                                                                                              11/09/2017
                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                                     November 1, 2017 Session


                     JASON DONALDSON v. SUSAN DONALDSON


                    Appeal from the Chancery Court for Anderson County
                      No. 15CH7578 M. Nichole Cantrell, Chancellor


                                   No. E2017-01806-COA-R3-CV


This is an appeal from an order granting a motion filed pursuant to Rule 60.02 of the
Tennessee Rules of Civil Procedure. The order on appeal vacated and set aside the Final
Decree of Divorce, Permanent Parenting Plan and Marital Dissolution Agreement
previously entered by the Trial Court in the proceedings below. The appellee has filed a
motion to dismiss this appeal arguing that the lack of a final judgment deprives this Court
of jurisdiction. We agree and grant the motion to dismiss.

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

JOHN W. MCCLARTY, J., D. MICHAEL SWINEY, C.J., AND CHARLES D. SUSANO, JR., J.

Sal W. Varsalona, Clinton, Tennessee, for the appellant.

Lauren Biloski, Clinton, Tennessee, for the appellee.


                                   MEMORANDUM OPINION1

       1
           Rule 10 of the Rules of the Court of Appeals provides as follows:

                  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                  shall be designated “MEMORANDUM OPINION,” shall not be
                  published, and shall not be cited or relied on for any reason in any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.
       Even though the record has not yet been transmitted for this appeal, it is apparent
from the Notice of Appeal filed by the appellant and the appellee’s motion to dismiss that
there is not a final appealable judgment in this case. We also construe the appellant’s
decision to file no response in opposition to the motion to dismiss as a concession that
there is not a final appealable judgment in this case. As such, the motion to dismiss is
well-taken.

        “A final judgment is one that resolves all the issues in the case, ‘leaving nothing
else for the trial court to do.’ ” In re Estate of Henderson, 121 S.W.3d 643, 645 (Tenn.
2003) (quoting State ex rel. McAllister v. Goode, 968 S.W.2d 834, 840 (Tenn. Ct. App.
1997)). “[A]ny 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). Because there is no order in this case resolving any
of the claims at issue between the parties, this Court does not have subject matter
jurisdiction to adjudicate this appeal. See Bayberry Assocs. v. Jones, 783 S.W.2d 553,
559 (Tenn. 1990) (“Unless an appeal from an interlocutory order is provided by the rules
or by statute, appellate courts have jurisdiction over final judgments only.”). While the
Supreme Court in Bayberry remarked that there is “no bar” to the suspension of the
finality requirements of Rule 3(a) pursuant to Rule 2 of the Tennessee Rules of Appellate
Procedure, there has been no argument made by the appellant in support of suspension of
the requirements of the rule. See id. (noting that “there must be a good reason for
suspension”). Moreover, the question exists whether such a suspension would be proper
given developments in the law subsequent to Bayberry. See Ingram v. Wasson, 379
S.W.3d 227, 237 (Tenn. Ct. App. 2011) (“Lack of appellate jurisdiction cannot be
waived.”) (citing Meighan v. U.S. Sprint Communications Co., 924 S.W.2d 632, 639
(Tenn. 1996)).

       Because this Court lacks jurisdiction to consider this appeal, the motion to dismiss
is granted and this case is dismissed without prejudice to the filing of a new appeal once a
final judgment has been entered. Costs on appeal are taxed to the appellant, Jason
Donaldson, for which execution may issue if necessary.




                                                                 PER CURIAM
