IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

June 22, 2016 Session

IN RE ESTATE OF ALYS HARRIS LIPSCOMB

Appeal from the Probate Court for Shelby County

No. PR-1541 Karen D. Webster, Judge

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No. W2015-02277-COA-R3-CV – Filed July 25, 2016

___________________________________

Appellants appeal from an order that was not final pursuant to Rule 58 of the Tennessee 

Rules of Civil Procedure. Accordingly, we dismiss this appeal for lack of subject matter 

jurisdiction. 

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed.

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which KENNY 

ARMSTRONG, J. and WILLIAM B. ACREE, SP.J., joined.

Robert L. J. Spence and E. Lee Whitwell , Memphis, Tennessee, for the appellant, Carnita F. 

Atwater.

Olen M. Bailey, Memphis, Tennessee, for the appellees, Scott Brinkmann Peatross, and 

Thomas Huddleston.

MEMORANDUM OPINION1

Procedural History 

 

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“MEMORANDUM OPINION”, shall not be published, and shall not be 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.
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On October 7, 2014, Petitioner/Appellee Thomas C. Huddleston (“Appellee”) filed a 

petition in the Shelby County Probate Court to admit will to probate and to grant letters of 

administration in the Estate of Alys Harris Lipscomb (“Decedent”). On October 16, 2014, 

Respondent/Appellant Carnita F. Atwater (“Appellant”) filed an answer to the petition 

alleging that the will previously submitted had been altered or supplemented by a codicil. As 

such, Appellant filed a counter-petition to also admit the codicil to probate and asked that she 

be named the estate‟s personal representative. Appellant attached to her counter-petition 

various documents, both written and typed, that Appellant contended constituted a codicil to 

Decedent‟s will. 

On October 17, 2014, the probate court signed an order admitting Decedent‟s will to 

probate and naming a personal representative for the estate. On March 25, 2015, Appellee 

filed an answer to the counter-petition, denying that the documents submitted by Appellant 

constituted a valid codicil. On October 27, 2015, the probate court signed an order denying 

Appellant‟s counter-petition to admit the purported codicils to probate. The trial court 

designated the order as final pursuant to Rule 54.02 of the Tennessee Rules of Appellate 

Procedure. Appellant thereafter filed a notice of appeal to this court. 

Discussion

As an initial matter, we must first discuss this Court‟s jurisdiction over this appeal. 

This Court “cannot exercise jurisdictional powers that have not been conferred directly to 

[us] expressly or by necessary implication.” Tennessee Envtl. Council v. Water Quality 

Control Bd., 250 S.W.3d 44, 55 (Tenn. Ct. App. 2007) (citations omitted). Our subject matter 

jurisdiction is limited to final judgments except where otherwise provided by procedural rule 

or statute. Bayberry Assocs. v. Jones, 783 S.W.2d 553, 559 (Tenn. 1990) (citing Aetna Cas. 

& Sur. Co. v. Miller, 491 S.W.2d 85, 86 (Tenn. 1973)). An order that adjudicates fewer than 

all the claims or the rights and liabilities of fewer than all the parties is typically not a final 

judgment that is appealable as of right. See Tenn. R. App. P. 3(a). Rule 3(a) of the Tennessee 

Rules of Appellate Procedure nevertheless permits parties to appeal an order that does not 

adjudicate all of the claims, rights, and liabilities of all parties if the trial court properly 

certifies its judgment as final pursuant to Rule 54.02 of the Tennessee Rules of Civil 

Procedure. Rule 54.02 provides:

When more than one claim for relief is present in an action, 

whether as a claim, counterclaim, cross-claim, or third party 

claim, or when multiple parties are involved, the Court, whether 

at law or in equity, may direct the entry of a final judgment as to 

one or more but fewer than all of the claims or parties only upon 

an express determination that there is no just reason for delay 

and upon an express direction for the entry of judgment. In the 

absence of such determination and direction, any order or other 
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form of decision, however designated, that adjudicates fewer 

than all the claims or the rights and liabilities of fewer than all 

the parties shall not terminate the action as to any of the claims 

or parties, and the order or other form of decision is subject to 

revision at any time before the entry of the judgment 

adjudicating all the claims and the rights and liabilities of all the 

parties.

