Levitt, Hamilton, and Rothstein, LLC v. Ghazi Asfour ( 2019 )

03/29/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
March 6, 2019 Session
LEVITT, HAMILTON, AND ROTHSTEIN, LLC, ET AL v. GHAZI
ASFOUR
Appeal from the Chancery Court for Davidson County
No. 12-0724-II William E. Young, Chancellor
___________________________________
No. M2018-00938-COA-R3-CV
___________________________________
In appealing a non-final order, Appellant asks this Court to adopt a jurisdictional
exception to the final judgment rule that would allow an immediate appeal of a trial
court’s decision to grant a motion under Rule 60.02 where the trial court purportedly
lacked jurisdiction to do so. We decline to adopt a per se exception to Rule 3(a) of the
Tennessee Rules of Appellate Procedure where the trial court grants a Rule 60.02 motion.
We likewise decline to suspend the finality requirement in this particular case. As such,
this appeal is dismissed 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 ARNOLD B.
GOLDIN, and KENNY ARMSTRONG, JJ., joined.
Paul J. Krog, Nashville, Tennessee, for the appellant, Levitt, Hamilton, and Rothstein,
LLC.
Thomas I. Bottorff, Brentwood, Tennessee, for the appellee, Ghazi Asfour.
OPINION
Background
In the course of his business bankruptcy, Defendant/Appellee Ghazi Asfour
(“Appellee”) determined that he wanted to sell his business property. He entered into a
purported contract with Zaleka Awash for the sale of the property. The contract stated
that earnest money had been paid with a copy of the check attached. According to
Appellee, however, no money was ever transferred. Handwritten on the contract was also
a notation that the bankruptcy court was required to approve the sale. Because of the
bankruptcy, Appellee later alleged that he informed Mr. Awash that the earnest money
was necessary for the bankruptcy court to approve the contract. Mr. Awash allegedly
refused to provide the money and Appellee thereafter entered into another agreement
with a separate individual to buy the business property.1
Mr. Awash thereafter sued Appellee for breach of contract in the Davidson County
Chancery Court on May 17, 2012; the complaint sought specific performance on the sales
contract. Mr. Awash also filed an application for a temporary restraining order (“TRO”)
to prevent the sale of the property to the other individual. A summons was issued and
allegedly served on May 18, 2012; there is a dispute as to whether Appellee was properly
served by this summons. In any event, a hearing was later held on the TRO application.
Appellee was not present for the hearing. No TRO was apparently granted as a result of
the hearing. According to Appellee, upon learning that the TRO was not granted and
believing the case to be concluded, he thereafter left the country in July 2012, had brain
surgery overseas, and returned to New York for an additional brain surgery. Appellee
contends that he did not return to Tennessee until July 2013.
In the meantime, on July 18, 2012, Mr. Awash filed an amended petition seeking
damages; the petition was mailed to Appellee’s Tennessee address via regular mail. No
response being filed, Mr. Awash eventually filed a motion for default judgment on
September 14, 2012. Again, the motion was delivered via regular mail. The trial court
granted the motion for default judgment against Appellee on February 27, 2013.
Following a damages hearing, Mr. Awash was awarded $130,000.00 in damages. On July
31, 2013, Mr. Awash recorded a judgment lien on Appellee’s home; again, there is a
dispute as to whether Appellee had personal notice of the lien at the time it was filed.
Petitioner/Appellant Levitt, Hamilton, and Rothstein, LLC (“Appellant”)
thereafter acquired the judgment by assignment from Mr. Awash. Appellant then filed a
post-judgment motion to compel discovery against Appellee in June 2017. On January 8,
2018, Appellee filed a response to the motion to compel, asserting he had no knowledge
of the default judgment and lien. On February 16, 2018, Appellee filed a supplemental
response, a motion to set aside the default judgment pursuant to Rules 55.022 and 60.023
1
The property was sold to the third party in May 2012.
2
Rule 55.02 provides that “[f]or good cause shown the court may set aside a judgment by default
in accordance with Rule 60.02.”
