court proceedings that are the subject of this
appeal, the Defendants asserted that the Circuit Court retained post-nonsuit
subject matter jurisdiction to adjudicate their timely TPPA Petition based on
two independent exceptions to Tennessee Rule of Procedure 41.01(1): the
statutory exception and the vested rights exception. See R. at 123–130. At
that time, the Plaintiff did not contest the Circuit Court’s post-nonsuit subject
jurisdiction. . . .

By order dated November 17, 2020, the Circuit Court adopted the
Defendants’ position regarding post-nonsuit subject matter jurisdiction.
Thus, the Circuit Court held that it retained post-nonsuit subject matter
jurisdiction to adjudicate the Defendants’ TPPA Petition given the
Defendants’ timely exercise of their vested statutory rights under the TPPA.
See R. at 620, ¶ 1; R. at 621, ¶ 5 (incorporating by reference the arguments
set forth in the Defendants’ Motion and TPPA Petition).

- 16 -
 As these arguments demonstrate, the parties rely on several different provisions of
Rule 41.01. We will address each one in turn. This Court must address the parties’
arguments regarding subject matter jurisdiction, even if late-raised, because “[a] challenge
to subject matter jurisdiction cannot be waived and may be raised at any time.” Church of
God in Christ, Inc. v. L. M. Haley Ministries, Inc., 531 S.W.3d 146, 157 (Tenn. 2017)
(citing Johnson v. Hopkins, 432 S.W.3d 840, 843-44 (Tenn. 2013); In re Estate of Brown,
402 S.W.3d 193, 199 (Tenn. 2013)). “[S]ubject matter jurisdiction is a threshold inquiry,
and it may be raised at any time in any court.” Recipient of Final Expunction Order in
McNairy Cnty. Cir. Ct. Case No. 3279 v. Rausch, 645 S.W.3d 160, 167 (Tenn. 2022). In
fact, “an appellate court must consider subject-matter jurisdiction, regardless of whether
that issue was presented by the parties or addressed below.” State v. Bristol, No. M2019-
00531-SC-R11-CD, 2022 WL 5295777, at *5 (Tenn. Oct. 7, 2022).4

First, we note some general principles regarding a plaintiff’s right to take a nonsuit.
“Generally, ‘[t]he plaintiff . . . is the master of his or her complaint.’” Stinson v. Vest Fam.
Ltd. P’ship, No. M2021-00151-COA-R3-CV, 2022 WL 534058, at *5 (Tenn. Ct. App. Feb.
23, 2022) (quoting Chimneyhill Condo. Ass’n v. Chow, No. W2020-00873-COA-R3-CV,
2021 WL 3047166, at *13 (Tenn. Ct. App. July 20, 2021)). “For well over a century,
plaintiffs in Tennessee have enjoyed the right to voluntarily dismiss an action without
prejudice[.]” Clark v. Werther, No. M2014-00844-COA-R3-CV, 2016 WL 5416335, at
*3 (Tenn. Ct. App. Sept. 27, 2016), perm. app. denied (Tenn. Jan. 19, 2017) (citing Evans
v. Perkey, 647 S.W.2d 636, 640 (Tenn. Ct. App. 1982)); see also Weedman v. Searcy, 781
S.W.2d 855, 856-57 (Tenn. 1989) (explaining that “[t]he Tennessee rule on voluntary
dismissals . . . is much more liberal than that obtaining in federal courts and in many other
jurisdictions”). Tennessee Rule of Civil Procedure 41.01 “‘embodies the policy of
Tennessee jurisprudence that the right of the plaintiff to dismiss the action without
prejudice is free and unrestricted except in limited and well-defined circumstances.’”
Hurley v. Pickens, 536 S.W.3d 419, 422 (Tenn. Ct. App. 2016) (quoting Robles v.
Vanderbilt Univ. Med. Cntr., M2010-01771-COA-R3-CV, 2011 WL 1532069, at *2-3
(Tenn. Ct. App. April 19, 2011)); see also Green v. Moore, 101 S.W.3d 415, 419-20 (Tenn.
2003) (“[E]xcept in very limited circumstances, a party can take a voluntary nonsuit

4
Also within their motion to consider post judgment facts, Defendants suggested that the Tennessee
Supreme Court’s order had “settled the question” of jurisdiction. They quoted an excerpt from the order,
which stated that the Court of Appeals had “jurisdiction to hear the issues raised by [Plaintiff].” However,
when read in context, it is clear that the Supreme Court was not analyzing the trial court’s post-nonsuit
subject matter jurisdiction. The sentence at issue stated, “[T]he notice of appeal was sufficient to provide
Defendants with notice that [Plaintiff] was appealing the final order entered on the combined motion to
alter or amend the judgment and TPPA petition, and to give the Court of Appeals jurisdiction to hear the
issues raised by [Plaintiff] arising from that single final order.” “The language of a decision must be read
in the context of the issues and circumstances of the case.” JPMorgan Chase Bank v. Franklin Nat’l Bank,
No. M2005-02088-COA-R3-CV, 2007 WL 2316450, at *6 (Tenn. Ct. App. Aug. 13, 2007); see, e.g.
Memphis Bonding Co., Inc. v. Crim. Ct. of Tenn. 30th Dist., 490 S.W.3d 458, 467 (Tenn. Ct. App. 2015)
(“[W]e should not assume that subject matter jurisdiction existed based on the fact that the issue was not
addressed.”)
- 17 -
without permission from the trial court.”). Accordingly, “[i]n Tennessee, the plaintiff has
a right to voluntarily dismiss his or her lawsuit under certain circumstances, which are
outlined in Rule 41.01 of the Tennessee Rules of Civil Procedure[.]” Ewan v. Hardison L.
Firm, 465 S.W.3d 124, 129 (Tenn. Ct. App. 2014) (emphasis added).

