text:
    CHEROKEE COUNTRY CLUB, INC. v. CITY OF KNOXVILLE, et al.
    Supreme Court of Tennessee, at Knoxville.
    Sept. 9, 2004 Session.
    Nov. 22, 2004.

      Charles A. Wagner, III, and W. Turner Boone, Knoxville, Tennessee, for the Appellant, Cherokee Country Club, Inc.
    Ronald E. Mills, Knoxville, Tennessee, for the Appellee, City of Knoxville.
    Charles W. Swanson, Knoxville, Tennessee, for the Appellees, Members of the City Council.
   OPINION

E. RILEY ANDERSON, J.,

delivered the opinion of the court,

in which FRANK F. DROWOTA, III, C.J., and JANICE M. HOLDER, WILLIAM M. BARKER, JJ., and J.S. DANIEL, Sp.J., joined.

We granted this appeal to determine the validity of a permanent city ordinance that prohibited the .issuance of all demolition permits for property under consideration for designation as a historical overlay district. After finding that the ordinance was an invalid zoning ordinance because the City of Knoxville failed to comply with statutory planning, notice, and hearing requirements, see TenmCode Ann. §§ 13-7-201-211 (1999 & Supp.2004), the trial court issued a peremptory writ of mandamus requiring the issuance of a demolition permit to the appellant, Cherokee Country Club, Inc. The Court of Appeals reversed the trial court’s judgment, holding that the ordinance was a building regulation not subject to the statutory zoning requirements. After reviewing the record and authority, we hold that the ordinance was a zoning regulation that was not enacted in accordance with statutory zoning requirements or the Tennessee Historic Zoning Act. We also conclude that there was no error in failing to join necessary parties, that there was no error in granting the motion for judgment on the pleadings, and that there was no error in issuing a writ of mandamus. Accordingly, we reverse the Court of Appeals' judgment and reinstate the trial court’s judgment.

BACKGROUND

In July of 1999, the appellant, Cherokee Country Club, Inc. (“Cherokee”), purchased from the Coughlin family improved real property at 5305 Lyons View Pike in Knoxville, Tennessee, which included an unoccupied house known as the “Smith/Coughlin House” or the “Smith House.” Cherokee Country Club bought the property intending to demolish the Smith House, as it was surrounded on three sides by Cherokee’s recreational facilities, and further intended to utilize the property within its current residential zoning.

In 1999, at the time of Cherokee’s purchase, the property was not in, nor had it been proposed for inclusion in, a historic district. On April 4, 2000, however, the Knoxville City Council (“City”) enacted emergency demolition ordinance No. 0-119-00, which stated:

No demolition permit shall be issued, for a period of 180 days, for any property under review and consideration for an H-l overlay or NC-1 overlay designation after the application process has been initiated in accordance with the procedures set forth in Article IV, § 14 and § 22, respectively, of the Knoxville Zoning Code. The 180 day period can be extended by Knoxville City Council, as necessary.

Rather than enact the demolition ordinance as an amendment to its zoning code, the City elected to pass the demolition ordinance as an emergency ordinance. The effect of the City’s action was to avoid the notice, hearing, and review requirements of the traditional zoning statute, see Tenn.Code Ann. § 13-7-201 (Supp.2004), and the notice, hearing, and review requirements of the Historical Zoning Statute, see Tenn.Code Ann. § 13-7-401 (1999). As a result, Cherokee was unaware that the ordinance was enacted.

On January 17, 2002, Knoxville Mayor Victor Ashe filed an application with the Knoxville/Knox County Metropolitan Planning Commission to re-zone the “Smith House” purchased by Cherokee two and one-half years earlier as an H-l historic district. On February 20, 2002, Cherokee, which was unaware of both the emergency demolition ordinance and the pending rezoning application filed by the Mayor, applied for a demolition permit to demolish the Smith House. The City of Knoxville Building Official (“Building Official”) denied Cherokee’s application for a demolition permit based on the application for historic re-zoning that had been filed by Mayor Ashe and the language of the emergency demolition ordinance.

