Sullivan County v. Purdue Pharma, L.P. ( 2021 )

07/15/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
July 9, 2021
SULLIVAN COUNTY ET AL. v. PURDUE PHARMA, L.P., ET AL.
Appeal from the Circuit Court for Sullivan County
No. C41916-C E. G. Moody, Chancellor
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No. E2021-00479-COA-R3-CV
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Having determined that the amount of attorney’s fees awarded and possible further
sanctions remain pending in this action, we further determine that the order appealed from
does not constitute a final appealable judgment. Therefore, this Court lacks subject matter
jurisdiction to consider this appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
THOMAS R. FRIERSON, II, J.; D. MICHAEL SWINEY, C.J.; AND KRISTI M. DAVIS, J.
Brigid M. Carpenter, Samuel Lanier Felker, and Gary Clark Shockley, Nashville,
Tennessee; Ronald S. Range, Jr., and Chad E. Wallace, Johnson City, Tennessee; and
Kristine Leporati Roberts, Memphis, Tennessee, for the appellants, Endo Health Solutions,
Inc., and Endo Pharmaceuticals, Inc.
Michael J. Wall; James Gerard Stranch, III; James Gerard Stranch, IV; Joey P. Leniski, Jr.;
Tricia Herzfeld; and Benjamin A. Gastel, Nashville, Tennessee; William C. Killian,
Chattanooga, Tennessee; and Timothy Aaron Housholder; Bradley H. Hodge; and L.
Jeffrey Hagood, Knoxville, Tennessee, for the appellees, Bluff City, Tennessee; District
Attorney General – 1st Judicial District; District Attorney General – 2nd Judicial District;
District Attorney General – 3rd Judicial District; and Sullivan County, Tennessee.
Michael J. Wall and James Gerard Stranch, III, Nashville, Tennessee, for the appellees,
Carter County, Tennessee; City of Elizabethton; City of Kingsport; City of Morristown;
City of Watauga; Baby Doe; Erwin, Tennessee; Greene County, Tennessee; Hamblen
County, Tennessee; Hancock County, Tennessee; Hawkins County, Tennessee; Johnson
County, Tennessee; Mount Carmel, Tennessee; Sneedville, Tennessee; Surgoinsville,
Tennessee; Town of Jonesborough, Tennessee; Tusculum, Tennessee; Unicoi County,
Tennessee; Unicoi, Tennessee; and Washington County.
William J. Harbison, II; Aubrey B. Harwell, Jr.; and James Galloway Thomas, Nashville,
Tennessee, for the appellees, Purdue Pharma, Inc.; Purdue Frederick Company; and Purdue
Pharmaceuticals, LP.
Jefferson Bryant Fairchild, Rogersville, Tennessee, for the appellee, Pamela Moore.
Charles Thaddeus Herndon, IV; Elizabeth Hutton; and Kenneth Justin E. Hutton, Johnson
City, Tennessee, for the appellee, Abdelrahman Hassabu Mohamed.
Richard E. Ladd, Jr., Bristol, Tennessee, and Sarah Byer Miller and Jessalyn Hershinger
Zeigler, Nashville, Tennessee, for the appellee, Mallinckrodt LLC.
Elizabeth Ann Campbell, Johnson City, Tennessee, pro se appellee.
Leslie Ann Bridges, for the appellee, State of Tennessee - Civil.
MEMORANDUM OPINION1
Upon a review of the April 6, 2021 order appealed from, this Court directed the
appellants to show cause why this appeal should not be dismissed for lack of subject matter
jurisdiction after it became clear that there was no final judgment from which an appeal as
of right would lie.2 “A final judgment is one that resolves all the issues in the case, ‘leaving
1
Rule 10 of the Rules of the Court of Appeals 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.
2
The appellees filed a motion to dismiss, which this Court denied without prejudice to the
appellees’ ability to raise any and all issues in the motion at a later stage of this appeal if the appeal
were allowed to proceed. The appellees’ motion asserted, inter alia, that there is not yet a final
judgment because the order that the appellants characterize as a contempt order is in actuality an
order awarding discovery sanctions pursuant to Tennessee Rule of Civil Procedure 37.02. Rule
37.02 provides in pertinent part that if a party fails to comply with an order to provide or permit
discovery, a court may enter orders including, among other things, an order “rendering a judgment
by default against the disobedient party,” and in lieu of the listed possible sanctions or in addition
thereto may enter “an order treating as contempt of court the failure to obey . . ..” Tenn. R. Civ.