Rule 41.01 “permits liberal use of voluntary nonsuits at any time prior to ‘final
submission’ to the trial court for decision in a bench trial or in a jury trial before the jury
retires to deliberate.” Himmelfarb v. Allain, 380 S.W.3d 35, 40 (Tenn. 2012) (quoting
Tenn. R. Civ. P 41.01 adv. comm. cmt.). “Thus, the Rule contemplates that a voluntary
dismissal may be taken late in the proceedings, when both parties have expended
significant time and expense.” Douglas v. Lowe, No. M2012-02276-COA-R3-CV, 2013
WL 6040347, at *7 (Tenn. Ct. App. Nov. 12, 2013). However, as previously noted, “[a]
plaintiff’s right to voluntary dismissal without prejudice is subject to the exceptions
expressly stated in Rule 41.01(1) as well as to an implied exception which prohibits nonsuit
when it would deprive the defendant of some vested right.” Lacy, 152 S.W.3d at 484 (citing
Anderson, 521 S.W.2d at 790). The exceptions expressly stated in the Rule apply to class
actions, shareholder derivative actions, actions in which a receiver has been appointed, and
actions in which an opposing party’s motion for summary judgment is pending. Id. at 484
n.7. However, “[a]s long as none of these exceptions and limitations serve to restrict
dismissal, Rule 41.01(1) affords a plaintiff the free and unrestricted right to voluntary
dismissal without prejudice before the jury retires.” Id.; see, e.g., Krajenta v. Westphal,
No. W2021-00832-COA-R3-CV, 2022 WL 4483412, at *2 (Tenn. Ct. App. Sept. 27, 2022)
(“Under the plain language of Rule 41.01, unless an exception applied, it was error for the
trial court to deny Appellants’ voluntary nonsuits.”); Rose v. Bushon, No. E2015-00644-
COA-R3-CV, 2016 WL 7786449, at *4 (Tenn. Ct. App. Mar. 28, 2016) (reversing a trial
court’s order disqualifying plaintiff’s counsel and awarding attorney fees to defendants
after the plaintiff had taken a nonsuit, when it was undisputed that none of the exceptions
of Rule 41.01 applied). We reiterate that “‘in most situations a voluntary non-suit may be
taken as a matter of right.’” Ewan, 465 S.W.3d at 130 (quoting Clevenger v. Baptist
Health Systems, 974 S.W.2d 699, 700 (Tenn. Ct. App. 1997)).

Bearing these principles in mind, we turn to Plaintiff’s focus on the last sentence of
Rule 41.01, which states, “If a counterclaim has been pleaded by a defendant prior to the
service upon the defendant of plaintiff’s motion to dismiss, the defendant may elect to
proceed on such counterclaim in the capacity of a plaintiff.” Plaintiff argues that
Defendants’ TPPA Petition should be treated as a counterclaim within the meaning of Rule
41.01, and because it was not pleaded prior to the nonsuit, Defendants could not file and
proceed on their counterclaim after the nonsuit.

This Court’s decision in Sizemore v. Sizemore, No. E2005-01166-COA-R3-CV,
2007 WL 2198358 (Tenn. Ct. App. July 30, 2007), is instructive on this issue. In that case,
the wife had originally filed a divorce complaint in circuit court, and she later filed a notice
of voluntary dismissal in that case and refiled in chancery court. Id. at *1. However, the
- 18 -
circuit court had not entered an order dismissing the original complaint. Id. After the
parties proceeded to trial in the chancery court, the husband “filed a counterclaim in the
Circuit Court proceeding--the one that had been dormant since Wife filed her notice of
voluntary nonsuit some two years earlier.” Id. The circuit court dismissed the
counterclaim. Id. The husband appealed from both courts, and this Court affirmed both
courts’ rulings. Id. We explained that in the original circuit court action, “[t]he case was
over as far as the claim of Wife was concerned,” as she was the master of her suit and could
dismiss it at her pleasure before trial. Id. at *7. As for the dismissal of the husband’s
counterclaim, we explained:

Husband filed the counterclaim in question almost two years after Wife filed
the notice of voluntary dismissal in the case. Under Rickets [v. Sexton, 533
S.W.2d 293 (Tenn. 1976)], that action was essentially over when Wife filed,
and served Husband with, the notice of nonsuit. See 533 S.W.2d at 294. The
only action left to be taken in the matter was the entering of an order that
confirmed the nonsuit and dismissed the case. A court “has no jurisdiction
over a counterclaim filed after the suit is voluntarily dismissed.” Salsman
v. Texcor Indus., Inc., No. W2001-00730-COA-R9-CV, 2002 WL 1838135,
at *4 (Tenn. Ct. App. W.S., filed July 29, 2002) (quoting 24 Am.Jur.2d
Dismissal § 86 (1998)). The Circuit Court acted properly in dismissing
Husband’s counterclaim.

Id. (emphasis added).

Thus, a court “‘has no jurisdiction over a counterclaim filed after the suit is
voluntary dismissed.’” Id. (quoting Salsman, 2002 WL 1838135, at *4). The first question,
then, is whether Defendants’ TPPA Petition to dismiss seeking a mandatory award of
attorney fees and discretionary sanctions would be considered a “counterclaim” within the
meaning of Rule 41.

The Tennessee Supreme Court considered whether a defendant’s pleading set forth
a “counterclaim” within the meaning of Rule 41.01 in Blake v. Plus Mark, Inc., 952 S.W.2d
413, 415-16 (Tenn. 1997). Blake was a worker’s compensation case involving an
employee and an employer. Id. at 414. The employee filed a complaint for benefits against
her employer, and the employer filed a pleading consisting of an answer and “counter-
complaint” that “[sought] a determination . . . of the rights, duties and obligations of the
parties.” Id. On the trial date, the employee moved for dismissal of her complaint without
prejudice, which the court granted. Id. However, the case then proceeded on the
employer’s “counterclaim” for a determination of the workers’ compensation benefits, if
any, to which the employee was entitled. Id. On appeal, the employee argued that the trial
court erred in hearing the case on the employer’s “counterclaim” after her nonsuit. Id. at
415. She insisted that “proceeding further on the employer’s prayer for a declaratory
judgment was error.” Id. Specifically, she argued that the “counterclaim” had “asserted
- 19 -
no grounds for relief other than the denial of liability” and that “dismissal of the complaint
required the dismissal of the counterclaim.” Id. Examining the provisions of Rule 41.01
as well as the workers’ compensation law, the Tennessee Supreme Court disagreed. Id.
First, the Supreme Court explained that the workers’ compensation law authorized “the
employee and also the employer to submit a workers’ compensation controversy to the
court for determination.” Id. The Court concluded that, in that case, the employer had in
fact asserted this right in the form of a “counterclaim.” Id.