On March 8, 2002, after the governmental action denying demolition, Cherokee filed a complaint in the Circuit Court for Knox County, Tennessee, seeking a declaratory judgment and a Writ of Mandamus. The complaint alleged that the emergency demolition ordinance was enacted in violation of statutory procedures that require Planning Commission approval, notice, and a public hearing prior to the enactment of a zoning ordinance. Tenn.Code Ann. §§ 13-7-201-211. The complaint also alleged that the ordinance was enacted in violation of a separate set of statutory procedures that require Historic Zoning Commission approval, notice, and a public hearing before the creation and regulation of a historic district or zone. Tenn.Code Ann. §§ 13-7-401-410 (1999 & Supp.2004). The complaint requested a writ of mandamus directing the Building Official to issue a demolition permit.

The City filed an answer asserting that the emergency demolition ordinance was properly enacted as a building regulation and, therefore, the statutory zoning procedures were not applicable. The answer also alleged that Cherokee failed to join indispensable parties and that a writ of mandamus was not appropriate since Cherokee had not exhausted administrative review of the Building Official’s action.

On April 12, 2002, the trial court granted Cherokee’s motion for judgment on the pleadings after concluding that the emergency demolition ordinance was invalid because it had not been enacted in compliance with 1) statutory provisions that require Planning Commission approval, notice, and a public hearing for the enactment of a zoning ordinance, see Tenn. Code Ann. §§ 13-7-201-211, and 2) statutory provisions that require planning approval, notice, and a public hearing for the creation and regulation of an historic district, see TenmCode Ann. §§ 13-7-401-410. The trial court ordered that a writ of mandamus be issued requiring that the Building Official issue a demolition permit to Cherokee.

On appeal, the Court of Appeals concluded that the emergency demolition ordinance was not invalid because it was a building regulation not subject to the statutory zoning requirements. TenmCode Ann. §§ 13-7-201-211. The court reasoned that the ordinance affected how Cherokee could undertake the use' of its property but that the ordinance did not affect what uses were permissible. The court also held that the Tennessee Historic Zoning Statute was not applicable because the emergency demolition ordinance did not apply to an existing historic district. See TenmCode Ann. §§ 13-7-401-410. (1999 & Supp.2004).

We granted Cherokee’s application for permission to appeal.

ANALYSIS

Standard of Review

A motion for judgment on the pleadings may be filed “[a]fter the pleadings are closed but within such time as not to delay the trial.” Tenn. R. Civ. P. 12.03. In reviewing a trial court’s ruling on a motion for judgment on the pleadings, we must accept as true “all well-pleaded facts and all reasonable inferences drawn therefrom” alleged by the party opposing the motion. McClenahan v. Cooley, 806 S.W.2d 767, 769 (Tenn.1991). In addition, “Conclusions of law are not admitted nor should judgment on the pleadings be granted unless the moving party is clearly entitled to judgment.” Id.

Zoning Regulations

Cherokee argues that the emergency demolition ordinance was passed by the City of Knoxville in violation of state statutes requiring that zoning regulations be enacted after written notice, a public hearing, and approval by the local planning commission. See Tenn.Code Ann. §§ 13-7-201-211 (1999 & Supp.2004). The City of Knoxville responds that the statutory zoning requirements were inapplicable because the emergency demolition ordinance was a building regulation enacted pursuant to the City’s general police powers that did not require notice, hearings, or approval prior to its enactment.

Although not addressed by the Court of Appeals, the City also argues that the ordinance was proper under the so-called “pending ordinance” doctrine discussed in State ex rel. SCA Chemical Waste Ser vices, Inc. v. Konigsberg, 636 S.W.2d 430 (Tenn.1982). In Konigsberg, this Court upheld a county resolution prohibiting the issuance of construction permits. Id. at 433. The Court explained that the resolution was an “interim ordinance” that preserved the status quo pending the effective date of a comprehensive zoning ordinance that had already been properly enacted by the county. Id. at 436. Unlike Konigs-berg, however, emergency demolition ordinance No. 0-119-00 does not seek to impose a temporary moratorium, nor does it seek to preserve the status quo pending the implementation or consideration of a comprehensive zoning plan. As a result, Konigsberg is not applicable.

Tennessee Statutory Provisions

We must determine whether the emergency demolition ordinance was a zoning ordinance or a building regulation. Accordingly, we will first examine Tennessee's statutory provisions regarding zoning.

