IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
February 5, 2003 Session
SUSAN GREEN v. LEON MOORE, ET AL.
Appeal by permission from the Court of Appeals,
Circuit Court for Williamson County
No. I-2K393 Robert E. Lee Davies, Judge
No. M2002-00889-SC-R11-CV - Filed April 29, 2003
The sole issue in this appeal is whether the thirty (30)-day notice of appeal period, articulated in
Tennessee Rule of Appellate Procedure 4(a) ("Rule 4(a)"), began to run when the appellees filed a
notice of voluntary dismissal of the final claim between all parties in this action, or when the trial
court entered an order confirming that all claims between all parties in this action had been
adjudicated. The Court of Appeals held that the thirty-day period commenced on the date the
appellees filed the notice of voluntary dismissal and concluded that the appellant's notice of appeal
was untimely filed. We granted permission to appeal and hold that the thirty-day notice of appeal
period commenced on the date that the trial court entered an order confirming that all claims between
all the parties had been adjudicated. Accordingly, the judgment of the Court of Appeals is reversed,
and this case is remanded to the intermediate court for consideration of the merits of the appeal.
Tenn. R. App. P. 11 Application for Permission to Appeal;
Judgment of the Court of Appeals Reversed.
WILLIAM M. BARKER, J., delivered the opinion of the court, in which FRANK F. DROWOTA , III, C.J.,
and E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., and JANICE M. HOLDER, JJ., joined.
Pamela M. McCord, for the appellant, Susan Green.
Eugene N. Bulso, Jr. and Barbara Hawley Smith, for the appellees, Leon Moore, ShoLodge, Inc., and
ShoLodge Franchise Systems, Inc.
OPINION
STATEMENT OF THE CASE
On July 31, 2000, the appellant, Susan Green, filed a complaint against Leon Moore,
ShoLodge, Inc., and ShoLodge Franchise Systems, Inc., the appellees, for an alleged breach of a
settlement agreement dated January 29, 1996. Ms. Green, a former employee of ShoLodge, Inc.,
claimed that the settlement agreement was breached in August 1997 when Leon Moore allegedly
referred to her as "a f---ing b-tch" twice in front of co-workers at her new place of employment.1 The
appellees filed a motion to dismiss this action claiming it was barred by the applicable statute of
limitations. The trial court granted the appellees' motion with respect to claims it concluded were
grounded in tort law and subject to the one-year statute of limitations period for personal injuries.
See Tenn. Code Ann. § 28-3-104(a)(1) (2000). However, the trial court refused to dismiss the
appellant's various claims for lost wages and loss of earning capacity which the court held were
governed by the six-year statute of limitations applicable to contracts. See Tenn. Code Ann. § 28-3-
109 (2000).
The appellees filed a motion for permission to appeal the trial court's ruling pursuant to
Tennessee Rule of Appellate Procedure 9 ("Rule 9"). The interlocutory appeal was granted, and the
Court of Appeals affirmed the ruling of the trial court. Subsequently, the appellees sought and were
granted permission to appeal by this Court.
On November 22, 2000, while still appealing the trial court's original ruling on the motion
to dismiss, the appellees filed an answer to the appellant's complaint and asserted a counterclaim
alleging that it was the appellant who breached the 1996 settlement agreement by filing a frivolous
lawsuit. The appellees subsequently filed a motion for summary judgment with respect to the
appellant's claims that the trial court had determined were not barred by the statute of limitations.
The trial court substantially granted the appellees' motion and dismissed all but one of Ms. Green's
claims for damages.
On September 18, 2001, the appellees filed another motion for summary judgment with
respect to the appellant's sole remaining claim for damages. The trial court granted the appellees'
motion and dismissed with prejudice all claims made by Ms. Green against the appellees.
Subsequently, on February 5, 2002, the appellees filed a written notice with the trial court voluntarily
dismissing their counterclaim against the appellant pursuant to Tennessee Rule of Civil Procedure
41.01 ("Rule 41.01"). Because all of the appellant's claims had been dismissed, the appellees'
counterclaim was the final claim remaining in this action.