3
Rule 60.02 provides, in relevant part, as follows:
On motion and upon such terms as are just, the court may relieve a party or the party’s
legal representative from a final judgment, order or proceeding for the following reasons:
(1) mistake, inadvertence, surprise or excusable neglect; (2) fraud (whether heretofore
denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse
party; (3) the judgment is void; (4) the judgment has been satisfied, released or
discharged, or a prior judgment upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that a judgment should have prospective application;
or (5) any other reason justifying relief from the operation of the judgment. The motion
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of the Tennessee Rules of Civil Procedure, and a motion to dismiss the amended
complaint. The Rule 60.02 motion alleged that the judgment should be set aside on
grounds that the judgment was void under Rule 60.02(3) and/or that there was “any other
reason justifying relief from the operation of the judgment” under Rule 60.02(5).
Eventually, the trial court entered an order setting aside the default judgment.
Therein, the trial court rejected Appellee’s argument that the judgment was void due to
insufficient service of process and improper notice and perfection of the assignment. The
trial court ruled, however, that Appellee had shown another reason justifying relief under
Rule 60.02(5), based in large part on Appellee’s meritorious defense to the breach of
contract action.4 The trial court noted the significant passage of time between the entry of
the final judgment and the Rule 60.02 motion but ruled that Appellee’s health problems,
travel outside the country, and belief that the case had been resolved, “mitigate against a
finding that [Appellee’s] failure to bring the motion to set aside was willful.” The trial
court also ruled that given that there was no evidence of consideration paid in furtherance
of the sales contract, no prejudice would result from setting aside the default judgment.
The trial court, however, denied Appellee’s motion to dismiss at that time.5 Finally, the
trial court held that Appellant’s motion to compel discovery was rendered moot by its
ruling.
Each party thereafter filed motions to alter or amend the trial court’s ruling. By
order of June 25, 2018, the trial court denied both motions. In this order, the trial court
specifically stated that this order was not a final judgment, as Appellant still had the
opportunity to prosecute its claim against Appellee.
Rather than prosecute the case, Appellant took two actions. First, Appellant filed a
notice to this Court seeking an appeal as of right under Rule 3 of the Tennessee Rules of
Appellate Procedure. Second, Appellant asked the trial court to grant an interlocutory
appeal to this Court pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure.
The trial court granted Appellant’s request by order of August 13, 2018. On September
13, 2018, however, this Court denied permission to appeal, ruling that the court “cannot
conclude that an interlocutory appeal is necessary to prevent irreparable injury, to
shall be made within a reasonable time, and for reasons (1) and (2) not more than one
year after the judgment, order or proceeding was entered or taken.
4
Specifically, the trial court noted that although the sales contract provided that it was
conditioned on bankruptcy court approval, no pleading ever alleged nor was evidence presented that the
bankruptcy court ever approved the sale to Mr. Awash. The trial court also noted that the record did not
reflect that Mr. Awash provided any consideration, as Appellee denied that the earnest money was ever
received by him.
5
The trial court ruled that the motion would be held in abeyance until May 15, 2018, for
Appellant to determine whether it wished to prosecute the suit. If no action was taken by that time, the
case would be dismissed with prejudice. Given the post-trial proceedings concerning interlocutory appeal,
nothing in the record indicates that the trial court ever entered an order dismissing this action.
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develop a uniform body of law, or prevent needless, expensive and protracted litigation.”
As such, Appellant proceeded with this Rule 3 appeal.
During the pendency of this appeal, Appellee filed a motion to dismiss for lack of
jurisdiction, arguing that Appellant had appealed a judgment that was not final. By order
of July 20, 2018, we reserved judgment on the motion pending completion of briefing
and oral argument. The subject matter jurisdiction of this Court is addressed infra.
Discussion
Although the parties raise a number of issues in this case, we must first address
this Court’s subject matter jurisdiction over this appeal, as raised in Appellee’s motion to
dismiss. Rule 3 of the Tennessee Rules of Appellate Procedure provides that if multiple
parties or multiple claims 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 final or
appealable. Except where otherwise provided, this Court only has subject matter
jurisdiction over final orders. See Bayberry Assoc. v. Jones, 783 S.W.2d 553 (Tenn.
1990). But see Tenn. R. App. 9 (governing discretionary interlocutory appeals for which
no final judgment is necessary); Tenn. R. App. 10 (discussing discretionary extraordinary
appeals for which no final judgment is necessary).