Local governments, including cities, have no power to control the use of land unless the State of Tennessee delegates this power to them. Accordingly, a municipality has the power to enact or to amend zoning regulations “[f]or the purpose of promoting the public health, safety, morals, convenience, order, prosperity and general welfare.” Tenn.Code Ann. § 13-7 — 201(a)(1). This power is delegated to local governments by the Tennessee legislature and includes the power to

regulate the location, height, bulk, number of stories and size of buildings and other structures, the percentage of the lot which may be occupied, the sizes of yards, courts and other open spaces, the density of population, and the uses of buildings, structures and land for trade, industry, residence, recreation, public activities and other purposes.

Id.

In the exercise of its zoning authority, the state requires that a municipality’s planning commission must “make[] and certif[y]” a zoning plan to the chief local legislative body. Tenn.Code Ann. § 13-7-202. The zoning plan must include “the full text of a zoning ordinance and the maps, representing the recommendations of the planning commission.... ” Id. Before enacting the zoning ordinance or any zoning amendment, the chief legislative body “shall hold a public hearing thereon, at least fifteen (15) days’ notice of the time and place of which shall be published in the official municipal journal or in a newspaper of general circulation in the municipality.” TenmCode Ann. § 13-7-203(a); see also Tenn.Code Ann. § 13-7-204.

These statutes cover a broad range of land use regulations and restrictions. Tenn-Code Ann. § 13-7-201(a)(l). In addition, there is no doubt that the statutes reflect the legislative intent that all zoning plans and zoning amendments must be scrutinized by municipal planning commissions and the public prior to their enactment. See TenmCode Ann. §§ 13-7-202, - 203. However, because these statutes do not address the issue of distinguishing zoning ordinances from building regulations, we turn to other authorities for guidance.

Zoning Laws and Building Ordinances

Notwithstanding the mandatory provisions on zoning, a municipality has the authority to enact regulations concerning the health, safety, and welfare of the community pursuant to its police powers without providing notice or hearings. See 1 Edward H. Ziegler, Jr., et al., Rathkopf's The Law of Zoning & Planning § 1.02 (4th ed. 2003) (“Ziegler”). A municipality may not, however, “evade the protections thrown about the citizen’s use of his property by the legislative limitations imposed on the zoning power by the device of labeling a zoning act a mere exercise of police power.” Ellison v. Fort Lauderdale, 183 So.2d 193,195 (Fla.1966).

The precise contours of determining when an ordinance is a zoning ordinance, and thus subject to statutory zoning requirements, however, are difficult to draw or define. 1 Ziegler § 1.02. A review of decisions in other jurisdictions reflects this difficulty. See Fairfax MK, Inc. v. City of Clarkston, 274 Ga. 520, 555 S.E.2d 722, 723 (2001) (stating that a licensing ordinance that “somewhat concerns location does not make it a zoning ordinance”); Square Lake Hills Condo. Ass’n v. Bloomfield Township, 437 Mich. 310, 471 N.W.2d 321, 322 (1991) (distinguishing a regulated “use” from a regulated “activity”); Vulcan Materials Co. v. Iredell County, 103 N.C.App. 779, 407 S.E.2d 283, 286 (1991) (zoning ordinance “substantially interferes” with land use).

One leading authority states that determining whether a zoning ordinance exists requires “a consideration of the substance of its provisions and terms, and its relation to the general plan of zoning in the city.” 8 McQuillin, The Law of Municipal Corporations § 25.53 (3rd ed. 2004) (“McQuillin”). See Square Lake Hills Condo. Ass’n, 471 N.W.2d at 326 (quoting McQuil-lin). Similarly, another prominent treatise has explained that

[wjhere the particular restriction constitutes, or would constitute, a substantial interference with land use, the municipality ordinarily must treat it as a zoning regulation and must follow statutory or character zoning procedures, even though other authority for the particular type of ordinance has been granted.

1 Ziegler § 1.02(3).

Whether a “substantial interference” with the use of land exists is largely a case by ease determination. Id. In 3299 N. Fed. Highway, Inc. v. Bd. of County Comm’rs of Broward County, 646 So.2d 215, 224 (Fla.Dist.Ct.App.1994), for instance, a Florida appellate court discussed several ordinances that substantially affected land use and, therefore, required planning, notice and public hearings as zoning regulations. These included ordinances establishing a minimum distance between businesses selling alcohol and residential areas, prohibiting the construction of homes near an airport, imposing mora-toria on the issuance of building permits, and changing setback and height restrictions on the construction of new buildings. Id. (citations omitted). The court contrasted these ordinances with those that do not substantially affect the use of land, such as changes to fire regulations or construction codes governing the width of doors and aisles, the removal or construction of walls, and building materials. Id. (citations omitted).