The Supreme Court explained that “Rule 41.01(1) states the circumstances under
which a plaintiff may voluntarily dismiss a complaint without prejudice and the effect such
a dismissal has on a counterclaim.” Id. Examining the language of Rule 41.01(1), the
Court noted that “a defendant may proceed on a counterclaim even though the plaintiff has
taken a nonsuit,” and therefore, “the question [was] whether the employer’s pleading set
forth a counterclaim within the meaning of the rule.”5 Id. at 416 (emphasis added). The
Tennessee Supreme Court recognized that this precise issue had not been considered by an
appellate court in Tennessee, but, it explained:

Historically, in equity practice, the dismissal of an original bill
ordinarily carried with it the dismissal of a cross bill or an answer filed as a
cross bill, unless the answer or cross bill set up grounds for affirmative relief.
Henry R. Gibson, Suits in Chancery § 726 (2nd ed. 1907); McDowell v. Hunt
Contracting Co., 133 Tenn. 437, 181 S.W. 680, 681 (1916). The general rule
is that

[a]s used in a particular statute or rule precluding dismissal
where the adverse party has sought affirmative relief, the term
“affirmative relief” requires the allegation of new matter that,
in effect, amounts to a counterattack. The relief sought, if
granted, must operate not as a defense, but affirmatively and
positively to defeat the plaintiff’s cause of action. Thus, where
the pleadings in a counterclaim constitute mere denials of the
plaintiff’s cause of action and state no facts on which
affirmative relief could be granted, the plaintiff’s right to
voluntary termination of the suit is not affected.

24 Am.Jur.2d Dismissal § 66 (1983). This general rule is consistent with the
language of Tenn. R. Civ. P. 13. Under Rule 13.01 a compulsory

5
When considering the meaning of a “counterclaim” in the context of Tennessee Rule of Civil
Procedure 13.09, this Court has noted that Black’s Law Dictionary defines the term as “‘[a] claim for relief
asserted against an opposing party after an original claim has been made.’” Chimneyhill Condo. Ass’n, 2021
WL 3047166, at *12 (quoting Black’s Law Dictionary at 433). In the case before us, however, we will look
to the analysis set forth by the Tennessee Supreme Court regarding the meaning of a counterclaim within
the specific context of Rule 41.01.
- 20 -
 counterclaim is “any claim, other than a tort claim, which at the time of
serving the pleading the pleader has against any opposing party, if it arises
out of the . . . occurrence that is the subject matter of the opposing party’s
claim . . . .”

Id. Applying these principles, the Court concluded that the employer’s statutory right to
file suit and submit the entire matter for determination by the court could be asserted as “a
counterclaim under Rule 41.01.” Id. The Court noted that the employer’s allegations
amounted to more than “mere denials of the plaintiff’s cause of action.” Id. They were
sufficient to state a claim for relief and “sufficient to state a counterclaim under Rule
41.01.” Id. As a result, “the counterclaim survived the dismissal of the employee’s
complaint.” Id.

Applying these rules to the case before us, we conclude that Defendant’s TPPA
Petition to Dismiss and request for attorney fees and sanctions would be considered a
counterclaim within the meaning of Rule 41.01. It amounted to more than “mere denials
of the plaintiff’s cause of action” and sought “affirmative relief” under the TPPA including
attorney fees and sanctions. See id. The TPPA itself explains that the statutory scheme
provides a “substantive remedy.” See Tenn. Code Ann. § 20-17-109.6 Pursuant to Rule
41.01, then, Defendants were entitled to proceed with their counterclaim if it was “pleaded
. . . prior to the service upon the defendant of plaintiff’s motion to dismiss[.]” A pleaded
counterclaim will “survive a voluntary nonsuit as of right.” Menche, 2019 WL 4016127,
at *7 n.7; see, e.g., Jolly v. Jolly, No. W2001-00159-COA-R3-CV, 2002 WL 1592678, at
*3 (Tenn. Ct. App. July 19, 2002) rev’d on other grounds 130 S.W.3d 783 (Tenn. 2004)
(“Husband’s right to take a nonsuit is subject to Wife’s right to proceed on her
counterclaim.”); Harrison v. Nat’l Life & Accident Ins. Co., 145 S.W.2d 1023, 1025 (Tenn.
Ct. App. 1940) (concluding that an insurer could proceed with a cross-demand for the

6
We note that Texas courts have repeatedly held that motions to dismiss filed under its anti-SLAPP
statute, the Texas Citizens Participation Act, are claims for affirmative relief for purposes of a nonsuit, such
that pending “TCPA motions to dismiss survive nonsuit.” Gaskamp v. WSP USA, Inc., 596 S.W.3d 457,
468 (Tex. Ct. App. 2020); see, e.g., McDonald Oilfield Operations, LLC v. 3B Inspection, LLC, 582 S.W.3d
732, 752 (Tex. Ct. App. 2019) (explaining that a nonsuit does not prejudice “the right of an adverse party
to be heard on a pending claim for affirmative relief,” and a TCPA motion “constitutes a claim for
affirmative relief, which survives nonsuit”); Walker v. Hartman, 516 S.W.3d 71, 80 (Tex. Ct. App. 2017)
(“Walker’s motion to dismiss under the TCPA survived Hartman’s nonsuiting of certain causes of action.”);
Rauhauser v. McGibney, 508 S.W.3d 377, 383 (Tex. Ct. App. 2014) (“[Appellant’s] statutorily-based
motion to dismiss—asserting that Appellees’ claims were based on, related to, or were in response to his
exercise of free speech and moving for dismissal with prejudice, sanctions, and attorney’s fees authorized
by the TCPA—constituted a claim for affirmative relief that survived Appellees’ nonsuit[.]”); Laura Lee
Prather & Robert T. Sherwin, The Changing Landscape of the Texas Citizens Participation Act, 52 Tex.
Tech L. Rev. 163, 179-80 (2020) (“It is well established that Texas law allows parties an absolute right to
a nonsuit; however, if a TCPA motion has already been filed, the nonsuit does not affect the TCPA movant’s
right to attorney’s fees and sanctions. This reasoning has been followed by courts in the TCPA context
when a nonsuit is filed while the motion is pending.”).
- 21 -
penalties provided in the bad-faith penalty statute, as “a plaintiff may at any time take a
nonsuit or dismiss his action; but in all such cases there is a reservation to the defendant of
his right to proceed with any set-off or counterclaim which he has presented at the trial”).