P. 37.02(C), (D). If the April 6, 2021 order constitutes an order awarding sanctions for discovery
abuses as the appellees assert, rather than an order for contempt as the appellants assert, this Court
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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)). This Court does not have subject matter jurisdiction to adjudicate an appeal
as of right if there is no final judgment. See Bayberry Assocs. v. Jones, 783 S.W.2d 553,
559 (Tenn. 1990) (“Unless an appeal from an interlocutory order is provided by the rules
or by statute, appellate courts have jurisdiction over final judgments only.”).
To begin, we note that the April 6, 2021 order entered by the Sullivan County Circuit
Court (“trial court”) concerned a finding of contempt. “[A] judgment of contempt,
summary or otherwise becomes final upon the entering of punishment therefor . . . .”
Moody v. Hutchinson, 159 S.W.3d 15, 30 (Tenn. Ct. App. 2004) (quoting State v. Green,
689 S.W.2d 189, 190 (Tenn. Crim. App. 1984)).3 The trial court’s April 6, 2021 order,
however, does not fully and finally assess punishment.
In its April 6, 2021 order, the trial court found “Endo and its counsel in contempt of
Court” for discovery violations and awarded as sanctions, inter alia:
(1) Plaintiffs are awarded their costs for processing the hosting
documents produced by Endo after the February 14, 2020 fact
discovery cutoff, along with reasonable costs and attorney’s fees
incurred in reviewing those documents.
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lacks jurisdiction to consider the appeal because issues remain pending in the case. The end result
would be the same, in other words, this Court would lack jurisdiction to consider the appeal,
regardless of whether the April 6, 2021 order is an order of contempt or an order awarding
discovery sanctions. Therefore, this Court need not and will not make any determination
whatsoever with regard to this issue at this time. As such, in this Opinion, we analyze the
appellants’ assertion that the April 6, 2021 order is an order of contempt but do not determine
whether this assertion is correct.
3
In Moody, attorney’s fees were sought not as part of the contempt punishment, but rather pursuant
to Black v. Blount, 938 S.W.2d 394 (Tenn. 1996), and Ferguson v. Paycheck, 672 S.W.2d 746(Tenn. 1984), because the trial court had appointed counsel “to serve the court in reaching a proper
resolution of questions or issues presented . . .” and because the court was allowed to “award
compensation to be paid by the party or parties responsible for the situation that prompted the court
to make the appointment.” Moody, 159 S.W.3d at 30. The Moody Court declined to address
whether attorney’s fees were available as costs under Tennessee Code Annotated § 29-9-103 or as
an additional form of punishment for contempt. Id. As such, the award of attorney’s fees in Moody
constituted a part of the proceedings out of which the contempt arose and not a part of the contempt
judgment. Id. The award of attorney’s fees in Moody is therefore distinguishable from the award
of attorney’s fees in the instant case.
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(4) Plaintiffs are awarded their costs and fees associated with all motions
to compel against Endo that have been granted in whole or in part,
including, specifically, the April 9, 2020 Motion for Sanctions and all
proceedings concerning Endo’s compliance with the Court’s
Contempt Order, including but not limited to, preparing and reviewing
associated filings, participating in hearings, and engaging in meet and
confers;
(5) Plaintiffs are awarded their costs and fees associated with the
depositions listed in Exhibit 12 to Plaintiffs’ April 9, 2020 Motion for
Sanctions, whose depositions Plaintiffs took in 2018 or 2019 without
the benefit of complete records.
(Footnote omitted.) Additionally, the trial court specifically stated that it “reserves further
sanctions.” Therefore, the trial court’s April 6, 2021 order does not fully and finally award
punishment because it does not award amounts for items (1), (4), and (5) listed above and
because it reserves the issue of further sanctions.
The appellants responded to our show cause order but failed to demonstrate that a
final judgment had been entered. Instead, the appellants assert that they “seek to appeal
only the trial court’s entry of the default judgment as to liability” and that “the award of
fees and costs does not vitiate the finality of the separate punishment of a default judgment,
. . . .” The appellants contend that because the April 6, 2021 order “fixed some punishments
for contempt,” this order ought to be immediately appealable.