In this case, there is no dispute that the trial court’s order was not a final judgment
for purposes of Rule 3. Instead, Appellant asks this Court to adopt a rule applicable in
federal court that would allow an immediate appeal as of right wherein the trial court
enters an interlocutory order setting aside a final judgment or ordering a new trial but
lacked the authority to do so, a rule that originated in Phillips v. Negley, 117 U.S. 665, 6
S. Ct. 901, 29 L. Ed. 1013 (1886). In Phillips, the defendant moved to set aside a judgment
more than three years after it became final. Id. at 666. The trial court granted the motion
and ordered a new trial, but the Supreme Court reversed, ruling that the trial court had no
authority to rule on the motion during a term of court after the term in which the
judgment was rendered. Id. at 667, 678–79. As to the issue of the allowance of an
immediate appeal of a non-final judgment, the Court explained only that “[i]f . . . the
order [vacating a judgment and granting a new trial] was made without jurisdiction on the
part of the court making it, then it is a proceeding which must be the subject of review by
an appellate court.” Id. at 671–72.
Based on this rule, federal courts have consistently held that there is a right to
immediately appeal an interlocutory order setting aside a final judgment or granting a
new trial if the trial court lacked jurisdiction to enter the order. See, e.g., McDowell v.
Dynamics Corp. of Am., 931 F.2d 380, 382 (6th Cir. 1991) (involving an order setting
aside a final summary judgment order under Rule 60); National Passenger R.R. Corp. v.
Maylie, 910 F.2d 1181, 1182–83 (3d Cir. 1990); (involving an order granting a Rule 60
motion and ordering a new trial); Central Microfilm Serv. Corp. v. Basic/Four Corp.,
688 F.2d 1206, 1211 (8th Cir. 1982), cert. denied, 459 U.S. 1204, 103 S. Ct. 1191, 75
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L.Ed.2d 436 (1983) (involving a suggestion of remitter and conditional order for new
trial); Jones & Guerrero Co. v. Sealift Pac., 650 F.2d 1072, 1073 (9th Cir. 1981)
(involving an order setting aside a previous order of dismissal); Wiggs v. Courshon, 485
F.2d 1281, 1282 (5th Cir. 1973) (involving a order granting a remittitur and conditional
new trial); Rinieri v. News Syndicate Co., 385 F.2d 818, 821–22 (2d Cir. 1967)
(involving an order wherein the trial court set aside a final judgment under Rule 60 and
ordered “the case restored to the calendar”); Tobriner v. Chefer, 335 F.2d 281 (D.C. Cir.
1964) (involving an order setting aside a previous summary judgment order). In many
cases, the lack of jurisdiction results from a motion to set aside being filed outside the
timelines provided in Rule 60 of the Federal Rules of Civil Procedure. See McDowell,
931 F.2d at 384 (holding that the motion raised grounds that required it to have been
brought within one-year but was untimely, thereby depriving the trial court of
jurisdiction); Maylie, 910 F.2d at 1183 (ruling that the trial court’s grant of a new trial
was within its jurisdiction because the motion was timely filed); Jones & Guerrero Co.,
650 F.2d at 1074 (holding that the trial court had jurisdiction over the motion to set aside
because the motion was properly brought under a ground that had no time limit);Rinieri,
385 F.2d at 822 (holding that the motion was filed too late); Tobriner, 335 F.2d at 283
(holding that the trial court lacked jurisdiction to set aside the judgment because the
motion to set aside was untimely). But see Cent. Microfilm Serv. Corp. v. Basic/Four
Corp., 688 F.2d 1206, 1212 (8th Cir. 1982) (involving a claim that the trial court lacked
authority to order a new trial because it did not comply with applicable notice
requirements; declining to decide whether the notice requirements were procedural or
jurisdictional because the purpose of the notice requirements were substantially
achieved).
Likewise, a few state courts have also adopted this rule. See Asset Acceptance,
LLC v. Moberly, 241 S.W.3d 329, 334 (Ky. 2007) (adopting what is referred to as the
“jurisdictional exception” to allow a litigant to immediately appeal an order setting aside
a final judgment on the ground that the trial court lacked jurisdiction over the untimely
motion to set aside); Connecticut Light and Power Company v. Costle, 179 Conn. 415,
426 A.2d 1324 (Conn. 1980) (dismissing appeal after finding that the trial court had
jurisdiction to grant motion to set aside judgment). Other state courts, however, have
expressly rejected a rule that allows an immediate appeal of an interlocutory order that
was purportedly entered without jurisdiction. See Wiechman v. Huddleston, 304 Kan. 80,
80, 370 P.3d 1194, 1195 (Kan. 2016) (rejecting the jurisdictional exception in an action
to set aside a final judgment because the exception conflicts with the statute that sets out
appellate jurisdiction and holding that a desire to maintain consistency with federal courts
should not trump state statutes); Baca v. Atchison, Topeka & Santa Fe Ry. Corp., 1996-
NMCA-054, ¶ 1, 121 N.M. 734, 734, 918 P.2d 13, 13 (N.M. Ct. App. 1996), cert.