This Court examined the timing for pleading a counterclaim within the meaning of
Rule 41.01 in Salsman, 2002 WL 1838135, at *1. There, the defendants had filed a motion
for leave to amend their answer to assert a counterclaim, but while that motion remained
pending, the plaintiff filed a notice of voluntary dismissal. Id. The trial court initially
entered the order of voluntary dismissal, but it later vacated that order and granted the
defendants’ motion to amend to assert the counterclaim. Id. On interlocutory appeal, the
plaintiff argued that “the defendants had not pleaded a counterclaim prior to being served
notice of the plaintiffs’ voluntary dismissal,” and therefore, “the counterclaim did not
survive the voluntary dismissal.” Id. at *2. We explained that “[m]ost courts in other
jurisdictions considering this issue under the state rules of civil procedure have concluded
that ‘where the defendant’s motion to add a counterclaim is pending when the plaintiff
moves to voluntarily dismiss the action, the pendency of the motion for a counterclaim
should defeat dismissal.’” Id. at *3 (quoting 24 Am.Jur.2d Dismissal § 86 (1998)). We
also concluded that the same result was appropriate under Tennessee law. Thus, this Court
held that “under Rule 41.01(1) of the Tennessee Rules of Civil Procedure[, . . . ] the
proposed counterclaim attached to the motion to amend is considered a ‘pleaded’
counterclaim, thereby permitting the defendants to elect to proceed on the counterclaim
despite the plaintiffs’ notice of voluntary dismissal.” Id. at *1.

Notably, for purposes of this appeal, the Salsman Court also considered arguments
regarding the trial court’s jurisdiction. The plaintiffs argued that the trial court “did not
have jurisdiction to grant the defendants permission to amend their answer to assert a
counterclaim once the trial court’s order of dismissal became final.” Id. at *4. We
explained that the defendants had filed a motion to vacate the order of voluntary dismissal
just days after it was entered, which, “was, in effect, a motion to modify or set aside the
judgment before the judgment became final.” Id. Pursuant to Rule 59, “the trial court had
jurisdiction to modify its previously issued order of dismissal to permit the defendants to
assert their counterclaim.” Id. However, the plaintiffs further insisted that “the entire
lawsuit, including the proposed counterclaim, was terminated automatically upon their
filing of a notice of voluntary dismissal and, therefore, the trial court lacked jurisdiction to
grant the defendants’ motion to amend to assert the counterclaim.” Id. We explained,

While it is true that “[t]he court has no jurisdiction over a counterclaim filed
after the suit is voluntarily dismissed,” see 24 Am.Jur.2d Dismissal § 86
(1998),7 in this case, the motion to amend to assert the counterclaim was filed

7
According to 24 Am. Jur. 2d Dismissal § 86, which is entitled “Rights of parties to voluntary
dismissal as affected by demand for affirmative relief by defendant—Where counterclaim not filed until
after attempt to dismiss”:
- 22 -
 before the notice of the voluntary dismissal. As noted above, the defendants’
motion to amend to assert a counterclaim is considered a pleaded
counterclaim for purposes of Rule 41.01(1), where the motion to amend is
later granted. Therefore, notwithstanding the plaintiffs’ notice of voluntary
dismissal, the trial court retained jurisdiction over the defendants’ motion to
amend. Therefore, the trial court did not err in vacating its order of dismissal
and in granting the defendants’ motion for leave to amend to assert their
counterclaim.

Id. (emphasis added).

Considering the foregoing principles, we conclude that, unless some exception
applied, Plaintiff maintained the right to take a nonsuit shortly after the complaint was filed
when Defendants had not yet filed any type of pleading. In that case, the trial court would
have no jurisdiction over Defendants’ TPPA Petition when it was not filed until after the
suit was voluntarily dismissed.

On appeal, Defendants have taken the position that the trial court found that it had
“post-nonsuit subject matter jurisdiction” based on multiple “independent” grounds. From
our review of the record, the trial court’s order of dismissal stated that the Defendants filed
a “timely” combined motion to alter or amend and TPPA petition, but it did not include
any discussion of “post nonsuit subject matter jurisdiction.” However, the trial court did
state that Defendants’ combined motion to alter or amend and TPPA Petition was granted
“for the reasons set forth in the Defendants’ Motion and TPPA Petition” and two
subsequent replies. So, we will examine the analysis set forth in those documents to the
extent that they were incorporated by reference in the order.

In Defendants’ combined motion to alter or amend and TPPA Petition, they argued
that the trial court “retain[ed] jurisdiction” to adjudicate the TPPA Petition and award them
attorney fees and sanctions for what we perceive to be three reasons: (1) they had a statutory
right to dismissal with prejudice under the TPPA; (2) they had a vested right to the
substantive remedy provided by the TPPA; and (3) a motion for sanctions could be
considered following a nonsuit pursuant to this Court’s decision in Menche v. White Eagle

Where a defendant’s counterclaim asking for affirmative relief is not filed until after the
plaintiff has attempted to exercise his or her privilege of dismissal, the counterclaim does
not defeat the plaintiff’s motion, as a general rule. Thus, the counterclaim must be filed
before the motion for dismissal. However, where the defendant’s motion to add a
counterclaim is pending when the plaintiff moves to voluntarily dismiss the action, the
pendency of the motion for a counterclaim should defeat dismissal.
....
The court has no jurisdiction over a counterclaim filed after the suit is voluntarily
dismissed.
- 23 -
Property Group, LLC, No. W2018-01336-COA-R3-CV, 2019 WL 4016127, at *12 (Tenn.
Ct. App. Aug. 26, 2019).8

We first consider Defendants’ argument regarding Menche. In that case, during the
course of discovery, the trial court had granted motions to compel against the plaintiff and
reserved the defendants’ request for attorney fees. Id. at *1. The defendants eventually
moved for discovery sanctions and sought an award of their attorney fees related to
prosecuting the motions to compel as well as the motion for sanctions. Id. Shortly
thereafter, the plaintiff requested a voluntary nonsuit, but a motion for partial summary
judgment was pending, so the plaintiff did not have a right to a nonsuit. Id. The defendants
ultimately consented to the nonsuit, but the agreed order of voluntary dismissal was
ambiguous as to whether the defendants reserved or waived their pending motions for
sanctions. Id. at *9. The agreed order appeared to dismiss only the claims asserted by the
plaintiff. Id. The trial court decided that it retained subject matter jurisdiction over the
pending motion for sanctions and awarded attorney fees. Id. at *3. On appeal, the majority
opinion ultimately agreed that “the trial court retained jurisdiction over the pending motion
for sanctions,” (emphasis added), and we affirmed “[t]he trial court’s decision to consider
the motion for sanctions notwithstanding the agreed order of voluntary dismissal of
Appellant’s lawsuit[.]” Id. at *10. Menche is thus distinguishable because it involved a
motion for sanctions that was “outstanding” when the plaintiff filed the motion for
voluntary nonsuit, and the plaintiff had no right to take a nonsuit as a matter of right. Id.
at *8. In their combined motion to alter or amend and TPPA Petition filed in the trial court,
which the trial court adopted, Defendants cited Menche for the notion that “the availability
of statutory sanctions under the TPPA [] would []–by itself–confer jurisdiction to
adjudicate the Defendants’ sanctions claim following the Plaintiff’s non-suit.” However,
Menche does not stand for the broad statement suggested by Defendants and adopted by
the trial court. In Menche, this Court specifically noted that “the motion at issue in this
case was filed by [defendants] prior to the dismissal of ‘[the plaintiff’s] lawsuit.’” Id. at
*6 n.6. Thus, we concluded that “dismissal of [the plaintiff’s] lawsuit does not, ipso facto,
include dismissal of the pending claims for relief filed by [the defendants].” Id. There was
no pending claim for relief in the case at bar.

