IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
IN RE: ESTATE OF LEE AUGUSTUS GRIMMIG
Direct Appeal from the Probate Court for Shelby County
No. D12086 Karen D. Webster, Judge
No. W2012-01626-COA-R3-CV - Filed December 19, 2012
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
A LAN E. H IGHERS, P.J.W.S., D AVID R. F ARMER, J., AND H OLLY M. K IRBY, J.
Edward Thomas Autry, Memphis, Tennessee, for the appellants, John Paul Grimmig and
Mariann Steffens.
John D. Horne, Memphis, Tennessee, for the appellees, Anna Sabina Safarik and Charlotte
Grimmig Smith.
MEMORANDUM OPINION 1
Initially, Appellant John Paul Grimmig filed a pleading styled “Petition to Produce
Original Will and Injunctive Relief to Prohibit Sale of Decedent's Personal Effects” in the
Probate Court of Shelby County, Tennessee on June 24, 2011. On December 8, 2011,
Appellant John Paul Grimmig filed a petition for probate of the will of the decedent, Lee
Augustus Grimmig, and granting of letters testamentary. The trial court appointed an interim
Administrator CTA by order entered on December 21, 2011, and on December 29, 2011, Mr.
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be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited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.
Grimmig filed a complaint for damages due to breach of fiduciary duty, asserting that the
decedent had failed to properly preserve trust property in which Mr. Grimmig had an interest.
The complaint named the interim administrator as defendant.
Also on December 29, 2011, both Appellant John Paul Grimmig and Appellant
Mariann Steffen filed verified claims against the estate. The trial court entered an order on
January 13, 2012, naming Appellees Charlotte Grimmig Smith and Anna Sabina Safarik as
co-executors and discharging the interim Administrator CTA. The Co-Executors filed
exceptions to Appellants' claims on February 8, 2012. Appellants responded by filing
motions to dismiss the exceptions on February 20, 2012.
The trial court conducted a consolidated hearing on the motions to dismiss on April
4, 2012, then adjourned the hearing until May 23, 2012. On May 23, 2012, the trial court
issued its oral findings of fact and conclusions of law, denying the motions to dismiss the
exceptions to the claims, but finding that the claims and exceptions should be decided upon
the merits. The trial court entered the order reflecting its ruling on June 12, 2012.
Appellants filed a Notice of Appeal on July 12, 2012, indicating that they appealed the trial
court's order of June 12, 2012.
The appellate record was transmitted to this Court and 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 that review,
it appeared to the Court that it does not have jurisdiction. Although the order appealed
recites that “[t]his judgment shall be entered as a final and appealable judgment pursuant to
Rule 54.02 of the Tennessee Rules of Civil Procedure”, the order does not contain the “magic
language” of Rule 54.02 that “there is no just reason for delay.” See T.R.C.P. 54.02. Even
if the trial court's order had contained the “magic language” of Rule 54.02, however, it
appears that a final judgment was improvidently granted. Specifically, the order appealed
denied the separate motions of Appellant John Paul Grimmig and Appellant Mariann
Steffens seeking dismissal of the Appellee Co-Executors Exceptions to their claims. Thus,
the Claims and the Exceptions to the Claims were pending at the time the order was entered
and in fact, the order recites that the “Claims and the Exceptions thereto shall be decided by
the Court on the merits at the hearing presently scheduled for June 12, 2012.” The order
appealed, therefore, does not adjudicate any of the claims between these parties.
By Order entered on September 19, 2012, this Court directed Appellants to obtain
entry of a final judgment in the trial court within ten (10) days of the entry of that Order. Our
Order of September 19, 2012, also provided “[i]n the event that Appellants do not obtain
entry of a final judgment within the time provided herein, Appellants shall have fifteen (15)
days from the entry of this Order to show cause why this appeal should not be dismissed for
failure to appeal an appealable order or judgment. Failure 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 19, 2012, to Appellants' counsel by certified mail, return receipt requested. On
October 16, 2012, the Clerk received the return receipt indicating that Appellants' counsel
received the mail parcel on September 20, 2012. As of this date, however, the Clerk of this
Court has not received a supplemental record containing a final judgment for this matter and
Appellants have not otherwise responded to our Order of September 19, 2012.
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 in this matter is not a final judgment and therefore, we must dismiss this appeal for
lack of jurisdiction.
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 appellants, John Paul Grimmig and Mariann Steffens,
and the surety for which execution may issue if necessary.
PER CURIAM