IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs July 1, 2022

LORI S. FERNANDEZ v. TENNESSEE DEPARTMENT OF REVENUE

Appeal from the Circuit Court for Davidson County

No. 21c442 Thomas W. Brothers, Judge

___________________________________

No. M2021-01417-COA-R3-CV

___________________________________

Lori S. Fernandez (“Appellant”) was employed by the Tennessee Department of Revenue 

from 2014 until March 6, 2020, when she resigned. Following her resignation, Appellant 

sued the Department and several of its employees (the “Appellees”) for various causes of 

action including, inter alia, racial and disability discrimination. Appellees filed a motion 

to dismiss which the trial court granted. Thereafter, Appellant filed a Tenn. R. Civ. P. 59 

motion to alter or amend the trial court’s order, as well as an amended complaint. The trial 

court denied the motion to alter or amend and declined to address the outstanding amended 

complaint. Appellant timely appealed to this court. We conclude that the order appealed 

from is non-final. Accordingly, this Court lacks subject matter jurisdiction, and the appeal 

must be dismissed. 

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

KRISTI M. DAVIS, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,

P.J., W.S., and W. NEAL MCBRAYER, J. joined.

Lori S. Fernandez, White House, Tennessee, Pro se. 

Herbert H. Slatery III, Attorney General and Reporter, Andrée Sophia Blumstein, Solicitor 

General, and Melissa Brodhag and Shanell L. Tyler, Assistant Attorneys General for the 

appellees, Tennessee Department of Revenue, David Gerregano, Rosie McClurkan, Kenya 

Watson, and Genna Preston.

MEMORANDUM OPINION1

 

1 Rule 10 of the Tennessee Court of Appeals Rules provides: 

This Court, with the concurrence of all judges participating in the case, may affirm, reverse 

11/16/2022
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Appellant was employed by the Tennessee Department of Revenue from 2014 

through March 6, 2020, when she resigned. On March 5, 2021, Appellant filed a complaint 

against the Appellees in the Circuit Court for Davidson County (the “trial court”). 

Appellant alleged causes of action for racial and disability discrimination, retaliation, and 

malicious harassment under the Tennessee Human Rights Act (“THRA”), the Americans 

with Disabilities Act (“ADA”), and the Tennessee Disability Act (“TDA”). Appellees did 

not file an answer but filed a motion to dismiss on April 12, 2021. Appellees asserted that 

several of Appellant’s claims were time-barred by statutes of limitation, that the federal 

claims were barred by sovereign immunity, and that Appellant failed to state a claim for 

which relief could be granted because her allegations were conclusory.

The trial court granted Appellees’ motion to dismiss on August 19, 2021. Within 

thirty days of the entry of that order, Appellant filed a motion to alter or amend, as well as 

her first amended complaint. On October 29, 2021, the trial court entered an order denying 

Appellant’s motion to alter or amend and determining that the first amended complaint was 

of no “procedural effect”:

In order for a post-judgment amended complaint to have any 

procedural effect, a Plaintiff must first move the Court to set aside its 

judgment, and then move the court for leave to amend. Lee v. State Volunteer 

Mut. Ins. Co., Inc., No. E2002-03127-COA-R3-CV, 2005 WL 123492 at *11 

(Tenn. Ct. App. Jan. 21, 2005). Here, Plaintiff has moved the Court to alter 

or amend its judgment on Defendant’s original Motion to Dismiss, however, 

Plaintiff failed to set a hearing date and this Court never considered the 

motion nor set aside the prior judgment. Accordingly, the previous judgment 

of this Court still stands. 

Considering Plaintiff’s Motion, sua sponte, the Court respectfully 

DENIES Plaintiff’s Motion to Alter or Amend Judgment. Therefore, 

Plaintiff’s First Amended Complaint lacks any procedural effect. 

Appellant timely appealed to this Court. 

Issues 

Appellant raises two issues in her principal brief, which we have rephrased and 

consolidated: Whether the trial court erred in determining that Appellant’s amended 

complaint lacked any procedural effect. 