quashed, 121 N.M. 783, 918 P.2d 369 (N.M. 1996) (see discussion, infra).
Appellant concedes that this rule has never been adopted in Tennessee, but argues
that this Court should recognize this exception to the well-settled finality rule. In
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contrast, Appellee contends that this Court should adopt the reasoning of the New
Mexico Court of Appeals in Baca v. Atchison, Topeka & Santa Fe Railroad Corp.,
which rejected the jurisdictional exception. Like the federal cases, Baca involves an
attempt to immediately appeal a non-final order. 918 P.2d at 14.6 The court therefore
considered whether it should adopt the jurisdictional exception first adopted by the
Phillips Court. Id. at 15. Ultimately, however, the New Mexico Court of Appeals
declined to adopt the jurisdictional exception. In reaching this result, the court relied on
several factors.
First, the court noted that it had not previously recognized a right to immediately
appeal “a rejection of its challenge to [the trial] court[’s] jurisdiction,” such as where the
trial court denied a motion to dismiss based on lack of personal or subject matter
jurisdiction. Id. Additionally, the court considered the burden on appellate courts and
litigants should the jurisdictional exception be adopted. Id. (“The burden on appellate
courts could certainly be substantial if we were to adopt the view of at least some federal
appellate courts that the district court’s jurisdiction to set aside a judgment depends upon
whether the district court ruled properly on the merits.”). Moreover, New Mexico law
allows litigants to seek either an interlocutory appeal or extraordinary writ to review a
non-final order; the court noted that where an error by the trial court in granting a motion
to set aside is so patent as to necessitate immediate review, “the party challenging the
district court should be able to convince an appellate court to exercise its discretion to
review the matter as an interlocutory appeal or pursuant to an extraordinary writ.” Id. at
16. The court also noted that scholars considering the jurisdictional exception have
generally not favored it. Id. at 16–17 (quoting 15B Charles A. Wright, et al., Federal
Practice and Procedure § 3915.5, at 305, 307-09 (1992) (stating that it is “better to
adhere to a single rule that treats alike all grants of relief” as such a rule would
“discourage imaginative attempts to characterize asserted errors as matters of district
court power”). Indeed, the court noted that even federal courts appear reluctant to apply
the rule, but have done so as binding precedent. Id. at 17 (quoting Demeretz v. Daniels
Motor Freight, 307 F.2d 469, 471–72 (3d Cir. 1962) (“[H]owever doubtful the rationale
of Phillips v. Negley may be, courts of appeals have repeatedly recognized its authority. .
. . Accordingly, we are constrained to hold that we have authority ... to inquire into the
power of the court below to issue its order granting a new trial.”)). Based on these
considerations, the New Mexico Court of Appeals rejected the jurisdictional exception
and dismissed the appeal for lack of a final judgment.
The considerations of the New Mexico Court of Appeals apply equally to this
appeal. First, as previously discussed, although the trial court did not explicitly grant a
new trial, there is no dispute that the trial court’s order granting the Rule 60.02 motion
6
The order at issue in Baca was an order dismissing a case without prejudice for failure to
prosecute. Such an order is not a final appealable judgment under New Mexico law. Id. (“Because it does
not dispose of the case, it is not a final order and therefore it ordinarily would not be appealable as of
right.”)
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and allowing further proceedings is a non-final order. As the Tennessee Practice Series
has explained:
The trial court may relieve a party from a judgment by modifying or setting
it aside, by granting a new trial, or by taking other appropriate action. An
order granting a new trial or entailing further proceedings would be
interlocutory and, therefore, not appealable as of right. The correct
procedure for obtaining appellate review of an order granting a Tenn. R.
Civ. P. 60.02 motion is by way of appeal from the final judgment after the
new trial on the merits. On the other hand, an order denying relief would be
final and immediately appealable as of right.