Next, Defendants argued to the trial court that the “statutory rights” exception
applied and that Plaintiff’s right to take a nonsuit was “subject to” their “statutory rights
under the [TPPA].” As support for this argument, Defendants relied on the express
language of Rule 41.01(1), which states, “Subject to the provisions of Rule 23.05, Rule
23.06, or Rule 66 or of any statute, and except when a motion for summary judgment made

8
We reiterate that Plaintiff’s initial brief did not raise any issue regarding the nonsuit, but
Defendants’ brief addressed Rule 41.01, and Plaintiff raised issues related to Rule 41.01 in his reply brief
and during oral argument as a challenge to subject matter jurisdiction, which this Court was required to
consider. Defendants have raised arguments regarding the various exceptions to Rule 41.01. We express
no opinion as to whether all of these issues implicate subject matter jurisdiction but will address them to
the extent they are raised by the parties in this context.
- 24 -
by an adverse party is pending, the plaintiff shall have the right to take a voluntary nonsuit
. . . .” (emphasis added). According to Defendants, “Plaintiff’s non-suit under Tennessee
Rule of Civil Procedure 41.01(1) is ‘subject to the provisions of . . . any statute,” meaning,
their “statutory rights under the TPPA remain[ed] fully cognizable” and the trial court
“retain[ed] jurisdiction to adjudicate the Defendants’ TPPA Petition.” Defendants cited
Tennessee Code Annotated section 20-17-109, which states that the TPPA confers a
“substantive remedy.” They also noted that the TPPA provided for dismissal with
prejudice in the event that the court granted the petition, along with a mandatory award of
attorney fees and the possibility of sanctions. Further, Defendants argued that it would
defeat the purpose of the TPPA if a plaintiff “could wholly circumvent this carefully
drafted framework by filing a baseless SLAPP-suit, forcing a defendant to hire an attorney
and incur costs, and then non-suiting his claims after the defendant retains counsel.” On
appeal, Defendants contend that the trial court “adopted the Defendants’ position regarding
post-nonsuit subject matter jurisdiction” under “the statutory exception” to Rule 41.01.

This Court has considered and rejected similar arguments in relation to other
statutory schemes. For instance, in Hurley v. Pickens, 536 S.W.3d 419, 420 (Tenn. Ct.
App. 2016), defendants filed a motion to dismiss a plaintiff’s health care liability suit for
failure to comply with the statutory requirements regarding presuit notice and a certificate
of good faith, and the plaintiff then filed a notice of voluntary dismissal without prejudice
under Rule 41. The trial court entered an order of voluntary dismissal, and the defendants
appealed. Id. at 421. On appeal, the defendants argued that the trial court erred by allowing
the plaintiff to take a voluntary dismissal when their motion to dismiss pursuant to
Tennessee Code Annotated section 29-26-122 was pending. Id. They pointed out that the
action was “subject to dismissal with prejudice” for failure to comply with the statutory
requirements. Id. (citing Tenn. Code Ann. § 29-26-122). In response, the plaintiff
contended that he had “an absolute right to take a voluntary dismissal” under Rule 41. Id.
This Court looked to prior caselaw that had already “addressed the issue of whether a
plaintiff in a health care liability action may take a voluntary dismissal when a motion to
dismiss is pending[.]” Id. at 422. This Court had declined to construe Tennessee Code
Annotated section 29-26-122 “‘as imposing an exception or limitation on the right of a
plaintiff to voluntarily dismiss an action.’” Id. (quoting Robles v. Vanderbilt Univ. Med.
Cntr., M2010-01771-COA-R3-CV, 2011 WL 1532069, at *2-3 (Tenn. Ct. App. April 19,
2011)). We explained,

Tenn. R. Civ. P. 41 grants a plaintiff an absolute right to voluntarily dismiss
an action, without prejudice to its refiling; the right, however, is “[s]ubject to
the provisions of Rule 23.05, Rule 23.06, or Rule 66 or of any statute . . . .”
Tenn. R. Civ. P. 41.01. . . . Although the rule does not identify a particular
statute to which it applies, consideration of Rules 23.05, 23.06 and 66 leads
to the conclusion that exceptions to the right of a plaintiff to voluntarily
dismiss an action without prejudice are limited, should result from a clear
application of the rule or statute at issue, and should not be inconsistent with
- 25 -
 the fact that the right of voluntary dismissal without prejudice is “absolute.”
See 4 NANCY FRAAS MACLEAN, TENNESSEE PRACTICE, Author’s
Cmt. 41:2 at 99 (4th ed. 2006).

Id. (quoting Robles, 2011 WL 1532069, at *2-3). Under section 29-26-122, however,
dismissal with prejudice “‘is not automatic.’” Id. at 423 (quoting Robles, 2011 WL
1532069, at *2-3). As such, “‘[n]othing in the statute operates to prevent a plaintiff from
exercising the right to voluntarily dismiss the action without prejudice.’” Id. (quoting
Robles, 2011 WL 1532069, at *2-3). The Court had also considered the argument that
allowing the plaintiff to take a nonsuit would frustrate the intent of section 29-26-122 “‘to
discourage the filing of baseless medical malpractice lawsuits’ and to ‘impos[e] stiff
penalties on both parties and attorneys who file suit without complying with the good faith
certification requirements.’” Id. (quoting Robles, 2011 WL 1532069, at *2-3). We
reiterated the plaintiff’s absolute right to take a nonsuit and found nothing to indicate that
“medical malpractice cases should not proceed in accordance with the rules applicable to
all actions, including Tenn. R. Civ. P. 41.” Id. (quoting Robles, 2011 WL 1532069, at *2-
3).

