                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                  October 27, 2009 Session

  NATHAN E. STEPPACH, JR. v. WILLIAM H. THOMAS, JR., CITY OF
                       MEMPHIS, ET AL.

                 Direct Appeal from the Chancery Court for Shelby County
                 No. CH-06-0714-3      Kenny W. Armstrong, Chancellor



                  No. W2008-02549-COA-R3-CV - Filed November 17, 2009


This case arises from the grant of a writ of certiorari by the Shelby County Chancery Court. Upon
review of the Memphis City Council’s record, the court affirmed the Council’s action in approving
a planned development and companion street closure. We conclude that the order appealed lacks
finality due to the failure to comply with Tenn. R. Civ. P. 58. Consequently, we dismiss this appeal
for lack of subject-matter jurisdiction.

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

J. STEVEN STAFFORD , J., delivered the opinion of the court, in which DAVID R. FARMER , J., and
HOLLY M. KIRBY , J., joined.

David Wade and J. Lewis Wardlaw, Memphis, Tennessee, for the Appellant, Nathan E. Steppach,
Jr.

William H. Thomas, Jr., Memphis, Tennessee, pro se.

Allan J. Wade and Brandy S. Parrish, Memphis, Tennessee, for the Appellees, City of Memphis and
Memphis City Council.

                                            OPINION

       On February 21, 2006, the Memphis City Council (together with the City of Memphis, “City
Defendants, ” or “Appellees”) considered companion Agenda Items 37 and 38 concerning a planned
development located on the northwest corner of Poplar Avenue and Reddoch Street (the “Planned
Development”), and a street closure at the northern Reddoch-Poplar intersection (the “Street
Closure”). At that time, the subject property was owned by William H. Thomas, Jr. The Planned
Development would allow the developer to build an office building, which would include a bank.
The Street Closure would close Reddoch Street to through traffic at Poplar Avenue. After
discussion, which included the Office of Planning and Development’s recommendation that the
applications be rejected because they allegedly failed to meet the Subdivision Regulation
requirements, the Council voted 12-0 to approve the Planned Development, and voted 9-2 to approve
the companion Street Closure. On April 10, 2006, Appellant Nathan E. Steppach, Jr. challenged the
action of the City Council by filing a Petition for Writ of Certiorari and Injunctive Relief in the
Shelby County Chancery Court. According to his petition, Mr. Steppach is the owner of real
property, which “is in close proximity to the site of the proposed planned development.”

        On April 13, 2006, Mr. Thomas transferred the subject property to First Capital Bank.
Following the transfer, Mr. Steppach was allowed to amend his petition to include First Capital Bank
as a defendant. By his petition, Mr. Steppach asked the court to: (1) issue a writ of certiorari, (2)
find that the Council’s approval of the Planned Development was fraudulent, corrupt, and/or illegal,
(3) declare the Street Closure null and void, and (4) enjoin Mr. Thomas and First Capital from
violating the subdivision’s restrictive covenants.

        On July 16, 2006, the City Defendants moved for summary judgment on grounds that the
actions of the City Council were not arbitrary or capricious, but were allegedly within the broad
discretionary authority vested in the Council by the Charter of the City of Memphis. On July 20,
2006, the court entered a Consent Pretrial Order, which states that “all matters unrelated to the final
decisions of the Memphis City Council appealed from in the petition [i.e., the issue of whether the
Planned Development violates the restrictive covenants] shall be tried separately.”

       On August 1, 2006, Mr. Thomas filed a motion to dismiss for failure to state a claim upon
which relief may be granted. Specifically, Mr. Thomas argued that, because he had sold the subject
property to First Capital, he was no longer a necessary party to the lawsuit. Mr. Steppach opposed
both the City Defendant’s motion for summary judgment, and Mr. Thomas’ motion to dismiss.

        The City Defendant’s motion for summary judgment was heard on May 9, 2007. On May
30, 2007, the court entered an Order, granting the motion in part, and denying it in part. Specifically,
the court held that “the City’s Motion...regarding Reddoch Street Planned Development...is granted
and the City’s motion...regarding the Reddoch Street Closure...is...denied and shall stand trial....”
Mr. Thomas’ motion to dismiss was heard on June 29, 2007. By Order of July 12, 2007, the trial
court granted Mr. Thomas’ motion, thereby dismissing him from the lawsuit.