On March 13, 2002, the trial court entered an order which confirmed that "as of February 5,
200[2],2 all claims of all parties in this action have been adjudicated and this action has therefore
1
Given that the instant case is procedural in nature, the underlying facts of the appellant's complaint and the
app ellees' counterclaim are irrelevant.
2
The trial court's order of March 13, 2002 erroneously noted "February 5, 2001" as the date that the appellees
filed the notice of voluntary dismissal of their counterclaim. T his was m erely a typographica l error, as there is no dispute
in the record that the appellees' written notice of voluntary dismissal was filed on February 5, 200 2. Additionally, neither
(continued...)
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been concluded." Additionally, on March 13, 2002, the appellees filed a motion to dismiss their
application for permission to appeal in this Court. Citing the trial court's favorable summary
judgment rulings, the appellees claimed that because "the trial court's dismissal of the plaintiff's
claims is final and non-appealable, the [statute of limitations] issue raised in the [appellees']
Application for Permission to Appeal has become moot." In a per curiam order, this Court, relying
on language from the appellees' motion, dismissed the appellees' application for permission to appeal
and implied that the trial court's dismissal of Ms. Green's claims was final and non-appealable on
February 5, 2002. However, this Court was not faced with the issue of when the Rule 4(a) notice
of appeal period commenced. Accordingly, our order was based upon incomplete information, and
any language in the order suggesting that the notice of appeal period commenced when the appellees
filed their notice of voluntary dismissal on February 5, 2002 is not dispositive of the issue before us.
On April 11, 2002, Ms. Green filed a notice of appeal. The notice of appeal was filed within
thirty days of the trial court's entry of an order indicating that all claims by the parties had been
adjudicated. However, it was not filed within thirty days of the appellees' notice of voluntary
dismissal of their counterclaim. The Court of Appeals held that "it is the filing of the written notice
of dismissal, not the entry of the confirmatory order, that triggers the commencement of the time
within which a notice of appeal must be filed." Thus, the Court of Appeals held that the appellant's
notice of appeal was untimely filed.
We granted the appellant's application for permission to appeal to determine whether the
thirty-day period for filing a notice of appeal pursuant to Rule 4(a) commenced on the date the
appellees filed their notice of voluntary dismissal, or rather on the date that the trial court entered
an order stating that all claims between the parties had been adjudicated. For the reasons stated
herein, we reverse the decision of the Court of Appeals and hold that for purposes of filing a notice
of appeal under Tennessee Rules of Appellate Procedure 3 and 4, the thirty-day appeal period
commenced on the date that the trial court entered its order confirming that all claims by all parties
had been adjudicated. Accordingly, we remand this case to the Court of Appeals for proceedings
consistent with this opinion.
STANDARD OF APPELLATE REVIEW
In this case, our review concerns when the thirty-day notice of appeal period articulated in
Rule 4(a) commenced. Interpretation of Rule 4(a) is a pure question of law, for which the standard
of review is de novo with no presumption of correctness given to the Court of Appeals. Doyle v.
Frost, 49 S.W.3d 853, 856 (Tenn. 2001); Reeves v. Granite State Ins. Co., 36 S.W.3d 58, 60 (Tenn.
2001); In re Estate of Hume, 984 S.W.2d 602, 604 (Tenn. 1999).
ANALYSIS
2
(...continued)
party has raised the issue of whether the trial court had the authority to issue a retroactive order. Therefore, that issue
is not before us for review.
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Tennessee Rule of Appellate Procedure 3(a) ("Rule 3(a)") states that a final judgment in a
civil action "entered by a trial court from which an appeal lies to the Supreme Court or Court of
Appeals is appealable as of right." However, Rule 3(a) also states that "[e]xcept as otherwise
permitted in Rule 9 and in Rule 54.02 Tennessee Rules of Civil Procedure, if multiple parties or
multiple claims for relief are involved in an action, any order that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable . .
