                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                             March 21, 2007 Session


     JOHN WAYNE WEBB v. BRANDON O. CANADA & DOUGLAS P.
                         TOWNSEND


                    Direct Appeal from the Circuit Court for Knox County
                    No. 2-740-04    Hon. Harold Wimberly, Circuit Judge



                    No. E2006-01701-COA-R3-CV - FILED MAY 25, 2007




                                   CONCURRING OPINION


               The majority holds that the Judgment denominated “Final Judgment” reducing the
previous Judgment from $723,426.27 to $598,426.27 was a “juristic act” of acceptance of the
remittitur under protest. I do not agree.

               “A judgment is final from which an appeal lies as a matter of right when it decides
and disposes of the whole merits of the case leaving nothing for the further judgment of the court.”
Saunders v. Metro. Gov’t of Nashville & Davidson County, 383 S.W.2d 28, 31 (Tenn. 1964), quoted
in Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 460 (Tenn. 1995).

                While the Circuit Court’s order is styled a “Final Judgment,” it is at most a
provisional order because it did not, as such, deny Canada’s Motion for New Trial. Because the
Record before the Court contains no order denying Canada’s Motion for a New Trial, I would hold
the appeal is premature.

                  However, since the majority has found that the “Final Judgment” as entered
constituted a “juristic act” accepting the remittitur under protest, the majority’s decision becomes
the law of the case unless overturned, and the plaintiff cannot later claim that his Motion for a New
Trial is still viable.

               The statute and cases prescribe the procedure for dealing with suggestions of
remittitur which the plaintiff failed to follow in this case. However, for the stated reason, I concur
with the result of the majority’s Opinion on this issue. I concur with the majority on the other issues.




                                                        ______________________________
                                                        HERSCHEL PICKENS FRANKS, P.J.




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