                                                                                          08/29/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               February 27, 2017 Session

 DENNIS DOWNS D/B/A KNOXVILLE LIFESTYLE v. STEVE HALL D/B/A
             GREATER TENNESSEE FLOORING

                  Appeal from the Chancery Court for Knox County
                  No. 178756-3     Michael W. Moyers, Chancellor
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                           No. E2016-00647-COA-R3-CV
                       ___________________________________


After the trial court entered a final judgment awarding plaintiff damages and attorney’s
fees, defendant filed a timely motion requesting additional findings of fact and
conclusions of law. The trial court then entered a second judgment incorporating the
requested findings of fact and conclusions of law. After entry of the second judgment,
plaintiff filed a motion for an award of additional attorney’s fees, which the trial court
treated as a motion to alter or amend. The plaintiff later withdrew his motion for
additional attorney’s fees, and the trial court entered an order authorizing the withdrawal.
Later, in response to a motion to quash a garnishment, the trial court entered a third
judgment, which granted the motion but otherwise incorporated by reference the court’s
previous rulings. Defendant filed a notice of appeal within thirty days after entry of the
third judgment but more than thirty days after the order granting plaintiff leave to
withdraw his motion for additional attorney’s fees. Because we conclude the notice of
appeal was untimely, we dismiss the appeal.

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

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J, and THOMAS R. FRIERSON, II, J., joined.

Billy J. Stokes, Knoxville, Tennessee, for the appellant, Steve Hall.

Thomas M. Leveille, Knoxville, Tennessee, for the appellee, Dennis Downs.
                                        OPINION

                                             I.

       Dennis Downs d/b/a Knoxville Lifestyle and Steve Hall d/b/a Greater Tennessee
Flooring entered into a written agreement for the purchase of advertisement space in a
publication known as “Knoxville Lifestyle.” For the two page advertisement, Mr. Downs
agreed to pay $7,000.00. The words “½ cash ½ trade” were handwritten above the total
amount due. The agreement further provided that $3,500 would be paid upon execution
of the agreement and that the balance would be payable “with final ad layout and within
Knoxville Lifestyle’s specified production deadline.”

       The parties acknowledge that Mr. Hall paid $3,500 in cash under their agreement,
but a dispute arose over satisfaction of the balance. Mr. Hall was under the impression
that the balance would be satisfied by “providing material and labor to carpet Downs’
office.” Mr. Downs, on the other hand, was under the impression that he was not limited
to a specific type of flooring material or space. Mr. Downs wanted “$3,500 worth of
ceramic tile for [his] bathroom.”

        On September 20, 2010, Mr. Downs filed a complaint for breach of contract
against Mr. Hall in the Chancery Court for Knox County, Tennessee. After years of
litigation, the case proceeded to trial in July 2014. At trial, Mr. Hall orally agreed to a
monetary judgment in the amount of $3,500.00 with the issue of Mr. Downs’s request for
attorney’s fees reserved for a later date.

       On August 1, 2014, the trial court entered a judgment reflecting the parties’
agreement. The judgment awarded Mr. Downs $3,500.00 and ordered Mr. Hall to pay
that amount within 45 days from the entry of the judgment. If the judgment was not paid
within 45 days, the unpaid amount would accrue “interest at the statutory maximum.”
With respect to attorney’s fees, the judgment provided as follows:

       That Plaintiff seeks a judgment for his attorney’s fees, which is included in
       the contract at issue herein as a remedy in the event of breach, incurred in
       this lawsuit. Plaintiff’s counsel shall submit his line itemized billing in
       regards to the time he has billed his client in this lawsuit to Defendant’s
       counsel no later than fifteen days from the entry date of this Judgment.
       Counsel will confer with each other to see if an agreement can be reached
       on Plaintiff’s attorney’s fees, and, if not, counsel shall set this matter upon
       the Court’s docket for argument.

       Approximately 40 days after entry of the judgment, Mr. Hall requested that the
judgment be “stayed.” In actuality, Mr. Hall sought modification of the judgment,
requesting that he be permitted to pay the award “within thirty (30) days of the entry of a
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Final Judgment that includes a resolution of attorney’s fees.” The parties also filed
various pleadings related to the issue of attorney’s fees.

       After conducting a hearing on all outstanding motions, the trial court entered a
“Final Judgment” on January 15, 2015. The final judgment incorporated by reference the
court’s previous judgment. And it awarded attorney’s fees in the amount of $10,331.25
to Mr. Downs and taxed costs to Mr. Hall and his surety.