4 Tenn. Prac. Rules of Civil Procedure Ann. § 60:17 (4th ed.) (footnote omitted). “This is
because an order granting a new trial [or setting aside a final judgment] does not end the
litigation; rather, it ‘ensure[s] that further proceedings [will] follow.’” Id. (quoting State
v. Miller, No. 02C01-9708-CC-00300, 1998 WL 902592, at *3 (Tenn. Crim. App. Dec.
29, 1998)). Tennessee law, however, like New Mexico law, requires a final judgment in
order to appeal as of right. See Tenn. R. App. P. 3(a). This rule was promulgated by our
Tennessee Supreme Court in our procedural rules and even assuming, arguendo, that we
have the authority to depart from it, we will not do so lightly. Cf. Bayberry Assocs. v.
Jones, 783 S.W.2d 553, 559 (Tenn. 1990) (allowing appellate courts to suspend the
finality requirements of Rule 3(a)) (discussed, infra).
Moreover, like our sister state, Tennessee courts have never recognized a per se
exception to the finality rule where a trial court grants a Rule 60.02 to allow the appellate
court to immediately review whether the trial court had jurisdiction to enter such an
order. To do so would be anomalous where no immediate appeal right exists as to other
orders involving lack of jurisdiction, including the denial of motions based on lack of
personal or subject matter jurisdiction. Cf. Richardson v. Tennessee Bd. of Dentistry,
913 S.W.2d 446, 460 (Tenn. 1995) (“[T]he denial of a motion to dismiss does not end a
lawsuit or constitute a final judgment.”). As such, this Court has reviewed a trial court’s
rulings with regard to lack of jurisdiction on appeal from the final judgment. See
Precision Castings of Tennessee, Inc. v. H & H Mfg. Co., No. M2012-00334-COA-R3-
CV, 2012 WL 3608668, at *3 (Tenn. Ct. App. Aug. 22, 2012) (involving lack of personal
jurisdiction). Such a rule would also conflict with Tennessee’s stated policy against
piecemeal appeals. See Mann v. Alpha Tau Omega Fraternity, 380 S.W.3d 42, 48
(Tenn. 2012) (noting Tennessee’s “policy against piecemeal appeals”).
Importantly, Tennessee jurisprudence already recognizes some general limited
exceptions to the final judgment rule, including interlocutory appeals, see Tenn. R. App.
P. 9, extraordinary appeals, see Tenn. R. App. P. 10, and appeals of separate claims or
parties as provided by Rule 54.02 of the Tennessee Rules of Civil Procedure. 7 Should the
7
Tennessee law also recognizes certain exceptions in specific cases, such as cases involving
-7-
trial court truly lack jurisdiction to grant a motion pursuant to Rule 60.02, we are likewise
convinced that an interlocutory or extraordinary appeal may be appropriate to correct this
error. See Tenn. R. App. P. 9(a) (allowing an interlocutory appeal where there is a need to
prevent irreparable injury or needless litigation); Tenn. R. App. P. 10(a) (allowing an
extraordinary appeal if the trial court “has so far departed from the accepted and usual
court of judicial proceedings as to require immediate review”). It is important to note that
Appellant did seek a Rule 9 interlocutory appeal, which was denied by this Court on the
basis that, inter alia, no immediate appeal was needed to prevent needless litigation, the
same argument that Appellant set forth in support of adoption of the jurisdictional
exception. The denial of Appellant’s motion for an interlocutory appeal is therefore
simply no support for its argument that we should adopt an exception to our final
judgment rule.
One final consideration convinces us that adoption of the jurisdictional exception
is inappropriate under Tennessee law. As previously discussed, the federal jurisdictional
exception has most often been utilized wherein the district court was deprived of
jurisdiction by the untimeliness of the movant’s Rule 60 motion. It is well-settled in
Tennessee, however, that the expiration of an applicable statute of limitations does not
deprive a court of subject matter jurisdiction. See Estate of Brown, 402 S.W.3d 193,
198–99 (Tenn. 2013) (“True statutes of limitations do not constitute grants of subject
matter jurisdiction but rather restrict the powers of a court to act on a claim over which it
has subject matter jurisdiction. . . . A statute of limitations defense challenges the
sufficiency of a particular claim, not the subject matter jurisdiction of the court in which
the claim is filed.”). Recently, this Court applied this rule to a limitations period
contained in the Tennessee Rules of Civil Procedure. See Town & Country Jewelers,
Inc. v. Trotter, 538 S.W.3d 508 (Tenn. Ct. App. 2017), perm. app. denied (Tenn. Nov.