 

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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Discussion 

This appeal concerns Tenn. R. Civ. P. 15.01 and the trial court’s treatment of 

Appellant’s first amended complaint, which was filed post-judgment but prior to the 

judgment becoming final. Tenn. R. Civ. P. 15.01 provides, as relevant:

A party may amend the party’s pleadings once as a matter of course 

at any time before a responsive pleading is served or, if the pleading is one 

to which no responsive pleading is permitted and the action has not been set 

for trial, the party may so amend it at any time within 15 days after it is 

served. Otherwise a party may amend the party’s pleadings only by written 

consent of the adverse party or by leave of court; and leave shall be freely 

given when justice so requires.

This Court recently construed Rule 15.01 under circumstances similar to those in 

the case at bar. In Justice v. Nordquist, No. E2020-01152-COA-R3-CV, 2021 WL 

2661008 (Tenn. Ct. App. June 29, 2020), the plaintiff sued a psychologist for various 

causes of action related to the psychologist’s treatment of the plaintiff’s son during the 

course of the plaintiff’s divorce. The psychologist did not file an answer to the original 

complaint but did file a motion to dismiss for failure to state a claim for which relief may 

be granted. Id. at *1; see also Tenn. R. Civ. P. 12.02. Among other things, the psychologist 

argued that he was immune from liability for statements made during judicial proceedings, 

that the plaintiff lacked standing, and that the applicable statutes of limitation and repose 

had passed. Id. The trial court entered an order granting the motion to dismiss on February 

28, 2020. Id. at *2. The plaintiff then filed motions to alter or amend, which were denied 

on May 7, 2020. Id. On June 8, 2020, the plaintiff filed his first amended complaint. Id. 

Several months later, the plaintiff filed a motion for default because the first amended 

complaint was still unanswered. Id. While the defendant psychologist responded to the 

first amended complaint with a motion to dismiss, the motion was never ruled on, and the 

plaintiff “filed his Notice of Appeal with this Court ‘out of an abundance of caution’ as he 

put it in his appellate brief.” Id. 

On appeal, the seminal issue was whether this Court had jurisdiction, insofar as the 

first amended complaint was not addressed in the lower court.2 Id. We determined that 

because the defendant psychologist never filed a responsive pleading to the original 

complaint, the plaintiff’s right to file his first amended complaint remained intact while the 

 

2

In civil cases, “an appeal as of right may be taken only after the entry of a final judgment.” In re 

Est. of Henderson, 121 S.W.3d 643, 645 (Tenn. 2003) (citing Tenn. R. App. P. 3(a)). A final judgment 

adjudicates all “claims, rights, and liabilities of all the parties,” Discover Bank v. Morgan, 363 S.W.3d 479,

488 n.17 (Tenn. 2012), and “resolves all the issues in the case, leaving nothing else for the trial court to 

do.” Est. of Henderson, 121 S.W.3d at 645. When an order is non-final, this Court lacks subject matter

jurisdiction to review it. See id.
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trial court’s judgment was still non-final. As Justice is highly analogous to the present 

case, we quote it at length: 

Plaintiff contends that, as Defendant never filed a responsive pleading 

to his original complaint, he had an absolute right to file an amended 

complaint notwithstanding that the Trial Court already entered an order of 

dismissal as to his original complaint. In support of his contention, Plaintiff 

cites Justice v. Nelson, No. E2018-02020-COA-R3-CV, 2019 WL 6716300

(Tenn. Ct. App. Dec. 10, 2019), no appl. perm. appeal filed, incidentally 

another case involving Plaintiff. In Justice, the trial court granted defendants’ 

motion to dismiss plaintiff’s complaint. Id. at *1. Thirty days later, plaintiff 

filed an amended complaint. Id. Acknowledging the legitimacy of this 

procedural move, we noted:

On September 4, 2018, the trial court entered an order clarifying that 

“Mr. Justice filed a First Amended Complaint not a motion to be 

allowed to file an amended complaint.” (Emphasis in original.) The 

court was reminding defendants that “[a] party may amend the 

party’s pleadings once as a matter of course at any time before a 

responsive pleading is served[.]” See Tenn. R. Civ. P. 15.01; see

also Adams v. Carter Cty. Memorial Hosp., 548 S.W.2d 307, 308-

09 (Tenn. 1977) (holding that the plaintiff could file an amended 

complaint as a matter of course after the trial court granted the 

defendants’ motion to dismiss and before that order of dismissal 

became a final judgment). Despite finding that “[t]here was never a 

motion to dismiss the amended complaint[,]” the trial court ruled 

that “[t]he response to the amended complaint reads like a motion to 

dismiss and the Court will consider it a motion to dismiss.” The court 

also requested additional briefing on the issue.

