                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                      MAY 18, 2006 Session

               ENNIX HAIRSTON, ET AL. v. LILLIAN B. NEWSOM

                   Direct Appeal from the Circuit Court for Madison County
                            No. C-03-220     Roger A. Page, Judge



                      No. W2005-01939-COA-R3-CV - Filed June 26, 2006


This appeal stems from a negligence action resulting from an automobile accident. A husband and
wife filed suit against the defendant alleging personal injury and property damage resulting from the
defendant’s alleged negligence that caused the automobile accident involving the wife and the
defendant. In addition to the wife’s claims, the husband brought claims against the defendant for
loss of consortium and loss of services. Additionally, the wife’s uninsured motorist insurance carrier
was served but unnamed. Both Newsom and the uninsured motorist insurance carrier filed Motions
to Exclude All Medical Proof of Plaintiff and Motion for Summary Judgment. The circuit court
granted the defendant’s and the unnamed but served uninsured motorist insurance carrier’s Motions
to Exclude All Medical Proof of Plaintiff and Motion for Summary Judgment. The order adjudicated
the wife’s personal injury claims only. On appeal, the plaintiffs assert that the circuit court erred
when it granted the defendant’s and the unnamed but served uninsured motorist insurance carrier’s
Motions to Exclude All Medical Proof of Plaintiff and Motion for Summary Judgment. However,
because we find that the circuit court failed to execute a final order disposing of all of the plaintiffs’
causes of action, we dismiss the appeal for lack of subject matter jurisdiction pursuant to rule 3(a)
of the Tennessee Rules of Appellate Procedure.


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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
M. KIRBY , J., joined.

Ennix Hairston, Jackson, TN, pro se

John S. Little, Jackson, TN, for Appellee, Lillian B. Newsom

Kyle C. Atkins, Humboldt, TN, for Appellee, Tennessee Farmers Mutual Insurance Company as
Uninsured Motorist Carrier
                                       MEMORANDUM OPINION1

                                   I. FACTS & PROCEDURAL HISTORY

       On July 27, 2002, Ennix Hairston (“E. Hairston”) and Lillian Newsom (“Newsom”) were
involved in an automobile accident. On July 1, 2003, E. Hairston and her husband, Judge Hairston
(“J. Hairston” or, collectively with E. Hairston, the “Hairstons”) filed suit against Newsom. E.
Hairston claimed medical injuries and property damage resulting from the accident, while J. Hairston
claimed injuries from loss of consortium and loss of services.

        On May 23, 2005, the circuit court entered a scheduling order that stated:

                 (1)      PLAINTIFFS SHALL DESIGNATE EXPERTS AND NON-
                          TREATING HEALTH CARE PROVIDERS AND PROVIDE
                          A WRITTEN REPORT BY MAY 30, 2005.
                 (2)      DEFENDANT SHALL DESIGNATE EXPERTS AND
                          NON-TREATING HEALTH CARE PROVIDERS AND
                          PROVIDE A WRITTEN REPORT BY JULY 1, 2005.
                 (3)      NON-MEDICAL FACT WITNESSES AND PARTY
                          DEPOSITIONS SHALL BE COMPLETED BY JUNE 15,
                          2006.
                 (4)      PLAINTIFF SHALL COMPLETE MEDICAL
                          DEPOSITIONS OR MEDICAL PROOF OR FILE A
                          NOTICE OF INTENT TO PRESENT LIVE MEDICAL
                          TESTIMONY BY JUNE 15, 2005.
                 (5)      DEFENDANT SHALL COMPLETE MEDICAL
                          DEPOSITIONS OR MEDICAL TESTIMONY OR FILE A
                          NOTICE OF INTENT TO PRESENT LIVE MEDICAL
                          TESTIMONY BY AUGUST 15,2005.
                 (6)      PARTIES SHALL SUBMIT REQUEST FOR ADMISSIONS
                          BY JULY 1, 2005.




        1
           Rule 10 of the Rules of the Court of Appeals of Tennessee governs the issuance of Memorandum Opinions,
which 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. W hen a case is decided by
                 memorandum opinion it shall be designated “M EMORANDUM OPINION,” shall
                 not be published, and shall not be cited or relied on for any reason in any unrelated
                 case.


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        On June 29, 2005, Newsom filed a Motion to Exclude All Medical Proof of Plaintiff and
Motion for Summary Judgment. Newsom asserted that E. Hairston failed to comply with the circuit
court’s scheduling order regarding medical experts. Further, Newsom contended that summary
judgment was appropriate as to E. Hairston’s personal injury claims since she could not prove
causation of her injuries without a medical expert. The motion for summary judgment did not
address J. Hairston’s claims or E. Hairston’s property damage claims. Likewise, on July 13, 2005,
Tennessee Farmers Mutual Insurance Company (“TFMIC”), the uninsured motorist insurance carrier
acting as a served but unnamed defendant, filed its own Motion to Exclude All Medical Proof of
Plaintiff and Motion for Summary Judgment, adopting by reference the materials submitted by
Newsom in support of her motion for summary judgment. On August 18, 2005, the circuit court
entered an order granting Newsom’s Motion to Exclude All Medical Proof of Plaintiff and Motion
for Summary Judgment and TFMIC’s Motion to Exclude All Medical Proof of Plaintiff and Motion
for Summary Judgment.

