                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                     Submitted On Brief September 20, 2005 Session

  W. ROBERT VANCE, JR., ET AL. v. ROBERT C. McEWAN, M.D., ET AL.

                  Direct Appeal from the Chancery Court for Shelby County
                     No. CH-03-1098-3     D.J. Alissandratos, Chancellor



                   No. W2005-00060-COA-R3-CV - Filed December 21, 2005


This case arises from lease negotiations between Plaintiff W. Robert Vance, Jr. (“Plaintiff”) and
Defendants, Robert C. McEwan, Dane Flippen, and Edward Caldwell (“the Defendants”). After the
Defendants ultimately decided not to sign a lease with Plaintiff, Plaintiff filed suit against
Defendants asserting claims for (1) breach of agreement to enter into a lease agreement; (2) breach
of lease agreement; (3) detrimental reliance; (4) fraud and misrepresentation; and (5) negligent
misrepresentation. After a trial on the merits, the trial court entered an order disposing of Plaintiff’s
contract claims. Plaintiff subsequently filed a “Motion for New Trial or, in the Alternative, to Alter
or Amend Judgment and/or Make and/or to Make Additional Findings of Fact Pursuant to Tennessee
Rules of Civil Procedure 59.02, 59.04, and 52.02,” which the trial court denied. Plaintiff appealed.
Because we find that the trial court failed to execute a final order disposing with all of Plaintiff’s
asserted causes of action, we dismiss this appeal for lack of subject matter jurisdiction under Rule
3(a) of the Tennessee Rules of Appellate Procedure.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Dismissed; and
                                       Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY M. KIRBY , J., joined.

John S. Golwen and Kristen Wright, Memphis, Tennessee, for the appellant, W. Robert Vance, Jr.,
d/b/a Moriah Properties.

Blanchard E. Tual , Eric E. Hudson, and Ben Scott, Memphis, Tennessee, for the appellees, Robert
C. McEwan, M.D., Dane Flippin, M.D. and Edward Caldwell, M.D., d/b/a Park Manor Clinic, and
Patrick Lloyd.
                                       MEMORANDUM OPINION1

                              Factual Background and Procedural History

        This case arises from a lease for space in a building owned by Plaintiff W. Robert Vance,
Jr. (“Plaintiff”). Defendants, Doctors Robert C. McEwan, Dane Flippen, and Edward Caldwell
(hereafter referred to as “the Defendants,” or referenced by last name) leased space from Plaintiff
from October 1, 2000, through September 30, 2003, for the purpose of operating a family
medical practice. In the late summer of 2002, Plaintiff and the Defendants began engaging in
discussions relating to the renewal of the lease and the Defendants informed Plaintiff that Patrick
N. Lloyd (“Mr. Lloyd”) had authority to negotiate potential new lease terms on their behalf. In a
letter dated August 5, 2002, Mr. Lloyd informed Plaintiff that

       [w]hile the [Defendants] have indicated a desire to remain in their current office,
       there are several concerns. They are:
           • Parking
           • Access
           • Security
           • Cost per square foot
           • Area demographics
           • Condition of office
           • Space needs
       These items need to be addressed in short order relative to any new lease. The
       space cost along with some allowances for tenant improvements must become
       clear and be market competitive. I am enclosing a comparison of the current
       space to another space of interest to the doctors. As you can see, the landlord is
       making allowances for improvements here and the rental rate is lower than your
       rate. I would suggest that you use this to work up your proposal.

(Emphasis added).

        In relation to their need for expansion, the Defendants expressed an interest in possibly
acquiring additional office space on the second floor of the building. At the time of these
negotiations, Memphis Counseling Center (“MCC”) occupied the second floor space and had
subleased a portion of it to Betty McWillie (“Ms. McWillie”), who did business under the name
of “Career Directions”. However, in response to the Defendants’ desire to potentially expand,
Plaintiff “advised [Mr.] Lloyd that he would be willing to discuss with the upstairs tenant the


       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee 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.
   W hen 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.

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possibility of vacating the space to accommodate [the Defendants].” On October 31, 2002, Mr.
Lloyd confirmed to Plaintiff via letter that the Defendants were exploring the need for additional
space on the second floor and further stated that “[t]he [Defendants] would be receptive to
signing a 5-year lease (including additional space on the second floor) at a rental rate of $21.50
per square foot with an expense cap of $10 per square foot. In addition, they would like the
improvement allowance increased to $25,000.”