Justice, 2019 WL 6716300, at *1. The trial court dismissed the lawsuit. Id. at

*2. On appeal, we held that defendants’ response to plaintiff’s amended 

complaint was not a motion to dismiss in form or in substance, and that the 

trial court erred in effectively dismissing the amended complaint sua

sponte without adequate justification. Id. at *3, 5. For purposes of the instant 

case, however, the main point from Justice is that this Court has recognized 

a scenario in which a party may file an amended complaint to continue her 

case even though the trial court already has dismissed her original complaint 

if no responsive pleading to the original complaint was filed and the order of 

dismissal has not become final. The first consideration in this scenario is 

whether a responsive pleading has been filed. Here, Defendant filed only a 

motion to dismiss; he never filed an answer. Regarding the effect this has on 

a plaintiff’s ability to amend her complaint, this Court has stated: “[A] 
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plaintiff must seek permission from the court to file an amended complaint 

only when a responsive pleading has been filed. It is well-settled in 

Tennessee that a motion to dismiss is not a responsive pleading.” Mosley v.

State, 475 S.W.3d 767, 774 (Tenn. Ct. App. 2015) (citations omitted). 

Defendant’s Motion to Dismiss and to Strike the Complaint does not 

constitute a responsive pleading. The next consideration is whether 

Plaintiff’s amended complaint was timely filed before the order of dismissal 

became final. Regarding the different senses in which a judgment may be 

deemed “final,” this Court has stated:

Generally, “a trial court’s judgment becomes final thirty days after 

its entry unless a party files a timely notice of appeal or specified 

post-trial motion.” Id. (citing State v. Pendergrass, 937 S.W.2d 834,

837 (Tenn. 1996); Tenn. R. App. P. 4(a)-(c)); see also McBurney v.

Aldrich, 816 S.W.2d 30, 34 (Tenn. Ct. App. 1991). Before that time, 

the judgment lies “within the bosom of the court” and “may be set 

aside or amended on motion of a party or upon the court’s own 

motion.” McBurney, 816 S.W.2d at 34. It is in this slightly different, 

but substantially related, sense of a final judgment in which the 

doctrine of res judicata is implicated here. This Court has referred 

to this as the concept of “final completion.” Swift v. Campbell, 159

S.W.3d 565, 573 (Tenn. Ct. App. 2004); see also Lawrence A. 

Pivnick, Tennessee Circuit Court Practice § 27:9 n. 22 (2010). In 

this sense, then, a judgment may be considered “final” in order to 

confer jurisdiction on an appellate court pursuant to Tennessee Rules

of Appellate Procedure Rule 3(a), while not being “final” for 

purposes of res judicata because such an appeal is pending.

This is, in fact, the rule in Tennessee, where a “‘a judgment is not 

final and res judicata where an appeal is pending.’” Creech [v.

Addington], 281 S.W.3d [363,] . . . 377-78 [(Tenn. 2009)]

(quoting McBurney, 816 S.W.2d at 34); see also Freeman v. Marco

Transp. Co., 27 S.W.3d 909, 913 (Tenn. 2000). Our Supreme Court, 

citing the Restatement (Second) of Judgments § 13 cmt. f, has noted 

that Tennessee’s rule is a minority position and that the predominant 

view in other jurisdictions is that the “taking of an appeal does not 

affect the finality of a judgment for res judicata purposes.” Creech,

281 S.W.3d at 378 n. 17 (collecting cases from other 

jurisdictions). However, it is an inescapable conclusion that, in 

Tennessee, a judgment from a case in which an appeal is pending is 

not final and cannot be res judicata until all appellate remedies have 

been exhausted.
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In re Shyronne D.H., No. W2011-00328-COA-R3-PT, 2011 WL 2651097,

at *6 (Tenn. Ct. App. July 7, 2011), no appl. perm. appeal filed (footnote 

omitted).

