IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

July 27, 2010 Session

ELMER ELLIOTT, JR. v. PEARL ELLIOTT, ET AL.

Direct Appeal from the Chancery Court for Gibson County

No. 18,830 George R. Ellis, Chancellor

No. W2010-00302-COA-R3-CV - Filed August 10, 2010

Plaintiff appeals the trial court’s award of summary judgment to Defendants. We dismiss the

appeal for the failure to appeal a final judgment.

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

DAVID R. FARMER, J., delivered the opinion of the Court, in which HOLLY M. KIRBY, J. and

J. STEVEN STAFFORD, J., joined.

Bill R. Barron, Trenton, Tennessee, for the appellant, Elmer Elliott, Jr.

C. Mark Donahoe and Magan N. White, Jackson, Tennessee, for the appellee, Pearl Elliott

and Robert Elliott.

OPINION

This appeal arisesfrom an action to determine the rightful ownership of a 63-acre tract

of real property located in Gibson County filed by Elmer Elliot, Jr., (Mr. Elliot) in the

Chancery Court for Gibson County in April 2008. In his complaint, Mr. Elliot asserted that

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he is the owner of a one-third undivided interest in the property; that a 1939 order awarding

23 acres of the property to Ruth Word Talbert and 39 acres to Cad Elliot was obtained by

either error or fraud; and that named Defendants Pearl Elliot and her son, Robert Elliot

(collectively, “the named Defendants”), own a combined two-thirds interest in the property.

Mr. Elliot prayed for the 1939 order to be set aside and considered void; for a declaration that

he is the owner of a one-third undivided interest in the property; that the deeds to the property

be reformed; for partition of the 63-acre tract; for one-third of all rents and profits obtained

In June 2008, the trial court entered a consent order consolidating the 2008 action with an action 1

previously commenced by Mr. Elliot in 2005.
from the property, plus interest; and for attorney’s fees to be paid from the common fund.

The named Defendants answered in July 2008, asserting that Pearl Elliot isthe rightful

owner of the property in fee simple. They further asserted ownership by adverse possession

and asserted the affirmative defenses of laches; the statute of limitations; the statute of

repose; and equitable estoppel. The named Defendants also asserted that Mr. Elliot had

failed to plead fraud with specificity or particularity as required by Tennessee Rules of Civil

Procedure 9.02. In October 2008, the named Defendants moved for summary judgment,

asserting there were no genuine issues of material fact; that Pearl Elliot was the presumed

owner under Tennessee Code Annotated § 29-2-109; and that Mr. Elliot’s claim was barred

under Tennessee Code Annotated § 28-2-110. Mr. Elliot responded and filed a cross-motion

for summary judgment in October 2008. In his motion, Mr. Elliot asserted, inter alia, that

he had not been ousted by the named Defendants and that his claim of ownership was not,

therefore, statutorily barred.

Following a hearing in August 2009, the trial court awarded summary judgment to

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the named Defendants and dismissed “all other motions.” The trial court entered its order

on January 12, 2010, and Mr. Elliot filed a notice of appeal on January 25, 2010. In his brief

to this Court, Mr. Elliot asserts the trial court erred in awarding summary judgment to the

named Defendants because a genuine issue of material fact exists with respect to whether Mr.

Elliot was ousted from the property.

Upon review of the record, we observe that whether Mr. Elliot was, in fact, ousted

from the property remains a disputed issue in this matter. We also note, however, that the

style of this cause includes potential “unknown heirs.” It does not appear that the trial court

has determined whether such heirs exist, or that it has entered an order dismissing Mr.

Elliot’s claims against the unnamed parties or dismissing the unnamed parties from this

lawsuit. The Appellees to this appeal assert that no final judgment has been entered in the

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trial court, and that we are without jurisdiction to adjudicate this appeal. We agree.

Rule 3(a) of the Tennessee Rules of Appellate Procedure provides, in relevant part:

In civil actions every final judgment entered by a trial court from which an

appeal lies to the Supreme Court or Court of Appeals is appealable as of right.

Except as otherwise permitted in rule 9 and in Rule 54.02 Tennessee Rules of

It appears that no transcript was generated at the hearing. 2

The record before us does not reflect whether the trial court appointed a guardian to represent the 3

“unknown heirs” in this matter. 

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Civil Procedure, if multiple parties or multiple claims for relief 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 enforceable or appealable and

is subject to revision at any time before entry of a final judgment adjudicating

all the claims, rights, and liabilities of all parties.

Under certain circumstances, a judgment which adjudicates fewer than all of the

claims asserted by the parties may be made final and appealable pursuant to Rule 54.02 of

the Tennessee Rules of Civil Procedure. In order to enter judgment under Rule 54.02,

however, the trial court must make an explicit finding that there is “no just reason for delay”

and must expressly direct that a final judgment be entered. In the absence of an order

meeting the requirements of Rule 54.02, any trial court order that adjudicates fewer than all

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

as of right. E.g., Zulueta v. Lassiter, No. M2009-00743-COA-R3-CV, 2009 WL 2589016,

at *2-3 (Tenn. Ct. App. Aug. 21, 2009), perm. app. denied (Tenn. Mar. 15, 2010). Because

the trial court has neither determined that there are no “unknown heirs” nor dismissed Mr.

Elliot’s claims against them, and because it has not adjudicated Mr. Elliot’s claim for

attorney’s fees, its January 12, 2009, order is not a final judgment.

In light of the foregoing, this appeal is dismissed for the failure to appeal a final

judgment. This matter is remanded to the trial court. Costs of this appeal are taxed to the

Appellant, Elmer Elliot, Jr., and his surety, for which execution may issue if necessary.

_________________________________

DAVID R. FARMER, JUDGE

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