Lacy v. Cox, 152 S.W.3d 480 (Tenn. 2004). · Go Syfert
Lacy v. Cox, 152 S.W.3d 480 (Tenn. 2004). Cases Citing This Book View Copy Cite
127 citation events (127 in the last 25 years) across 3 distinct courts.
Treatment trajectory · 2005 → 2026 · click a year to view as-of
2005 2015 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Ronald R. Lemonte, Jr. v. Elke Lemonte (3×) also: Cited as authority (rule)
Tenn. Ct. App. · 2019 · quote attribution · 1 verbatim quote · confidence high
a pro forma order must be entered by the trial court for ministerial and procedural purposes.
examined Cited as authority (verbatim quote) Megan C. England v. Sonya Schnur (2×) also: Cited as authority (rule)
Tenn. Ct. App. · 2017 · signal: see also · quote attribution · 1 verbatim quote · confidence high
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
cited Cited as authority (rule) Donald Batiste v. The Memphis and Shelby County Board of Adjustment
Tenn. Ct. App. · 2026 · confidence medium
Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004).
discussed Cited as authority (rule) LEIGHTON H. LIPPERT v. B & D REAL ESTATE PROPERTIES, LLC
Tenn. Ct. App. · 2026 · confidence medium
Regarding the even more foundational concern about lack of notice, the Lipperts note that their complaint contained the following remedial request: “Plaintiffs further request such other and further relief to which they may be entitled upon a hearing in this matter.” In considering the parties’ contentions, “[t]he interpretation of the Tennessee Rules of Civil Procedure is a question of law which we review de novo.” PHI Air Med., LLC v. Corizon, Inc., 628 S.W.3d 460 , 474-75 (Tenn. App. 2021) (citing Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004)).
cited Cited as authority (rule) Kimberly Jones-Mbuyi v. Jill Fitcheard
unknown court · 2025 · confidence medium
See Pickard v. Tenn. Water Quality Control Bd., 424 S.W.3d 511, 518 (Tenn. 2013); Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004).
discussed Cited as authority (rule) William Ferguson v. State of Tennessee
Tenn. Ct. App. · 2025 · confidence medium
Kampmeyer v. State, 639 S.W.3d 21 , 23 (Tenn. 2022) (citing In re Kaliyah S., 455 S.W.3d 533, 552 (Tenn. 2015)) (statutory interpretation); Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004) (rules of civil procedure).
cited Cited as authority (rule) DERRY M. THOMPSON v. TIMOTHY A. GRAHAM
Tenn. Ct. App. · 2025 · confidence medium
Ball, 288 S.W.3d at 836 (citing Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004)).
discussed Cited as authority (rule) Jeremy Wayne Long v. Candice O'Brien Beasley
unknown court · 2025 · confidence medium
“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)) (footnotes omitted).9 Interpretation of the Tennessee Rules of Civil Procedure is a question of law that we review “de novo on appeal with no presumption of correctness.” See id. at 483 (citing S. Constructors, Inc. v. Loudon Cnty.
discussed Cited as authority (rule) Lisa Garramone v. Tommy Dugger
unknown court · 2024 · confidence medium
Lacy v. Cox, 152 S.W.3d 480, 484 (Tenn. 2004) (citing Anderson v. Smith, 521 S.W.2d 787, 790 (Tenn. 1975); Rickets v. Sexton, 533 S.W.2d 293, 294 (Tenn. 1976); Stewart v. Univ. of Tennessee, 519 S.W.2d 591, 592 (Tenn. 1974); Lawrence A. Pivnick, Tenn. Circuit Court Practice, § 23:1, at 834–35 (2003)).
discussed Cited as authority (rule) Michael Gersper v. Jonathan Turner
unknown court · 2024 · confidence medium
P. 3 Realizing that the Flade decision would likely be dispositive of this issue, we withheld ruling on this case until the Flade opinion was released. -8- 41.01(1)), as well as “an implied exception which prohibits nonsuit when it would deprive the defendant of some vested right,” id. (quoting Lacy v. Cox, 152 S.W.3d 480, 484 (Tenn. 2004)).
examined Cited as authority (rule) Robert E. Lee Flade v. City of Shelbyville, Tennessee (8×) also: Cited "see", Cited "see, e.g."
unknown court · 2024 · confidence medium
Second, the court recognized that “there is ‘an implied exception’ to Rule 41.01 ‘which prohibits nonsuit when it would deprive the defendant of some vested right.’” Id. at *16 (quoting Lacy v. Cox, 152 S.W.3d 480, 484 (Tenn. 2004)).
discussed Cited as authority (rule) Gregory F. Heerdink v. Dawn A. Osborne (2×) also: Cited "see, e.g."
unknown court · 2024 · confidence medium
Thomas v. Oldfield, 279 S.W.3d 259, 261 (Tenn. 2009) (citing Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004)).
cited Cited as authority (rule) Cherokee Fiber & Associates , Inc. v. David Gerregano, Commissioner of the Tennessee Department of Revenue
Tenn. Ct. App. · 2024 · confidence medium
Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004).
cited Cited as authority (rule) Stargate Auto Sales, LLC v. David Gerregano, Commissioner of the Tennessee Department of Revenue
Tenn. Ct. App. · 2024 · confidence medium
Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004).
discussed Cited as authority (rule) Michael Beinke v. Adam Roberson d/b/a 38 Construction
unknown court · 2024 · confidence medium
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 v. Cox, 152 S.W.3d 480, 484 (Tenn. 2004) (citing Anderson v. Smith, 521 S.W.2d 787, 790 (Tenn. 1975)).
examined Cited as authority (rule) J.E.T., Inc., d/b/a UPS Store v. Ron Hasty (3×) also: Cited "see", Cited "see, e.g."
Tenn. Ct. App. · 2024 · confidence medium
Additionally, a party does not have a right to take a voluntary nonsuit in cases where the opposing party’s motion for summary judgment is pending.2 The Tennessee Supreme Court in Lacy v. Cox noted three other limitations on the right to nonsuit. 152 S.W.3d 480, 484 (Tenn. 2004).
discussed Cited as authority (rule) Jason Britt v. Richard Jason Usery
Tenn. Ct. App. · 2024 · confidence medium
Additionally, a party does not have a right to take a voluntary nonsuit in cases where the opposing party’s motion for summary judgment is pending.1 The Tennessee Supreme Court in Lacy v. Cox noted three other limitations. 152 S.W.3d 480, 484 (2004).
discussed Cited as authority (rule) Trevor Adamson v. Sarah E. Grove
Tenn. Ct. App. · 2022 · confidence medium
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)).
discussed Cited as authority (rule) Cortrease Tate v. Shelby County Board of Education
Tenn. Ct. App. · 2022 · confidence medium
“Interpretation of the Tennessee Rules of Civil Procedure is a question of law, which we review de novo with no presumption of correctness.” Fair v. Cochran, 418 S.W.3d 542, 544 (Tenn. 2013) (citing Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004)).
cited Cited as authority (rule) Kim Renae Nelson v. Loring E. Justice
Tenn. Ct. App. · 2021 · confidence medium
Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004).
cited Cited as authority (rule) Phi Air Medical, LLC v. Corizon, Inc.
unknown court · 2021 · confidence medium
Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004).
cited Cited as authority (rule) Michael Cobble v. Greene County, Tennessee
unknown court · 2019 · confidence medium
Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004) (citing Dial v. Harrington, 138 S.W.3d 895, 897 (Tenn. Ct. App. 2003)).
cited Cited as authority (rule) Windell Middleton v. City of Millington, Tennessee
Tenn. Ct. App. · 2018 · confidence medium
Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004).
discussed Cited as authority (rule) Paul Koczera v. Christi Lenay Fields Steele
Tenn. Ct. App. · 2017 · confidence medium
Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004) (citing Southern Constructors, Inc. v. Loudon Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001); Presley v. Bennett, 860 S.W.2d 857 , 859–60 (Tenn. 1993)).
discussed Cited as authority (rule) Donel Autin v. William Goetz (2×)
Tenn. Ct. App. · 2017 · confidence medium