In another opinion, issued within two days of Hurley, this Court rejected another
argument based on the certificate of good faith requirement and the “any statute” language
of Rule 41. See Clark v. Werther, No. M2014-00844-COA-R3-CV, 2016 WL 5416335
(Tenn. Ct. App. Sept. 27, 2016). There, the pro se plaintiff failed to attach a certificate of
good faith entirely, and the defendants moved to dismiss due to the absence of the
certificate. Id. The plaintiff then filed a notice of voluntary nonsuit. Id. The defendants
argued that the plaintiff’s “right to a voluntary dismissal without prejudice [was] precluded
by a statute, specifically, Tennessee Code Annotated § 29-26-122[.]” Id. at *4. On appeal,
we explained,

While a plaintiff’s right to a voluntary nonsuit is “[s]ubject to the provisions
of Rule 23.05, 23.06, or Rule 66 or of any statute,” we conclude the phrase
“of any statute” does not include the certificate of good faith statute. We
apply the well-known rules of statutory construction to the interpretation of
procedural rules. Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 895 (Tenn.
2011). If the language of the rule is capable of more than one meaning, we
“must seek a reasonable construction in light of the purposes, objectives, and
spirit of the [rule] based on good sound reasoning.” Scott v. Ashland
Healthcare Ctr., Inc., 49 S.W.3d 281, 286 (Tenn. 2001) (quoting State v.
Turner, 913 S.W.2d 158, 160 (Tenn. 1995)). The reference to “any statute”
is part of a list which includes Rules 23.05, 23.06, and 66. Each of the listed
rules expressly limits a party’s right to take a voluntary nonsuit in certain
types of cases. When a general phrase follows a more specific list, we
construe the general phrase to refer to only the same general class of items
as those enumerated. See State v. Marshall, 319 S.W.3d 558, 561-62 (Tenn.
- 26 -
 2010) (explaining that the canon of ejusdem generis operates to limit the
breadth of a general phrase following a list of specific items). Thus, “of any
statute” must refer to statutes that specifically limit a party’s right to obtain
a voluntary nonsuit or otherwise relate specifically to the effect of a voluntary
nonsuit. This construction complies with the purpose of Rule 41.01, which
was to preserve the historically liberal practice of allowing voluntary
nonsuits in circuit court. See Evans, 647 S.W.2d at 640. Because the good
faith certificate statute does not expressly preclude a plaintiff from taking a
voluntary nonsuit and, by its terms, allows a court the discretion to excuse
noncompliance under certain circumstances, the statute does not preclude
Mr. Clark from taking a voluntary nonsuit.

Id. (emphasis added). The Court also included a footnote with examples of certain statutes
that “specify the effect of a voluntary dismissal in certain types of cases.” Id. at *4 n.7.9

Here, the TPPA generally provides that a TPPA petition to dismiss may be filed
within sixty days from the date of service of a legal action, or in the court’s discretion, “at
any later time that the court deems proper.” See Tenn. Code Ann. § 20-17-104(b).
However, it does not “specifically limit a party’s right to obtain a voluntary nonsuit or
otherwise relate specifically to the effect of a voluntary nonsuit.” Clark, 2016 WL
5416335, at *4. As such, it is not the type of “statute” contemplated by the exception stated
in Rule 41.01.

Finally, we address the exception for vested rights. As we have noted earlier in this
opinion, “[a] plaintiff’s right to voluntary dismissal without prejudice is subject to the
exceptions expressly stated in Rule 41.01(1) as well as to an implied exception which
prohibits nonsuit when it would deprive the defendant of some vested right.” Lacy, 152
S.W.3d at 484 (citing Anderson, 521 S.W.2d at 790). “Though not stated in the rule, the
right of plaintiff to a nonsuit is subject to the further restriction that the granting of the
nonsuit will not deprive the defendant of some right that became vested during the
pendency of the case.’” Id. at 484 n.8 (quoting Anderson, 521 S.W.2d at 790). For
instance, in Anderson, the Tennessee Supreme Court examined caselaw “dealing with the
9
We also note that in Stewart v. University of Tennessee, 519 S.W.2d 591, 592-93 (Tenn. 1974),
the Tennessee Supreme Court summarized the exceptions to Rule 41.01(1) as follows:

Rule 41.01(1) Tenn. R. Civ. P., provides for the free and unrestricted right of the plaintiff
(at various stages of the proceedings) to take a voluntary nonsuit or to dismiss his action
without prejudice except:
a. in class actions
b. in cases where receivers have been appointed
c. where precluded by a specific statute
d. in cases where a motion for summary judgment is pending[.]

(emphasis added).
- 27 -
question of what state of [a condemnation] proceeding the condemner can or cannot take a
voluntary nonsuit.” Anderson, 521 S.W.2d at 790. Specifically, the Court had recognized
“three separate stages of a condemnation suit brought under T.C.A. s 23-1401 et seq.,
where it is too late for the condemner to take a nonsuit.” Id. From these cases and Rule
41.01, the Court reasoned that “the condemner has the right to take a nonsuit at any time
prior to the case being submitted to the trier of fact for decision, unless the condemner has
taken possession of the property under court order issued under circumstances leaving
nothing to be decided by the court except the compensation to be paid the owner for the
land taken.” Id. at 791 (emphasis added). Applying that rule to the facts before it, the
Court held that “when the appellee obtained a court order for possession of the property
being condemned, leaving nothing to be decided except the compensation to be paid
appellants for the land taken, the appellee lost its right to take a nonsuit.” Id.10

In contrast, the Supreme Court did not find any vested rights in Rickets v. Sexton,
533 S.W.2d 293, 294-95 (Tenn. 1976). The Court explained:

The right of a plaintiff to take a nonsuit is subject to the further
qualification that it must not operate to deprive the defendant of some right
that vested during the pending of the case. Anderson v. Smith, 521 S.W.2d
787 (Tenn. 1975). No such right vested in the instant case.
Defendants resisted the nonsuit upon the grounds that it would deprive
them of unspecified ‘substantive rights concerning their defenses which
would not be available in a second suit’; that they would be prejudiced by
delay; and that one of them was ‘totally disabled and has been under extreme
tension during the pendency of the suit.’ The Chancellor evidently was
influenced by the fact that one of the defendants was 69 years old and in poor
health. This is regrettable but is not a basis for denying plaintiffs their clear
right to a dismissal without prejudice.

Id.

