                                                                                                        10/03/2017
                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                     August 24, 2017 Session

             KRISTINA ABOLINS, ET AL. v. FRANK SANTAS, ET AL.

                  Appeal from the Chancery Court for Davidson County
                    No. 15-1315-II    William E. Young, Chancellor
                        ___________________________________

                               No. M2017-00357-COA-R3-CV
                           ___________________________________


W. NEAL MCBRAYER, J., concurring in part and dissenting in part.

       I concur in the majority’s holding that the trial court was within its discretion to
place a condition on the grant of the motion to set aside the default judgment. I also
concur in the conclusion that the attorney’s fees and expenses assessed by the trial court
were reasonable. But I respectfully dissent from the grant of an additional thirty days for
Frank Santa and Alta Horizon, Inc. (“Defendants’) to comply with the trial court’s
January 10, 2017 order. Although the conduct of counsel1 might justify such relief, in my
view, this Court lacks that authority.

       As noted by the majority, the Chancery Court for Davidson County entered two
orders on Defendants’ motion to set aside default judgment: an order entered on January
10, 2017, and an order entered on March 8, 2017. The January 10 order granted the
Defendants’ motion. Specifically, the order provided that the default judgment would be
set aside if Defendants paid “the attorney’s fees and expenses incurred by the Plaintiffs,
Kristina Abolins and Heath Hawkins (“Plaintiffs”), in filing the motion for default
judgment, pursuing collection of that judgment and responding to the motion to set aside
the default judgment” within thirty days. The order went on to provide that, “[i]f these
fees and expenses are not paid by the date required by this Order, then the Plaintiff will
file written notice of non-payment with this Court and the default judgment will remain
in effect.”

       Defendant failed to pay the attorney’s fees and expenses, so Plaintiffs filed a
notice of that fact with the trial court. Then, the trial court entered its March 8 order.
The March 8 order provided that “Defendants’ Motion to Set Aside the Default Judgment

        1
          This case leads me to wonder whether counsel for the parties have reviewed Local Rule 5.04 of
the Rules of the Circuit, Chancery, Criminal, and Probate Court for the Twentieth Judicial District, which
includes the “Lawyer’s Creed of Professionalism.”
shall be denied for want of compliance.”

         Defendants filed a notice of appeal within thirty days of the entry of each order.
But appeals as of right only lie from final judgments. Tenn. R. App. P. 3(a). The
Tennessee Rules of Appellate Procedure define “final judgment” by exclusion. A final
judgment is not an “order that adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties.” Id. Orders that resolve fewer than all claims or
the rights and liabilities of fewer than all the parties are “subject to revision at any time
before entry of a final judgment adjudicating all the claims, rights, and liabilities of all
parties.” Id. Our supreme court has described a final judgment as a judgment “that
resolves all of the parties’ claims and leaves the court with nothing to adjudicate.” Ball v.
McDowell, 288 S.W.3d 833, 836-37 (Tenn. 2009).

       Here, the January 10 order by its terms did not resolve all of the parties’ claims
and was subject to revision at a later date. The January 10 order was therefore a
conditional, non-final, order. See 4 C.J.S. Appeal and Error § 144, Westlaw (database
updated Sept. 2017) (“In general, a conditional judgment, order, or decree, the finality of
which depends on certain contingencies which may or may not occur, is not final for the
purpose of appeal.”); Sullivan Cty. v. Lyon, No. E2003-01107-COA-R3-CV, 2004 WL
1669718, at *1 (Tenn. Ct. App. July 27, 2004) (“Any conditional Order that reserves any
substantive matter for hearing at a later date is not final.”). The March 8 order, on the
other hand, was a final, appealable judgment because it resolved all claims and left
nothing for the trial court to adjudicate.

        The January 10 order was not stayed by the filing of the first notice of appeal, and
as noted above, Defendants did not pay the amount necessary to set aside the default
judgment. See Underwood v. Liberty Mut. Ins. Co., 782 S.W.2d 175, 177 (Tenn. 1989)
(“Under current Tennessee practice, the taking of an appeal generally does not, in and of
itself, bring about a stay of judgment. . . . [J]udgments may continue to be enforced
pending an appeal unless a stay is ordered by the trial court.”). Absent a reversal of the
trial court’s decision, the March 8 order remains in place, and Plaintiffs have a valid
default judgment against Defendants.

        As this Court must “grant the relief on the law and facts to which the party is
entitled or the proceeding otherwise requires,” see Tenn. R. App. P. 36(a), in my view,
we cannot grant Defendants more time to pay the attorney’s fees and expenses awarded
in the January 10 order. Thus, I dissent from the majority opinion only to the extent it
grants Defendants “30 days from the entry of this Opinion and our Judgment in which to
pay, if they choose, $9,935.93 and thus satisfy the Trial Court’s condition to set aside the
default judgment.”

                                                  _________________________________
                                                  W. NEAL MCBRAYER, JUDGE
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