               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                               March 10, 2015 Session


                    PHYLLIS SMITH v. SHELBY COUNTY

                  Appeal from the Circuit Court for Shelby County
                  No. CT00122112    John R. McCarroll, Jr., Judge



                No. W2014-01557-COA-R3-CV – Filed May 28, 2015


In this premises liability action, Appellant Phyllis Smith (“Ms. Smith”) appeals the trial
court’s finding that Shelby County (“the County”) is immune from suit under the
Tennessee Governmental Tort Liability Act. Because we conclude that the order
appealed from is not a final judgment, we dismiss the appeal.

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

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which BRANDON O.
GIBSON, J., and KENNY ARMSTRONG, J., joined.

Kenneth M. Margolis and Jada L. Brisentine, Memphis, Tennessee, for the appellant.

Walter L. Evans, II, and John B. Turner, Jr., Memphis, Tennessee, for the appellee.

                                       OPINION

       Ms. Smith commenced this lawsuit on March 16, 2012, by filing a complaint
against the County in the Shelby County Circuit Court. The complaint alleged that Ms.
Smith had been injured as a result of the County’s negligence due to a slip and fall
incident while working at the Shelby County Correctional Center on June 13, 2011. On
June 5, 2012, the County filed an answer to the complaint and asserted various defenses.
Although trial was initially scheduled to occur in January 2013, this setting was
continued.

       On February 1, 2013, Correct Care Solutions, LLC (“Correct Care”), and
Commerce and Industry Insurance Company (“Industry Insurance”; collectively “the
Intervening Plaintiffs”) filed a motion to intervene in the case. In their motion, the
Intervening Plaintiffs asserted that they had paid Ms. Smith benefits on behalf of her
employer pursuant to the Tennessee Workers’ Compensation Act. They sought to
intervene in Ms. Smith’s lawsuit “in order to protect [their] statutory subrogation rights
and subrogated interests[.]” On February 8, 2013, the Circuit Court entered an order
granting the motion to intervene, and on the same date, an intervening complaint was
filed. Following the Intervening Plaintiffs’ involvement in the case, trial dates were set
and reset on a number of occasions.

       On June 17, 2014, the Circuit Court entered a consent order allowing counsel for
the Intervening Plaintiffs to withdraw. Specifically, the order stated as follows:

      Kyle I. Cannon, Esq., and the Law Firm of Glassman, Wyatt, Tuttle & Cox,
      P.C., are hereby withdrawn as counsel of record for the Intervening
      Plaintiffs, CORRECT CARE SOLUTIONS, LLC, and COMMERCE AND
      INDUSTRY INSURANCE COMPANY, terminating their representation
      of said entities in this cause, and thereby relieving said Counsel of any and
      all bond and/or surety as well as any continued duties relating to said
      representation.
We observe that the Intervening Plaintiffs remained parties in the case notwithstanding
the withdrawal of their counsel. Moreover, there is no indication in the record that their
complaint was ever dismissed.

       Subsequent to the withdrawal of the Intervening Plaintiffs’ counsel, near the end
of June 2014, the Circuit Court conducted a three-day bench trial. Having reviewed the
transcripts of the trial proceedings filed in the record, we observe that the Intervening
Plaintiffs did not participate at trial as they were not represented. Although counsel for
Ms. Smith and the County were present, no counsel made an appearance on behalf of
Correct Care or Industry Insurance.

        On July 29, 2014, the Circuit Court entered its “Judgment Order on Bench Trial.”
Although the order found “no comparative fault on the part of [Ms. Smith],” it ultimately
concluded that “a judgment for the [County] is appropriate.” By incorporating findings
of fact and conclusions of law that it made in a previous oral ruling from the bench at the
conclusion of trial, the Circuit Court found that the County retained governmental
immunity under the Tennessee Governmental Tort Liability Act. The order was
approved as to form by counsel for Ms. Smith and the County. On August 13, 2014, Ms.
Smith filed a notice of appeal.

       Oral arguments concerning the appeal were heard in March 2015. Upon our
review of the record following oral argument, however, we observed that the judgment
appealed from was not compliant with Tennessee Rule of Civil Procedure 58. As we
explained to the parties in an order dated May 6, 2015:

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      In this case, the trial court’s July 29, 2014, order contains the signature of
      the trial judge, Appellant’s counsel, and Appellee’s counsel. Noticeably
      absent is any mention of the intervening parties in this case, Correct Care
      Solutions, LLC, and Commerce and Industry Insurance Company. The
      trial court’s July 29, 2014, order did not contain the signature of any
      counsel for these intervening parties, nor did it contain a certificate of the
      clerk or counsel indicating that a copy of the order had been served on all
      other parties or counsel.
      Although the record indicates that the original counsel for the intervening
      parties withdrew from representation on June 17, 2014, there is no
      indication that the intervening complaint was voluntarily dismissed prior to
      the entry of the July 29, 2014, order. Based on the record transmitted to us,
      Correct Care Solutions, LLC, and Commerce and Industry Insurance
      Company remained parties in the case. As such, they were entitled to the
      notice Rule 58 provides, and yet, the July 29, 2014, order failed to comply
      with the requirements of Rule 58. The record simply does not reflect that
      Correct Care Solutions, LLC, and Commerce and Industry Insurance
      Company were aware that there was a final, appealable judgment, and we
      note that neither party participated in this appeal.
      Unless Appellant can show that the intervening parties’ complaint was
      voluntarily dismissed, this appeal is subject to dismissal given the absence
      of an effective final judgment under Rule 58. . . . [W]e do not want to
      dismiss this appeal if an order of voluntary dismissal was, in fact, timely
      entered in the trial court.
       On May 18, 2015, a certified supplemental record was filed in this Court. The
supplemental record contained two orders from the Circuit Court, both of which were
dated May 11, 2015. The first of these orders set aside the Circuit Court’s June 17, 2014,
order that allowed counsel for the Intervening Plaintiffs to withdraw. As the Circuit
Court explained:

