Shari Harp v. Darryelle E. Mills ( 2010 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
SHARI HARP V. DARRYELLE E. MILLS
Appeal from the Chancery Court for Hamblen County
No. 2008-366 Thomas R. Frierson, II, Chancellor
No. E2009-02608-COA-R3-CV - FILED AUGUST 25, 2010
Petitioner, Shari Harp, filed this action to recover personal property and for an injunction
related to her deceased mother’s estate. Respondent, Darryelle E. Mills, is surviving spouse
of the decedent. The trial court entered a partial default judgment in Ms. Harp’s favor after
Mr. Mills failed to answer the complaint or otherwise plead – despite ample notice of the
consequences of failing to answer. Upon appeal, this court entered a show cause order
directing Mr. Mills, acting pro se, to show cause why this appeal should not be dismissed for
lack of jurisdiction, among other things. Mr. Mills has failed to respond to the show cause
order within the time allotted. Accordingly, we dismiss this appeal because it is premature
and because Mr. Mills has neglected to file a cost bond and has not paid the litigation tax
associated with the appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
Darryelle E. Mills, Talbott, Tennessee, pro se appellant.
Christopher P. Capps, Morristown, Tennessee, for the appellee, Shari Harp.
MEMORANDUM OPINION 1
1
Rule 10 of the Rules of the Court of Appeals 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opinion it shall be designated ‘MEMORANDUM OPINION,’ shall not be published, and shall not be cited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.”
I. BACKGROUND
The trial court entered a partial default judgment in favor of Ms. Harp after Mr. Mills
failed to answer the complaint or otherwise plead despite ample notice of the consequences
of failing to answer. Mr. Mills filed a timely appeal. The record was filed on March 31,
2010, but Mr. Mills neglected to file a bond for costs on appeal, required by Tenn. R. App.
P. 6, and he also failed to pay the litigation tax required by Tenn. Code Ann. § 67-4-601 et
seq. We subsequently entered an order giving Mr. Mills fifteen days to show cause why the
appeal should not be dismissed because it is premature and because Mr. Mills has neglected
to file a cost bond and has not paid the litigation tax associated with the appeal. Mr. Mills
has failed to respond to the show cause order within the time allotted.
II. DISCUSSION
Nothing in the record received from the trial court clerk demonstrates that Mr. Mills
is exempt from the requirements of the cost bond and the litigation tax. Moreover, a review
of the record reveals that the judgment from which Mr. Mills is attempting to appeal is a
partial default judgment that does not adjudicate “all the claims, rights, and liabilities of the
parties.” See Tenn. R. App. P. 3(a). “[A]ny trial court order that adjudicates fewer than all
the claims or the rights and liabilities of fewer than all the parties is not final or appealable
as of right.” State ex rel Garrison v. Scobey, No. W2007-02367-COA-R3-JV, 2008 WL
4648359, at *5 (Tenn. Ct. App. W.S., Oct. 22, 2008). This court does not have subject matter
jurisdiction to adjudicate an appeal if there is no final judgment. Thus, this appeal must be
dismissed.
III. CONCLUSION
This appeal is dismissed and this cause is remanded to the trial court for further
proceedings consistent with this opinion and for collection of costs below. Costs on appeal
are taxed to the appellant, Darryelle E. Mills.
PER CURIAM
-2-