Loring Justice v. Vey Michael Nordquest, PH.D. ( 2021 )

06/29/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
June 2, 2021 Session
LORING JUSTICE v. VEY MICHAEL NORDQUIST, PH.D.
Appeal from the Circuit Court for Knox County
No. 1-171-19 Kristi M. Davis, Judge
No. E2020-01152-COA-R3-CV
Loring Justice (“Plaintiff”), individually and as next friend of N.N./N.J. (“the Child”) sued
Vey Michael Nordquist, Ph.D. (“Defendant”) in the Circuit Court for Knox County (“the
Trial Court”) over Defendant’s actions in connection with paternity litigation to which
Plaintiff was a party. Defendant filed a motion to dismiss, but never filed a responsive
pleading to the original complaint. The Trial Court granted Defendant’s motion to dismiss.
Before time for appeal expired, Plaintiff filed an amended complaint as he was entitled to
do under Tenn. R. Civ. P. 15.01 given that Defendant never filed a responsive pleading to
the original complaint. However, the Trial Court never ruled on Plaintiff’s amended
complaint. The order appealed from is not a final judgment, meaning we lack subject
matter jurisdiction to hear this appeal. Therefore, we dismiss this appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and ARNOLD B. GOLDIN, JJ., joined.
Linn Guerrero, Knoxville, Tennessee, for the appellant, Loring Justice, individually and as
next friend of N.N./N.J., a minor.
Cathy H. Morton, Maryville, Tennessee, for the appellee, Vey Michael Nordquist, Ph.D.
OPINION
Background
Defendant, a psychologist, was retained by counsel for the Child’s mother in
connection with paternity litigation involving Plaintiff. Defendant went on to testify as an
expert witness in a manner adverse to Plaintiff’s case. In 2014, Plaintiff filed a lawsuit
alleging health care liability against Defendant; this lawsuit later was voluntarily
dismissed. In May 2019, Plaintiff refiled his lawsuit against Defendant in the Trial Court.
Plaintiff alleged, among many other things, the following:
88. Defendant owed duties to [Plaintiff], as he held himself out to [Plaintiff]
in the phone call of May, 2013 as something other than a hired expert for [the
Child’s] mother and secured information from [Plaintiff] and discussed
information about [the Child] with [Plaintiff] and [the Child’s] condition
with [Plaintiff] and proposed various potential psychological interventions
for the family to [Plaintiff]. . . Relative to [Plaintiff], [Defendant] created,
at a minimum, the appearance he was in a treating or therapeutic relationship
with [Plaintiff] at least to address the family dynamic between [the Child],
his mother and [Plaintiff]. [Defendant] had a duty to provide care, treatment,
and services within acceptable standards of care for psychologists and to
abide by the ethical standards of his profession regarding his role and
multiple relationships.
89. Defendant breached the duties he owed to [Plaintiff] and [the Child], and
was negligent and abusive in his actions and care and treatment of [the Child]
and [Plaintiff], through the acts and/or omissions discussed.
90. As a direct and proximate result of the acts or omissions set forth,
singularly or in combination, [the Child] grew alienated from his father, his
mother’s alienation was assisted by [Defendant] and [Defendant] interfered
with [the Child’s] proper court-Ordered therapy; [the Child] has been
severely injured by [Defendant’s] errors, omissions and misdeeds and so has
[Plaintiff].
In June 2019, Defendant filed his Motion to Dismiss and to Strike the Complaint
pursuant to Tenn. R. Civ. P. 12.02(6) and 12.06. Defendant made a number of arguments
in support of his motion, including: (1) Defendant was immune for statements he made in
judicial proceedings; (2) Plaintiff lacked standing to bring this suit on behalf of the Child
because his paternity was not established when the suit was first filed; (3) Plaintiff’s
individual claims were barred by the statute of limitations and any health care liability
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claims made on the Child’s behalf were barred by the applicable statute of repose; (4)
Defendant owed no duty to Plaintiff; and, (5) Plaintiff was estopped from raising issues of
Defendant’s credibility or trustworthiness as those issues had already been determined by
the juvenile court judge in the separate proceedings. Additional procedural history
unfolded, not all of which is relevant to the dispositive issue on appeal. Upon Defendant’s
request, the Trial Court disqualified Plaintiff’s counsel on grounds that counsel’s
involvement in the paternity action meant she was too “intermingled” to serve in this case.