Similarly, in City of Sanibel v. Buntrock, 409 So.2d 1073 (Fla.Dist.Ct.App.1981), the court held that the City’s ordinance imposing a one-year moratorium on the issuance of building permits for commercial development was invalid because it did not comply with zoning statutes which required public notice and public hearing. Although the City argued that the ordinance was a building regulation not requiring notice rather than a zoning restriction, the court held that the ordinance “substantially affect[ed] land use” and must be enacted in accordance with applicable zoning statutes. Id. at 1075.

Finally, in Vulcan Materials Co., a North Carolina case with strong similarities to the case before us, the court invalidated an ordinance that placed a sixty-day moratorium on the issuance of building permits pending consideration of a zoning plan. 407 S.E.2d at 286. After observing that the ordinance “ ‘had the effect of making the unzoned areas of the County subject to zoning restrictions prior to the adoption of a zoning ordinance applicable [in] those areas,’ ” the court concluded:

If an ordinance substantially affects land use, it must be enacted under the procedures which govern zoning and rezoning. To entirely prohibit a person from building upon his propeHy even temporarily is a substantial restriction upon land use. Consequently, it is not too much to ask that a municipality follow the same procedures with respect to notice and hearing before it puts such a moratorium into effect.

Id. (emphasis added); see also Sandy Mush Properties, Inc. v. Rutherford County, 595 S.E.2d 233, 236 (N.C.Ct.App.2004) (following Vulcan Materials Co.).

The “substantial effect” analysis reflected in the above authority was not applied by the Court of Appeals in this case. The intermediate appellate court instead relied upon Bittinger v. Corporation of Bolivar, 183 W.Va. 310, 395 S.E.2d 554 (1990), in which the court said that the distinguishing feature was “that a building permit involves how that use is undertaken, while a zoning permit concerns whether a certain area may be used for a particular purpose.” Id. at 558. The court also cited Fairfax MK, Inc., in which the Supreme Court of Georgia emphasized that “zoning is to be distinguished from other regulations with which a developer must comply, such as requirements for a building permit.” 555 S.E.2d at 723. We note, however, that these decisions did not consider whether an emergency demolition ordinance “substantially affected” the use of land.

In resolving this issue of first impression, we believe that the determination of whether a regulation or an ordinance “substantially affects” the property owners’ use of land is a well-reasoned and persuasive approach. This analysis avoids the difficulty of definitions found in some decisions by focusing on both the terms and the effect of an ordinance, as well as its “relation to the general plan of zoning.” McQuillin § 25.53. The analysis is also more comprehensive and more precise than simply attempting to distinguish whether the terms of an ordinance regulate the use of land or how the land is used. Finally, the analysis eliminates the risk that a municipality may avoid statutory zoning requirements by attempting to label what is in reality a zoning ordinance as a building regulation.

In adopting and applying this analysis to the present case, we conclude that emergency demolition ordinance No. 0-119-00 substantially affected Cherokee’s use of its property. This unusual emergency ordinance was permanently enacted to prohibit the issuance of demolition permits for a 180-day period for any property under consideration for re-designation as a historical district. The 180-day period was renewable by the City Council “as necessary” and, thus, could no doubt be extended indefinitely by the Council. Although hot every regulation relating to demolition is a matter of zoning, the broad and permanent restrictions in this ordinance substantially affected Cherokee’s use of its property and the manner in which Cherokee could effectuate any uses that remained permissible.

In addition, the emergency demolition ordinance was not related to or necessary for temporarily enforcing the status quo pending the implementation or consideration of an existing comprehensive zoning plan or amendment; instead, the ordinance permanently prohibited a use of property pending an application to consider a historic overlay designation without undertaking the appropriate planning, providing notice to the affected landowners, or conducting public hearings. Moreover, the City had over two years from the time Cherokee purchased this property in which to establish a historic district by following the proper statutory procedure but failed to do so. See Tenn.Code Ann. § 13-7-401 (1999) (stating the procedures for creating a historic district in accordance with the Tennessee Historic Zoning Act). Cherokee’s proposed use of the Smith House property was permitted under existing zoning classifications and, according to its complaint, Cherokee received no notice of the City’s past or proposed actions until the denial of its application for a demolition permit. Given these factors, the emergency demolition ordinance substantially affected Cherokee’s use of its property and created a zoning ordinance that was not enacted in accordance with the statutes requiring planning, public notice, and a public hearing. TenmCode Ann. §§ 13-7-201-211 (1999 & Supp.2004).