       On February 13, 2015, Mr. Hall filed a Rule 52 motion for additional findings of
fact and conclusions of law. After receiving proposed findings of fact and conclusions of
law from both parties, the trial court entered a “Final Order” on November 30, 2015,
which incorporated findings of fact and conclusions of law. In addition to finding that
Mr. Hall had “confessed a judgment in the amount of $3,500,” the Final Order concluded
that the amount of attorney’s fees it previously awarded to Mr. Downs in the Final
Judgment “[wa]s a reasonable fee for this unreasonable litigation.”

       On December 30, 2015, Mr. Downs filed a motion for an award of additional
attorney’s fees.1 However, Mr. Downs eventually withdrew his motion.2

       On January 13, 2016, Mr. Hall filed a motion to quash and dissolve garnishment,
seeking return of the $4,395.25 garnished from his bank account by Mr. Downs. In the
motion, Mr. Hall argued that the garnishment was improper because a final judgment had
not been entered. Specifically, Mr. Hall stated,

        [w]hile it may be debatable whether [the Final Order entered on November
        30, 2015] would constitute a final, appealable judgment based on
        Tennessee statutory and common law, that question was rendered moot by
        Plaintiff’s [sic] filing a Motion for Additional Attorney’s Fees on
        December 30, 2015, thereby tolling the finality of the referenced document
        that the Plaintiff and his counsel claim to be acting upon.

While the motion to quash and dissolve garnishment was pending, the trial court entered
an order on February 8, 2016, permitting Mr. Downs to withdraw his motion for
additional attorney’s fees.

      In an order entered on March 1, 2016, entitled “Final Judgment,” the trial court
agreed with Mr. Hall that the garnishment was improper and ordered return of the
amounts garnished from his bank account. Although acknowledging that it had
        1
           This motion for additional attorney’s fees is not contained in the record. Mr. Downs concedes
in his brief that it was filed on December 30, 2015, within thirty days of the entry of the Final Order.
        2
         The notice of withdrawal is not contained in the record. Mr. Downs states that he filed a
“Notice of Withdrawal of Motion” on January 8, 2016.
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previously authorized Mr. Downs to withdraw his motion for additional attorney’s fees,
the court concluded that its Final Order entered on November 30, 2015, was not yet final.
The court also again granted permission for the withdrawal of the motion of additional
attorney’s fees. Otherwise, the court made no changes to the findings of fact and
conclusions of law or the amounts awarded to Mr. Downs in its order of November 30,
2015.3

        Mr. Hall filed his notice of appeal on March 31, 2016.

                                                      II.

      On appeal, Mr. Hall raises several issues related to the merits of the underlying
breach of contract dispute and the judgment entered against him. For his part,
Mr. Downs argues that this appeal should be dismissed as untimely.

        Under the Tennessee Rules of Appellate Procedure, “every final judgment entered
by a trial court . . . is appealable as of right.” Tenn. R. App. P. 3(a). In an appeal as of
right, “the notice of appeal . . . shall be filed with and received by the clerk of the trial
court within 30 days after the date of entry of the judgment appealed from.” Id. at 4(a).4
If a notice of appeal is not timely filed, we lack subject matter jurisdiction to hear the
appeal. McGaugh v. Galbreath, 996 S.W.2d 186, 189 (Tenn. Ct. App. 1998). Subject
matter jurisdiction implicates our power to adjudicate a particular type of case or
controversy. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004); Toms v. Toms, 98
S.W.3d 140, 143 (Tenn. 2003); Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn.

        3
            The Final Judgment provided as follows:

        1. The Clerk and Master is ordered to refund to Defendant the sum of $4,432.52,
           reflecting the amount obtained by Plaintiff pursuant to the execution, garnishment
           and levy upon Defendant’s bank account, presently held in the Registry of the Clerk
           and Master;
        2. That the Court’s November 30, 2015, “Findings of Fact and Conclusions of Law and
           Final Order” be incorporated herein by reference as though set forth verbatim;
        3. That the Plaintiff is permitted to withdraw a pending Motion for Additional Attorney
           Fees and that an Order to that effect was entered on February 8, 2016; and further,
           that said Motion is a Tn. R. Civ. P. 59 Motion; and
        4. That the Court believes all matters in controversy between the parties are addressed
           in this judgment and in the documents incorporated by reference herein and makes
           this its Final Judgment in this cause.
        4
          The Supreme Court of Tennessee promulgated and adopted amendments to Rules 3 and 4 of the
Tennessee Rules of Appellate Procedure on December 21, 2016, which were ratified and approved by the
Legislature in 2017. H. Res. 19 & S. Res. 16, 110th Gen. Assemb., Reg. Sess. (Tenn. 2017). Effective
July 1, 2017, subdivision (a) of Tennessee Rule of Appellate Procedure 4 was amended to change the
location for filing the notice of appeal from the office of the trial court clerk to the office of the appellate
court clerk. Tenn. R. App. P. 4 Advisory Comm’n cmt. to 2017 revision.
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2000). If we lack subject matter jurisdiction, we are required to dismiss the appeal. See
Tenn. R. App. P. 3(e); Arfken & Associates, P.A. v. Simpson Bridge Co., 85 S.W.3d 789,
791 (Tenn. Ct. App. 2002). As such, subject matter jurisdiction is a threshold inquiry,
which we consider in every appeal irrespective of whether the issue is raised by the
parties. Tenn. R. App. P. 13(b); State v. Carter, 988 S.W.2d 145, 148 (Tenn. 1999).

