                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                       June 22, 2016 Session

                   IN RE ESTATE OF ALYS HARRIS LIPSCOMB

                     Appeal from the Probate Court for Shelby County
                          No. PR-1541 Karen D. Webster, Judge
                        ___________________________________

                    No. W2015-02277-COA-R3-CV – Filed July 25, 2016
                         ___________________________________


Appellants appeal from an order that was not final pursuant to Rule 58 of the Tennessee
Rules of Civil Procedure. Accordingly, we dismiss this appeal for lack of subject matter
jurisdiction.

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

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which KENNY
ARMSTRONG, J. and WILLIAM B. ACREE, SP.J., joined.

Robert L. J. Spence and E. Lee Whitwell , Memphis, Tennessee, for the appellant, Carnita F.
Atwater.

Olen M. Bailey, Memphis, Tennessee, for the appellee, Thomas Huddleston.


                                  MEMORANDUM OPINION1

                                         Procedural History



      1
          Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

                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                “MEMORANDUM OPINION”, shall not be published, and shall not be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.
       On October 7, 2014, Petitioner/Appellee Thomas C. Huddleston (“Appellee”) filed a
petition in the Shelby County Probate Court to admit will to probate and to grant letters of
administration in the Estate of Alys Harris Lipscomb (“Decedent”). On October 16, 2014,
Respondent/Appellant Carnita F. Atwater (“Appellant”) filed an answer to the petition
alleging that the will previously submitted had been altered or supplemented by a codicil. As
such, Appellant filed a counter-petition to also admit the codicil to probate and asked that she
be named the estate‟s personal representative. Appellant attached to her counter-petition
various documents, both written and typed, that Appellant contended constituted a codicil to
Decedent‟s will.

        On October 17, 2014, the probate court signed an order admitting Decedent‟s will to
probate and naming a personal representative for the estate. On March 25, 2015, Appellee
filed an answer to the counter-petition, denying that the documents submitted by Appellant
constituted a valid codicil. On October 27, 2015, the probate court signed an order denying
Appellant‟s counter-petition to admit the purported codicils to probate. The trial court
designated the order as final pursuant to Rule 54.02 of the Tennessee Rules of Appellate
Procedure. Appellant thereafter filed a notice of appeal to this court.

                                           Discussion

        As an initial matter, we must first discuss this Court‟s jurisdiction over this appeal.
This Court “cannot exercise jurisdictional powers that have not been conferred directly to
[us] expressly or by necessary implication.” Tennessee Envtl. Council v. Water Quality
Control Bd., 250 S.W.3d 44, 55 (Tenn. Ct. App. 2007) (citations omitted). Our subject matter
jurisdiction is limited to final judgments except where otherwise provided by procedural rule
or statute. Bayberry Assocs. v. Jones, 783 S.W.2d 553, 559 (Tenn. 1990) (citing Aetna Cas.
& Sur. Co. v. Miller, 491 S.W.2d 85, 86 (Tenn. 1973)). An order that adjudicates fewer than
all the claims or the rights and liabilities of fewer than all the parties is typically not a final
judgment that is appealable as of right. See Tenn. R. App. P. 3(a). Rule 3(a) of the Tennessee
Rules of Appellate Procedure nevertheless permits parties to appeal an order that does not
adjudicate all of the claims, rights, and liabilities of all parties if the trial court properly
certifies its judgment as final pursuant to Rule 54.02 of the Tennessee Rules of Civil
Procedure. Rule 54.02 provides:

                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
                                              -2-
               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. In this case, the trial court correctly certified its judgment as final
pursuant to Rule 54.02.

       While this appeal was pending, however, a different procedural issue came to light.
Rule 58 of the Tennessee Rules of Civil Procedure provides that in order for an order to
become “effective” the order must be “marked on the face by the clerk as filed for entry” and
contain one of the following:

               (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.

Tenn. R. Civ. P. 58. In this case, although the order is signed by the judge and counsel for all
the parties, the order is not “marked on the face by the clerk as filed for entry.” Id. “[A]n
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.‟” Steppach v.
Thomas, No. W2008-02549-COA-R3-CV, 2009 WL 3832724, at *4 (Tenn. Ct. App. Nov.
17, 2009) (quoting Citizens Bank of Blount Cnty. v. Myers, No. 03A01-9111-CH-422, 1992
WL 60883, at *3 (Tenn. Ct. App. Mar. 30, 1992)). When a party appeals a non-final order to
this Court, we do not acquire jurisdiction, as our jurisdiction is limited to final orders, except
as otherwise provided by rule or statute. Steppach, 2009 WL 3832724, at *4 (citing In re
Estate of Henderson, 121 S.W.3d 643, 645 (Tenn. 2003)).

       Further, nothing in Rule 54.02, allowing appeals from orders that adjudicate only
some of the issues or parties involved in a case, excuses compliance with Rule 58. As this
Court explained: “Inclusion of Tenn. R. Civ. P. 54.02 language . . . will not negate failure to
comply with Tenn. R. Civ. P. 58 concerning the effectiveness of the final order.” Steppach,
2009 WL 3832724, at *4. Because the order appealed is not file-stamped, it is not an
“effective” final order and we have no jurisdiction to consider an appeal from such an order


                                               -3-
under Rule 3 of the Tennessee Rules of Appellate Procedure.2 See Tenn. R. App. P. 3
(involving appeals of final orders only).

        Generally, this Court favors deciding cases upon their merits, rather than dismissing
due to procedural defects. See Greer v. Anderson, 36 Tenn. App. 507, 509, 259 S.W.2d 550,
550 (Tenn. Ct. App. 1953) (“We prefer to decide all cases on the merits and construe our
rules liberally to effect such result.”). To that end, this Court informed the parties‟ counsel at
oral argument that the order appealed was not effective pursuant to Rule 58 and directed the
parties to obtain a properly file-stamped order. The next day, June 22, 2015, this Court
entered an order again directing the parties to obtain entry of an effective, final order within
ten days.

        Thirty days have now elapsed from our June 22, 2015 order; however, the parties have
failed to obtain an effective order in the trial court or supplement the record with such order
on appeal. Because there is no final judgment upon which our jurisdiction can attach under
Rule 3, we must dismiss this appeal for lack of subject matter jurisdiction. In the event that a
further appeal is filed after the entry of a final order compliant with Rule 58, the parties may
request that this Court consolidate the record of this appeal with that of the future appeal
and/or to consider the duplicates of briefs filed in the present appeal in connection with the
future appeal to avoid duplication of expenses.

                                               Conclusion

          This appeal is dismissed. Costs are taxed to Appellant, Carnita F. Atwater, and her
surety.


                                                           _________________________________
                                                           J. STEVEN STAFFORD, JUDGE




          2
           We note that this does not appear to be an isolated incident. The only other order contained in the
record, the October 17, 2014 order admitting Decedent‟s will to probate, is also not marked on its face by the
clerk as filed for entry.
                                                    -4-