On May 7, 2020, the Trial Court denied Plaintiff’s motions to alter or amend. 

Plaintiff filed his amended complaint on June 8, 2020, within the time for 

appeal (the thirty-day mark landed on a Saturday; the amended complaint 

was filed that Monday). For this thirty-day period, the Trial Court’s order 

remained non-final and ‘within the bosom of the court,’ thus subject to 

change or appeal. As was the scenario in Justice, Plaintiff’s timely filing of 

an amended complaint when no responsive pleading was filed had the effect 

of keeping the case alive in the Trial Court. However, in the present case, the 

Trial Court never ruled on Plaintiff’s amended complaint. Therefore, we lack 

a final judgment and, consequently, subject matter jurisdiction to hear this 

appeal.

Justice, 2021 WL 2661008, at *3–4. 

On appeal, Appellant argues that Justice is highly analogous to the present case and 

that the trial court erred in treating Appellant’s first amended complaint as “lack[ing] any 

procedural effect.” On the other hand, Appellees argue that the trial court correctly 

determined that the judgment of dismissal must have been set aside for the first amended 

complaint to become operative. 

We understand the difficulties created by parties filing an amended complaint postjudgment. Indeed, prior to its amendment in 2009, the federal analog to Rule 15.01 was 

the same as our current rule regarding amended complaints as of right, and the issue now 

before us caused confusion amongst the federal courts.3 Nonetheless, we agree with 

 

3 The commentary to Federal Rule of Civil Procedure 15 provides: 

Under the prior version of Rule 15, it was common for plaintiffs to attempt to amend their 

complaints “as of right” after the court had granted a motion to dismiss under Rule

12(b)(6). Technically, the window for the amendment was still open because the defendant 

had not yet answered (under the old rule, only the filing of an answer closed the time to 

amend as of right), but courts understandably puzzled over whether an amendment as of 

right was appropriate under those circumstances. Under the old scheme, some cases 

asserted that the right to amend once as a matter of course terminated upon 

dismissal. Some decisions seemed to say that the right to amend once as a matter of course 

continued but that the court nevertheless could deny the amendment if it would be futile. 

Other decisions held that the right to amend once as a matter of course continued during 

the period between when the court granted the motion to dismiss and when the court 

entered final judgment. Regardless of which approach applied, however, once the court 

entered final judgment, the party seeking to amend needed to seek post-judgment relief 

under Rule 59 or Rule 60.
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Appellant that there is no meaningful difference in this case and Justice. 2021 WL 

2661008. Rule 15.01 unequivocally provides that a complaint may be amended “once as 

a matter of course at any time before a responsive pleading is served.” Tenn. R. Civ. P. 

15.01. And this Court made clear in Justice that the rule contemplates post-judgment first 

amended complaints when two criteria are satisfied: 1) no responsive pleading has been 

filed, and 2) the first amended complaint is filed within thirty days of the entry of the 

judgment, such that the judgment is not yet final and still “within the bosom” of the trial 

court. 2021 WL 2661008, at *3 (quoting In re Shyronne D.H., 2011 WL 2651097, at *6).

Appellees argue that Justice is distinguishable from the present case, and that 

Carson v. Daimlerchrysler Corp., No. W2001-03088-COA-R3-CV, 2003 WL 1618076 

(Tenn. Ct. App. Mar. 19, 2003), is actually controlling. In Carson, a Chrysler customer 

filed suit against the company over an allegedly defective vehicle. Id. at *1. She alleged 

causes of action for unjust enrichment, indemnity, breach of warranty and violations of the 

Tennessee Consumer Protection Act, and requested plaintiff class certification. Id. There 

were no allegations in the plaintiff’s complaint that she was actually injured as a result of 

her car’s defects. Id. DaimlerChrysler moved to dismiss for lack of subject matter 

jurisdiction. Id. The trial court “dismissed the cause of action for mootness and based on 

the primary jurisdiction doctrine. The trial court further addressed [the plaintiff’s] 

substantive claims and awarded DaimlerChrysler’s motion to dismiss for failure to state a 

claim.” Id. Although the timeline is not entirely clear from the opinion, at some point 

following entry of the judgment, the plaintiff sought leave to amend her complaint to add 

another plaintiff to the suit. Id. at *5. The trial court did not allow the amendment, which 

the plaintiff challenged on appeal. Id. This Court agreed with the trial court, explaining 

that a court’s decision to deny leave to amend is discretionary, but is “tempered by the 