On February 28, 2020, the Trial Court entered an order granting Defendant’s motion
to dismiss. Defendant filed his motion for costs and fees pursuant to Tenn. Code Ann. §
20-12-119. On March 30, 2020, Plaintiff filed two separate motions to alter or amend the
Trial Court’s February 28, 2020 order of dismissal. On May 7, 2020, the Trial Court
entered an order denying Plaintiff’s motions to alter or amend. On June 8, 2020, Plaintiff
filed his First Amended Complaint. On June 15, 2020, the Trial Court entered an order
awarding Defendant attorney’s fees and expenses pursuant to Tenn. Code Ann. § 20-12-
119(c)(1). Plaintiff thereafter filed a motion to alter or amend the Trial Court’s June 15,
2020 order on attorney’s fees and expenses. On July 28, 2020, the Trial Court entered an
order denying Plaintiff’s motion to alter or amend its June 15, 2020 order on attorney’s
fees and expenses. On August 14, 2020, Plaintiff filed a motion for default judgment
pursuant to Tenn. R. Civ. P. 55 on grounds that Defendant had failed to answer Plaintiff’s
amended complaint. On August 24, 2020, Defendant filed his Response to Notice of
Default and Motion to Dismiss Amended Complaint. In his response, Defendant stated:
Comes the Defendant Dr. Vey Nordquist, by and through counsel, and
objects to and requests that Plaintiff’s Motion for Default be denied and his
First Amended Complaint be stricken from the record and that the Defendant
be awarded his attorney fees and costs in responding to the Motion. This
case was dismissed by Order of the Honorable Kristi Davis entered on
February 28, 2020. Plaintiff’s two Motions to Alter or Amend the February
28, 2020 Order were denied by Judge Davis by Order entered May 7, 2020
and no appeal was filed. There is no legal basis for the filing of an Amended
Complaint after the entry of an Order of Dismissal and no response was
required. The filing of the Amended Complaint and Motion for Default are
frivolous and unequivocal continuation of Justice’s bad faith attempts to
abuse and harass the Defendant and the judicial process and should not be
tolerated. In addition to attorney’s fees and costs, sanctions should be
imposed, or an injunction entered to prevent Justice from continuing this
abusive and vexatious litigation.
On August 27, 2020, Plaintiff filed his Notice of Appeal with this Court “[o]ut of
an abundance of caution” as he put it in his appellate brief.
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Discussion
Plaintiff and Defendant raise multiple issues on appeal. However, we discern that
a single issue—one raised by Plaintiff—is dispositive: whether this appeal must be
dismissed for lack of a final judgment.
The Tennessee Rules of Appellate Procedure define an appeal as of right from a
final judgment as follows:
In civil actions every final judgment entered by a trial court from which an
appeal lies to the Supreme Court or Court of Appeals is appealable as of right.
Except as otherwise permitted in 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 parties.
Tenn. R. App. P. 3(a).
A final judgment is “one that resolves all the issues in the case, ‘leaving nothing
else for the trial court to do.’ ” In re Estate of Henderson, 121 S.W.3d 643, 645 (Tenn.
2003) (quoting State ex rel. McAllister v. Goode, 968 S.W.2d 834, 840 (Tenn. Ct. App.
1997)). “[A]ny trial court order that adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties is not final or appealable as of right.” State ex rel.
Garrison v. Scobey, No. W2007-02367-COA-R3-JV, 2008 WL 4648359, at *5 (Tenn. Ct.
App. Oct. 22, 2008), no appl. perm. appeal filed. This Court does not have subject matter
jurisdiction to adjudicate an appeal if there is no final judgment. The Tennessee Supreme
Court has recognized that “[u]nless an appeal from an interlocutory order is provided by
the rules or by statute, appellate courts have jurisdiction over final judgments only.”