Tenn. R. Civ. P. 54.02. In this case, the trial court correctly certified its judgment as final 

pursuant to Rule 54.02.

While this appeal was pending, however, a different procedural issue came to light. 

Rule 58 of the Tennessee Rules of Civil Procedure provides that in order for an order to 

become “effective” the order must be “marked on the face by the clerk as filed for entry” and 

contain one of the following:

(1) the signatures of the judge and all parties or counsel, or

(2) the signatures of the judge and one party or counsel with a 

certificate of counsel that a copy of the proposed order has been 

served on all other parties or counsel, or

(3) the signature of the judge and a certificate of the clerk that a 

copy has been served on all other parties or counsel.

Tenn. R. Civ. P. 58. In this case, although the order is signed by the judge and counsel for all 

the parties, the order is not “marked on the face by the clerk as filed for entry.” Id. “[A]n 

order that does not comply with Rule 58 „is not a final judgment and is ineffective as the 

basis for any action for which a final judgment is a condition precedent.‟” Steppach v. 

Thomas, No. W2008-02549-COA-R3-CV, 2009 WL 3832724, at *4 (Tenn. Ct. App. Nov. 

17, 2009) (quoting Citizens Bank of Blount Cnty. v. Myers, No. 03A01-9111-CH-422, 1992 

WL 60883, at *3 (Tenn. Ct. App. Mar. 30, 1992)). When a party appeals a non-final order to 

this Court, we do not acquire jurisdiction, as our jurisdiction is limited to final orders, except 

as otherwise provided by rule or statute. Steppach, 2009 WL 3832724, at *4 (citing In re 

Estate of Henderson, 121 S.W.3d 643, 645 (Tenn. 2003)).

Further, nothing in Rule 54.02, allowing appeals from orders that adjudicate only 

some of the issues or parties involved in a case, excuses compliance with Rule 58. As this 

Court explained: “Inclusion of Tenn. R. Civ. P. 54.02 language . . . will not negate failure to 

comply with Tenn. R. Civ. P. 58 concerning the effectiveness of the final order.” Steppach, 

2009 WL 3832724, at *4. Because the order appealed is not file-stamped, it is not an 

“effective” final order and we have no jurisdiction to consider an appeal from such an order 
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under Rule 3 of the Tennessee Rules of Appellate Procedure.2See Tenn. R. App. P. 3 

(involving appeals of final orders only).

Generally, this Court favors deciding cases upon their merits, rather than dismissing 

due to procedural defects. See Greer v. Anderson, 36 Tenn. App. 507, 509, 259 S.W.2d 550, 

550 (Tenn. Ct. App. 1953) (“We prefer to decide all cases on the merits and construe our 

rules liberally to effect such result.”). To that end, this Court informed the parties‟ counsel at 

oral argument that the order appealed was not effective pursuant to Rule 58 and directed the 

parties to obtain a properly file-stamped order. The next day, June 22, 2015, this Court 

entered an order again directing the parties to obtain entry of an effective, final order within 

ten days. 

Thirty days have now elapsed from our June 22, 2015 order; however, the parties have 

failed to obtain an effective order in the trial court or supplement the record with such order 

on appeal. Because there is no final judgment upon which our jurisdiction can attach under 

Rule 3, we must dismiss this appeal for lack of subject matter jurisdiction. In the event that a 

further appeal is filed after the entry of a final order compliant with Rule 58, the parties may 

request that this Court consolidate the record of this appeal with that of the future appeal 

and/or to consider the duplicates of briefs filed in the present appeal in connection with the 

future appeal to avoid duplication of expenses.

Conclusion

This appeal is dismissed. Costs are taxed to Appellant, Carnita F. Atwater, and her 

surety.

_________________________________

J. STEVEN STAFFORD, JUDGE

 

2 We note that this does not appear to be an isolated incident. The only other order contained in the 

record, the October 17, 2014 order admitting Decedent‟s will to probate, is also not marked on its face by the 

clerk as filed for entry.