The appellants seek a piecemeal approach that would allow them to appeal portions
of an order that is not yet final. Furthermore, we note that in their response, the appellants
first claim that they seek to appeal only the award of a default judgment. However,
subsequently within their response, the appellants state that “they reserve the right to
contest the amount of any fees and costs as unreasonable.” These potentially contradictory
statements highlight the inherent difficulties involved if piecemeal appeals were allowed.
Allowing an appeal of this non-final judgment might very well result in, if not encourage,
multiple appeals of the same contempt judgment. As this Court has explained: “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.’” Levitt, Hamilton,
& Rothstein, LLC v. Asfour, 587 S.W.3d 1, 11 (Tenn. Ct. App. 2019) (quoting Williams v.
Tenn. Farmers Life Reassurance Co., No. M2010-01689-COA-R3-CV, 2011 WL
1842893, at *6 (Tenn. Ct. App. May 12, 2011)).
In their response to our show cause order, the appellants posit that “any” order that
imposes punishment for contempt should be immediately appealable. Such is not the rule.
The order of contempt must itself be a final order of contempt to be appealable. In the case
now before us, the trial court specifically awarded attorney’s fees as punishment for
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contempt but has not yet awarded an amount specific of those attorney’s fees. As such, the
order from which the appellants seek review is not “a final judgment adjudicating all the
claims, rights, and liabilities of all parties.” Tenn. R. App. P. 3(a); see, e.g., E. Solutions
for Bldgs., LLC v. Knestrick Contractor, Inc., No. M2017-00732-COA-R3-CV, 2018 WL
1831116, at *4 (Tenn. Ct. App. April 17, 2018), perm. app. denied (Tenn. Aug. 9, 2018)
(determining that an order directing the parties to re-submit requests for attorney’s fees
after appeal was “improvidently certified as final” and holding that because the trial court
did not dispose fully and finally of a claim for attorney’s fees, this Court lacked
jurisdiction); City of Jackson v. Hersh, No. W2008-02360-COA-R3-CV, 2009 WL
2601380, at *4 (Tenn. Ct. App. Aug. 25, 2009) (“This Court has concluded on several
occasions that an order that fails to address an outstanding request for attorney’s fees is not
final.”); Scott v. Noland Co., No. 03A01-9407-CV-00248, 1995 WL 11177, at *1 (Tenn.
Ct. App. Jan. 12, 1995) (“Since there is no order in the record before us finally disposing
of the Plaintiffs’ claim for attorney fees at the trial level, the ‘Final Judgment’ from which
this appeal is being pursued is not a final order and hence not appealable as of right under
Tenn. R. App. P. 3(a).” (footnote omitted)); Spencer v. The Golden Rule, Inc., No. 03A01-
9406-CV-00207, 1994 WL 589564, at *1 (Tenn. Ct. App. Oct. 21, 1994) (“There is nothing
in the record before us reflecting that the trial court has awarded a specific amount as the
‘reasonable attorney’s fees incurred in prosecuting’ this action. . . . Since there is no order
in the record before us finally disposing of the Plaintiff’s claim for attorney fees at the trial
level, the Order from which this appeal is being pursued is not a final order and hence not
appealable as of right under Tenn. R. App. P. 3(a).” (emphasis in original) (footnote
omitted)).
In their response to our show cause order, the appellants incorrectly conflate
attorney’s fees with court costs and cite to Bailey v. Crum, in which this Court considered
an appeal from an order that included the language, “costs shall be taxed to Respondents.”
See Bailey v. Crum, 183 S.W.3d 383, 387 (Tenn. Ct. App. 2005). As this Court explained
in Gunn v. Jefferson Cty. Econ. Dev. Oversight Comm., Inc., 578 S.W.3d 462, 465 (Tenn.
Ct. App. 2019), unlike attorney’s fees, court costs and discretionary costs are ancillary or
collateral and do not impact the finality of a judgment. Because Bailey v. Crum involved
court costs and not an award of attorney’s fees, Bailey v. Crum is distinguishable from the
instant case.