Consequently, “[a] plaintiffs 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) (footnote omitted) (citing Anderson v. Smith, 521 S.W.2d 787, 790 (Tenn. 1975)).
discussed Cited as authority (rule) Dallas K. Hurley, Jr. v. Ryan B. Pickens, M.D. (2×) also: Cited "see"
Tenn. Ct. App. · 2016 · confidence medium
Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004).
discussed Cited as authority (rule) Robert Clark v. John Werther
Tenn. Ct. App. · 2016 · confidence medium
A plaintiff‟s right to a voluntary nonsuit is also limited by “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).
cited Cited as authority (rule) Tambra Jo Swonger v. James Henry Swonger
Tenn. Ct. App. · 2016 · confidence medium
Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004).
discussed Cited as authority (rule) Wendy W. Rose v. Lisa Bushon (2×)
Tenn. Ct. App. · 2016 · confidence medium
In Lacy v. Cox, 152 S.W.3d 480, 484 (Tenn. 2004), the Supreme Court reaffirmed the principles set forth in Rickets and noted that under the amended rule, “[a] pro forma order must be entered by the trial court for ministerial and procedural purposes.” This Court recently examined Rule 41.01, its history, and caselaw construing it, at length in Ewan v. Hardison Law Firm, 465 S.W.3d 124, 133 (Tenn. Ct. App. 2014), stating in pertinent part: We . . . conclude that the 2004 amendment did not alter the central holding in Rickets that the act of “taking” a nonsuit is not dependent on any act…
discussed Cited as authority (rule) Mark T. Harthun v. Joan M. Edens
Tenn. Ct. App. · 2016 · confidence medium
“A plaintiff‟s right to voluntary dismissal without prejudice is subject to…an implied exception which prohibits nonsuit when it would deprive the defendant of some vested right.” Ewan v. Hardison Law Firm, 465 S.W.3d 124, 130 (Tenn. Ct. App. 2014) (quoting Lacy v. Cox, 152 S.W.3d 480, 484 (Tenn. 2004)).
discussed Cited as authority (rule) Marchelle Renee Buman, of the Estate of Kenneth Jenkins v. Alycia D. Gibson, P.A.
Tenn. Ct. App. · 2016 · confidence medium
Fair v. Cochran, 418 S.W.3d 542, 544 (Tenn. 2013) (“Interpretation of the Tennessee Rules of Civil Procedure is a question of law, which we review de novo with no presumption of correctness.”) (citing Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004)).
cited Cited as authority (rule) Susan Lynn Morgan v. John David Drauss
Tenn. Ct. App. · 2015 · confidence medium
Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004). 4 The rules of statutory construction guide our interpretation of these rules.
cited Cited as authority (rule) State of Tennessee v. Anthony Todd Ghormley
Tenn. Crim. App. · 2015 · confidence medium
Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 895 (Tenn. 2011); see Thomas v. Oldfield, 279 S.W.3d 259, 261 (Tenn. 2009); Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004).
discussed Cited as authority (rule) Kimberly Urban v. Robin Nichols, individually and d/b/a Willow Brook Lodge
Tenn. Ct. App. · 2015 · confidence medium
“Interpretation of a rule of civil procedure presents a question of law, which we review de novo with no presumption of correctness.” Doyle v. Town of Oakland, No. W2013- 02078-COA-R3-CV, 2014 WL 3734971 at *3 (Tenn. Ct. App. 2014) (citing Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004).
cited Cited as authority (rule) John Holmes Peacher-Ryan v. Heirs At Law of Ruth James Gaylor
Tenn. Ct. App. · 2015 · confidence medium
Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004).
cited Cited as authority (rule) Shirley M. Cartwright v. Tennessee Farmers Mutual Insurance Company
Tenn. Ct. App. · 2014 · confidence medium
Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn.2004).
discussed Cited as authority (rule) Ewan v. Hardison Law Firm (2×)
Tenn. Ct. App. · 2014 · confidence medium
Consequently, “[a] plaintiffs 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) (footnote omitted) (citing Anderson v. Smith, 521 S.W.2d 787, 790 (Tenn.1975)).
cited Cited as authority (rule) Lisa Doyle v. Town of Oakland
Tenn. Ct. App. · 2014 · confidence medium
Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004).
cited Cited as authority (rule) Kristine Blankenship v. Anesthesiology Consultants Exchange, P.C.
Tenn. Ct. App. · 2014 · confidence medium
Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn.2004).
cited Cited as authority (rule) Hong Samouth (Sam) Rajvongs v. Dr. Anthony Wright
Tenn. · 2013 · confidence medium
See, e.g., Mills v. Fulmarque, Inc., 360 S.W.3d 362, 366 (Tenn.2012); Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn.2004).
discussed Cited as authority (rule) Markum Douglas v. Peggy J. Lowe
Tenn. Ct. App. · 2013 · confidence medium
As our Supreme Court explained in Lacy v. Cox, 152 S.W.3d 480, 484 (Tenn. 2004): 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.
discussed Cited as authority (rule) Cristy Irene Fair v. Stephen Lynn Cochran (2×)
Tenn. · 2013 · confidence medium
Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004).
cited Cited as authority (rule) Kenneth E. Diggs v. DNA Diagnostic Center, Genetic Profiles Corporation, Strand Analytical Laboratories, LLC, and Medical Testing Resources, Inc.
Tenn. Ct. App. · 2013 · confidence medium
Lacy v. Cox, 152 S.W.3d 480, 484 (Tenn. 2004).
discussed Cited as authority (rule) Cristy Irene Fair v. Stephen Lynn Cochran
Tenn. Ct. App. · 2012 · confidence medium
Even though “the rules of civil procedure are not statutes, the same rules of statutory construction apply . . . .” Thomas v. Oldfield, 279 S.W.3d 259, 261 (Tenn. 2009) (citing Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004)).
cited Cited as authority (rule) Mary Catherine Gentry v. Tagner H. Bailey
Tenn. Ct. App. · 2012 · confidence medium
Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004); see Green v. Moore, 101 S.W.3d 415, 418 (Tenn. 2003).
discussed Cited as authority (rule) Michael Lind v. Beaman Dodge, Inc., d/b/a Beaman Dodge Chrysler Jeep (2×)
Tenn. · 2011 · confidence medium
Even though “the rules of civil procedure are not statutes, the same rules of statutory construction apply....” Thomas v. Oldfield, 279 S.W.3d 259, 261 (Tenn.2009) (citing Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn.2004)).
discussed Cited as authority (rule) Joseph R. Griffin v. Crompton Corporation, Uniroyal Co., Inc., Bayer AG, Bayer Corporation, Bayer Polymers LLC, Rhein Chemie Corporation, Dow Chemical Co., and BASF Corporation
Tenn. Ct. App. · 2009 · confidence medium
Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004) (citing S. Constructors, Inc. v. Loudon Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001); Presley v. Bennett, 860 S.W.2d 857, 859-60 (Tenn. 1993)).
cited Cited as authority (rule) Shelby County v. Crews
Tenn. Ct. App. · 2009 · confidence medium
Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn.2004) (citing S. Constructors, Inc. v. Loudon Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.2001); Presley v. Bennett, 860 S.W.2d 857, 859-60 (Tenn.1993)).
cited Cited as authority (rule) The City of Jackson, Tennessee v. David Hersh and PSET, L.P.
Tenn. Ct. App. · 2009 · confidence medium
Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004) (citations omitted).
cited Cited as authority (rule) Winston E. Wolfe, Trustee of the Winston E. Wolfe Revocable Living Trust Dated December 5, 1997 v. O. Michael Jaeger, et ux.
Tenn. Ct. App. · 2009 · confidence medium
Lacy v. Cox, 152 S.W.3d 480, 488 (Tenn. 2004).
Retrieving the full opinion text from the archive…
Donald R. LACY
v.
Wesley B. COX, Et Al.
Tennessee Supreme Court.
Nov 22, 2004.
152 S.W.3d 480
George R. Garrison, Sevierville, Tennessee, for the appellant, Donald R. Lacy., Dana Holloway, Knoxville, Tennessee, for the appellee, Jennifer L. Brandon.
Drowota, III, Anderson, Holder, Barker, Daniel.
Cited by 67 opinions  |  Published

