Kimberly Byars v. Earl Young ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
KIMBERLY BYARS v. EARL YOUNG
Direct Appeal from the Juvenile Court for Shelby County
No. M2203 Curtis S. Person, Jr., Judge
No. W2013-01791-COA-R3-JV - Filed October 29, 2013
Because the order appealed is not a final judgment, we dismiss this appeal for lack of
jurisdiction.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
D AVID R. F ARMER, J., H OLLY M. K IRBY, J. AND J. S TEVEN S TAFFORD, J.
Kimberly Byars, Memphis, Tennessee, appellant, pro se.
Earl Young, Hermitage, Tennessee, appellee, pro se.
MEMORANDUM OPINION 1
Pursuant to the mandates of Rule 13(b) of the Tennessee Rules of Appellate
Procedure, we reviewed the appellate record to determine if the Court has subject matter
jurisdiction to hear this matter. After this review, it appears to the Court that it does not have
jurisdiction. Specifically, it appears that the order appealed was signed by the trial court on
July 8, 2013 and stamped "filed" by the trial court clerk on August 8, 2013. The self-
represented appellant, Kimberly Byars, filed a Notice of Appeal of that order on July 8, 2013.
Then, attorney Barbara B. Johnson, IV-D Attorney filed on behalf of State of Tennessee ex
rel. Kimberly Robinson Byars a pleading styled "Request for Hearing Before the Judge" on
1
Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
This Court, with the concurrence of all judges participating in the case, may affirm, reverse
or modify the actions of the trial court by memorandum opinion when a formal opinion
would have no precedential value. When a case is decided by memorandum opinion it shall
be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited
or relied on for any reason in any unrelated case.
July 15, 2013. The trial court entered an order on August 30, 2013 allowing the rehearing.
There is nothing in the appellate record, however, indicating that the trial court conducted
the rehearing.
Moreover, significant portions of the trial court record are missing from the appellate
record at this time. Previously, this Court entered an opinion on May 20, 2010, in the matter
of Kimberly Byars v. Earl Young, No. W2008-02721-COA-R3-CV. In that appeal, the
juvenile court referee entered an order making several recommendations to the trial court
which were adopted by the trial court on June 4, 2003. Appellant filed a petition to rehear and
the trial court granted the request by order entered on June 5, 2003, but dismissed the petition
to rehear by order entered on August 7, 2003.
The current appellate record does not contain the referee's findings and
recommendations of June 4, 2003, or the order adopting the findings and recommendations
as the order of the trial court. Moreover, the appellate record contains sparse documentation
of the trial court and appellate court proceedings that transpired from the years 2003 to 2010.
The record does, however, contain an order entered on June 24, 2010, transferring
jurisdiction of the matter to Davidson County, Tennessee. Finally, as we have reviewed this
appellate record and the Court's docket reporting system, we note that there is a matter
pending in the Middle Section of this Court involving the same parties and styled In The
Matter of: Trinity R. Y., number M2012-01343-COA-R3-JV, appealing the trial court's
order entered on April 13, 2012 in Davidson County Juvenile Court under docket number
20103303pt149040.
By Order entered on September 18, 2013, the Court directed Appellant to obtain entry
of a final judgment in the trial court within ten (10) days of the entry of that Order. We also
directed the trial court to transmit a certified, supplemental record to the Clerk of this Court
within five (5) days of the entry of the trial court’s order. We also ordered that, in the event
that Appellant did not obtain entry of a final judgment within the time provided therein,
Appellant would have fifteen (15) days from the entry of that Order to show cause why this
appeal should not be dismissed for failure to appeal an appealable order or judgment. Finally,
our Order of September 18, 2013, provided “[f]ailure to respond to this order within the time
provided herein could result in this appeal being dismissed without further notice.”
On that same date, the Clerk of this Court transmitted a copy of our Order of
September 18, 2013, to Appellant by certified mail, return receipt requested. The Clerk later
received the return receipt indicating that Appellant received the mail parcel on September
23, 2013. As of this date, however, the Clerk has not received a supplemental record
containing a final judgment nor has Appellant otherwise responded to our Order of
September 18, 2013.
Because it does not appear that all the claims have been adjudicated, this Court could
only have jurisdiction to hear this matter if permission to appeal has been granted, or if the
order appealed has been made final pursuant to Rule 54.02 of the Tennessee Rules of Civil
Procedure. The record does not reflect, however, that permission to appeal has been granted
or that the order appealed was made final pursuant to Rule 54.02.
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). Clearly, the order
appealed is not a final judgment and therefore, this appeal must be dismissed.
Conclusion
Because the trial court has not yet entered a final judgment, the appeal is dismissed
without prejudice and the case remanded to the trial court for further proceedings consistent
with this Opinion. Should a new appeal be filed, the Clerk of this Court shall, upon request
of either party, consolidate the record in this appeal with the record filed in the new appeal.
Costs of this appeal are taxed to the appellant, Kimberly Byars, for which execution may
issue if necessary.
PER CURIAM