      [T]he parties announce to the Court that the [June] 17th order was entered in
      error as the corporate intervenors, Correct Care Solutions, LLC and
      Commerce and Industry Insurance Company, required representation and
      could not be pro se parties in this cause. Upon the statements and
      arguments of counsel, the equity of the matter and the record as a whole,
      the Court finds the oral motion well taken and feels that the June 17, 2014
      Order should be set aside and held for naught.
The Circuit Court concluded its order by entering it nunc pro tunc. Although the order
does not state the date to which it was entered nunc pro tunc, we can only presume the


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trial court intended it to relate back to June 17, 2014, the date that the Intervening
Plaintiffs’ attorneys were allowed to withdraw.

       Following the entry of the first supplemental order, which restored Attorney Kyle
Cannon and the Law Firm of Glassman, Wyatt, Tuttle & Cox, P.C., as counsel of record
to the case, the Circuit Court attempted to finalize the trial proceedings by entering its
“Supplemental Judgment Order on Bench Trial.” This order incorporated the same
findings of fact and conclusions of law that were incorporated into the Circuit Court’s
July 29, 2014, order. The supplemental judgment order was entered nunc pro tunc to
July 29, 2014, was approved for entry by counsel for Ms. Smith and the County, and
contained a certificate of service indicating that a copy had been served on Attorney Kyle
Cannon.

        Notwithstanding the Circuit Court’s attempt to rectify the issues that were
addressed in our May 6, 2015, order, we conclude that we cannot exert jurisdiction over
this appeal. The record is still devoid of an effective final judgment under Tennessee
Rule of Civil Procedure 58. The purpose of Rule 58 “is to insure that a party is aware of
the existence of a final, appealable judgment in a lawsuit in which he is involved.”
Masters v. Rishton, 863 S.W.2d 702, 705 (Tenn. Ct. App. 1992). We fail to see how the
supplemental orders entered on May 11, 2015, satisfy this notice requirement. As the
Tennessee Supreme Court discussed in Blackburn v. Blackburn, 270 S.W.3d 42 (Tenn.
2008), a “nunc pro tunc decree may not be entered in an attempt to make the record
reflect what should have happened, rather than what actually did occur.” Id. at 56
(citation omitted). Here, the Circuit Court’s supplemental orders violate this concept.

        First, we note that the Circuit Court’s nunc pro tunc order reinstating counsel
inappropriately attempts to make the record reflect what it believes should have happened
concerning the Intervening Plaintiffs’ representation.1 That order does not change the
reality that counsel for Intervening Plaintiffs had, in fact, withdrawn as of June 17, 2014.
Second, the Circuit Court’s supplemental orders attempt to impute notice retroactively.
The fact that the supplemental judgment was entered nunc pro tunc to the date of the
original judgment and includes reinstated counsel on the certificate of service does
nothing to change the lack of notice given to the Intervening Plaintiffs prior to the filing
of this appeal. Rule 58 notice was not given contemporaneous to the filing of the July 29,
2014, order, and the Circuit Court cannot deem that it was provided by way of the entry
of a nunc pro tunc order. There is simply no evidence that the Intervening Plaintiffs were
aware of the existence of a final, appealable judgment on that date. Moreover, the

1
  In this regard, we observe that the Circuit Court appeared to predicate its reinstatement of counsel on the
basis that allowing their withdrawal to stand would improperly leave the Intervening Plaintiffs
unrepresented. Although it is true that, as corporate parties, the Intervening Plaintiffs could not have
prosecuted their claim absent the representation of counsel, this should not have prohibited Attorney Kyle
Cannon and the Law Firm of Glassman, Wyatt, Tuttle & Cox, P.C., from withdrawing as counsel of
record.

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supplemental record does not indicate that the Intervening Plaintiffs dismissed their
complaint prior to the trial in this cause. Because the Circuit Court’s backdating of notice
is ineffective to confer subject-matter jurisdiction on this Court, we must dismiss the
appeal. The case is remanded for such further proceedings as may be necessary and are
consistent with this Opinion. Costs of the appeal are assessed against the Appellant,
Phyllis Smith, and her surety, for all which execution may issue if necessary.


                                                 _________________________________
                                                 ARNOLD B. GOLDIN, JUDGE




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