        The subject matter jurisdiction inquiry for appellate courts begins with a
determination of if and when a final judgment was entered. 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.” Tenn. R. App. P. 3(a). 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. The Supreme Court of Tennessee 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).

        When it awarded attorney’s fees to Mr. Downs and taxed costs to Mr. Hall as
reflected in the January 15, 2015 order, the trial court resolved the last of Mr. Downs’s
remaining claims. Therefore, the January 2015 order was a final judgment within the
meaning of Rule 3(a). And the notice of appeal was required to be filed “within 30 days
after the date of entry.” Tenn. R. App. P. 4(a).

        Certain post-judgment motions, if timely made, will toll the commencement of the
thirty-day period for filing the notice of appeal until the trial court adjudicates the
pending post-judgment motion. Tenn. R. Civ. P. 59.01; Tenn. R. App. P. 4(b). Under
Rule 59 of the Tennessee Rules of Civil Procedure, only the following four motions
operate to extend the deadline for filing the notice of appeal:

       (1) under Rule 50.02 for judgment in accordance with a motion for a
       directed verdict; (2) under Rule 52.02 to amend or make additional findings
       of fact, whether or not an alteration of the judgment would be required if
       the motion is granted; (3) under Rule 59.07 for a new trial; or (4) under
       Rule 59.04 to alter or amend the judgment.

Tenn. R. Civ. P. 59.01. Motions to reconsider the disposition of any of these motions are
not permitted and do “not operate to extend the time for appellate proceedings.” Id. If
any the motions contemplated for extending the time for taking an appeal are not timely
made, “the trial court lacks jurisdiction to rule on the motion.” Ball, 288 S.W.3d at 836
(citing Binkley v. Medling, 117 S.W.3d 252, 255 (Tenn. 2003)).

      Here, Mr. Hall timely filed a Rule 52 motion for findings of fact and conclusions
of law on February 13, 2015, within thirty days of the entry of the January 2015 final
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order. The effect of Mr. Hall’s timely filed post-trial motion was to toll the thirty-day
period for filing a notice of appeal until the trial court ruled on the motion, which it
ultimately did by entry of its November 30, 2015 order. See Tenn. R. App. P. 4(b).

       Mr. Downs subsequently filed a motion for additional attorney’s fees within thirty
days of the entry of the November 2015 order. The trial court treated the motion for
additional attorney’s fees as a Rule 59.04 motion to alter or amend. To the extent
Mr. Downs’s post-judgment motion further tolled the thirty-day period for filing a notice
of appeal, it only did so until the trial court acted on the motion. Id. This occurred on
February 8, 2016, when the court first entered an order granting Mr. Downs leave to
withdraw the motion.

      The motion to quash and dissolve garnishment filed by Mr. Hall is not even
arguably one of the motions identified in Tennessee Rule of Civil Procedure 59.01 as
extending the time for the filing of the notice of appeal. And, even if it were, it would
have been untimely as it was filed on January 13, 2016, more than thirty days after the
November 2015 order.

       Thus, at the latest, the time for filing an appeal of the November 2015 order
awarding Mr. Downs damages and attorney’s fees expired thirty days after February 8,
2016. On that date, the November 2015 order was unquestionably final and
unappealable. Although the trial court subsequently entered an order it entitled “Final
Judgment” on March 1, 2016, that order only served to dispose of Mr. Hall’s motion to
quash and dissolve garnishment. By its terms, the March 2016 order did not impact any
of the court’s prior rulings or judgments.

       As noted above, Mr. Hall filed his notice of appeal on March 31, 2016, which
would have been timely to appeal the ruling on his motion to quash and dissolve
garnishment. See Legens v. Lecornu, No. W2013-01800-COA-R3-CV, 2014 WL
2922358, at *18 (Tenn. Ct. App. June 26, 2014) (Kirby, J., concurring). But he appeals
only the underlying judgment rendered against him. For this, he waited too long.

                                           III.

       Because Mr. Hall failed to timely file a notice of appeal of the judgment entered
against him, we lack subject matter jurisdiction to consider his appeal. Accordingly, this
appeal is dismissed.


                                                  _________________________________
                                                  W. NEAL MCBRAYER, JUDGE


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