         On September 23, 2008, the issues remaining in Mr. Steppach’s petition for writ of certiorari
were heard. At this point, the trial court had ruled on the Council’s action regarding the Planned
Development, and had granted summary judgment in favor of the Council. The court had dismissed
Mr. Thomas from the lawsuit, and had specifically reserved the issue of the restrictive covenants for
separate hearing. Consequently, the sole issues for hearing on September 23, 2008 were the writ of
certiorari, and the Street Closure. On October 9, 2008, the court entered its “Final Decree Denying
Plaintiff’s Petition for Writ of Certiorari.” Therein, the court finds that Mr. Steppach failed to
establish that the Council acted illegally or arbitrarily in reaching its decision to close Reddoch
Street. Although the trial court states that it “denies the Plaintiff’s Petition for Writ of Certiorari,”
it is obvious from the record that the court, in fact, issued the writ of certiorari because the record
of the Council’s action was brought up for review. A common law writ of certiorari simply


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commands an “inferior tribunal or administrative agency to send the record made before the agency
in the proceeding to the court for review....” Gore v. Tenn. Dep't of Corr., 132 S.W .3d 369, 375
(Tenn.Ct.App.2003). Once the administrative record has been filed, “the reviewing court may
proceed to determine whether the petitioner is entitled to relief without any further motions, and if
the court chooses, without a hearing.” Jackson v. Tenn. Dep't of Corr., No.
W2005-02240-COA-R3-CV, 2006 WL 1547859, at *3 (Tenn. Ct.App. June 8, 2006). Because the
issue of the restrictive covenants was still pending, the trial court included Tenn. R. Civ. P. 54.02
language in its October 9, 2008 Order. Specifically, the court states:

               3. The Court hereby directs, pursuant to Rule 54.02 of the Tennessee
               Rules of Civil Procedure, the entry of a final decree as to the
               Plaintiff’s Petition for Writ of Certiorari with respect to the Council’s
               resolutions approving the Reddoch Street Planned Development...and
               the Reddoch Street Closure...and expressly determines that there is no
               just reason for delay in the entry of such final decree, since the Court
               in a Consent Order dated July 20, 2006, as permitted by Rule 42.02
               of the Tennessee Rules of Civil Procedure, that all matters unrelated
               to the final decisions of the City Council be tried separately from one
               another. All remaining issues unrelated to the final decision of the
               Memphis City Council will be set for trial at a date and time
               convenient to the Court and the remaining parties.

       Mr. Steppach appeals and raises five issues for review as stated in his brief:

               1. The trial court erred in finding that Steppach failed to prove that
               the City Council acted illegally or arbitrarily in reaching its decision
               to close Reddoch Street.

               2. The trial court erred in finding that the City of Memphis Street
               Closure Regulations did not prohibit the City Council from
               considering the Reddoch Street Closure application despite the failure
               of the applicant to obtain the signatures of the abutting property
               owners and those property owners with frontage on Reddoch Street.

               3. The trial court erred in finding that the Harry Dermon Trust was
               not an abutting property owner. The Land Use Control Board’s belief
               that the Harry Dermon Trust was an abutting property owner was
               erroneous. The belief of the Land Use Control Board and the Office
               of Planning [and] Development that the Harry Dermon Trust was an
               abutting property owner provides no legal basis to overturn the City
               Council’s decision to close Reddoch Street. It was not critical or
               central to the City Council’s decision to close the street whether or
               not Harry Dermon Trust owned an interest in Reddoch Street.


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                  4. The trial court erred in granting William H. Thomas, Jr.’s motion
                  to dismiss.

                  5. The trial court erred in finding that, absent proof that they
                  improperly influenced the votes of other members of the City
                  Council, the actions of Councilmen Ford and Peete did not taint the
                  entire February 21, 2006 City Council vote, and, therefore, City
                  Defendants’ Motion for Summary Judgment on the Planned
                  Development was properly granted.

        After the appeal had been filed, on June 15, 2009, Mr. Thomas filed a motion to dismiss Mr.
Steppach’s appeal of the July 13, 2007 order dismissing Mr. Thomas from the lawsuit on grounds
that the July 13, 2007 order was not final and appealable. By Order of June 29, 2009, this Court
declined to rule on Mr. Thomas’ motion, reasoning that “this appeal has been fully briefed and is
now ready to be placed on the Court’s oral argument docket. Accordingly, the Court hereby declines
to rule on the motion at this time, but will continue to take the motion under advisement.”
Consequently, before reaching the issues in this case, we first address the question of whether the
order appealed is final.1

         Under Rule 3(a) of the Tennessee Rules of Appellate Procedure, the availability of an appeal
as of right in civil actions requires, first, that a final judgment be entered by a trial court. Tenn. R.
App. P. 3(a) specifically provides that:

                  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 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.2


        1
            Under Rule 13(b) of the Tennessee Rules of Appellate Procedure, this Court must determine “whether the
trial and appellate court have jurisdiction over the subject matter, whether or not presented for review.”
        2
            The exception as presented under Rule 54.02, Tennessee Rules of Civil Procedure reads:

                  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 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
                                                                                                        (continued...)

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        Rule 58 of the Tennessee Rules of Civil Procedure governs the effectiveness of the entry of
final judgments and provides in pertinent part as follows:

                   Entry of a judgment or an order of final disposition is effective when
                   a judgment containing one of the following is marked on the face by
                   the clerk as filed for entry:

                   (1) the signatures of the judge and all parties or counsel, or

                   (2) the signatures of the judge and one party or counsel with a
                   certificate of counsel that a copy of the proposed order has been
                   served on all other parties or counsel, or

                   (3) the signature of the judge and a certificate of the clerk that a copy
                   has been served on all other parties or counsel.