The conclusion we have reached under the peculiar circumstances of this case is also consistent with the language and the purpose of Tennessee’s statutory zoning law. The terms and effect of the emergency demolition ordinance clearly fell within the statutory provisions authorizing local governments and municipalities to regulate “the uses of buildings, structures and land for trade, industry, residence, recreation, public activities and other purposes.” TenmCode Ann. § 13-7-201(a)(l).

The State of Tennessee’s statutory public purpose of promoting the cultural welfare of the State’s people by enabling municipalities to preserve and protect historic structures as visible reminders of the history and cultural heritage of the city and state is a praiseworthy and admirable one. The City is to be commended for its historic preservation objectives. In pursuing its objectives, however, the exercise of its authority must comply with statutory planning, notice, and hearing provisions to balance the City’s authority with the interests of both the landowner and the public. TenmCode Ann. § 13-7-203 (1999). Indeed, the planning, notice, and public hearing provisions are particularly essential in a case where there are legitimate interests on both sides that must be resolved in a full and fair manner. As the trial court also observed:

The efforts, however desirable, to protect our heritage and history must be taken within the framework of available power and procedures. When governmental officials act for the benefit of the citizens it must not act in a manner that violates the rights of an individual citizen.

Accordingly, we conclude that emergency demolition ordinance No. 0-119-00 was invalid because it was not enacted in accordance with the planning, public notice, and public hearing provisions of the applicable zoning statutes. Tenn.Code Ann. §§ 39-7-201-211 (1999 & Supp.2004). We therefore reinstate the trial court’s judgment issuing a writ of mandamus and requiring the issuance of a demolition permit to Cherokee Country Club, Inc.

Histone Zoning Statutes

Cherokee’s next argument is that the emergency demolition ordinance was enacted by the City in violation of Tennessee’s Historic Zoning Statute, which requires that historic zoning regulations be enacted after submission to the planning commission, public notice, and public hearings as a new zoning ordinance or as an amendment to an existing zoning ordinance. See Tenn.Code Ann. §§ 13-7-401-410. Cherokee also argues that the emergency demolition ordinance was within the scope of the Historic Zoning Statute because it regulates the demolition of structures located or proposed for inclusion within historic zoning statutes. The City of Knoxville argues that the ordinance was a building regulation and that the Tennessee Historic Zoning Act was inapplicable because the regulation did not affect an existing historic district.

The State of Tennessee, through its Historic Zoning Statute, enables a local government body or municipality to establish special historic districts under certain conditions. Tenn.Code Ann. § 13-7-402(a). An historic district or zone is defined as an area that possesses a “significant individual structure or a concentration, linkage or continuity of sites, buildings, structures or objects which are united by past events or aesthetically by plan or physical development....” Tenn.Code Ann. § 13-7-404. An historic district must be established as “part of a new zoning ordinance or as an amendment to existing ordinances” and must satisfy one of the following statutory requirements:

(1) It is associated with an event which has made a significant contribution to local, state, or national history;
(2) It includes structures associated with the fives of persons significant in local, state, or national history;
(3) It contains structures or groups of structures which embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction;
(4) It has yielded or may be likely to yield archaeological information important in history or prehistory; or
(5) It is fisted in the National Register of Historic Places.

Tenn.Code Ann. § 13-7-404(l)-(5) (1999).

The creation of a historic district or zone requires submission of a plan to the historic zoning commission, which makes written recommendations to the local legislative body. Tenn.Code Ann. § 13-7-405(a), (b). Prior to the establishment of a historic district or zone, the historic zoning commission shall adopt a set of “review guidelines” and shall provide “[r]ea-sonable public notice and opportunity for public comment” on the review guidelines. Tenn.Code Ann. § 13-7-406. Once a historic district or zone is established, a local governing body may “regulate the construction, repair, alteration, rehabilitation, relocation and demolition of any building or other structure which is located or is proposed to be located within the boundaries of any historic district or zone TenmCode Ann. §§ 13-7-402(a) (1999 & Supp.2004).

