Appeal denied as frivolous based on TN Rules of Civil Procedure 41.01, Voluntary Dismissals

RICK PETERS, ET AL. v. RAY LAMB, M.D., ET AL. (Tenn. Ct. App. May 27, 2009)

This is a medical malpractice action by Rick Peters and Rob Watts ("Plaintiffs"), the surviving spouse and child respectively of Elizabeth Peters, deceased, filed against Dr. Ray Lamb and his practice group, McLeod Cancer and Blood Center of East Tennessee (collectively "Defendants"). Mrs. Peters unexpectedly died shortly after Defendants began treating her for her recently-diagnosed anal cancer. Pre-trial, Plaintiffs lodged a proposed motion and order of nonsuit by placing it in the trial judge's "in-box." By the time the judge discovered the document, a motion for summary judgment had been filed by Defendants and was pending. The trial court did not sign the order of nonsuit. Following a summary judgment hearing seven months later, the trial court entered an order denying the motion for nonsuit and granting Defendants summary judgment. Plaintiffs appeal. The sole question Plaintiffs raise is whether the trial court erred in ruling that the lodging of the motion and order for nonsuit was ineffectual to dismiss their action without prejudice. Defendants claim this appeal is frivolous and seek an award of damages pursuant to the provisions of Tenn. Code Ann. section 27-1-122 (2000).

We conclude that the appeal is frivolous because the issue Plaintiffs raised had no reasonable chance of success. We affirm the judgment of the trial court and remand for a determination as to the damages due Defendants.

The full text of this opinion is available at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/petersr_052709.pdf