The appellants also cite to State ex rel. Groesse v. Sumner, 582 S.W.3d 241 (Tenn.
Ct. App. 2019), a case in which the defendant filed an appeal of an order finding him in
contempt. In Groesse, this Court entered a show cause order stating that no final judgment
had been entered because the trial court had not yet awarded an amount of attorney’s fees.
See Groesse, 582 S.W.3d at 248. This Court directed the Groesse defendant to show cause
why the appeal should not be dismissed. Id. The Groesse defendant moved for a short
amount of additional time to obtain a final judgment, which this Court granted. Id. Shortly
thereafter, the Groesse trial court entered an order awarding an amount certain of attorney’s
fees, and this Court then considered the defendant’s appeal. Id.
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In their response to our show cause order in the instant case, the appellants argue
that Groesse is somehow not contrary to their argument that their appeal should be allowed
to progress absent a final judgment.4 The appellants predicate this argument, in part, on
the fact that the show cause order in Groesse was phrased differently than the show cause
order entered in the instant case. The appellants also base their argument on the fact that
in the response to the show cause order, the Groesse defendant “did not invoke the
numerous precedents holding that the imposition of punishment for contempt was
sufficient to render a judgment final and appealable under Rule 3.”
The appellants’ contention is unavailing. Groesse involved a judgment of contempt
that when initially appealed was not final due to a pending award of attorney’s fees.
Groesse, 582 S.W.3d at 248. The defendant in Groesse moved for an opportunity to correct
the deficiency and within a short period of time obtained a final judgment awarding an
amount certain of attorney’s fees. Id. Once a final judgment, which included the amount
of the award of attorney’s fees, had been entered with regard to the contempt, this Court
had jurisdiction to consider the appeal. Id. The precedent with regard to finality of
judgment contained in Groesse goes directly against the appellants’ assertion that the
instant case is appealable absent a final judgment, regardless of whether orders in Groesse
contained different language from orders in this case or whether the Groesse defendant
chose to advance different arguments or cite to case law different from that chosen by the
appellants. This argument is without merit.
In their response, the appellants also argue that the trial court’s reservation of
possible additional sanctions does not affect the appealability of the punishment already
imposed. The appellants assert: “A court always retains the right to impose additional
punishments for contempt during the course of proceedings.” Citing Tennessee Code
Annotated § 16-1-101 to 16-1-105 and Tennessee Code Annotated § 29-9-101 to 29-9-105,
the appellants postulate that these statutes do not “expressly limit a court’s power to issue
subsequent penalties for contempt after it initially fixes punishment.” Although it may be
true that these statutes do not contain the express limitation stated, these statutes also fail
to support the appellants’ underlying premise. As noted above, it is not only the trial court’s
reservation of further punishment that renders the April 6, 2021 order non-final.
4
We note that the appellants in the instant case did not move for additional time to obtain a final
judgment. It is not the role of this Court to make a motion on behalf of a party. To do so would
constitute practicing law on behalf of that party. As our Supreme Court has instructed: “It is not
the role of the courts, trial or appellate, to research or construct a litigant’s case or arguments for
him or her, and where a party fails to develop an argument in support of his or her contention or
merely constructs a skeletal argument, the issue is waived.” Sneed v. Bd. of Prof’l Responsibility
of Supreme Ct., 301 S.W.3d 603, 615 (Tenn. 2010).
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Finally, in their response to our show cause order, the appellants request that this
Court suspend the requirement of finality pursuant to Tennessee Rule of Appellate
Procedure 2. The appellants cite to several cases in which this Court has exercised this
discretion. The circumstances in each of those cases, however, are distinguishable from
the circumstances in the instant case. The fact that a trial date has been set in this case is
insufficient to demonstrate good cause for suspending the requirement of finality. We do
not find good cause to suspend the finality requirement in this case, and we decline to
consider this appeal at this juncture absent a final judgment.
Because it is clear that there is no final judgment in this case, the appeal is dismissed.
Costs on appeal are taxed to the appellants, Endo Health Solutions, Inc., and Endo
Pharmaceuticals, Inc., for which execution may issue.
The appellants also filed a motion for a stay pursuant to Tennessee Rule of Appellate
Procedure 7. Given our disposition of this appeal, the motion for a stay is rendered moot.
PER CURIAM
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