21, 2017). Specifically, we ruled that where a party failed to comply with the ten-year
limitation period to renew judgments pursuant to Rule 69.04 of the Tennessee Rules of
Civil Procedure, the trial court was not deprived of subject matter jurisdiction. Id. at 512–
13 (basing its holding on the fact that the ten-year period in Rule 69.04 is based on the
statute of limitations contained in Tenn. Code Ann. § 28-3-110(a)(2)).
Appellant does not cite nor has our research revealed a single Tennessee case in
which it was held that the failure to timely file a Rule 60.02 motion deprived the trial
court of subject matter jurisdiction to consider the motion. Indeed, at least one court
appears by implication to have rejected such a formulation. See Green v. Champs-
Elysees, Inc., No. M2013-00232-COA-R3-CV, 2014 WL 644726 (Tenn. Ct. App. Feb.
18, 2014). In Green, the trial court denied a Rule 60.02 motion on two grounds: (1) that
the trial court lacked subject matter jurisdiction because of a pending appeal; and (2) that
the motion was untimely. Id. at *8. On appeal, the appellee argued that both rulings were
correct and specifically argued that the untimeliness of the Rule 60.02 motion deprived
arbitration. These exceptions, however, are creatures of statute. See, e.g., Tenn. Code Ann. § 29-5-319
(allowing an immediate appeal where, inter alia, the trial court denies a motion to compel arbitration).
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the trial court of subject matter jurisdiction. Brief for Appellees, Green v. Champs-
Elysees, Inc., 2013 WL 3779620, at *15 (Tenn. Ct. App. June 28, 2013). This Court
reversed as to whether a pending appeal deprived the trial court of subject matter
jurisdiction, but affirmed the trial court’s ruling that the Rule 60.02 motion was untimely.
Green, 2014 WL 644726, at *8–*9. Despite the appellees’ argument, this Court declined
to in any way hold that the untimeliness of the Rule 60.02 motion deprived the trial court
of subject matter jurisdiction to consider the motion. Id. at *9. Rather, we ruled that the
trial court did not abuse its discretion in finding the motion untimely and without merit.
Id. Accordingly, it appears that Rule 60.02 motions follow the general rule that expiration
of a limitations period does not deprive the court of jurisdiction.8
Here, Appellant argues that the trial court lacked authority, i.e., lacked
jurisdiction, to rule on Appellee’s Rule 60.02 motion on two grounds: (1) timeliness, and
(2) that the motion seeks relief encompassed by another rule, which actually goes to the
timeliness of the motion pursuant to the correct ground. Unlike in federal courts,
however, the timeliness of a Rule 60.02 does not deprive the trial court of jurisdiction to
consider the motion. Thus, even if Appellant were to succeed in its argument that
Appellee’s Rule 60.02 motion was untimely, a “jurisdictional exception” would not
provide support for an immediate appeal because this deficiency does not deprive the trial
court of subject matter jurisdiction as a matter of law.
Instead, whether a motion alleges proper grounds and whether it is timely remain
questions left to the trial court’s discretion. See Hussey v. Woods, 538 S.W.3d 476, 487
(Tenn. 2017) (applying the abuse of discretion standard to the question of whether the
motion was timely); Federated Ins. Co. v. Lethcoe, 18 S.W.3d 621, 624 (Tenn. 2000)
(“Relief granted pursuant to Rule 60.02(5) is a matter within the trial court’s discretion,
and the trial court’s decision will be reversed only for abuse of that discretion.”). Such
discretionary decisions, “regardless of their merit, rarely constitute the type of
extraordinary departures from the usual and accepted course of judicial proceedings”
necessary to justify an immediate appeal under Rule 10. See Gilbert v. Wessels, 458
S.W.3d 895, 899 (Tenn. 2014) (involving discretionary evidentiary decisions). For the
same reasons, these types of decisions do not necessitate adoption of a rule that allows an
immediate appeal as of right of the trial court’s decision to grant Rule 60.02 relief. Given
that Tennessee law provides multiple avenues of review in this circumstance, we decline
8
From our review, the only situation typically recognized to deprive the trial court of subject
matter jurisdiction over a Rule 60.02 motion is the fact that jurisdiction has been vested in an another
court. See Jacob v. Partee, No. W2013-01078-COA-R3-CV, 2013 WL 5817450, at *3 (Tenn. Ct. App.
