THERESA G. JENKINS,                       )
                                          ) Appeal No.
      Plaintiff-A ppellant,               ) 01A01-9809-CV-00514
                                          )
v.                                        )
                                          ) Davidso n Circuit FILED
LIONEL R. BAR RETT, JR., and              )
JOHN G. OLIVA,                            )                      June 2, 1999
                                          )
      Defendants-Appellees.               )                    Cecil Crowson, Jr.
                                                              Appellate Court Clerk




                    COURT OF APPEALS OF TENNESSEE
                     MIDDLE SECTION AT NASHVILLE




APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE

THE HONORABLE LEE RUSSELL, JUDGE BY DESIGNATION


WM . KEN NER LY B URG ER,
Suntrust Bank Building, Suite 306
201 E. M ain Street,
P.O. Box 1969
Murfreesboro, TN 37133-1969
       Attorney for Plaintiff-Appellant

DARRELL G. TOWNSEND and DERRICK C. SMITH
HOWELL & FISHER, PLLC
Court Square Building
300 James Robertson Park way.
Nashville, Tennessee 37201-1107
      Attorneys for Defendants-Appellees




                         REVERSED AND REMAND ED




                                          HERSCHEL P. FRANKS, JUDGE


CONCUR:
GODD ARD, P.J.
CAIN, J.
                                     O P I N IO N




              The appellant states the issue before this Court thus:

              A single, n arrow issu e is presented for consid eration in this a ppeal:
              Does m aterial eviden ce within th e meanin g of Ru le 13d, app ear in
              the record w hich supp orts the jury’s verd ict of $140 ,000.00 in
              compen satory damag es, and, if so, d id the trial court e rroneously
              grant a new trial?

              The case history demo nstrates that this issue is not properly before

the Court for consideration.

              This action alleging legal malpractice was filed on December 14,

1988. Subsequently, the case was tried before Judge Julian Guinn and a jury. The

jury returned a verdict of $140,000.00 against the defendant, and Judge Guinn,

acting on the defendants’ motion for a new trial, granted a new trial on the issue of

damage only, having previously directed a verdict in favor of the plaintiff on

defendants’ negligence.

              Judge Guinn thereupon recused himself, and Judge Lee Russell was

designated to preside over the new trial. Judge Russell entered a series of pre-trial

orders, and plaintiff appealed from Judge Russell’s order of June 5, 1997.

              This Court, in considering plaintiff’s appeal, said in its order:

              A party is entitled to an appeal as of righ t only after the Trial Court
              has ent ered a f inal ord er that re solves a ll claims b etwee n the pa rties.
              Tennessee Rules of Appellate Procedure 3(a). Where it is clear from
              the record th at the Trial C ourt’s order d oes not actu ally resolve all
              the claims between the parties, neither the Trial Court’s findings that
              all the issues h ave been resolved, no r the parties’ ag reement th at all
              matters hav e been co ncluded, w ill create a final o rder. This or der is
              not final because the Trial Court has neither granted the plaintiff a
              judgmen t nor dismisse d the com plaint. A pa rty may not waiv e his
              right to proce ed to trial in ord er to have a n immed iate appellate
              review o f an order g ranting a ne w trial.

                                            2
                Upon remand to the Trial Court, the Trial Judge entered the

following order on September 14, 1998:

                                         JUDGMENT

                       Upon the above captioned matter being presented for further
                consideration by the Court on the 18th day of June 1998, and
                following the granting of a new trial pursuant to Rule 59 of the
                Tennessee Rules of Civil Procedure, the Court, sitting without the
                intervention of a jury, orders, adjudges and decrees that the above
                captioned matter be, an d hereby is, dism issed, with th e costs equ ally
                divided between the parties.

                Notice of app eal wa s given and the appea l is now before this Co urt.

The foregoing order sets forth no groun ds to dismiss the case, nor do es the record

contain a basis to authorize the Trial Judge to dismiss this action. There is nothing

in the record to comp ort with either a voluntary dismissal or an inv oluntary

dismissal as authorized in Rules of Civil Procedure, Rule 41. Accordingly, it was

error for the Trial Judge to dismiss this action,1 and the cause will be reinstated and

reman ded to th e Trial C ourt fo r furthe r proce edings .

                The order of this Court filed on October 16, 1997 is the law of the

case. The Court said , in pertinent pa rt:

                This order [appealed from] is not final because the Trial Court has
                neither g ranted th e plaintif f a judg ment, n or dism issed the comp laint.
                A party may not waive his right to proceed to trial in order to have an
                immedia te appellate re view of a n order gra nting a new trial.

Upon our holding that the Trial Judge erroneously dismissed the complaint, the

status of the c ase is as it wa s when th is Court en tered its order o n the prior ap peal,

and as that o rder states, the p laintiff cann ot waive h er right to proc eed to trial in

order to hav e an imm ediate review of the orde r granting a n ew trial.

                The judgment of the Trial Court is reversed and the cause reinstated

        1
          In fairness to Judge Russell, we note that counsel during oral arguments candidly stated
that he asked the Judge to dismiss the case. Under all of the circumstances, we are not inclined
to deny relief to the party responsible for the error. See Rule 36(a), T.R.A.P.


                                                3
and rema nded w ith instructions th at the parties p roceed in a ccordanc e with this

opinion. The costs are assessed to the plaintiff.




                                                ________________________
                                                Herschel P. Franks, J.


CONCUR:




___________________________
Houston M. Godd ard, P.J.




___________________________
William B. Cain, J.




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