        “The purpose of [Tenn. R. Civ. P. 58] is to insure that a party is aware of the existence of a
final, appealable judgment in a lawsuit in which he [or she] is involved.” Masters ex rel. Masters
v. Rishton, 863 S.W.2d 702, 705 (Tenn. Ct. App.1992); see also Tenn. R. Civ. P. 58, advisory
comm'n cmt. (stating that Rule 58 “is designed to make uniform across the State the procedure for
the entry of judgment and to make certain the effective date of the judgment”). Compliance with
Rule 58 is mandatory, State ex rel. Taylor v. Taylor, No. W2004-02589-COA-R3-JV, 2006 WL
618291, at *2 (Tenn. Ct. App. Mar. 13, 2006) (quoting Gordon v. Gordon, No.
03A01-9702-CV-00054, 1997 WL 304114, at *1 (Tenn. Ct. App. June 5, 1997)), and “[t]he failure
to adhere to the requirements set forth in Rule 58 prevents a court's order or judgment from
becoming effective.” Blackburn v. Blackburn, 270 S.W.3d 42, 49 (Tenn. 2008) (citing DeLong v.
Vanderbilt Univ., 186 S.W.3d 506, 509 (Tenn. Ct. App. 2005)). This means that an order that does
not comply with Rule 58 “is not a final judgment and is ineffective as the basis for any action for
which a final judgment is a condition precedent.” Citizens Bank of Blount County v. Myers, No.
03A01-9111-CH-422, 1992 WL 60883, at *3 (Tenn. Ct. App. Mar. 30, 1992) (holding that an
execution and garnishment was improper when based on a judgment that did not comply with Rule
58); see also State ex rel. Taylor, No. W2004-02589-COA-R3-JV, 2006 WL 618291, *3 (Tenn. Ct.
App. March 13, 2006)(dismissing the appeal for lack of a final order when the order appealed from
did not comply with Rule 58). Accordingly, if the order appealed is not a final judgment, this Court
does not have subject matter jurisdiction to adjudicate the appeal. In re Estate of Henderson, 121
S.W.3d 643, 645 (Tenn.2003).



       2
           (...continued)
                    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 claim s 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.

                                                             -5-
        It is undisputed that neither the May 30, 2007 order granting partial summary judgment to
the City Defendants, nor the July 12, 2007 order granting Mr. Thomas’ motion to dismiss were final.
Specifically, neither order adjudicates all the issues, and neither contains Tenn. R. Civ. P. 54.02
language. Consequently, these two orders could only become final and appealable by entry of an
order that comports with Tenn. R. Civ. P. 58, and adjudicates the remaining issues and parties or
contains Tenn. R. Civ. P. 54.02 language. The October 9, 2008 Order, although it does not
adjudicate the restrictive covenant issue, purports to be a final order by inclusion of Tenn. R. Civ.
P. 54.02 language. Inclusion of Tenn. R. Civ. P. 54.02 language, however, will not negate failure
to comply with Tenn. R. Civ. P. 58 concerning the effectiveness of the final order.

        Turning to the October 9, 2008 Order, we find that it is signed by the Chancellor, and by
counsel for Mr. Steppach, the City Defendants, and First Capital Bank. In the Certificate of Service,
Allan J. Wade, attorney for the City Defendants states that:

               [A] true and exact copy of the foregoing has been mailed...to David
               Wade, Esq. and J. Lewis Wardlaw, Esq. [attorneys for Mr.
               Steppach]...; and Lang Wiseman, Esq. [attorney for First Capital
               Bank]....

However, there is no indication that Mr. Thomas received notice of the entry of this Order. Because
the purpose of Tenn. R. Civ. P. 58 is to insure that a party is aware of the existence of a final,
appealable judgment in a lawsuit in which he [or she] is involved,” Masters ex rel. Masters v.
Rishton, 863 S.W.2d 702, 705 (Tenn.Ct.App.1992), Mr. Thomas was entitled to notice that the
October 9, 2008 Order had been entered as this was the Order by which the July 12, 2007 Order
dismissing Mr. Thomas from the lawsuit would have became final and appealable. On its face,
therefore, the October 9, 2008 Order fails to comply with Tenn. R. Civ. P. 58. Specifically, in the
absence of Mr. Thomas’ signature (Tenn. R. Civ. P. 58(1)) or a certificate of service indicating that
a copy of the order was sent to Mr. Thomas (Tenn. R. Civ. P. 58(2)), or a certification from the clerk
that a copy was sent to Mr. Thomas (Tenn. R. Civ. P. 58(3)), we conclude that the October 9, 2008
Order fails to comply with the mandatory requirements of Tenn. R. Civ. P. 58. Therefore, the
October 9, 2008 Order is not effective to confer subject-matter jurisdiction on this Court and we
must dismiss the appeal.

       For the foregoing reasons, we dismiss the appeal. Costs of this appeal are assessed to the
Appellant, Nathan E. Steppach, Jr. and his surety.




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      ___________________________________

      J. STEVEN STAFFORD, J.




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