OPINION

FRANK F. DROWOTA, III, C.J.,

delivered the opinion of the court,

in which E. RILEY ANDERSON, JANICE M. HOLDER and WILLIAM M. BARKER, JJ., and J.S. “STEVE” DANIEL, Sp.J., joined.

In a jury trial, the plaintiff moved for and was granted voluntary dismissal without prejudice as of right while the jury was deliberating, and the jury was discharged before returning a verdict. The trial court later acknowledged that it had erred by granting the voluntary dismissal in contravention of Tennessee Rule of Civil Procedure 41.01. However, the trial court nevertheless sustained the voluntary dismissal without prejudice, denying both the defendant’s post-trial motion to deem the dismissal to be with prejudice and the plaintiffs motion for a new trial. On appeal, the Court of Appeals held that although a plaintiffs free and unrestricted right to voluntary dismissal ends upon the jury’s retirement, a trial court has discretion to grant a voluntary dismissal without prejudice after the jury has retired. However, the Court of Appeals deemed the plaintiffs voluntary dismissal to be with prejudice because the plaintiff had sought and was improperly granted voluntary dismissal as of right after the jury had retired. Reversing the Court of Appeals, we hold that a trial court has no authority to grant a voluntary dismissal without prejudice while the jury is deliberating. The unique aspects of Tennessee Rule of Civil Procedure 41.01, in particular the provision of up to two voluntary dismissals as of right which are available until a significantly late procedural stage, warrant more restriction of a trial court’s discretion to grant voluntary dismissal than is required under Federal Rule of Civil Procedure 41and parallel state rules. Plaintiffs havé other procedural avenues, such as the motion for a new trial, to remedy errors which may occur during jury deliberation. Further, allowing trial courts the discretion to grant voluntarily dismissal without prejudice while the jury is deliberating could allow plaintiffs to manipulate the forum and could waste judicial resources, and a trial court’s abuse of discretion in that regard would be problematic to remedy adequately. Based on the foregoing, we affirm the judgment of the Court of Appeals that plaintiffs voluntary dismissal in this case shall be with prejudice.