In our view, the terms and effect of the emergency demolition ordinance enabled the City to create a de facto historic district for the specific purpose of prohibiting the issuance of demolition permits indefinitely without following any of the statutory requirements. For instance, the emergency demolition ordinance was enacted without the planning of the historic zoning commission or the consideration of the regional zoning commission. Tenn.Code Ann. § 13-7-403(a) (1999). The emergency demolition ordinance included none of the findings required to establish a historic zone involving the significant historical, aesthetic, structural, and related criteria. Tenn.Code Ann. § 13-7-404(l)-(5) (1999). The emergency ordinance was enacted without recommendations submitted by the historic zoning commission, see Tenn. Code Ann. § 13-7-405 (1999), and it was adopted without following the review guidelines, public notice, and public hearing requirements set forth by statute. Tenn.Code Ann. § 13-7-406 (1999).

In addition, the emergency demolition ordinance substantially affected the use of the land by creating a permanent moratorium on a specific use of the property, i.e., demolition, without following the required statutory safeguards applicable to historic districts or zones. The state statute provides that a municipality may enact an ordinance to prevent demolition of a structure only within “an established historic zone or district.” TenmCode Ann. § 13-7-407(b). Moreover, the ordinance must also “provide appropriate safeguards to protect property owners from undue economic hardship.” Id. In effect, the emergency demolition ordinance allowed the City to circumvent these safeguards by imposing a permanent moratorium without public notice, consideration by the required planning and other commissions, or any of the other required public notice and public hearing statutory procedures. See Vulcan Materials Co., 407 S.E.2d at 286.

The emergency demolition ordinance had to conform to the statutory planning, public notice, and public hearing provisions to balance the City’s authority with the interests of both the landowner and the public as provided for in the Tennessee Historic Zoning- Act. Tenn.Code Ann. § 13-7-401. Indeed, the legislature has made crystal clear its intent in the zoning and historic zoning statutes that local governments have a duty to comply with the public notice and public hearing requirements of the law. It has also made clear in the sunshine laws that local governments have a duty to provide public notice of governmental action. See TenmCode Ann. § 8-44-101(a)(2002) (“The general assembly hereby declares it to be the policy of this state that the formation of public policy and decisions is public business and shall not be conducted in secret.”). Local governments in complying with the letter and spirit of these laws should aspire to provide public notice of all government action.

Given these circumstances, we disagree with the Court of Appeals’ reasoning that the Historic Zoning Statutes were inapplicable since the emergency demolition ordinance did not affect an “existing historic district or zone” under Tennessee Code Annotated section 13-7-402. Indeed, the Court of Appeals’ rationale would allow municipalities to impose innumerable re-strietions by creating de facto historic districts without adhering to the statutory safeguards.

We likewise disagree with the City’s contention that the emergency demolition ordinance was necessary as the only means for preserving the status quo pending the consideration of a historic district or zone. Indeed, the City’s unilateral enactment of a permanent ordinance without following statutory requirements for planning, public notice, and public hearing is not the appropriate or the only means for obtaining such relief. Instead, the City may always file a public complaint seeking a temporary restraining order or other injunctive relief so that a court can make the appropriate findings with notice and hearing in a full and fair manner.

In sum, we conclude that the emergency demolition ordinance was invalid because it was not enacted in accordance with applicable historic zoning statutes. Accordingly, we also reinstate on this separate ground the trial court’s judgment issuing a writ of mandamus requiring the issuance of a demolition permit to Cherokee Country Club, Inc.

Remaining Issues

Given our conclusion that Knoxville City Ordinance No. 0-119-00 is invalid, we must address the remaining procedural issues raised by the City in this appeal. We will address each in turn.

Joinder of Necessary Parties

The City argues that the trial court erred in granting relief because Cherokee failed to join other necessary parties, including other affected property owners within the area being considered for designation as a historic district. Cherokee maintains that the City failed to show that other parties were indispensable in resolving this action, as no other party had an interest in the demolition of a structure located on Cherokee’s property.

Joinder of persons “needed for just adjudication” is addressed in Rule 19.01 of the Tennessee Rules of Civil Procedure:

A person who is subject to the jurisdiction of the court shall be joined as a party if (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reasons of the claimed interest.

Tenn. R. Civ. P. 19.01. The rule protects absent persons and parties from multiple litigation and inconsistent obligations. Samuelson v. McMurty, 962 S.W.2d 473 (Tenn.1998).

