                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                Assigned May 20, 2011

           REBECCA DARBY BURGESS, IND. AND AS
 ADMINISTRATRIX/PERSONAL REPRESENTATIVE OF THE ESTATE
OF ROBERT E. DARBY, DECEASED ET AL. v. HARRIS MORGAN DEERE
                          ET AL.

                 Appeal from the Chancery Court for Wayne County
                        No. 11442   Jim T. Hamilton, Judge


                 No. M2010-01524-COA-R3-CV - Filed May 20, 2011




The plaintiffs have appealed from an order upholding a settlement agreement between the
plaintiffs and two of the defendants. Because the order appealed does not resolve the
plaintiffs’ claims against all the defendants or the two defendants’ cross claim, we dismiss
the appeal for lack of a final judgment.

               Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

P ATRICIA J. C OTTRELL, P.J., M.S., F RANK G. C LEMENT, JR., and A NDY D. B ENNETT, JJ.

Gary Jester, Florence, Alabama, and Jane Jennings, Lawrenceburg, Tennessee, for the
appellants, Rebecca Darby Burgess, Individually and as Administratratrix/Personal
Representative of the Estate of Robert E. Darby, deceased, and Danny R. Darby,
Individually.

Charles W. Holt and Alan C. Betz, Lawrenceburg, Tennessee, for the appellees, Harris
Morgan Deere and Myrna J. Deere.

Randy Hillhouse and William Michael Harris, Lawrenceburg, Tennessee, for the appellees,
Amanda Darby Dalrymple and Jerry Dalrymple.
                                     MEMORANDUM OPINION 1

       This appeal arises out of a dispute over the ownership of certain real property in
Wayne County. The property was owned by L.N. Pennington, allegedly for and on behalf
of Robert E. Darby. On March 8, 2004, Amanda Darby Dalrymple, one of Robert E. Darby’s
daughters, recorded in the Wayne County Register of Deeds office a deed purporting to
transfer the property from Mr. Pennington to Ms. Dalrymple. At the same time, Ms.
Dalrymple recorded a warranty deed transferring the property from herself and her husband,
Jerry Dalrymple, to Harris Morgan Deere and Myrna J. Deere.

        Robert E. Darby died on April 26, 2004. On June 3, 2004, Rebecca Darby Burgess,
individually and as administratrix of the Estate of Robert E. Darby, and Danny R. Darby
filed a complaint against Mr. and Mrs. Dalrymple and Mr. and Mrs. Deere alleging that Mr.
Pennington’s signature on the deed to Mr. and Mrs. Dalrymple was forged.2 The plaintiffs
sought to declare both deeds void and also sought punitive damages against Mr. and Mrs.
Dalrymple.

        The parties subsequently engaged in extensive settlement negotiations. On March 21,
2007, Mr. and Mrs. Deere filed a motion asking the trial court to enforce an alleged
settlement agreement between the parties. On September 21, 2009, the trial court entered an
order finding that the plaintiffs “entered into a binding settlement agreement with the
Defendants Harris Morgan Deere and Myrna J. Deere” and that “the Defendants Deere are
entitled to enforcement of their settlement agreement with the plaintiffs.” On October 21,
2009, the plaintiffs filed a Motion to Alter or Vacate Judgment or for a New Trial under Rule
59 and Motion to Amend Findings and Make Additional Findings to Conform to the
Evidence under Rule 52.02. On March 3, 2010, Mr. and Mrs. Deere filed a cross claim
against Mr. and Mrs. Dalrymple seeking a judgment in the amount of $173,000 plus
expenses, attorney’s fees and punitive damages. The trial court denied the plaintiffs’ post-
judgment motions under Tenn. R. Civ. P. 52 and 59 on June 14, 2010, again holding that the


        1
            Tenn. Ct. App. R. 10 states:

        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.
        2
          The plaintiffs also named M r. and M rs. Deere’s title insurance company as a defendant, but subsequently
voluntarily dismissed the claims against the title insurance company.

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settlement agreement is enforceable and “would resolve all ownership issues relating to the
real estate.” The plaintiffs filed their notice of appeal on July 13, 2010.

         A party is entitled to an appeal as of right only after the trial court has entered a final
judgment. Tenn. R. App. P. 3(a); In re Estate of Henderson, 121 S.W.3d 643, 645 (Tenn.
2003); King v. Spain, No. M2006-02178-COA-R3-CV, 2007 WL 3202757 at *8 (Tenn. Ct.
App. Oct. 31, 2007). A final judgment is a judgment that resolves all the claims between all
the parties, “leaving nothing else for the trial court to do.” State ex rel. McAllister v. Goode,
968 S.W.2d 834, 840 (Tenn. Ct. App. 1997). An order that adjudicates fewer than all the
claims between all the parties is subject to revision at any time before the entry of a final
judgment and is not appealable as of right. Tenn. R. App. P. 3(a); In re Estate of Henderson,
121 S.W.3d at 645. The trial court may direct the entry of a final judgment as to fewer than
all of the claims or parties, but only upon an express determination that there is no just reason
for delay and an express direction for the entry of judgment. Tenn. R. Civ. P. 54.02.

        On November 17, 2010, this court determined that the order appealed did not appear
to be final because it did not address the plaintiffs’ claims against the Mr. and Mrs.
Dalrymple, Mr. and Mrs. Deere’s cross claim against Mr. and Mrs. Dalrymple, or the costs.
Moreover, the trial court had not directed the entry of a final judgment pursuant to Tenn. R.
Civ. P. 54.02. Accordingly, we ordered the plaintiffs to obtain a final judgment from the trial
court within sixty (60) days or else to show cause why their appeal should not be dismissed.
We subsequently granted the plaintiffs an extension of time within which to obtain a final
judgment through April 5, 2011.

        On January 18, 2011, the plaintiffs filed a motion in the trial court asserting that the
trial court’s order was a de facto final judgment and asking the trial court to direct the entry
of a final judgment pursuant to Tenn. R. Civ. P. 54.02. On March 23, 2011, the trial court
entered an order confirming this court’s conclusion that the order appealed was not a final
judgment because neither the plaintiffs’ punitive damage claim against Mr. and Mrs.
Dalrymple nor Mr. and Mrs. Deere’s cross claim against Mr. and Mrs. Dalrymple had been
addressed. The trial court also determined that directing the entry of a final judgment
pursuant to Tenn. R. App. P. 54.02 would not be in the interest of judicial economy and thus
denied the plaintiffs’ motion. A supplemental record containing the March 23, 2011 order
was filed on April 7, 2011.

      In light of the trial court’s specific finding that at least two claims remain unresolved,
we reaffirm our initial determination that the order appealed is not a final appealable
judgment. Because the plaintiffs have been unable to obtain a final judgment as required by
our November 17, 2010 order and have not otherwise shown good cause, the appeal must be
dismissed.

                                                -3-
        The appeal is hereby dismissed for lack of a final judgment without prejudice to the
filing of a new appeal once a final judgment has been entered. The case is 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. The costs of the appeal are taxed to Rebecca Darby
Burgess, individually and as administratrix of the Estate of Robert E. Darby, and Danny R.
Darby and to their surety for which execution may issue.


                                                            PER CURIAM




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