Factual and Procedural Background

This lawsuit arises from a chain reaction automobile accident that occurred in Sevier County, Tennessee, on or about June 15, 2000. The plaintiff, Donald R. Lacy, while driving his Ford truck northward on State Highway 66, was followed in succession by two similarly northbound cars. According to the plaintiff, the rearmost car, driven by Jennifer L. Brandon, struck the middle car driven by Wesley B. Cox, thereby pushing the Cox vehicle into the plaintiff’s truck from the rear.

[*482] The plaintiff brought a negligence action against both Brandon and Cox, seeking compensation for property damage and personal injury. After Cox settled, the plaintiffs claim against Brandon proceeded in a two-day trial. After all proof had been presented and the jury instructed, the jury retired to deliberate its verdict. During deliberation, the jury submitted to the trial court two written questions. First, the jury asked whether it could view certain photographs of the defendant’s car which had been shown to it during trial. This request was denied because the photographs had not been entered into evidence. Second, approximately two hours after deliberations had begun, the jury asked whether it was obligated to award the plaintiff monetary damages if it concluded that the defendant was at fault. After the trial court answered this question, the plaintiff, perhaps anticipating an unfavorable verdict, moved for voluntary dismissal (or nonsuit) without prejudice. Despite the defendant’s objection, the trial court granted the plaintiffs motion as if it were a matter of right. [1] The trial court then informed the jury that the plaintiffs action had been dismissed voluntarily and released the jury from service.

Soon thereafter, the defendant moved the trial court to deem the plaintiffs voluntary dismissal to be with prejudice. The defendant argued that Tennessee Rule of Civil Procedure 41.01(1) prohibits a plaintiff from taking a voluntary dismissal without prejudice once the jury has retired to deliberate; therefore, the trial court erred by granting plaintiffs nonsuit without prejudice. [2] In response, the plaintiff, conceding unabashedly that his motion had been untimely, asked the trial court for a new trial on the ground that the trial court had erred by granting the nonsuit.

During a hearing on the motions, the trial court acknowledged that it had erred by granting voluntary dismissal without prejudice after the jury had retired. Due to the difficulty the trial court had in conceiving of an adequate remedy for its error, [3] the court decided simply to leave intact the voluntary dismissal without prejudice in spite of its impropriety. Consequently, the trial court denied the defendant’s motion to deem the voluntary dismissal to be with prejudice and also denied the plaintiffs motion for a new trial.

The defendant appealed the judgment to the Court of Appeals, arguing that the only adequate remedy for the trial court’s error was to deem the plaintiffs voluntary dismissal to be with prejudice. In another near reversal of legal position, the plaintiff contended that although his unqualified[*483] right to take a nonsuit under Tennessee Rule of Civil Procedure 41.01(1) admittedly ended once the jury had retired, the trial court nevertheless had discretion at that procedural stage to grant a voluntary dismissal without prejudice. The plaintiff sought to validate the trial court’s judgment on the basis that the court did not abuse its discretion.

The Court of Appeals held that although nonsuit as a matter of right is no longer available once the jury has retired, a trial court nevertheless has discretion to grant a voluntary dismissal without prejudice even while the jury is deliberating. The Court of Appeals based this holding on Panzer v. King, 743 S.W.2d 612 (Tenn.1988). In Panzer, this Court held that a trial court has discretion to grant plaintiff a nonsuit after a motion for new trial has been properly granted. Id. at 615-16. However, the Court of Appeals relied upon language in Panzer that extended Panzer’s holding beyond the limited procedural context of the granting of a new trial. Specifically, the Court of Appeals appropriately emphasized Panzer’s statement that its holding applies “at all times subsequent to the retirement of the jury to consider its verdict at the first trial.” Id. at 616. Although the Court of Appeals criticized Panzer in this regard, [4] it pointed out that, as an intermediate appellate court, it “is not at liberty to limit a rule adopted by the Supreme Court.”

The Court of Appeals encountered difficulty in crafting an appropriate remedy for the instant case. Given that the trial court granted the nonsuit as if it were a matter of right, the Court of Appeals found it “impossible ... to determine whether the [tjrial [cjourt abused its discretion when that discretion was never used.” Further, concerning how to remedy the trial court’s particular error, the Court of Appeals found no guidance in Tennessee case law. Based on analogous decisions from other states [5] and Tennessee Rule of Appellate Procedure 36(a), [6] the Court of Appeals reversed the trial court, holding that the plaintiffs voluntary dismissal was to be with prejudice.

Standard of Review

Conclusions of law are subject to de novo review on appeal with no presumption of correctness. Southern Constructors, Inc. v. Loudon Bd. of Educ., 58 5.W.3d 706, 710 (Tenn.2001); Presley v. Bennett, 860 S.W.2d 857, 859-60 (Tenn.1993). Interpretation of the Tennessee Rules of Civil Procedure is a question of law. Dial v. Harrington, 138 S.W.3d 895, 897 (Tenn.Ct.App.2003), per. app. denied (Tenn. Mar. 22, 2004); see Green v. Moore, 101 S.W.3d 415, 418 (Tenn.2003).

Analysis

The issue before this Court is whether in a jury trial a trial court has[*484] discretion to grant a plaintiff voluntary dismissal without prejudice while the jury is deliberating. Voluntary dismissal is governed by Tennessee Rule of Civil Procedure 41.01, which states in relevant part:

[T]he 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 ...; 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 directed verdict.