. ." (Emphasis added). Hence, until the appellees' counterclaim was adjudicated, Ms. Green was
unable to appeal the unfavorable rulings of the trial court against her. However, once all claims
between the parties had been adjudicated, Rule 4(a) states that the notice of appeal "shall be filed
with and received by the clerk of the trial court within 30 days after the date of entry of the judgment
appealed from . . . ." Thus, this case turns on whether "the date of entry of the judgment appealed
from" was February 5, 2002 (the date the appellees filed the notice of voluntary dismissal) or March
13, 2002 (the date the trial court entered its order confirming that all claims between the parties in
this actions were adjudicated).
The appellees contend that the thirty-day appeal period commenced on February 5, 2002, the
date they filed the notice of voluntary dismissal. In support of their argument, the appellees cite to
the case of Rickets v. Sexton, 533 S.W.2d 293 (Tenn. 1976). In Rickets, this Court held that Rule
41.01 "specifies that a plaintiff 'shall have the right to take a voluntary nonsuit or [sic] to dismiss an
action without prejudice by filing a written notice of dismissal at any time before the trial of a
cause.'" Id. at 294 (quoting Tenn. R. Civ. P. 41.01). The Court further noted that, subject to limited
exceptions, when deciding whether to voluntarily dismiss an action, the "lawyer for the plaintiff is
the sole judge of the matter and the trial judge has no control over it. It is not necessary that [the trial
judge] approve the action of plaintiff's counsel by signing any order . . . ." Id. at 294. Relying on
this language, the appellees assert that by voluntarily dismissing their counterclaim, the final
remaining claim in the action, on February 5, 2002, the trial court's summary judgment rulings
against the appellant became immediately appealable.
Additionally, the appellees cite as authority the case of Parker v. Vanderbilt Univ., 767
S.W.2d 412 (Tenn. Ct. App. 1988). In Parker, the Court of Appeals, citing Rickets, stated that it was
the filing of a notice of voluntary dismissal that triggered the commencement of time in which an
appeal must be filed. Id. at 421-22. However, the facts in Parker are distinguishable from the instant
case in that Parker involved a plaintiff filing a motion under Tennessee Rule of Civil Procedure
59.04. Additionally, the plaintiff in Parker filed her motion within thirty days of both the written
notice of voluntary dismissal and the trial court's entry of an order confirming the nonsuit. As such,
the Court of Appeals in Parker never reached the issue of whether the filing of the written notice of
voluntary dismissal or the trial court's entry of an order confirming the nonsuit triggered the running
of the thirty-day appeal period under Rule 4(a).
Conversely, Ms. Green argues that the thirty-day period commenced on March 13, 2002, the
date the trial court entered an order confirming that all claims between the parties in the action had
been adjudicated. In support of her argument, the appellant cites to the case of Evans v. Perkey, 647
S.W.2d 636 (Tenn. Ct. App. 1982). In Evans, the plaintiff filed a notice of voluntary nonsuit on
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August 8, 1980. Subsequently, the trial court entered an order dismissing the action without
prejudice on August 29, 1980. On August 31, 1981,3 the plaintiff re-filed a complaint pursuant to
the one-year Tennessee Savings Statute. Relying on Rickets, the defendants argued on appeal that
the one-year savings statute expired on August 8, 1981 because that was the date the plaintiff filed
a written notice of voluntary nonsuit. The Court of Appeals found Rickets to not be controlling and
stated:
In Rickets the [C]ourt was concerned with the right of a party to take
a voluntary nonsuit and the lack of the power of the court to deprive
him of that right. We construe the Rickets [C]ourt to be saying that
the plaintiff in that case had done all that was required to be done
when he gave written notice of his intention to take a nonsuit. It was
not necessary for the court to grant permission or enter an order
permitting it to be done. However, we do not find the [C]ourt to be
saying that a judgment or decree need not be entered for final
adjudication of the case.
