07/01/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
June 30, 2021
LINDA R. KERLEY v. GEORGE OLIN KERLEY
Appeal from the Circuit Court for Bledsoe County
No. 18-CV-5671 Thomas W. Graham, Judge
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No. E2020-01137-COA-R3-CV
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As issues regarding contempt and attorney fees remain pending, the order appealed from
does not constitute a final appealable judgment. As such, this Court lacks jurisdiction to
consider this appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
JOHN W. MCCLARTY, J.; D. MICHAEL SWINEY, C.J.; AND THOMAS R. FRIERSON, II,
J.
Howard Luxon Upchurch, Pikeville, Tennessee, for the appellant, George Olin Kerley.
Jennifer Austin Mitchell, Dunlap, Tennessee, for the appellee, Linda R Kerley.
MEMORANDUM OPINION1
Pursuant to the requirements of Rule 13(b) of the Tennessee Rules of Appellate
Procedure, the Court directed the appellant, George Olin Kerley (“Husband”), 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)
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shall not be published, and shall not be cited or relied on for any reason in any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.
(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.”). The appellant failed to
respond to our show cause order.
A review of the record on appeal reveals that Husband filed a petition for contempt
on May 13, 2019. On June 13, 2019, Linda R. Kerley (“Wife”) filed an answer to
Husband’s petition for contempt and a counter-petition for contempt. Wife filed another
motion for contempt on November 13, 2019. In its order entered March 2, 2020, the Circuit
Court for Bledsoe County (“the Trial Court”) reserved the issues of contempt for the final
hearing.
The notice of appeal filed by Husband states that he is appealing the Trial Court’s
August 18, 2020 order, which, inter alia, granted Wife a divorce. The August 18, 2020
order also awarded to Wife “her reasonable attorney’s fees which will be determined upon
submission of an affidavit of counsel as to the fees required.” The August 18, 2020 order
did not address the issues of contempt that had been reserved. Furthermore, the record
lacks any order awarding an amount certain of attorney fees.
Because the petitions and motion for contempt and the amount of the attorney fee
award remain pending, the order from which Husband seeks 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 Buildings, 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
Aug. 9, 2018 (finding that order directing parties to re-submit requests for attorney fees
after appeal was “improvidently certified as final,” and holding that because trial court did
not dispose fully and finally of claim for attorney 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), no appl. perm. appeal filed (“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), no appl. perm. appeal filed (“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)).
This appeal is hereby dismissed. Costs on appeal are taxed to the appellant, George
Olin Kerley, for which execution may issue.
PER CURIAM
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