         On November 18, 2002, Plaintiff sent the Defendants a letter informing them that MCC
had preliminarily agreed to vacate 500 square feet of space on the second floor sometime in early
2003. In this same letter, Plaintiff also proposed two potential lease scenarios to the Defendants
with each incorporating the upstairs space. As summarized in Plaintiff’s Statement of
Undisputed Facts and agreed to by the Defendants “‘Scenario #1’ included rent of the existing
downstairs[] space at $21.50 per square foot; rent of the additional upstairs space of 500 square
feet at $21.50 per square foot, improvement allowance of $25,000; and expense cap for all space
for $7.00 per square foot; and, a 5-year lease term.” At the time they received the November 18
letter, the Defendants had already begun looking at alternative office space located at 756
Ridgelake Boulevard. The parties dispute whether the Defendants informed Plaintiff as to their
interest in this alternate office space. However, this Court does take notice of the fact that the
Defendants did communicate to Plaintiff in their August 5 correspondence that they were
interested in office space located elsewhere.

        On December 11, 2002, Mr. Lloyd responded by letter to Plaintiff’s November 18 offer
and stated:

       I met with [the Defendants] on Monday to discuss your letter of November 18
       regarding their lease space at 950 Mt. Moriah Rd. After discussion, [the
       Defendants] concluded that they would like to execute a lease based on Scenario
       #1 with the exception of increasing the expense cap to $10.00 [per square foot].
       Given this change, they are prepared to execute a lease including the additional
       space for a five-year term.

Plaintiff subsequently met with Dr. McEwan on December 13, 2002, to discuss the expense cap
in the proposed lease, and ultimately agreed to an expense cap of $9 per square foot. Mr. Lloyd
later memorialized the agreement between Plaintiff and Dr. McEwan in a December 16, 2005,
letter to Plaintiff stating: “It is my understanding after talking with Dr. McEwan that you have
agreed to increase the expense cap in Scenario #1 to $9.00. As Dr. McEwan stated, this will be
acceptable subject to final approval of the lease document.”

       Plaintiff subsequently sent Mr. Lloyd a proposed lease agreement and regulations for the
Park Manor Clinic on December 23, 2002, along with a cover letter noting that the terms of the
proposed lease were “as agreed to by Dr. McEwan and confirmed by [Mr. Lloyd’s] letter dated
December 16, 2002.” Mr. Lloyd responded by sending Plaintiff a letter on December 31, 2002,
requesting eight modifications to the proposed lease. On January 8, 2003, Plaintiff sent a second


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draft of the proposed agreement incorporating some of Mr. Lloyd’s proposed changes. After
receiving no response from either Mr. Lloyd or the Defendants, Plaintiff advised the Defendants
on January 15, 2003, that a lease needed to be executed promptly since the upstairs tenant, who
was in the process of moving out, was expressing doubts as to her decision to give up the space.2
On January 17, 2003, Mr. Lloyd responded with a letter stating:

         I am in receipt of your letter dated January 15 regarding the [lease for 950 Mt.
         Moriah Rd.]. As an update, the [Defendants] are continuing to discuss the lease
         and examine their options. You mentioned in your letter that the sub-tenant is
         expressing some doubts about giving up their space. In that event, the
         [Defendants] recommend that you not miss an opportunity to lease and to proceed
         with leasing if the opportunity exists.

         It is my estimate that the [Defendants] will conclude their due diligence soon.
         However, the decision has been delayed due to a new development of adding a
         fourth physician to the practice. I assure you that we will not prolong this.

        On March 5, 2003, Plaintiff sent the Defendants a revised lease proposing new terms
which were more favorable to the Defendants. Five days later, Plaintiff sent the Defendants
another revised lease proposing additional favorable terms. After receiving no affirmative
response from the Defendants, Plaintiff sent another revised lease on April 10, 2003,
incorporating all eight changes requested by Mr. Lloyd in his December 31, 2002, letter.
However, the Defendants subsequently refused to execute a new lease with Plaintiff and
ultimately moved their practice in June 2003 to office space located at 756 Ridgelake Boulevard.
As a result, Plaintiff filed suit against the Defendants in the Chancery Court of Shelby County on
June 9, 2003, asserting causes of action for: (1) breach of agreement to enter into a lease
agreement; (2) breach of lease agreement; (3) detrimental reliance; (4) fraud and
misrepresentation; and (5) negligent misrepresentation.