Tennessee Rules of Civil Procedure, which provide that leave to amend shall be freely 

given when justice so requires.” Id. (citing Tenn. R. Civ. P. 15.01). The Carson court 

noted that “[s]ome of the factors to be considered by the court in considering a motion to 

amend include: undue delay in filing; lack of notice to the opposing party; bad faith by the 

moving party, repeated failure to cure deficiencies by previous amendments, undue 

prejudice to the opposing party, and futility of amendment.” Id. (citing Merriman v. Cont’l

Bankers Life Ins. Co., 599 S.W.2d 548, 559 (Tenn. Ct. App. 1979)). The court ultimately 

held that justice did not require “the trial court to grant [the plaintiff’s] postjudgment motion to amend the complaint to add an additional plaintiff[,]” explaining that 

“[i]n order to take further action on this case, including granting [the plaintiff’s] requested 

motion to amend, the trial court would first have had to set aside or vacate its final order 

dismissing the cause of action.” Id. As “there was no basis to vacate the court’s judgment 

dismissing this case[,]” we upheld the trial court’s ruling. Id. 

 

Because the new version of Rule 15(a) cuts off the ability to amend as of right 21 days after 

service of a Rule 12(b)(6) motion, this particular problem is not likely to occur.

Fed. R. Civ. P. 15.01, Rules and Commentary (Feb. 2022 Update) (footnotes omitted). 
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The circumstances of this case are more analogous to Justice than they are to 

Carson. Indeed, procedurally, the case before us is almost indistinguishable from Justice. 

While in Carson the issue on appeal was whether the trial court erred in denying the 

plaintiff’s motion for leave to amend, here, Justice tells us that Appellant was not required 

to seek leave to amend because no responsive pleading was ever filed by Appellees. 2021 

WL 2661008, at *4. The analysis employed in Carson is inapposite, then, insofar as the 

factors regarding whether leave to amend should be granted do not apply to a first amended 

complaint filed as a matter of right. Id. 

Appellees also suggest that the present case is different from Justice because 

Appellees sought dismissal for reasons other than Appellant’s failure to properly state 

claims, such as immunity and statutes of limitation. As such, Appellees note that 

amendment would be futile. This was also true in Justice, as the defendant in that case 

sought dismissal based on statutes of limitation and repose, and on the basis that statements 

made during the course of judicial proceedings are shielded by immunity. Id. at *1. Futility 

of amendment played no role in our analysis in Justice because the amended complaint at 

issue was a first amended complaint, filed as a matter of right prior to service of a 

responsive pleading. Nor did it matter in Justice that the plaintiff attempted, 

unsuccessfully, to have the judgment of dismissal altered or amended pursuant to Rule 59. 

Id. at *2.

Again, while we are cognizant of the practical issues created by Justice v. Nordquist, 

the present case is highly analogous, and a plain reading of Tenn. R. Civ. P. 15.01 is 

congruous with Justice. See Fair v. Cochran, 418 S.W.3d 542, 543 (Tenn. 2013) (noting 

that “the rules of statutory construction guide” interpretation of the Rules of Civil 

Procedure, and that “if the language is unambiguous, we simply apply the plain meaning 

of the words used”). Further, Appellant has appropriately raised this issue in her principal 

brief. Under these circumstances, we conclude that the trial court erred in determining that 

Appellant’s first amended complaint “lacks any procedural effect.” As we did in Justice, 

we must conclude that the outstanding first amended complaint renders this an appeal from 

a non-final order, meaning this Court lacks subject matter jurisdiction, and the appeal must 

be dismissed.

Conclusion 

This Court lacks subject matter jurisdiction over this appeal, and the appeal is 

dismissed. This case is remanded to the Circuit Court for Davidson County. Costs of this 

appeal are taxed to the Appellees. 

_________________________________

KRISTI M. DAVIS, JUDGE