THERESA G. JENKINS, )
) Appeal No.
Plaintiff-A ppellant, ) 01A01-9809-CV-00514
)
v. )
) Davidso n Circuit FILED
LIONEL R. BAR RETT, JR., and )
JOHN G. OLIVA, ) June 2, 1999
)
Defendants-Appellees. ) Cecil Crowson, Jr.
Appellate Court Clerk
COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE LEE RUSSELL, JUDGE BY DESIGNATION
WM . KEN NER LY B URG ER,
Suntrust Bank Building, Suite 306
201 E. M ain Street,
P.O. Box 1969
Murfreesboro, TN 37133-1969
Attorney for Plaintiff-Appellant
DARRELL G. TOWNSEND and DERRICK C. SMITH
HOWELL & FISHER, PLLC
Court Square Building
300 James Robertson Park way.
Nashville, Tennessee 37201-1107
Attorneys for Defendants-Appellees
REVERSED AND REMAND ED
HERSCHEL P. FRANKS, JUDGE
CONCUR:
GODD ARD, P.J.
CAIN, J.
O P I N IO N
The appellant states the issue before this Court thus:
A single, n arrow issu e is presented for consid eration in this a ppeal:
Does m aterial eviden ce within th e meanin g of Ru le 13d, app ear in
the record w hich supp orts the jury’s verd ict of $140 ,000.00 in
compen satory damag es, and, if so, d id the trial court e rroneously
grant a new trial?
The case history demo nstrates that this issue is not properly before
the Court for consideration.
This action alleging legal malpractice was filed on December 14,
1988. Subsequently, the case was tried before Judge Julian Guinn and a jury. The
jury returned a verdict of $140,000.00 against the defendant, and Judge Guinn,
acting on the defendants’ motion for a new trial, granted a new trial on the issue of
damage only, having previously directed a verdict in favor of the plaintiff on
defendants’ negligence.
Judge Guinn thereupon recused himself, and Judge Lee Russell was
designated to preside over the new trial. Judge Russell entered a series of pre-trial
orders, and plaintiff appealed from Judge Russell’s order of June 5, 1997.
This Court, in considering plaintiff’s appeal, said in its order:
A party is entitled to an appeal as of righ t only after the Trial Court
has ent ered a f inal ord er that re solves a ll claims b etwee n the pa rties.
Tennessee Rules of Appellate Procedure 3(a). Where it is clear from
the record th at the Trial C ourt’s order d oes not actu ally resolve all
the claims between the parties, neither the Trial Court’s findings that
all the issues h ave been resolved, no r the parties’ ag reement th at all
matters hav e been co ncluded, w ill create a final o rder. This or der is
not final because the Trial Court has neither granted the plaintiff a
judgmen t nor dismisse d the com plaint. A pa rty may not waiv e his
right to proce ed to trial in ord er to have a n immed iate appellate
review o f an order g ranting a ne w trial.
2
Upon remand to the Trial Court, the Trial Judge entered the
following order on September 14, 1998:
JUDGMENT
Upon the above captioned matter being presented for further
consideration by the Court on the 18th day of June 1998, and
following the granting of a new trial pursuant to Rule 59 of the
Tennessee Rules of Civil Procedure, the Court, sitting without the
intervention of a jury, orders, adjudges and decrees that the above
captioned matter be, an d hereby is, dism issed, with th e costs equ ally
divided between the parties.
Notice of app eal wa s given and the appea l is now before this Co urt.
The foregoing order sets forth no groun ds to dismiss the case, nor do es the record
contain a basis to authorize the Trial Judge to dismiss this action. There is nothing
in the record to comp ort with either a voluntary dismissal or an inv oluntary
dismissal as authorized in Rules of Civil Procedure, Rule 41. Accordingly, it was
error for the Trial Judge to dismiss this action,1 and the cause will be reinstated and
reman ded to th e Trial C ourt fo r furthe r proce edings .
The order of this Court filed on October 16, 1997 is the law of the
case. The Court said , in pertinent pa rt:
This order [appealed from] is not final because the Trial Court has
neither g ranted th e plaintif f a judg ment, n or dism issed the comp laint.
A party may not waive his right to proceed to trial in order to have an
immedia te appellate re view of a n order gra nting a new trial.
Upon our holding that the Trial Judge erroneously dismissed the complaint, the
status of the c ase is as it wa s when th is Court en tered its order o n the prior ap peal,
and as that o rder states, the p laintiff cann ot waive h er right to proc eed to trial in
order to hav e an imm ediate review of the orde r granting a n ew trial.
The judgment of the Trial Court is reversed and the cause reinstated
1
In fairness to Judge Russell, we note that counsel during oral arguments candidly stated
that he asked the Judge to dismiss the case. Under all of the circumstances, we are not inclined
to deny relief to the party responsible for the error. See Rule 36(a), T.R.A.P.
3
and rema nded w ith instructions th at the parties p roceed in a ccordanc e with this
opinion. The costs are assessed to the plaintiff.
________________________
Herschel P. Franks, J.
CONCUR:
___________________________
Houston M. Godd ard, P.J.
___________________________
William B. Cain, J.
4
Theresa G. Jenkins v. Lionel R. Barrett, Jr., and John G. Oliva - Concurring
Combined Opinion