Jason Britt v. Richard Jason Usery

Syllabus

The Plaintiff hired the Defendant to build a concrete foundation for his new home. The foundation was allegedly defective. The Plaintiff hired a third party to remove the concrete and to properly complete the work. The Plaintiff then sued the Defendant, alleging breach of contract, negligent construction, and fraud. The case languished for several years. The trial court ordered the Plaintiff to provide dates on which the Defendant could inspect certain evidence, but the Plaintiff failed to comply. The trial court then orally granted the Defendant's motion to dismiss with prejudice for failure to prosecute. Before the trial court entered a written order, the Plaintiff filed a notice of voluntary dismissal. The trial court concluded that the Plaintiff's notice was untimely submitted, coming after the oral ruling granting the motion to dismiss, and entered a written order dismissing the Plaintiff's case with prejudice for failure to prosecute. Concluding that the Plaintiff maintained his right to a voluntary dismissal under Tennessee Rule of Civil Procedure 41.01(1), we reverse.