Sarah Kee and Larry Kee v. City of Jackson, Tennessee ( 2012 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
SARAH KEE AND LARRY KEE V. CITY OF JACKSON, TENNESSEE
Direct Appeal from the Circuit Court for Madison County
No. C07326 Roger A. Page, Judge
No. W2011-02143-COA-R3-CV - Filed April 4, 2012
Because the order appealed is not a final judgment, we dismiss this appeal for lack
of jurisdiction.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
A LAN E. H IGHERS, P.J.W.S., D AVID R. F ARMER, J., AND H OLLY M. K IRBY, J.
John Dean Burleson and Matthew Robert Courtner, Jackson, Tennessee, for the appellant,
City of Jackson, Tennessee.
David Wayne Camp, Jackson, Tennessee, for the appellees, Sarah Kee and Larry Kee.
MEMORANDUM OPINION 1
This matter arises from the complaint filed on October 5, 2007, by Sarah Kee and
Larry Kee (“Kees”) alleging that Ms. Kee sustained personal injuries after she fell on
property belonging to the City of Jackson, Tennessee (“City”). The parties agreed to
bifurcate the trial of this cause as to the issues of liability and damages and the trial court
granted the parties' Joint Motion to Bifurcate the Trial. The trial court conducted a
hearing concerning the issue of liability on August 25, 2011, and on August 31, 2011, the
trial court entered an order finding the City sixty percent (60 %) at fault and the Kees
1
Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
This Court, with the concurrence of all judges participating in the case, may affirm, reverse
or modify the actions of the trial court by memorandum opinion when a formal opinion
would have no precedential value. When a case is decided by memorandum opinion it shall
be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited
or relied on for any reason in any unrelated case.
forty percent (40 %) at fault.
After entry of the trial court's order, the City filed a Notice of Appeal on
September 26, 2011. Subsequently, the appellate record was transmitted to the Clerk of
this Court and pursuant to the mandates of Rule 13(b) of the Tennessee Rules of
Appellate Procedure, we reviewed the appellate record to determine if the Court has
subject matter jurisdiction to hear this matter. After this review, it appeared to the Court
that it does not have jurisdiction, because we could find nothing in the record reflecting
that the trial court had adjudicated the issue of damages. Consequently, this Court
entered an Order on January 24, 2012, directing the City to show cause why this appeal
should not be dismissed for failure to appeal a final judgment or order.
The City filed a response to our Order on February 3, 2012, conceding that the
issue of damages remains unresolved. The City, however, argues that the unresolved
issue of damages does not preclude the appellate jurisdiction in this matter. Specifically,
the City submits that the case of Simerly v. City of Elizabethton, No. E2009-01694-COA-
R3-CV, 2011 WL 51737 (Tenn. Ct. App. Jan. 5, 2011), is factually identical to this matter
and that the Court held in Simerly that the unresolved issue of damages did not preclude
the Court's jurisdiction. The City also submits that the Court may suspend the finality
requirement upon a showing of good cause, pursuant to Rule 2 of the Tennessee Rules of
Appellate Procedure.
In Simerly, the trial court entered a partial judgment and specifically ordered
further hearing to adjudicate the amount of damages. Simerly at *7. The Court
distinguished that case from City of Jackson v. Hersh, No. W2008-02360-COA-R3-CV,
2009 WL 2601380 (Tenn. Ct. App. Aug. 25, 2009) which had been dismissed for lack of
jurisdiction by stating:
Unlike the trial court judgment's lack of finality in that case due to the
existence of an outstanding request for attorney's fees that had not yet been
addressed, here the parties stipulated all of the claims and potential
liabilities of all parties as part of their motions for summary judgment that
were then resolved by the partial judgment.
Simerly at *8. The Court determined that all of the substantive claims and rights between
the parties, as stipulated by the parties, had been adjudicated by the trial court. Id.
Moreover, the Court found that, even if the remaining issue of damages resulted in a
conclusion that all substantive issues had not been addressed, the Court could still
suspend the final judgment requirement upon a finding of good cause. Id. The Court
then additionally found good cause to suspend the finality requirement in light of the
significant principles of municipal law and collective bargaining issues involved in that
appeal. Id. In this personal injury action, however, the parties have not stipulated to all
of the claims and potential liabilities of the parties. Consequently, application of Simerly
to the pending matter is inappropriate.
The City also asserts that suspending the finality requirement in the instant case
will further the original intention of the parties, i.e., judicial economy, by resolving the
issues of the current appeal and, if necessary, remanding to the trial court for a
determination of damages. Such action by this Court, however, could result in piecemeal
litigation if this matter were remanded for a determination of damages and one of the
parties subsequently appealed the trial court's ruling. Consequently, the Court declines to
suspend the finality requirement in this matter.
Rule 3 of the Tennessee Rules of Appellate Procedure provides that if multiple
parties or multiple claims are involved in an action, any order that adjudicates fewer than
all the claims or the rights and liabilities of fewer than all the parties is not final or
appealable. Except where otherwise provided, this Court only has subject matter
jurisdiction over final orders. See Bayberry Assoc. v. Jones, 783 S.W.2d 553 (Tenn.
1990). Clearly, the order appealed in this matter is not a final judgment and therefore, we
must dismiss this appeal.
Conclusion
Because the trial court has not yet entered a final judgment, the appeal is dismissed
without prejudice and the case remanded to the trial court for further proceedings consistent
with this Opinion. Should a new appeal be filed, the Clerk of this Court shall, upon request
of either party, consolidate the record in this appeal with the record filed in the new appeal.
Costs of this appeal are taxed to the appellant, City of Jackson, Tennessee, and its surety for
which execution may issue if necessary.
PER CURIAM