In a more recent case, this Court observed that “it is hard to pin down the definition
of a ‘vested right.’” State ex rel. Stanley v. Hooper, No. M2000-00916-COA-R3-CV, 2001
WL 27378, at *2 (Tenn. Ct. App. Jan. 11, 2001). We noted that one court had defined it
as a right “‘which it is proper for the state to recognize and protect and of which [an]
individual could not be deprived of arbitrarily without injustice.’” Id. (quoting Morris v.
Gross, 572 S.W.2d 902, 907 (Tenn. 1978)). We added,

10
Additionally, in Panzer v. King, 743 S.W.2d 612, 614 (Tenn. 1988), abrogated by Lacy v. Cox,
152 S.W.3d 480 (Tenn. 2004), the Tennessee Supreme Court held, within a very specific procedural
context, that a defendant had, pursuant to prior caselaw, “a vested right of appellate review of the action of
the trial judge in granting plaintiff a new trial,” which could not be extinguished by the plaintiff’s voluntary
dismissal.
- 28 -
 In a more general sense a vested right

[m]ust be something more than a mere expectation based upon
an anticipated continuance of the existing law; it must have
become a title, legal or equitable, to the present or future
enjoyment of property or to the present or future enjoyment of
a demand, or a legal exemption from a demand made by
another; and if before such rights become vested in particular
individuals, the convenience of the state induces amendment
or repeal of certain laws, these individuals have no cause to
complain.

16B Am.Jur.2d Constitutional Law § 703.

Id. In Stanley, this Court acknowledged that the appellant had a “statutory right” to a jury
trial in a paternity case, “[b]ut that statutory right was not a vested right that would survive
the appellee’s non-suit.” Id. at *2. We have also recognized that showing that a nonsuit
would “deprive the defendant of some vested right” is a “higher standard” than the rule
that applies when a nonsuit is sought while a motion for summary judgment is pending,
when the court considers whether the nonsuit would cause “plain legal prejudice to the
defendant.” Ewan, 465 S.W.3d at 136-37.

Thus, it is helpful to consider some additional examples of what has, and what has
not, been deemed a vested right within the meaning of the implied exception to Rule 41.01.
In Ross v. Grandberry, No. W2013-00671-COA-R3-CV, 2014 WL 2475580, at *1 (Tenn.
Ct. App. May 30, 2014) perm. app. denied (Tenn. Oct.17, 2014), the plaintiff filed a health
care liability action in general sessions court, and at a docket call, the defendant appeared
and tendered a confession for the full $25,000 jurisdictional limit of the general sessions
court. The plaintiff immediately sought to non-suit her claims. Id. The general sessions
court denied the defendants’ tendered confession and entered an order of nonsuit. Id. The
plaintiff then refiled her suit in the circuit court, and the defendant moved for summary
judgment based on its tendered confession of judgment in the general sessions court. Id.
The defendant argued that its confession of judgment “cut off Plaintiff’s right to non-
suit[.]” Id. at *2. The circuit court granted the defendant summary judgment, “reasoning
that [the defendant’s] ‘vested right’ to confess judgment was ‘paramount to any right for
voluntary nonsuit.’” Id. On appeal, the plaintiff argued that “her nonsuit supersedes [the
defendant’s] confession of judgment because a nonsuit is a ‘right’ whereas, according to
Plaintiff, a confession of judgment requires action by a judge--either to accept or reject the
confession.” Id. at *4. In response, the defendant argued that the judgment “self-executed
upon confession--requiring no action by the trial judge--rendering Plaintiff’s attempted
nonsuit a nullity.” Id. In other words, according to the defendant, “once it employed the
confession of judgment mechanism to terminate the litigation, the case was finally
submitted to the court, [the defendant] acquired a vested right in the confessed judgment,
- 29 -
and Plaintiff could no longer take a nonsuit.” Id. This Court framed the “crucial question”
as “whether a tendered confession of judgment by a defendant constitutes a ‘final[ ]
submi[ssion] to the court’ to cut off a plaintiff’s right to a voluntary dismissal without
prejudice.” Id. at *5. Examining the relevant statutes, we concluded that the tendered
confession of judgment was not “self-executing” but required action by the trial judge. Id.
“Because Plaintiff sought to voluntarily dismiss her case before the general sessions court
entered judgment upon [the defendant’s] confession, the circuit court erred in concluding
that [the defendant] obtained a vested right to confess judgment which was paramount to
Plaintiff’s right to nonsuit her case.” Id. at *6.

In Haynes v. Cumberland Builders, Inc., 546 S.W.2d 228, 231 (Tenn. Ct. App.
1976), this Court rejected an appellant’s argument that dismissal of a party was improper
“because it deprived him of his vested right to assert the Deadman’s Statute.” We
recognized that “[t]he Anderson case stands for the proposition that a plaintiff’s right to
take a nonsuit against a defendant under Rule 41 of the Tennessee Rules of Civil Procedure
is subject to the qualification that the granting of the nonsuit cannot deprive the defendant
of a right which has vested during the pendency of the case.” Id. However, we noted that
the Anderson case involved vested property rights. We added, “[t]he availability of a legal
defense is not a ‘vested right’ within the purview of Anderson.” Id.

Tennessee appellate courts have declined to find vested rights in other cases as well.
See, e.g., Peoples Bank v. Troutman, No. E2014-01150-COA-R3-CV, 2015 WL 4511540,
at *4 (Tenn. Ct. App. July 27, 2015) (rejecting the contention that the defendants
“maintained a vested right to: (1) receive a grant of summary judgment due to the
[plaintiff’s] lack of expert testimony regarding the standard of care or (2) seek interlocutory
or extraordinary appeal of the trial court’s denial of their motion for summary judgment”);
Trull v. Ridgeway, No. W2004-02026-COA-R3-CV, 2005 WL 1307855, at *2 (Tenn. Ct.
App. May 27, 2005) (finding no vested rights where the appellants contended that the
appellees should not have been allowed to take a nonsuit because it barred the appellants
“from raising adverse possession as a defense to said claim”).

On the other hand, this Court did find vested rights in Shell v. Shell, No. E2007-
01209-COA-R3-CV, 2008 WL 2687529 (Tenn. Ct. App. July 9, 2008). In that divorce
case, the parties had participated in mediation and resolved all issues in a signed mediated
settlement, the mediator had already filed the final report with the court, and the husband
had filed a motion to enforce the mediated agreement, when the plaintiff filed a notice of
nonsuit. Id. at *1. The trial court initially entered an order of nonsuit but set it aside and
approved the mediated settlement agreement. Id. On appeal, this Court recognized the
“implied exception” from Anderson, which provides “that if the defendant is deprived of a
right that became vested during the pendency of the litigation, a nonsuit was prohibited.”
Id. at *3. The husband argued that “his rights to the property awarded to him under the
Mediation Agreement became vested” during the course of the lawsuit and that “the nonsuit
would deprive him of his right to the property.” Id. We noted that there was “no question
- 30 -
that a Mediated Agreement is enforceable as a contract under general principles of contract
law.” Id. at *3 n.3. We also noted that the wife had participated in mediation and that the
trial court ultimately found the agreement to be valid and enforceable. Id. Thus, “[a]fter
these in court proceedings, the plaintiff’s attempt to take a voluntary nonsuit was too late
after the defendant’s Motion to Enforce the Mediation Agreement.” Id.