Bayberry Assocs. v. Jones, 783 S.W.2d 553, 559 (Tenn. 1990). See also Ruff v. Raleigh
Assembly of God Church, Inc., 241 S.W.3d 876, 877 at n. 1 (Tenn. Ct. App. 2007).
Plaintiff contends that, as Defendant never filed a responsive pleading to his original
complaint, he had an absolute right to file an amended complaint notwithstanding that the
Trial Court already entered an order of dismissal as to his original complaint. In support
of his contention, Plaintiff cites Justice v. Nelson, No. E2018-02020-COA-R3-CV, 2019
WL 6716300 (Tenn. Ct. App. Dec. 10, 2019), no appl. perm. appeal filed, incidentally
another case involving Plaintiff. In Justice, the trial court granted defendants’ motion to
dismiss plaintiff’s complaint. Id. at *1. Thirty days later, plaintiff filed an amended
complaint. Id. Acknowledging the legitimacy of this procedural move, we noted:
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On September 4, 2018, the trial court entered an order clarifying that
“Mr. Justice filed a First Amended Complaint not a motion to be allowed to
file an amended complaint.” (Emphasis in original.) The court was
reminding defendants that “[a] party may amend the party’s pleadings once
as a matter of course at any time before a responsive pleading is served[.]”
See Tenn. R. Civ. P. 15.01; see also Adams v. Carter Cty. Memorial Hosp.,
548 S.W.2d 307, 308-09 (Tenn. 1977) (holding that the plaintiff could file an
amended complaint as a matter of course after the trial court granted the
defendants’ motion to dismiss and before that order of dismissal became a
final judgment). Despite finding that “[t]here was never a motion to dismiss
the amended complaint[,]” the trial court ruled that “[t]he response to the
amended complaint reads like a motion to dismiss and the Court will consider
it a motion to dismiss.” The court also requested additional briefing on the
issue.
Justice, 2019 WL 6716300, at *1.1 The trial court dismissed the lawsuit. Id. at *2. On
appeal, we held that defendants’ response to plaintiff’s amended complaint was not a
motion to dismiss in form or in substance, and that the trial court erred in effectively
dismissing the amended complaint sua sponte without adequate justification. Id. at *3, 5.
For purposes of the instant case, however, the main point from Justice is that this Court has
recognized a scenario in which a party may file an amended complaint to continue her case
even though the trial court already has dismissed her original complaint if no responsive
pleading to the original complaint was filed and the order of dismissal has not become
final. The first consideration in this scenario is whether a responsive pleading has been
filed. Here, Defendant filed only a motion to dismiss; he never filed an answer. Regarding
the effect this has on a plaintiff’s ability to amend her complaint, this Court has stated: “[A]
plaintiff must seek permission from the court to file an amended complaint only when a
responsive pleading has been filed. It is well-settled in Tennessee that a motion to dismiss
is not a responsive pleading.” Mosley v. State, 475 S.W.3d 767, 774 (Tenn. Ct. App. 2015)
(citations omitted). Defendant’s Motion to Dismiss and to Strike the Complaint does not
constitute a responsive pleading. The next consideration is whether Plaintiff’s amended
complaint was timely filed before the order of dismissal became final. Regarding the
different senses in which a judgment may be deemed “final,” this Court has stated:
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Tenn. R. Civ. P. 15.01 provides: “A party may amend the party’s pleadings once as a matter of course at
any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading
is permitted and the action has not been set for trial, the party may so amend it at any time within fifteen
(15) days after it is served. Otherwise a party may amend the party’s pleadings only by written consent of
the adverse party or by leave of court; and leave shall be freely given when justice so requires. For
amendments adding defendants pursuant to Tenn. Code Ann. § 20-1-119, however, written consent of the
adverse party or leave of court is not required. A party shall plead in response to an amended pleading
within the time remaining for response to the original pleading or within fifteen (15) days after service of
the amended pleading, whichever period may be longer, unless the court otherwise orders.”
