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Young v. Barrow9/16/2003
that it was my car and I was driving. I never had any intention to sue `em. They paid me but they wouldn't pay Ms. Buford. So bein' they wouldn't go to her rescue, it pulled me back in this suit. I'm just here tryin' to be a catalyst between her and the insurance company. Otherwise, I wouldn't be named in this lawsuit.
Mr. Young then took the stand and testified in narrative form. He described the damage to his vehicle and the physical ailments the wreck ostensibly caused him. Thereafter, the following exchanges occurred:
Mr. Young: There were times when I wanted to file a suit myself. . . . I didn't sue.
Trial Court: Mr. Young, just so we're very clear, presently you are listed as a plaintiff in this case.
Mr. Young: That's correct.
Trial Court: So you have sued.
Mr. Young: I understand. I'm suing.
Trial Court: o ensure the jury isn't confused, you are listed as a plaintiff in this case.
Mr. Young: I am a plaintiff in this case. That's correct.
Ms. Barrow's Lawyer: This is the third lawsuit that you've had. . .
Mr. Young: I object your honor. It's not a lawsuit; I didn't sue nobody.
Trial Court: We've already straightened out that you're a plaintiff in this lawsuit.
Mr. Young: I know but he was talking [about a different wreck].
Finally, when Ms. Barrow's attorney offered impeaching proof that a prior personal injury suit filed by Mr. Young had been dismissed after a directed verdict, Mr. Young objected and asked: "Your honor, what does that have to do with this part of the case - my personal case?"
Mr. Young chose to represent himself even though the four-month continuance between his former lawyer's withdrawal and the trial date afforded him ample opportunity to obtain replacement counsel. Mr. Young is left with the consequences of his choice. His active participation in the trial and the quoted trial excerpts demonstrate that Mr. Young did not dismiss his lawsuit before trial.
Mr. Young attempts to save his case by arguing alternatively that the trial court did not enter a final judgment on the merits of his claim. He contends that he nonsuited his claim prior to the trial court's decision to direct a verdict dismissing his lawsuit. A party may non-suit its case by filing a written notice of dismissal prior to trial or by giving oral notice of dismissal in open court. Tenn. R. Civ. P. 41.01(1). Mr. Young argues that his testimony provided oral notice of dismissal. Asked if he was seeking damages by the trial court, Mr. Young stated, "I never did . . . I was angry." This response caused the trial court to inquire: "Are you dismissing your lawsuit against Ms. Barrow?" Mr. Young answered: "Only if they come to terms with Ms. Buford. Like you say, you say this is a lawsuit, I'm here because either they pay her or I've got to pay her and I don't feel I should have to pay her."
The voluntary dismissal rule was intended to establish a test that is easy to administer. Winterland Concessions Co. v. Smith, 706 F.2d 793, 795 (7th Cir. 1983). Thus, the notice of dismissal must demonstrate the plaintiff's clear, unequivocal, and express intent to dismiss the action. Kaufman & Broad Bldg. Co. v. City & Suburban Mortgage Co., 88 Cal. Rptr. 858, 861 (Cal. Ct. App. 1970); Conkling v. Turner, 138 F.3d 577, 592 (5th Cir. 1998); 9 Charles A. Wright et al., Federal Practice and Procedure ยง 2363, at 269 (2d ed. 1994). A conditional statement offering to dismiss a claim in return for action by the defendant is insufficient. McMahon v. Televents, Inc., 129 F.3d 126, 1997 WL 678358, at *2 (9th Cir. Oct.
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