Oct. 30, 2013) (affirming denial of motion where the trial court lacked subject matter jurisdiction due to
remand to the general sessions court); Born Again Church & Christian Outreach Ministries, Inc. v.
Myler Church Bldg. Sys. of the Midsouth, Inc., 266 S.W.3d 421, 424 (Tenn. Ct. App. 2007) (affirming
denial of motion because appeal divests trial court of subject matter jurisdiction to consider Rule 60.02
motion). That situation is not at issue in this appeal.
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to adopt a per se rule allowing an immediate appeal of the grant of a Rule 60.02 motion
as has been recognized in federal courts.
Finally, we address Appellant’s alternative argument—that we should exercise our
discretion under Rule 2 of the Tennessee Rules of Appellate Procedure to consider this
appeal notwithstanding the lack of final judgment. Rule 2 provides, in relevant part, that
“[f]or good cause, including the interest of expediting decision upon any matter, the
Supreme Court, Court of Appeals, or Court of Criminal Appeals may suspend the
requirements or provisions of any of these rules in a particular case on motion of a party
or on its motion and may order proceedings in accordance with its discretion, . . . .”
Tenn. R. App. P. 2 (noting some exceptions not present here). The Tennessee Supreme
Court has previously held that appellate courts have the power to suspend Rule 3(a)’s
final judgment requirements upon a showing of good cause. See Bayberry Assocs. v.
Jones, 783 S.W.2d 553, 559 (Tenn. 1990) (“[W]e find no bar to the suspension of Rule
3(a).”). The court held, however, that “there must be a good reason for suspension and
the record should affirmatively show that the rule has been suspended.” Id.
We have previously found good cause to suspend the final judgment requirement,
inter alia, where the judgment appealed adjudicated all of the rights of a party and a
delay would prejudice the party’s rights, see White v. Johnson, 522 S.W.3d 417, 421 n.1
(Tenn. Ct. App. 2016); where the trial court’s reasoning applied equally to both the
adjudicated and non-adjudicated claims, see Utley v. Tennessee Dep’t of Correction, 118
S.W.3d 705, 711 n.9 (Tenn. Ct. App. 2003); where a case has been ongoing for over ten
“tortured” years and is on its third appeal, see Ruff v. Raleigh Assembly of God Church,
Inc., No. W2001-02578-COA-R3-CV, 2003 WL 21729442, at *5 (Tenn. Ct. App. July
14, 2003); and where the judgment did not adjudicate claims against certain defendants
but the pleadings contained “no competent allegations regarding the defendants in any of
the pleadings.” See Ravenwood Homeowners Ass’n v. Bailey, No. C.A. 758, 1988 WL
87676, at *2 (Tenn. Ct. App. Aug. 26, 1988). See also, e.g., Hopwood v. Hopwood, No.
M2016-01752-COA-R3-CV, 2017 WL 2964886, at *3 n.4 (Tenn. Ct. App. July 12, 2017)
(suspending the finality requirements because of the “the grave nature of proceedings
seeking to incarcerate litigants,” despite the fact that the trial court did not rule on a
request for attorney’s fees); In Re Estate of Goza, No. W2013-00678-COA-R3-CV, 2014
WL 7235166, at *3–4 (Tenn. Ct. App. Dec. 19, 2014) (suspending the finality
requirement after consideration of “the immense amount of resources already expended
in this litigation” in which the parties had “already attempted to litigate the same issue in
three different courts”); In Re Estate of James, No. E2012-01021-COA-R3-CV, 2013
WL 593802, * 7 (Tenn. Ct. App. Feb. 14, 2013) (suspending the finality requirement
where the only issue left unadjudicated was “the issue of approving any additional fees
and expenses that were incidental to the hearing or that were necessary to close the
estate”); Simerly v. City of Elizabethton, No. E2009-01694-COA-R3-CV, 2011 WL
51737, at *8 (Tenn. Ct. App. Jan. 5, 2011) (suspending the finality requirement where the
trial court’s order effectively adjudicated “all of the substantive claims and rights
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between the parties, and all of the legal theories of recovery”); Parker v. Lambert, 206
S.W.3d 1, 3–4 (Tenn. Ct. App. 2006) (suspending the finality requirement where the only
issues left unadjudicated were the calculation of the amount of one party’s attorney’s fees
and the “possibility” that the trial court would have to supervise the sale of property if the
parties could not agree on a sales price or realtor); Rector v. Halliburton, No. M1999-
02802-COA-R3-CV, 2003 WL 535924, at *3 (Tenn. Ct. App. Feb. 26, 2003) (holding
that judicial economy supported suspending the finality requirements where the trial
court failed to rule on a request for punitive damages, but the court was able to consider
the rest of the case on the merits and no prejudice would result to either party).