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Generally, “a trial court’s judgment becomes final thirty days after its
entry unless a party files a timely notice of appeal or specified post-trial
motion.” Id. (citing State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn.
1996); Tenn. R. App. P. 4(a)-(c)); see also McBurney v. Aldrich, 816 S.W.2d
30, 34 (Tenn. Ct. App. 1991). Before that time, the judgment lies “within
the bosom of the court” and “may be set aside or amended on motion of a
party or upon the court’s own motion.” McBurney, 816 S.W.2d at 34. It is
in this slightly different, but substantially related, sense of a final judgment
in which the doctrine of res judicata is implicated here. This Court has
referred to this as the concept of “final completion.” Swift v. Campbell, 159
S.W.3d 565, 573 (Tenn. Ct. App. 2004); see also Lawrence A. Pivnick,
Tennessee Circuit Court Practice § 27:9 n. 22 (2010). In this sense, then, a
judgment may be considered “final” in order to confer jurisdiction on an
appellate court pursuant to Tennessee Rules of Appellate Procedure Rule
3(a), while not being “final” for purposes of res judicata because such an
appeal is pending.
This is, in fact, the rule in Tennessee, where a “ ‘a judgment is not
final and res judicata where an appeal is pending.’ ” Creech, 281 S.W.3d at
377-78 (quoting McBurney, 816 S.W.2d at 34); see also Freeman v. Marco
Transp. Co., 27 S.W.3d 909, 913 (Tenn. 2000). Our Supreme Court, citing
the Restatement (Second) of Judgments § 13 cmt. f, has noted that
Tennessee’s rule is a minority position and that the predominant view in
other jurisdictions is that the “taking of an appeal does not affect the finality
of a judgment for res judicata purposes.” Creech, 281 S.W.3d at 378 n. 17
(collecting cases from other jurisdictions). However, it is an inescapable
conclusion that, in Tennessee, a judgment from a case in which an appeal is
pending is not final and cannot be res judicata until all appellate remedies
have been exhausted.
In re Shyronne D.H., No. W2011-00328-COA-R3-PT, 2011 WL 2651097, at *6 (Tenn. Ct.
App. July 7, 2011), no appl. perm. appeal filed (footnote omitted).
On May 7, 2020, the Trial Court denied Plaintiff’s motions to alter or amend.
Plaintiff filed his amended complaint on June 8, 2020, within the time for appeal (the thirty-
day mark landed on a Saturday; the amended complaint was filed that Monday). For this
thirty-day period, the Trial Court’s order remained non-final and ‘within the bosom of the
court,’ thus subject to change or appeal. As was the scenario in Justice, Plaintiff’s timely
filing of an amended complaint when no responsive pleading was filed had the effect of
keeping the case alive in the Trial Court. However, in the present case, the Trial Court
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never ruled on Plaintiff’s amended complaint. Therefore, we lack a final judgment and,
consequently, subject matter jurisdiction to hear this appeal.
In his reply brief, Plaintiff states that his filing an amended complaint after the order
of dismissal was entered effectively erased the Trial Court’s order of dismissal. We
disagree. The order of dismissal remains as valid as before as to the original complaint.
Nevertheless, Plaintiff’s amended complaint remains outstanding and must be addressed.
We prefer to address appeals on their merits. Nevertheless, a final judgment
generally is a prerequisite for an appeal as of right. Because the order appealed from is not
a final judgment, this Court does not have subject matter jurisdiction, and the appeal is
dismissed.
Conclusion
The appeal is dismissed for lack of a final judgment, and this cause is remanded to
the Trial Court for collection of the costs below and further proceedings consistent with
this Opinion. Even though it is Appellant who raised the issue of whether there was a final
judgment for purposes of appeal, it is the Appellant’s appeal that is being dismissed.
Therefore, the costs on appeal are assessed against the Appellant, Loring Justice,
individually and as next friend of N.N./N.J., a minor, and his surety, if any.
s/ D. Michael Swiney________________
D. MICHAEL SWINEY, CHIEF JUDGE
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