Tenn. R. Civ. P. 41.01(1) (emphasis added). A plaintiffs right to voluntary dismissal without prejudice is subject to the exceptions expressly stated [7] 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. Anderson v. Smith, 521 S.W.2d 787, 790 (Tenn.1975). [8] A plaintiff is further limited to taking no more than two nonsuits without prejudice, Tenn. R. Civ. P. 41.01(2), and nonsuit cannot be taken more than one year after an initial dismissal. [9] As 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. Rickets v. Sexton, 533 S.W.2d 293, 294 (Tenn.1976); Stewart v. Univ. of Tenn., 519 S.W.2d 591, 592 (Tenn.1974); see Lawrence A. Pivnick, Tenn. Circuit Court Practice, § 23:1, at 834-35 (2003). In such instance, “The lawyer for the plaintiff is the sole judge of the matter and the trial court has no control over it.” Rickets, 533 S.W.2d at 294. A pro forma order must be entered by the trial court for ministerial and procedural purposes. Tenn. R. Civ. P. 41.01(3). [10]

Although Rule 41.01(1) plainly provides for voluntary dismissal as a matter of right, the Rule does not expressly prohibit a trial court from exercising its discretion thereafter to grant voluntary dismissal without prejudice; in this respect, Tennessee’s Rule 41.01 differs significantly from its federal counterpart. Federal Rule of Civil Procedure 41(a) outlines a two-prong approach to voluntary dismissal. First, subject to certain exceptions, a plaintiff may as a matter of right voluntarily dismiss without prejudice “at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs.... ” Fed.R.Civ.P. 41(a)(1). Notably, under Tennessee Rule 41.01(1), the availability of nonsuit as of right terminates at a considerably later[*485] procedural stage than under Federal Rule 41(a)(1). Second, Federal Rule 41(a)(2) provides that where Rule 41(a)(1) does not govern, a plaintiff may obtain voluntary dismissal without prejudice “upon order of the court and upon such terms and conditions as the court deems proper.” On the other hand, Tennessee Rule 41.01, containing no provision parallel to Federal Rule 41(a)(2), remains silent on the matter of a trial court’s discretionary power.

Some Tennessee decisions have inferred from the silence of Tennessee Rule 41.01(1) a trial court’s discretionary power to grant or to deny voluntary dismissal. In Stewart, this Court held:

The Federal Rule provides for voluntary dismissal by “order of court.” The Tennessee Rule contains no specific authorization for such voluntary dismissal, but it is implicit in the Rule and inherent in the power of the Court that, under a proper set of circumstances, the Court has the authority to permit a voluntary dismissal, notwithstanding the pendency of a motion for summary judgment.

519 S.W.2d at 593; see also, e.g., Anderson, 521 S.W.2d at 790 (following Stewart); Oliver v. Hydro-Vac Servs., Inc., 873 S.W.2d 694, 695-96 (Tenn.Ct.App. 1993) (following Stewart). Similarly, in Panzer v. King, 743 S.W.2d 612, 615-16 (Tenn.1988), this Court held that after a new trial has been granted, a trial court has discretion to grant voluntary dismissal without prejudice, although a defendant retains the right to appeal the trial court’s decision to grant a new trial.

In Panzer, the plaintiff sued for the wrongful death of his daughter in a car accident. Id. at 613. Contending that the verdict of $15,200 was inadequate, the plaintiff filed a motion seeking alternatively additur or a new trial. The trial court granted a new trial based on the inadequate verdict and on juror misconduct. [11] Id. After the trial court granted a new trial, the plaintiff then moved for and was granted voluntary dismissal without prejudice. Id. at 613-14. The defendant unsuccessfully appealed the order of the non-suit. This Court, reversing the Court of Appeals, held that the defendant had a “vested right of appellate review” of the trial court’s granting of a new trial which may not be extinguished by the plaintiffs voluntary dismissal. Id. at 614. However, this Court further held that where an appellate court determines that a new trial has been granted correctly, the trial court would then have discretion to grant a plaintiffs voluntary dismissal without prejudice. Id at 615-16. Panzer’s holding thus arose within a very specific procedural context: voluntary dismissal following the grant of a new trial.

Unfortunately, the holding of Panzer was articulated broadly in a manner that extended unnecessarily beyond its limited procedural context. The Panzer Court adopted the majority position among the states which provides that the right to voluntary dismissal as of right terminates “at some point in the first trial, and thereafter, the granting of such dismissal is within the sound discretion of the trial judge.” Id. at 615 (emphasis added). The Panzer Court concluded: “In conformity with the majority of jurisdictions, we adopt the rule as stated herein, applicable at all times subsequent to the retirement of the jury to consider its verdict at the first trial.” Id. at 616 (emphasis added).

The majority rule which Panzer expressly adopted is substantially the same[*486] as the Federal Rule of Civil Procedure 41 [12] and the rules of many states that mirror the federal scheme. [13] See id. at 616. In short, Panzer imported the second prong of the federal scheme into the silence of Tennessee Rule of Civil Procedure 41.01. Although the broad language of Panzer affords trial courts the discretion to grant voluntary dismissal while the jury is deliberating, the Panzer opinion contains no indication that the Court therein contemplated the significant differences between the federal rule and Tennessee Rule of Civil Procedure 41.01.

With respect to the issue now before us, the manner in which Tennessee Rule of Civil Procedure 41.01(1) differs from Federal Rule 41 is of crucial importance. As with several other states, Tennessee’s Rule 41.01 not only departs from the federal two-prong scheme, see supra, but also terminates voluntary dismissal as of right at a procedural stage that is significantly later than what Federal Rule 41 provides. Whereas Federal Rule 41(a) terminates voluntary dismissal as of right upon service of an answer or a motion for summary judgment, whichever first occurs, Tennessee Rule 41.01(1) allows for voluntary dismissal in a jury trial “at any time before the jury retires to consider its verdict....” [14] Under the federal scheme, voluntary dismissal as of right ends — and voluntary dismissal by order of the court begins — at the pretrial stage; it is thus reasonable that a federal district court might exercise its discretion to grant voluntary dismissal without prejudice shortly after the right to nonsuit has expired, for example early on the first day of trial. However, the combination of the late termination point for voluntary dismissal as of right in Tennessee Rule 41.01 (retirement of the jury) with Panzer’s importation of the second federal prong into Rule 41.01 produces a rather anomalous situation: the earliest trial stage at which a Tennessee trial court may exercise its discretion to grant voluntary dismissal without prejudice is during the jury’s deliberation of its verdict. In the context of a trial, jury deliberation is a late and unique procedural moment. [15]

