Shane Bruce v. Carolyn Jackson

01/10/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
December 29, 2021
SHANE BRUCE v. CAROLYN JACKSON ET AL
Appeal from the Circuit Court for Campbell County
No. 16843 Michael S. Pemberton, Judge
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No. E2021-01426-COA-R3-CV
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Because appellant did not timely file a Tenn. Sup. Ct. R. 10B recusal appeal and the order
appealed does not constitute a final appealable judgment, this Court lacks jurisdiction to
consider this appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
D. MICHAEL SWINEY, C.J.; JOHN W. MCCLARTY, J.; AND THOMAS R. FRIERSON, II,
J.
Shane Bruce, LaFollette, Tennessee, pro se appellant.
Adam Michael Bullock, LaFollette, Tennessee, for the appellees, Carolyn Jackson, Morgan
Jackson, Jessica Jackson, and Joseph McDowell.
MEMORANDUM OPINION1
On December 2, 2021, the pro se appellant, Shane Bruce (“Appellant”), filed in this
Court a notice of appeal of an order entered by the Trial Court on November 8, 2021.2 The
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shall not be published, and shall not be cited or relied on for any reason in any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 notice of appeal states that appellant is appealing a judgment entered on November
5, 2021. The Trial Court Judge signed the order on November 5, 2021, but it was not entered until
Trial Court Clerk notified this Court that no final judgment has been entered in this case
and that the November 8, 2021 order is an interlocutory order addressing a motion for
recusal.
Pursuant to the requirements of Rule 13(b) of the Tennessee Rules of Appellate
Procedure, the Court directed Appellant 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. “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)). 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.”).
As this Court explained in our December 6, 2021 show cause Order, an order
denying a motion for recusal can be appealed immediately in an “accelerated interlocutory
appeal as of right” pursuant to Tenn. Sup. Ct. R. 10B § 2 or can be raised as an issue in a
Tenn. R. App. P. 3 appeal as of right following the entry of a final judgment. Tenn. Sup.
Ct. R. 10B § 2.01. An “accelerated interlocutory appeal as of right” may be sought by
filing a “petition for recusal appeal” with the appropriate appellate court within twenty-one
days of the trial court’s entry of the order. Tenn. Sup. Ct. R. 10B § 2.02. The time for
Appellant to file a timely accelerated interlocutory appeal expired on November 29, 2021.
Appellant did not file a timely Tenn. Sup. Ct. R. 10B petition for recusal appeal with the
clerk of this court. Rather, on December 2, 2021, he filed a Tenn. R. App. P. 3 notice of
appeal as of right. However, a party is entitled to a Tenn. R. App. P. 3 appeal as of right
only after the trial court has entered a final judgment. Tenn. R. App. P. 3(a). An order that
adjudicates fewer than all the claims between all the parties is subject to revision at any
time before the entry of a final judgment and is not appealable by filing a notice of appeal.
Tenn. R. App. P. 3(a); In re Estate of Henderson, 121 S.W.3d at 645. Appellant is not
entitled to a Tenn. Sup. Ct. R. 10B accelerated interlocutory appeal as of right because he
did not file a timely petition for recusal appeal with the clerk of this court.
Appellant responded to our show cause order and conceded that no final judgment
has been entered. He further conceded that he did not timely file a Tenn. Sup. Ct. R. 10B
petition for recusal appeal. Appellant also filed a motion seeking to have his notice of
appeal converted from a Tenn. R. App. P. 3 appeal into a Tenn. R. App. P. 10 extraordinary
appeal.
“An appellate court should grant a Rule 10 extraordinary appeal only when the
November 8, 2021.
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challenged ruling represents a fundamental illegality, fails to proceed according to the
essential requirements of the law, is tantamount to the denial of a party’s day in court, is
without legal authority, is a plain and palpable abuse of discretion, or results in either party
losing a right or interest that may never be recaptured.” Gilbert v. Wessels, 458 S.W.3d
895, 898 (Tenn. 2014). “Rule 10 appeals are reserved only for extraordinary departures
from the accepted and usual course of judicial proceedings.” Id. at 898 (emphasis in
original).
Even if we were to convert Appellant’s Rule 3 appeal into a Rule 10 extraordinary
appeal, Appellant has not established that the challenged order constitutes such an
extraordinary departure from the accepted and usual course of judicial proceedings that an
appeal pursuant to Rule 10 would be warranted. See, e.g., Kaur v. Singh, No. W2016-
02058-COA-R10-CV, 2017 WL 445149, *7 (Tenn. Ct. App. Feb. 2, 2017) (dismissing
Rule 10 appeal as having been improvidently granted where the record established “that
the trial court considered the proper statute, the relevant facts, and the arguments advanced
by the parties”). As such, we deny the motion to convert this appeal into a Tenn. R. App.
P. 10 extraordinary appeal.
“Except where otherwise provided, this Court only has subject matter jurisdiction
over final orders.” Foster-Henderson v. Memphis Health Center, Inc., 479 S.W.3d 214,
222 (Tenn. Ct. App. 2015). As the November 8, 2021 order does not constitute a final
appealable judgment, this Court lacks jurisdiction to consider this appeal. The appeal is
hereby dismissed.
Appellant also filed a Uniform Civil Affidavit of Indigency, which we construe to
be a motion to proceed in forma pauperis on appeal. Tennessee Code Annotated § 20-12-
127(b) provides: “The filing of a civil action without paying the costs or taxes or giving
security for the costs or taxes does not relieve the person filing the action from
responsibility for the costs or taxes but suspends their collection until taxed by the court.”
See also Fletcher v. State, 9 S.W.3d 103, 105 (Tenn. 1999) (explaining that “an indigent
litigant is never permanently relieved from the duty of paying litigation taxes, although
such payment may be deferred.”). As costs on appeal are being taxed in this Opinion, the
motion to proceed in forma pauperis is hereby denied as moot. Costs on appeal are taxed
to Appellant, Shane Bruce, for which execution may issue.
PER CURIAM
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