After reviewing Appellant’s argument and the applicable caselaw, we decline to
suspend the finality required of Rule 3(a). Unlike other cases, more than tertiary issues
are left unadjudicated by the trial court’s order. See In Re Estate of James, 2013 WL
593802, * 7; Simerly, 2011 WL 51737, at *8; Parker, 206 S.W.3d at 3–4; Ravenwood,
No. C.A. 758, 1988 WL 87676, at *2. Nor has this case involved tortured litigation
spanning decades and multiple appeals. See In Re Estate of Goza, 2014 WL 7235166, at
*3–4; Ruff, 2003 WL 21729442, at *5. Likewise, the trial court’s order does not
adjudicate all of the claims raised by one party, see White, 522 S.W.3d at 421 n.1, nor
does it impose the possibility of incarceration upon one party. See Hopwood, 2017 WL
2964886, at *3 n.4. Finally, the trial court’s ruling with regard to the Rule 60.02 motion
cannot be used to determine all of the remaining issues in the case. See Utley, 118 S.W.3d
at 711 n.9. As such, the situation presented in this case generally does not align with
those cases where good cause has been shown.
Appellant contends, however, that suspension of the finality requirement is
appropriate here on the basis of judicial economy and a desire to avoid “pointless
duplication of efforts.” We have previously held that in light of our disfavor of deciding
piecemeal appeals, “judicial economy alone does not justify abandoning the requirement
of finality.” Williams v. Tennessee Farmers Life Reassurance Co., No. M2010-01689-
COA-R3-CV, 2011 WL 1842893, at *6 (Tenn. Ct. App. May 12, 2011) (citing Brown v.
John Roebuck & Associates, Inc., No. M2008-02619-COA-R3-CV, 2009 WL 4878621,
at *5 (Tenn. Ct. App. Dec. 16, 2009)). As such, “we will not suspend Rule 3 as a mere
convenience[.]” Id. Finally, this Court has previously held our discretion under Rule 2
should be utilized “‘very sparingly, only in extraordinary circumstances.’” Harbin v.
Jones, No. W2012-01474-COA-R3-CV, 2013 WL 1249050, at *5 (Tenn. Ct. App. Mar.
28, 2013) (quoting Morgan Keegan & Co. v. Smythe, No. W2010-01339-COA-R3-CV,
2011 WL 5517036, at *18 (Tenn. Ct. App. Nov. 14, 2011), rev’d on other grounds, 401
S.W.3d 595 (Tenn. 2013)). This Court has previously held in its motion denying the
application for interlocutory appeal that Appellant failed to show an immediate appeal is
necessary to prevent needless litigation or irreparable injury. Moreover, a discretionary
decision rarely gives rise to the type of extraordinary circumstances necessitating
immediate review. See Gilbert, 458 S.W.3d at 899; Harbin, 2013 WL 1249050, at *5.
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Given all of the above considerations, we decline to exercise our discretion to suspend
Rule 3(a)’s finality requirement in this particular case.
In sum, we decline to judicially adopt a per se rule allowing an immediate appeal
as of right of an interlocutory order setting aside a final judgment or otherwise granting a
new trial, where it is alleged that the motion was untimely. We also discern no good
cause to suspend the finality requirement of Rule 3(a). In the absence of a final,
appealable order, this Court lacks jurisdiction to consider this appeal. This appeal is
therefore dismissed.
Conclusion
This appeal is dismissed. Costs of this appeal are taxed to Appellant Levitt,
Hamilton, and Rothstein, LLC, for which execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
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