[*487] Although Tennessee Rule 41.01(1) supersedes predecessor and conflicting statutes, see Tenn.Code Ann. §§ 16-3^02, - 406 (1994), comparison of the particular language of Rule 41.01(1) with its statutory background is nonetheless instructive, cf. State v. Brewer, 989 S.W.2d 349, 355 n. 4 (Tenn.Crim.App.1997) (comparing Tennessee Rule of Criminal Procedure 41(c) to its predecessor statutes). The language in Rule 41.01(1) that voluntary dismissal may be taken in jury trials “at any time before the jury retires to consider its verdict”— and its silence concerning what may happen thereafter — remains in step with a long tradition of predecessor Tennessee statutes that terminated a plaintiff’s right to nonsuit at the jury’s retirement. [16] Authorities interpreting these predecessor statutes indicate that once the jury had retired, voluntary dismissal was absolutely prohibited. [17] For example, in Liggins v. Padawer, 14 Ten.App. 201 (1931) (applying Shannon’s Code section 4689), the[*488] plaintiff, unnerved by a jury question that forebode an unfavorable verdict, moved for and was denied nonsuit while the jury was deliberating. On appeal from a verdict for the defendant, the Court of Appeals held that plaintiffs motion “came too late.” Id. at 204. This case illustrates how courts interpreted the silence of the statutes antecedent to Rule 41.01(1) as prohibiting voluntary dismissal during jury deliberation.

With the adoption of the Tennessee Rules of Civil Procedure, however, the statutory language governing voluntary dismissal was incorporated into a new, rule-based context influenced strongly by the Federal Rules of Civil Procedure. This change naturally and appropriately occasioned some development of Tennessee case law along the lines of federal precedents, such as occurred in Panzer. The Court in Panzer failed, however, to pay adequate attention to the particular language of Tennessee Rule 41.01(1) and to the consequences of adopting a rule framed more broadly than necessitated by the procedural posture of the ease before it.

We therefore hold that a trial court has no authority to grant a voluntarily dismissal without prejudice from the time the jury has retired up to the jury’s rendering of a verdict; in other words, a trial court has no authority to grant a voluntary dismissal without prejudice while the jury is deliberating. This bright-line rule should be practicable and clear. We do not disturb Panzer, however, insofar as it holds that a trial court has discretion to grant voluntary dismissal without prejudice subsequent to the proper granting of a new trial. The proper grant of a new trial is sufficiently analogous to the commencement of a new action to justify nonsuit under the proper circumstances and subject to such terms and conditions as the court in its sound discretion deems “appropriate to prevent [the] defendant from being unfairly affected.” Panzer, 743 S.W.2d at 612. Further, we need not decide herein whether voluntary dismissal at the court’s discretion may be appropriate in other post-trial procedural contexts.

Our holding is supported by important policy and other considerations. First, prohibiting voluntary dismissal while the jury is deliberating is necessary to preserve a fair balance between the interests of plaintiffs and defendants in Tennessee. Some of our sister states resemble Tennessee inasmuch as they allow voluntary dismissal as of right until the jury retires, yet they nevertheless provide for voluntary dismissal by order of the court thereafter. For example, Arkansas Rule of Civil Procedure 41(a)(1) states that “an action may be dismissed without prejudice to a future action by the plaintiff before final submission of the case to the jury ...,” and Arkansas case law has held that “when it is requested by the plaintiff after final submission of the case, whether to grant a motion for voluntary nonsuit lies within the discretion of the trial court,” White v. Perry, 348 Ark. 675, 74 S.W.3d 628, 632 (2002) (citing Wright v. Eddinger, 320 Ark. 151, 894 S.W.2d 937 (1995)). However, Arkansas limits a plaintiff to a single voluntary dismissal without prejudice as of right whereas Tennessee allows up to two such dismissals. [18] Other states[*489] that allow for discretionary nonsuit after retirement of the jury also tend to restrict the number of voluntary dismissals without prejudice as of right to one. [19] Tennessee thus already supplies plaintiffs liberally with the right to two voluntary dismissals without prejudice.

Second, procedural avenues other than voluntary dismissal are available to plaintiffs in order to remedy trial defects. For example, a plaintiff who perceives a problem — such as jury misconduct — during the jury’s deliberation may after judgment has been entered move for a new trial or for amendment of the verdict. Tenn. R. Civ. P. 59; see Pivnick, Tenn. Circuit Court Practice, §§ 28:1-4. Alternatively, a plaintiff whose motion for directed verdict at the close of all evidence was not granted may after judgment has been entered move for directed verdict. Tenn. R. Civ. P. 50.02; see Pivnick, Tenn. Circuit Court Practice, § 28:6.

Third, a rule affording trial courts the discretion to grant voluntary dismissals during jury deliberation would be problematic. Conceiving of scenarios in which a plaintiff would have a valid reason for seeking nonsuit while the jury is deliberating is itself a formidable task. Even assuming a valid reason were present, it would be difficult to provide an adequate remedy should a trial court abuse its discretion in granting or denying such dismissal. Given that jury deliberation is a unique procedural event in which the parties typically have no active involvement, plaintiffs motion most likely would result from reading the jury’s countenance, demeanor, and questions for signs of an imminent unfavorable verdict. [20] Allowing nonsuit on such grounds might enable plaintiffs to use voluntary dismissals to[*490] shop for a favorable jury, an eventuality which not only would provide plaintiffs with an unfair advantage over defendants, but also could waste judicial resources on multiple trials that are complete except for the verdict. As stated above, a plaintiff already has procedural remedies, like the motion for new trial, for redressing trial errors, including errors occurring during jury deliberation. For the foregoing reasons, this Court determines that the bright-line rule which we adopt herein is appropriate.

In this case, after the jury posed questions which indicated to the plaintiff that a potentially unfavorable verdict was to come, the plaintiff moved for voluntary dismissal as of right when the plaintiff no longer had such right under Tennessee Rule of Civil Procedure 41.01. Further, the trial court was not asked nor did it purport to exercise judicial discretion pursuant to Panzer in granting the nonsuit. Having thus occasioned the trial court’s erroneous grant of a voluntary dismissal as of right, the plaintiff later moved for and was denied a new trial. Under such circumstances, allowing the plaintiff to take voluntary dismissal without prejudice would contradict the reasons supporting our holding that a trial court has no authority to grant a voluntary dismissal without prejudice while the jury is deliberating. Therefore, we hold that the plaintiffs voluntary dismissal in this case shall be with prejudice.