         Prior to trial, Plaintiff moved for summary judgment for all claims asserted in his
complaint. The trial court denied Plaintiff’s motion and the case went to trial on July 28, 2004.
At trial, in an effort to streamline the issues and proof at trial, the chancellor requested that the
parties advise him of all facts in dispute. The parties eventually agreed to submit the case on 21
stipulated exhibits, the parties trial briefs, and testimony concerning whether the December 13,
2002, meeting between Dr. McEwan and Plaintiff resolved all material issues regarding the
formation of a lease contract. After reviewing the evidence, the chancellor issued a letter ruling
on August 16, 2004, stating:


         2
           In an Affidavit, Ms. McW illie stated that she was first approached about vacating her sub-leased office space
on or about October 23, 2002. Ms. McW illie also stated that she considered her move from the upstairs space complete
on December 13, 2002, when her DSL lines were moved. However, her “physical move” was not complete until
sometime in January 2003. Ms. McW illie further acknowledged in her affidavit that, on January 15, 2003, she informed
Plaintiff that she was questioning her decision to move out of her prior office space.

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       After a trial on the merits, this Court took the matter of Vance v. McEwan, et al.
       under advisement. After careful consideration and review, I find that the Plaintiff
       did not carry his burden of proving that the parties had a meeting of the minds on
       all material elements of the alleged contract.

       Therefore, I render judgment in favor of the Defendants with costs assessed to the
       Plaintiff. The parties are advised that this letter also serves as the Chancellor’s
       Findings of Fact and Conclusions of Law. The attorneys should present this Court
       with a Final Decree consistent with this letter opinion.

The trial court subsequently entered a Final Decree on September 7, 2004, stating:

               THIS CAUSE came on to be heard for trial before the Court on the 28th
       day of July, 2004, wherein the Court took the matter under advisement. After
       careful consideration and review, the Court finds that the Plaintiff did not carry
       his burden of proving that the parties had a meeting of the minds on all material
       elements of the alleged contract.

               IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that
       judgment is hereby rendered in favor of the Defendants with costs assessed to the
       Plaintiff, for which execution may issue, if necessary.

        After the trial court’s ruling, Plaintiff filed a Motion for New Trial or, in the Alternative,
to Alter or Amend Judgment and/or to Make Additional Findings of Fact Pursuant to Tennessee
Rules of Civil Procedure 59.02, 59.04, and 52.02. In this motion, Plaintiff argued that the trial
court erroneously ruled on Plaintiff’s contract claims and failed to address or rule on Plaintiff’s
other causes of action, such as detrimental reliance, fraud and misrepresentation, and negligent
misrepresentation. The trial court denied Plaintiff’s motion. Plaintiff appeals. Because we find
that the trial court failed to enter a final decree in this matter, we dismiss this appeal for lack of
subject matter jurisdiction.

                                              Analysis

        Although neither party in this case raises the issue of whether this Court has jurisdiction
to hear this appeal, we may nonetheless consider the issue of subject matter jurisdiction pursuant
to Tenn. R. App. P. 13(b), which states that “[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 . . . .”

       Rule 3 of the Tennessee Rules of Appellate Procedure provides as follows:

             (a) Availability of Appeal as of Right in Civil Actions. In civil actions every final judgment ent
Supreme Court or Court of Appeals is appealable as of right. Except as otherwise permitted in


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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 the parties.

      Rule 54.02 of the Tennessee Rules of Civil Procedure deals with the entry of final
judgment when multiple claims are asserted within a case, and provides as follows:

        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
        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.

As recognized by the Tennessee Supreme Court in Fox v. Fox 657 S.W.2d 747 (Tenn. 1983),

        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 judgement 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 right and liabilities of all the parties.

Id. at 749.

         In the case at bar, the record shows that Plaintiff asserted five causes of action in his
initial complaint: (1) breach of agreement to enter into a lease agreement; (2) breach of lease
agreement; (3) detrimental reliance; (4) fraud and misrepresentation; and (5) negligent
misrepresentation. However, at the conclusion of the trial in this case, the trial court entered
judgment only as to Plaintiff’s contractual claims and failed to either rule on or otherwise dispose
of Plaintiff’s remaining three causes of action. Furthermore, the record shows that the trial judge
did not certify that he was entering final judgment as to fewer than all of Plaintiff’s claims and
also failed to make an express determination that no just reason for delay existed for appeal upon


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his ruling concerning Plaintiff’s contract claims. Therefore, since the prerequisites of neither
Rule 3 of the Tennessee Rules of Civil Procedure nor Rule 54.02 of the Tennessee Rules of
Appellate Procedure have been met, and since Plaintiff has not sought an interlocutory appeal as
allowed for under Rule 9 of the Tennessee Rules of Appellate Procedure, we hereby dismiss
Plaintiff’s appeal for lack of subject matter jurisdiction. Costs of this appeal are taxed to
Appellant, W. Robert Vance, Jr., and his surety for which execution may issue if necessary.




                                                     ___________________________________
                                                     DAVID R. FARMER, JUDGE




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