### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE JOHNNY JESS DAVIS, ET UX 

### . v. JOHNNIE REX FLYNN, ET UX 

### .

Direct Appeal from the Chancery Court for Sevier County No. 97-1-006 Bobby H. Capers, Chancellor, By Interchange

No. E1999-00421-COA-R3-CV - Decided June 21, 2000

The trial court granted the defendants a new trial, and vacated its earlier-entered judgment awarding the plaintiffs, Johnny J ess Davis and wife, Linda Dian e Davis, $851,000.

The plaintiffs ap

peal, contending that the trial court erred in granting the defendants a new trial. In the ir brief, the de fendants c hallenge the trial court’s order denying their motion to amend their pleadings to conform to the proof. Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed; Case Remanded S USANO , J., delivered the opinion of the court, in which F RANKS , and S WINEY , JJ., joined. Lewis S. Howard, Jr., Knoxville, Tennessee, for the appellants Johnny Jess Davis and wife, Linda Diane Davis. Charles I. Poole, Sevierville, Tennessee, for the appellees, Johnnie Rex Flynn and wife, Barbara Flynn. OPINION

On June 9, 1999, following a bench trial, Chancellor Bobby H. Cape rs, sitting by interchange, entered a judgment awarding the plaintiffs $851,000 based upon the following findings as set forth in the j udgment:

[T]he Cou rt determined that the Plaintiffs Johnny Jess Davis and Linda Diane Davis, had a valid right of first refus al to p urchase certain property owned b

y th e D efendants Johnnie Rex Flynn (deceased) and Barbara

Flynn and sold

on January 3, 1996

to HGC, Limited in violation of such right of first refusal.... The defendants subse

quentl y filed a “Motion for New Trial and/or Alteration and/or Amendment o f Fi nal Judgment.” In their motion, the defendants sought to amend their answer to plead the affirmative def

ense of estoppel a

nd also sought other

post-judgment reli

ef, including a ne

w trial.

### -2-

At a hearing on Septe

mber 27, 1999, the t

rial court grante

d the defendants

a new trial after refusing to allow them to amend their answer to conform to the proof. This appeal followed. This appeal is before us ostensibly under Tenn. R. App. P. 3(a), which provides as follows: In c ivi l actions every final judgment entered by a trial court from which an appeal lies to the Supreme C ourt or Court of Appeals is appealable

as of right. Exce

pt as otherwise pe

rmitted in rule

9 and in Rule 54.02 Tennessee Rules o f CivilProcedure, 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 liabil ities of fewer than all the p arties is not enfor

ceable or appe

alable and is subject to revision at any time bef ore entry of a final judgment adjudicating all th

e claims, rights, a

nd liabilities of all

parties. An appeal as of right pursuant to Tenn. R. App. P. 3(a) may be taken only after there has been a final ju dgment in the trial court. Evans v. Wilson, 776 S.W.2d 939, 941 ( Tenn. 1989); Panzer v. King, 743 S.W.2d 612, 616 (Tenn. 1988); C.O. Christian & Sons Co. v. Nashville P.S. Hotel, Ltd., 765 S.W.2d 754, 756 (Tenn. Ct. App. 1988). In the instant case, the plaintiffs appeal the trial court’s order awarding the def

endants a new trial. An order granting a new trial is not a final judgment and thereforeis not appealab le u nder Tenn. R. App. P. 3(a). Evans, 776 S.W.2d at 941; Panzer, 743 S.W.2d at 616. In the absence of a final judgment, we are without jurisdiction under Tenn. R. App. P. 3(a) to cons ider the issue s raised in this case. Fox v. Wisdom , C/A No. 89-184-II, 1990 WL 15224, at *1 (Tenn. Ct. App. W.S., filed February 22 , 1990); Maberry v. Bean , C/A No. 87-328-II, 1988 WL 46199, at *2 (Tenn. Ct. App. W.S., filed May 10, 1988). A lack of “jurisdiction over the subject matter” must be noticed by us whether raised as an issue or not. See Tenn. R. App. P. 13(b). This appeal is dismissed

. This case is rema

nded for further

proceedings. Cost

s on appeal are taxed to the a

ppellants.