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IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

KENNETH MARINO v. BOARD OF ADMINISTRATION CITY OF 

MEMPHIS RETIREMENT SYSTEM

Appeal from the Chancery Court for Shelby County

No. CH140404 Oscar C. Carr, III, Chancellor

No. W2015-00069-COA-R3-CV – Filed April 9, 2015

The order appealed is not a final judgment. Consequently, we must dismiss this 

appeal for lack of jurisdiction.

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

KENNY ARMSTRONG, J., J. STEVEN STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J.

Barbaralette G. Davis and Jake Russell Hayes, Memphis, Tennessee, for the appellant, 

City of Memphis.

John F Canale, III, Memphis, Tennessee, for the appellee, Kenneth Marino.

MEMORANDUM OPINION1

Rule 3 of the Tennessee Rules of Appellate Procedure provides that if multiple 

 

1Rule 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shall not be published, and shall not be cited or relied on for any reason in any 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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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). 

On December 29, 2014, Appellant Board of Administration, City of Memphis 

Retirement System filed a Notice of Appeal of the trial court’s order of November 26, 

2014. Appellant also filed an application for an interlocutory appeal of the same trial 

court order on February 19, 2015. In that application, Appellant stated “[f]urther, to 

protect itself against the possibility that the lower court's Order was final and required an 

appeal as of right, Respondent has also filed a Notice of Appeal in this matter, pursuant to 

Rule 5 of the Tennessee Rules of Appellate Procedure.” The Court granted that 

application by Order entered on March 17, 2015. 

The appellate record for this appeal was transmitted to the Clerk of this Court on 

February 23, 2015. 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, the Court entered an 

Order on March 4, 2015, directing Appellant to either obtain entry of a final judgment in 

the trial court within ten (10) days of the entry of that Order, or else to show cause why 

this appeal should not be dismissed for failure to appeal an appealable order or judgment, 

within fifteen (15) days from the entry of that Order. As of this date, however, Appellant 

has not responded to our Order. 

The order appealed in this matter is obviously not a final judgment, because the 

Court has granted the application for interlocutory appeal in a separate appeal. Thus, the 

Court lacks jurisdiction and this appeal must be dismissed.

Conclusion

Because the trial court has not yet entered a final judgment, the appeal is 

dismissed. Costs of this appeal are taxed to the appellant, City of Memphis, for which 

execution may issue if necessary.

PER CURIAM