The City’s argument that Cherokee failed to join other property owners who were affected by the consideration for a historical district designation is not persuasive for several reasons. First, the narrow issue in this case is the issuance of a demolition permit for a structure located on property owned by Cherokee. Second, the City has mixed the determinative legal issue in this case, i.e., the validity of the emergency demolition, with the interests of those affected by the consideration of a proposed historical district. The trial court’s conclusion that the ordinance was a zoning ordinance subject to statutory zoning laws requiring planning, public notice, and public hearing, however, did not hinge upon or require litigation of the interests of all those affected by the underlying proposed historical district. Moreover, the trial court’s conclusion did not leave any property owners subject to multiple or inconsistent obligations.

Accordingly, there was no error in failing to join other affected property owners in this case.

Judgment on the Pleadings

The City argues that the trial court erred in ruling on Cherokee’s “motion for judgment on the pleadings” because the motion was filed before the pleadings were closed. Cherokee maintains that the trial court properly granted its motion.

The resolution of this issue is governed by the Tennessee Rules of Civil Procedure. A motion for judgment on the pleadings may be filed “[ajffcer the pleadings are closed but within such time as not to delay the trial.” Tenn. R. Civ. P. 12.03. Rule 7.01 of the Tennessee Rules of Civil Procedure states as follows:

There shall be a complaint and an answer; and there shall be a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summonsed under the provisions of Rule 14; and there shall be a third-party answer, if a third-party complaint is served. No other pleading shall be allowed ....

(Emphasis added). The Advisory Commission Comments to Rule 7.01 of the Tennessee Rules of Civil Procedure state that the rule “adopts the federal practice of cutting off pleadings after complaints and answer, except that a reply or answer by plaintiff is allowed in cases of counterclaim and cross-claim, and a third-party answer is allowed where a third-party complaint is filed.”

In this case, Cherokee filed a complaint, and the City filed an answer. The City’s answer did not contain a counterclaim. Under Rule 7.01, “no other pleading” was permitted at that point. Accordingly, Cherokee’s motion for judgment on the pleadings was filed after the pleadings were closed.

The City argues that the trial court should have treated the motion as a motion for summary judgment because it contained a copy of the ordinance being challenged by Cherokee, as well as copies of general city charter and city code provisions. Cherokee maintains that the trial court did not err in considering a copy of the ordinance underlying this action or any other materials.

Rule 12.08' of the Rules of Civil Procedure states that if “matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.... ” In this case, Cherokee’s complaint challenged the validity of emergency ordinance No. 0-119-00. Cherokee’s complaint and the City’s answer referred to the emergency ordinance in great detail. Cherokee and the City submitted certified copies of the ordinance for the trial court’s consideration. In our view, copies of the emergency ordinance under consideration and the related city charter and code provisions did not raise matters of law or fact that were “outside the pleadings.” Tenn. R. Civ. P. 12.03. Accordingly, the trial court did not err in ruling on the motion for judgment on the pleadings.

Mandamus

The City argues that the trial court erred in issuing a writ of mandamus and that Cherokee failed to exhaust its administrative remedies by not appealing the denial of the demolition permit by the Building Official to the Building Board of Adjustments and Appeals. Cherokee asserts that a writ of mandamus was appropriate for the issuance of the permit and that the exhaustion of remedies doctrine was inapplicable under this circumstances of this case.

A writ of mandamus is an extraordinary remedy that may be issued where a right has been clearly established and “there is no other plain, adequate, and complete method of obtaining the relief to which one is entitled.” Meighan v. U.S. Sprint Communications Co., 942 S.W.2d 476, 479 (Tenn.1997). Although most often addressed to ministerial acts, mandamus may be addressed to discretionary acts when an act is ‘“arbitrary and oppressive’ ” or where there has been a “ ‘plainly palpable’ ” abuse of discretion. Id. (quoting Peerless Constr. Co. v. Bass, 158 Tenn. 518,14 S.W.2d 732, 733 (1929)).