Evans, 647 S.W.2d at 640-41. Interpreting the questionable language in Rickets as dicta, the Court
of Appeals noted the long standing principle that a court speaks only through its written judgments,
duly entered upon its minutes. Id. at 641 (citing Mass. Mut. Life Ins. Co. v. Taylor Implement &
Vehicle Co., 195 S.W. 762 (Tenn. 1917); Sparkle Laundry & Cleaners, Inc. v. Kelton, 595 S.W.2d
88, 93 (Tenn. Ct. App. 1979)). Thus, the Court of Appeals concluded that "the one-year statute of
limitations ran from the date of the entry of the order of the court and not from the date of filing the
notice of nonsuit." Id.
Additionally, the appellant cites the case of Montgomery v. Nichols, 10 S.W.3d 258 (Tenn.
Ct. App. 1999). Though not directly on point, the Court of Appeals in Montgomery, relying on
Evans, held that the "timeliness of a [Tennessee] Rule [of Civil Procedure] 60 motion after a
voluntary nonsuit should be measured from the date of entry of the order of voluntary nonsuit, and
not from the date of filing of the notice of voluntary nonsuit." Id. at 262.
After considering the issue and the cases cited by both sides, none of which are directly on
point, we are of the opinion that the reasoning and decision reached in Evans and its progeny are
persuasive. The language in Rickets which arguably suggests that filing a notice of voluntary
dismissal constitutes an adjudication for purposes of commencing the Rule 4(a) thirty-day appeal
period is non-binding dicta. Rickets stands for the proposition that, except in very limited
circumstances, a party can take a voluntary nonsuit without permission from the trial court. If filing
a notice of voluntary nonsuit was all that was required to conclude an action, the Court of Appeals
could then receive the appeal without the trial court ever entering an order or assessing costs. Such
a holding would be contrary to common sense and our own precedent. As the Court of Appeals
correctly noted in Evans, a "[c]ourt speaks only through its written judgments, duly entered upon its
3
August 31, 1981 was more than one year after August 29, 1980. However, the plaintiff was allow ed to re-file
on August 31 , 1981 , pursuant to T ennessee R ule of Civil Proc edure 6.01, beca use August 29, 1981 fell on a weekend.
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minutes." Evans, 647 S.W.2d at 641; see also Ivey v. State, 360 S.W.2d 1, 2 (Tenn. 1962); Lewis
ex rel. Lewis v. Brooks, 66 S.W.3d 883, 886 (Tenn. Ct. App. 2001); City of Newport v. Masengill
Auction Co., 19 S.W.3d 789, 795 (Tenn. Ct. App. 1999). Accordingly, we conclude that the
unfavorable rulings of the trial court did not become appealable for the appellant until the trial court
entered its order on March 13, 2002 confirming that all claims between the parties had been
adjudicated.
Additionally, we acknowledge that Tennessee Rule of Civil Procedure 58 ("Rule 58") states:
Entry of a judgment or an order of final disposition is effective when
a judgment containing one of the following is marked on the face by
the clerk as filed for entry:
(1) the signatures of the judge and all parties or counsel, or
(2) the signatures of the judge and one party or counsel with a
certificate of counsel that a copy of the proposed order has been served
on all other parties or counsel, or
(3) the signature of the judge and a certificate of the clerk that a copy
has been served on all other parties or counsel.
We note that by the plain language of Rule 58, the signature of the judge is mandatory to effectuate
a judgment or order of final disposition. Furthermore, the original Advisory Commission Comment
to Rule 58 states that the rule was "designed to make uniform across the State the procedure for the
entry of judgment and to make certain the effective date of judgment." Therefore, we hold that the
thirty-day notice of appeal period articulated in Rule 4(a) commenced when the trial court entered
its signed order confirming that all claims between the parties had been adjudicated on March 13,
2002.
CONCLUSION
We are of the opinion that the thirty-day notice of appeal period articulated in Rule 4(a)
commenced when the trial court entered an order confirming that all claims between the parties in
this action had been adjudicated on March 13, 2002. Accordingly, we reverse the judgment of the
Court of Appeals and remand this case to the intermediate court for consideration of the merits of
the appeal. Costs of this appeal are taxed to the appellees, Leon Moore, ShoLodge, Inc., and
ShoLodge Franchise Systems, Inc.
__________________________
William M. Barker, Justice
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