                                                 III.   DISCUSSION

        In this case, while the Hairstons have raised several issues on appeal, we find one issue that
is dispositive of this appeal, namely, whether this Court has jurisdiction to hear this appeal.2

         Rule 3 of the Tennessee Rules of Appellate Procedure states in pertinent part:

                          (a) Availability of Appeal as of Right in Civil Actions. – In
                  civil actions every final judgment entered by a trial court from which
                  an appeal lies to the Supreme Court or Court of Appeals is appealable
                  as of right. Except as otherwise permitted in Rule 9 and in Rule
                  54.02 of the Tennessee Rules of Civil Procedure, if multiple parties
                  or multiple claims for relief 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 enforceable or appealable and is
                  subject to revision at any time before entry of a final judgment
                  adjudicating all the claims, rights, and liabilities of all parties.

Tenn. R. App. P. 3(a) (2005). Rule 54.02 of the Tennessee Rules of Civil Procedure states:

                          When more than one claim for relief is present in an action,
                  whether as a claim, counterclaim, cross-claim, or third party claim, or
                  when multiple parties are involved, the court, whether at law or in
                  equity, may direct the entry of a final judgment as to one or more but
                  fewer than all of the claims or parties only upon an express


         2
            Although neither party raised the issue of this Court’s jurisdiction, pursuant to rule 13(b) of the Tennessee
Rules of Appellate Procedure, “[t]he appellate court shall also consider whether the trial and appellate court have
jurisdiction over the subject matter, whether or not presented for review . . . .” Tenn. R. App. P. 13(b) (2005).


                                                          -3-
               determination that there is no just reason for delay and upon an
               express direction for the entry of judgment. In the absence of such
               determination and direction, any order or other form of decision,
               however designated, that adjudicates fewer than all the claims or the
               rights and liabilities of fewer than all the parties shall not terminate
               the action as to any of the claims or parties, and the order or other
               form of decision is subject to revision at any time before the entry of
               the judgment adjudicating all the claims and the rights and liabilities
               of all the parties.

Tenn. R. Civ. P. 54.02 (2005). Further, in Fox v. Fox, 657 S.W.2d 747 (Tenn. 1983), our supreme
court has stated:

               Rule 54.02 requires as an absolute prerequisite to an appeal the
               certification by the trial judge, first, that the court has directed the
               entry of a final judgment as to one or more but fewer than all of the
               claims, and, second, make an express determination that there is no
               just reason for delay. Such certification by the trial judge creates a
               final judgment appealable as of right under Rule 3 T.R.A.P. In the
               absence of such direction and determination by the trial judge, the
               order is interlocutory and can be revised at any time before the entry
               of judgment adjudicating all the claims and rights and liabilities of all
               parties.

Id. at 749 (citation omitted).
         In this case, the record demonstrates that E. Hairston asserted a negligence claim against
Newsom for personal injuries and for property damage related to her automobile accident with
Newsom and that J. Hairston asserted claims for loss of consortium and loss of services. However,
in its order granting Newsom’s Motion to Exclude All Medical Proof of Plaintiff and Motion for
Summary Judgment and TFMIC’s Motion to Exclude All Medical Proof of Plaintiff and Motion for
Summary Judgment, the circuit court granted summary judgment to Newsom and TFMIC as to E.
Hairston’s personal injury claims only. Nothing in the record demonstrates that E. Hairston’s
property damage claims were adjudicated. Furthermore, the record shows that the circuit court judge
did not certify that he was entering a final judgment as to fewer than all of the Hairstons’ claims and
also failed to make an express determination that no just reason for delay existed for appeal upon his
ruling concerning E. Hairston’s personal injury claims.




                                                 -4-
        Since the prerequisites of rule 3 of the Tennessee Rules of Appellate Procedure and rule
54.02 of the Tennessee Rules of Civil Procedure have not been met, and since the Hairstons have
not sought an interlocutory appeal as allowed under rule 9 of the Tennessee Rules of Appellate
Procedure, we conclude that this Court does not have subject matter jurisdiction at this time to
entertain this appeal. Accordingly, we dismiss this appeal for lack of subject matter jurisdiction.
Costs of this appeal are taxed to the appellants, Ennix Hairston and Judge Hairston, for which
execution may issue if necessary.



                                                      ___________________________________
                                                      ALAN E. HIGHERS, JUDGE




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