Conclusion

Based on our holding herein that the granting of voluntary dismissal without prejudice is prohibited while the jury is deliberating, the judgment of the Court of Appeals in this respect is reversed. However, we affirm the Court of Appeals’ judgment that in the instant case the plaintiffs voluntary dismissal shall be deemed to be with prejudice. Costs of this appeal are taxed to the plaintiff, Donald R. Lacy.

1

.At a post-trial motions hearing, the trial court indicated that it had granted the plaintiffs motion believing (erroneously) that the plaintiff had an absolute right to voluntary dismissal without prejudice even though the jury had retired. The trial court stated, "I did it because at the time I knew of no reason why [the plaintiff could not take a nonsuit,] because if we all go through the cases we have tried, we've seen it over and over and over at almost any time a nonsuit is taken ... there[ is] nothing the other side can do about it." Thus, in granting the nonsuit, the trial court did not profess to have exercised judicial discretion.

2

. Counsel for the defendant described the situation as follows: "My client had gone through ... two days of trial ... [and the plaintiff] tried [his] case and when that case goes to the jury, it's over.... And then the jury comes back with an unfavorable question and [the plaintiff] wants a' Mulligan." Defendant’s counsel contended that “[the defendant] acquired a vested right in having that case decided by that jury " (emphasis added).

3

. The trial court stated, "[Hjere, [nonsuit] was taken and granted under circumstances where the rule is silent and the case law is silent ... as to what is the effect ... [and w]hat is the remedy.”

4

. The Court of Appeals, stating that "there are inherent difficulties in allowing a trial court discretion to grant a voluntary dismissal without prejudice after the jury retires to consider its verdict," recommended that this Court reconsider the holding of Panzer.

5

. Dade County v. Peachey, 181 So.2d 353 (Fla.Dist.Ct.App.1965) (holding that plaintiffs voluntary dismissal was deemed to be with prejudice because overhearing unfavorable jury deliberations was not a cognizable ground for nonsuit); Pardue v. Darnell, 148 N.C.App. 152, 557 S.E,2d 172 (2001) (holding that, where plaintiff, after voluntary dismissal as of right had ceased to be available, voluntarily dismissed without seeking leave of the trial court, such dismissal was deemed to be with prejudice).

6

. "Nothing in this rule shall be construed as requiring relief be granted to a party responsible for an error or who failed to take whatever action was reasonably available to prevent or nullify the harmful effect of an error." Tenn. R.App. P. 36(a).

7

. Rule 41.01(1) limits that the right to non-suit, providing that it shall be taken “[s]ubject to the provisions of Rule 23.05 [requiring court approval for voluntary dismissal of class actions], Rule 23.06 [requiring court approval for voluntary dismissal of shareholder derivative actions] or Rule 66 [requiring court approval for voluntary dismissal of actions wherein a receiver has been appointed] or any statute, and except when a motion for summary judgment made by an adverse party is pending....”

8

. “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.” Anderson, 521 S.W.2d at 790.

9

. A one-year saving statute circumscribes the period in which a plaintiff is entitled to take a second voluntary dismissal without prejudice. See Tenn.Code Ann. § 28-1-105 (2000); Tenn. R. Civ. P. 41.01(2)-(3); Frazier v. E. Tenn. Baptist Hosp., Inc., 55 S.W.3d 925, 927-28 (Tenn.2001).

10

. "The date of the entry of the order will govern the running of pertinent time periods,” Tenn. R. Civ. P. 41.01(3), such as the one-year saving statute of Tennessee Rule of Civil Procedure 41.01(2).

11

. Some of the jurors conducted unauthorized, independent factual investigation, and the jury also improperly discussed the defendant’s liability insurance coverage. Panzer, 743 S.W.2d at 613.

12

. Federal Rule of Civil Procedure 41(a) provides a two-prong approach wherein nonsuit by order of the court becomes available immediately after the absolute right to nonsuit terminates. See supra.

13

. See, e.g., Ind. R. Proc., Trial R. 41(A); Kan. Stat. Ann. § 60-241(a); Ky. R. Civ. P. 41.01; Mass. R. Civ. P. 41; Mich. Comp. R. 2.504(A); Miss. R. Civ. P. 41(a); Nev. R. Civ. P. 41(a); Rose v. Rose, 526 N.E.2d 231, 234 (Ind.Ct. • App.1988); Gideon v. Bo-Mar Homes, Inc., 205 Kan. 321, 469 P.2d 272, 276-77 (1970); Smith v. H.C. Bailey Cos., 477 So.2d 224, 230 (Miss. 1985); Monroe, Ltd. v. Cent. Tel. Co., Southern Nev. Div., 91 Nev. 450, 538 P.2d 152, 154 (1975).

14

. In non-jury trials, the absolute right to voluntary dismissal without prejudice continues only "until the matter has been finally submitted to the court for determination on the merits.” Weedman v. Searcy, 781 S.W.2d 855, 857 (Tenn.1989). The Court in Weedman also stated that "[t]he right [to voluntary dismissal] does not continue in a juiy case after the jury retires.” Id. Even though Weedman was decided after Panzer, the Court in Weed-man did not address the issue now before the Court.

15

.By the time a case is submitted to the jury for a verdict, much has occurred: a complaint and an answer have been filed, pretrial discovery and motions have been completed, evidence has been presented, and the parties have argued their case. Cf. Charles Alan Wright & Arthur R. Miller, 9 Fed. Practice and Proc. Civ.2d § 2364 (Under the federal guidelines for the exercise of discretion in granting voluntary dismissal, "[i]f the motion is made at an early stage of the case, before much has happened and only limited resources have been invested, it is more likely to be granted. Dismissal may still be allowed at later stages, although an especially strong showing is required....").