We also discussed the vested rights exception in Hollow v. Ingrim, No. E2010-
00683-COA-R3-CV, 2010 WL 4861430 (Tenn. Ct. App. Nov. 29, 2010). In that case,
landowners agreed to the sale of property by a special master appointed by the court, the
sale was held, and the master reported the purchase and asked that the sale be confirmed.
Id. at *1. Before the court acted on the special master’s report, however, the plaintiff
moved for voluntary dismissal, which the trial court granted. Id. The question on appeal
was “whether the granting of a nonsuit in this case deprived the intervenors of a vested
right?” Id. at *4. We clarified at the outset that “[t]he intervenors did not, by virtue of
being the high bidder at the judicial auction, acquire a vested right in the property itself.”
Id. Still, the high bidder was considered a quasi-party and had a right to “participate in the
proceedings.” Id. at *5. Thus, the relevant question was “[w]hether a party can voluntarily
dismiss its lawsuit after the Special Master’s report has been filed but not yet acted upon
by the court,” and that question was answered by Tennessee Rule of Civil Procedure 53.04.
Id. Specifically, “the court must act upon the Master’s report before any further action can
be taken,” as the rule mandated “that the trial court hold a hearing and exercise its
independent judgment regarding whether the master’s recommendations should be
confirmed.” Id. We reasoned that this hearing was mandatory and that the intervenors did
“waive their right to a hearing.” Id. at *6. Thus, we concluded that the trial court was
required to hold a hearing on the special master’s report and “must resolve the issue
regarding whether the sale is to be confirmed pursuant to applicable law before any other
action is taken by the Court.” Id. The case was reversed and remanded because “the Trial
Court was required to act on the Master’s Report before entertaining any motion to dismiss
the case.” Id. at *1.

Comparing the facts of the case before us to those in the aforementioned cases, it
becomes clear that the Plaintiff’s nonsuit in this case did not “deprive the defendant of
some right that became vested during the pendency of the case.” Lacy, 152 S.W.3d at 484
n.8. Plaintiff took a nonsuit just six weeks after the initial complaint was filed, at a point
when Defendants had not even responded to the complaint or filed any type of pleading in
this case. Defendants argued in their combined motion to alter or amend and TPPA Petition
that they had a vested right to dismissal with prejudice under the TPPA and its mandatory
award of attorney fees, and they insisted that their statutory rights “vested upon the filing
of the Plaintiff’s Amended Complaint against them.” However, at the point when Plaintiff
took a voluntary nonsuit, Defendants had not petitioned the court to dismiss the complaint
or submitted any evidence in an attempt to meet its burdens under the burden-shifting
mechanism of the TPPA. Thus, Defendants did not, at that point, have a vested right to
dismissal with prejudice or attorney fees or discretionary sanctions under the TPPA.
- 31 -
Compare Ross, 2014 WL 2475580, at *6 (holding that “the circuit court erred in concluding
that [the defendant] obtained a vested right to confess judgment which was paramount to
Plaintiff’s right to nonsuit her case”).

In summary, we reject Defendants’ arguments regarding the applicability of the
various exceptions to Rule 41.01 and conclude that the trial court lacked jurisdiction over
Defendants’ TPPA Petition that was filed after Plaintiff had already taken a voluntary
nonsuit.11 All other issues are pretermitted.

IV. CONCLUSION

For the aforementioned reasons, we reverse the trial court’s order granting the
motion to alter or amend, vacate the trial court’s order granting the appellees’ petition to
dismiss with prejudice and awarding attorney fees and sanctions, and remand for entry of
an order granting Plaintiff’s request to dismiss this cause without prejudice. Costs of this
appeal are taxed to the appellees, Sarah E. Grove, Karl S. Bolton, and Deborah Ann
Sangetti, for which execution may issue if necessary.

_________________________________
CARMA DENNIS MCGEE, JUDGE

11
Although we have reached this conclusion by applying Tennessee law, we note that our decision
is consistent with that of other courts. For instance, in S. B. Beach Properties v. Berti, 138 P.3d 713, 714
(Cal. 2006), the “plaintiffs voluntarily dismissed their entire action without prejudice before defendants
attempted to file an anti-SLAPP motion.” Id. The Supreme Court of California held that “Defendants who
fail to file an anti-SLAPP motion before the voluntary dismissal of all causes of actions against them cannot
recover fees or costs under [California’s anti-SLAPP statute].” Id. at 715. The Court explained that “the
filing of a viable anti-SLAPP motion [is] a prerequisite to recovering any fees and costs,” and, “[a]s a matter
of logic, a defendant must file a special motion to strike in order to prevail on one.” Id. at 716. “Here,” the
Court added, “defendants failed to do so before plaintiffs’ voluntary dismissal.” Id. “Once plaintiffs
dismissed their action,” the Court continued, “no lawsuit existed for defendants to move against[.]” Id.
Thus, the Court distinguished the many cases cited by the defendants in which “the plaintiff voluntarily
dismissed the action after the defendant filed an anti-SLAPP motion,” and fees were awarded
“notwithstanding the voluntary dismissal.” Id. at 717 (emphasis added). The Court also explained that its
holding, “[a]llowing plaintiffs to voluntarily dismiss an action without penalty before the filing of an anti-
SLAPP motion,” would harmonize the purposes behind both voluntary dismissals and the anti-SLAPP
statute. Id. at 717-18. This “bright line” rule, the Court reasoned, would have “the additional benefit of
discouraging prolonged litigation solely over the matter of fees and costs.” Id. at 718. See also Stubbs v.
Strickland, 297 P.3d 326, 328 (Nev. 2013) (“In this appeal, we consider whether a defendant can file an
anti-SLAPP [] suit after the plaintiff voluntarily dismisses the initial lawsuit. We conclude that if the
plaintiff voluntarily dismisses the action before the defendant files either an initial responsive pleading or
a special motion to dismiss pursuant to [Nevada’s statute], the defendant cannot file an anti-SLAPP suit
against the plaintiff based on that action.”).
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