IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

November 1, 2017 Session

JASON DONALDSON v. SUSAN DONALDSON

Appeal from the Chancery Court for Anderson County

No. 15CH7578 M. Nichole Cantrell, Chancellor

No. E2017-01806-COA-R3-CV

This is an appeal from an order granting a motion filed pursuant to Rule 60.02 of the 

Tennessee Rules of Civil Procedure. The order on appeal vacated and set aside the Final 

Decree of Divorce, Permanent Parenting Plan and Marital Dissolution Agreement 

previously entered by the Trial Court in the proceedings below. The appellee has filed a 

motion to dismiss this appeal arguing that the lack of a final judgment deprives this Court 

of jurisdiction. We agree and grant the motion to dismiss. 

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

JOHN W. MCCLARTY, J., D. MICHAEL SWINEY, C.J., AND CHARLES D. SUSANO, JR., J.

Sal W. Varsalona, Clinton, Tennessee, for the appellant.

Lauren Biloski, Clinton, Tennessee, for the appellee.

MEMORANDUM OPINION1

 

1Rule 10 of the Rules of the Court of Appeals provides as follows:

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.

11/09/2017
Even though the record has not yet been transmitted for this appeal, it is apparent 

from the Notice of Appeal filed by the appellant and the appellee’s motion to dismiss that 

there is not a final appealable judgment in this case. We also construe the appellant’s 

decision to file no response in opposition to the motion to dismiss as a concession that 

there is not a final appealable judgment in this case. As such, the motion to dismiss is 

well-taken. 

“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) (quoting State ex rel. McAllister v. Goode, 968 S.W.2d 834, 840 (Tenn. Ct. App. 

1997)). “[A]ny 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.” Tenn. R. App. P. 3(a). Because there is no order in this case resolving any 

of the claims at issue between the parties, this Court does not have subject matter 

jurisdiction to adjudicate this appeal. 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.”). While the 

Supreme Court in Bayberry remarked that there is “no bar” to the suspension of the 

finality requirements of Rule 3(a) pursuant to Rule 2 of the Tennessee Rules of Appellate 

Procedure, there has been no argument made by the appellant in support of suspension of 

the requirements of the rule. See id. (noting that “there must be a good reason for 

suspension”). Moreover, the question exists whether such a suspension would be proper 

given developments in the law subsequent to Bayberry. See Ingram v. Wasson, 379 

S.W.3d 227, 237 (Tenn. Ct. App. 2011) (“Lack of appellate jurisdiction cannot be 

waived.”) (citing Meighan v. U.S. Sprint Communications Co., 924 S.W.2d 632, 639 

(Tenn. 1996)). 

Because this Court lacks jurisdiction to consider this appeal, the motion to dismiss 

is granted and this case is dismissed without prejudice to the filing of a new appeal once a 

final judgment has been entered. Costs on appeal are taxed to the appellant, Jason 

Donaldson, for which execution may issue if necessary.

PER CURIAM