16

. The old common law rule that a plaintiff could take a nonsuit as of right at any time until a verdict was recorded, see Graves v. Union Ry. Co., 177 Tenn. 699, 152 S.W.2d 1026, 1028 (1941), was statutorily superseded by the Act of November 2, 1801, which terminated the right to nonsuit once the jury had retired. Laws of Tenn., ch. 6, § 58 (1801) ("[E]very person desirous of suffering a non-suit on trial at law, shall be barred therefrom, unless he do so before the jury retire from the bar.”). A subsequent, unbroken line of statutes stretching up to the adoption of the Tennessee Rules of Civil Procedure in 1970 retained this termination point, although versions subsequent to the Act of 1801 did not expressly prohibit nonsuit after the jury had retired. See Order of Tennessee Supreme Court, 223 Tenn. 655, 751-52 (1970) (adopting Tennessee Rule of Civil Procedure 41.01); Tenn.Code Ann. § 20-1311 (1956) ("The plaintiff may, at any time before the jury retires, take a nonsuit or dismiss his action as to any one or more defendants.... ”); Tenn. Code of 1932 § 8816 ("The plaintiff may, at any time before the jury retires, take a non-suit or dismiss his action as to any one or more defendants_”); Ann.Code of Tenn. § 4689 (Shannon 1896) [hereinafter "Shannon’s Code”] ("The plaintiff may, at any time before the jury retires, take a nonsuit or dismiss his action as to any one or more defen-dants_”); Tenn.Code of 1884 § 3678 (Mil-liken & Vertrees) ("The plaintiff may, at any time before the jury retires, take a non-suit, or dismiss his action, as to any one or more defendants....”); Tenn.Code of 1871 § 2964 (Thompson & Steger) ("The plaintiff may, at any time before the jury retires, take a non-suit, or dismiss his action, as to any one or more defendants....”); Tenn.Code of 1858 § 2964 ("The plaintiff may, at any time before the jury retires, take a non-suit, or dismiss his action, as to any one or more defendants. ... ”).

17

. For example, in Cunningham v. Memphis R.R. Terminal Co., 126 Tenn. 343, 149 S.W. 103, 106 (1912), this Court construed Shannon’s Code section 4689 identically to section 4691 which provided that in non-jury trials, nonsuit “shall be made before the cause is finally submitted to the court, and not afterward ” (emphasis added). The Court stated, "Construing the two sections together, it is clear that a nonsuit cannot he taken after the jury has retired to consider its verdict in a jury case_” Id. (emphasis added). See also, e.g., Darby v. Pidgeon Thomas Iron Co., 144 Tenn. 298, 232 S.W. 75 (1921) ("In a jury case the plaintiff may take a nonsuit ‘at any time before the jury retires' — that is, before the jury has begun to 'consider of their ver dict' — but not thereafter.”) (emphasis added) (citations omitted); B.E. Dodd & Son v. Nashville, Chattanooga & St. Louis Ry. Co., 120 Tenn. 440, 110 S.W. 588, 590 (1908) (holding that, in courts of law, “[i]f the nonsuit be not taken before [the case is submitted to the jury], the case must proceed to judgment upon the merits.”) (emphasis added); Nashville, Chattanooga & St. Louis Ry. Co. v. Sansom, 113 Tenn. 683, 84 S.W. 615, 616-17 (1904) (holding that "there shall be no nonsuit allowed after a case has been fully committed to the consideration of the jury” and refusing to decide whether a court might ever be allowed discretion to grant a nonsuit once a plaintiff's absolute right has ended) (emphasis added); Annotation No. 4., Shannon’s Code § 4689 ("[Ujnder the statute, [nonsuit] must be taken before the jury retires-”) (emphasis added).

18

. Compare Ark. R. Civ. P. 41(a)(2) ("A voluntary dismissal under paragraph (1) operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state ....”) (emphasis added) with Tenn. R. Civ. P. 41.01(2) (''[A] notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has twice dismissed in any court ....”) (emphasis added).

19

. See, e.g., Mo. Ann. Stat. § 510.130(1) (West 2002) (allowing plaintiffs a single opportunity to dismiss voluntarily without prejudice as of right "at any time before the same is finally submitted to the jury ... and not afterward” and'providing a second opportunity to non-suit "after the jury has been impaneled” only by order of the court); Va.Code Ann. § 8.01-380(A)-(B) (Michie 2004) (allowing voluntary dismissal as of right "before a motion to strike the evidence has been sustained or before the jury retires from the bar” and providing that "[ojnly one nonsuit may be taken ... as a matter of right” with additional nonsuits available only by order of the court).

20

. Cf. Fenton v. Thompson, 352 Mo. 199, 176 S.W.2d 456 (1943). In Fenton, a tort action, the case was tried and submitted to the jury, but before the jury returned a verdict, the plaintiff moved for and was granted voluntary dismissal. Id. at 458, 461. Because the trial court failed to designate whether the dismissal was with or without prejudice, by default it was considered to be without prejudice. Id. at 460. On appeal, the defendant claimed that because plaintiff's motion came after the statutory termination point for voluntary dismissal, the dismissal should be deemed to be with prejudice. Id. at 460-61. The Missouri

Supreme Court held that the trial court’s order was clearly erroneous because it contravened a Missouri statute terminating the right to voluntary dismissal once the jury had retired. Id. at 463. Concerning the specific remedy, the Court asked:

[I]f we assume a plaintiff has had his day in court with everything the law gave him, with no error in the record and no legal grounds for a new trial or for setting the submission aside, may he, after a voluntary submission of the cause to the jury, have another trial of the cause in a court of law before another jury merely because, for some reasons, he has reached the conclusion (after submission) that the verdict will be unfavorable on the merits or on the amount of damages?

Id. The Court reasoned that by withdrawing her case from the jury, the plaintiff "waived her right to a verdict by the jury. She, in effect, recognized that the verdict would be adverse to her and was unwanted by her, and by her conduct she authorized a dismissal 'with prejudice' in lieu thereof.” Id. at 464. The Court thus concluded that plaintiff's dismissal was to be with prejudice, and that so holding did not violate the plaintiff's constitutional right to trial by jury. Id.