In our view, the trial court had the authority to issue a writ of mandamus in this case. State ex rel. Poteat v. Bowman, 491 S.W.2d 77, 80 (Tenn.1973) (mandamus is proper to challenge an ordinance as not properly adopted); see also State ex rel. SCA Chemical Waste Services, Inc. v. Konigsberg, 636 S.W.2d at 434 (mandamus may be employed “to determine the constitutional validity of a statute, ordinance or other legal directive that on its face requires that the defendant official shall not perform the act sought to be required .... ”). The record shows that Cherokee challenged the validity of the emergency demolition ordinance on a number of grounds; it did not, however, challenge the Building Official’s discretion in denying a demolition permit based on the ordinance. As a result, an administrative appeal to the Building Board of Adjustments and Appeals, which would have been limited to review of the Building Official’s discretion, would have afforded no review over the key issues and would have afforded no possible remedy. As this Court has explained, the issuance of mandamus may be prevented only if another remedy is “equally as convenient, complete, beneficial, and effective as mandamus,” and is “sufficiently speedy to prevent material injury.” Meighan, 942 S.W.2d at 479.

Accordingly, we hold that the trial court properly issued a writ of mandamus in this case.

CONCLUSION

After reviewing the record and applicable authority, we hold that the emergency demolition ordinance was a zoning ordinance that was not enacted in accordance with statutory zoning law requiring planning, notice, and public hearings, see Tenn. Code Ann. §§ 13-7-201-211, or the Tennessee Historic Zoning Act, see Tenn.Code Ann. §§ 13-7-401-410, and therefore was invalid. In addition, we conclude that there was no error in fading to join indispensable parties, that there was no error in granting the motion for judgment on the pleadings, and that there was no error in issuing a writ of mandamus. Accordingly, we reverse the Court of Appeals’ judgment and reinstate the trial court’s judgment, which issued a writ of mandamus requiring the issuance of a demolition permit to the appellant, Cherokee Country Club, Inc. Costs of this appeal are taxed to the appel-lee, City of Knoxville, for which execution may issue if necessary.

      . Although the City asserts on appeal that notice was provided by publication and by posting a sign on the property, Cherokee maintains that it had no notice until its application for a demolition permit was denied. The trial court made no factual findings in this regard.

      . Similarly, we note that the Court of Appeals misapprehended the rule of construction that requires courts to apply an interpretation that upholds the validity of a building ordinance or a zoning regulation. This rule of construction is applied in interpreting ambiguous language within a building ordinance or a zoning regulation. It does not apply in determining whether to characterize a land use restriction as a building regulation or a zoning ordinance.

      . Accordingly, the City’s effort to characterize the ordinance as a "stop gap” or "temporary” measure imposing a limited moratoria is unconvincing, and its reliance on a string of "stop-gap” decisions in other jurisdictions is misplaced. Moreover, we note that the City failed to cite a majority of decisions that require the application of zoning procedures even to ordinances that are "stop-gap” or temporary in nature. See 2 Ziegler § 11.13.

      . As a result, the authority relied upon by the City involving ordinances intended to preserve the status quo pending the implementation or consideration of a pending or enacted zoning plan are unpersuasive. Indeed, the single case cited by the City in which an ordinance prohibited the issuance of a demolition permit "for a reasonably limited’-' time was clearly enacted to preserve an already existing historic area. Heritage Hill Ass’n, Inc. v. City of Grand Rapids, 48 Mich.App. 765, 211 N.W.2d 77 (1973) (emphasis added).


source: Caselaw Access Project

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

license: Public Domain

text:
    Donald R. LACY v. Wesley B. COX, et al.
    Supreme Court of Tennessee, at Knoxville.
    Sept. 9, 2004 Session.
    Nov. 22, 2004.

      George R. Garrison, Sevierville, Tennessee, for the appellant, Donald R. Lacy.
    Dana Holloway, Knoxville, Tennessee, for the appellee, Jennifer L. Brandon.
   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.

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. 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. 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, 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 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, 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 and Tennessee Rule of Appellate Procedure 36(a), 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 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 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). 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. 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).

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 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. 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 as the Federal Rule of Civil Procedure 41 and the rules of many states that mirror the federal scheme. 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....” 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.

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. Authorities interpreting these predecessor statutes indicate that once the jury had retired, voluntary dismissal was absolutely prohibited. For example, in Liggins v. Padawer, 14 Ten.App. 201 (1931) (applying Shannon’s Code section 4689), the 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. Other states 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. 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. Allowing nonsuit on such grounds might enable plaintiffs to use voluntary dismissals to 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.

      .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.

      . 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).

      . 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.”

      . 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.

      . 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).

      . "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).

      . 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....”

      . “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.

      . 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).

      . "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).

      . 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.

      . 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.

      . 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).

      . 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.

      .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....").

      . 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. ... ”).

      . 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 verdict' — 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).

      . 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).

      . 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).

      . 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.