### IN THE SUPREME COURT OF TENNESS EE AT KNOXVILLE Septem ber 4, 2003 Session IN RE: ESTATE OF DONALD BEN HENDERSON, DECEASED, J EFF

HENDERSON V.KENNETH HENDER SON Appeal by Permission from the Court of Appeals, Eastern Section

Probate Court for Monroe County No. 98-116, Edwin C. Harris, Judge

No. E2002-01155-SC-R11-CV - Filed Novem ber 4, 2003

We granted review in this case to decide w hether a probate court’s rejection of all pur ported w ills submitted for

probate and the entering of an or der finding that

the decedent died intestate constitutes a final order for purposes of appeal. Jeff He nderson, the plaintiff-appellant, asserts that the trial court’s order rejecting the decedent’s wills and findi ng that he died intestate was not a final order because the trial court did not cert ify it as such unde

r Rule 54. 02 of the Tennesse e Rules of Civil Procedure. The defendant-appellee, Kenne th Henderson, respond s that the rejection o f the submitted wills and the finding of intestacy represent a final judgment which must

be appe aled, if

at all, within thirty day s. The Cour

t of Appe als agr

eed with the defendant, and held that the probate court’sorder rejecting the wills for probate was a final judgment that had to be a ppealed within thirty day s. Since the plaintiff’s notice of appeal was filed bey ond thirty day s, the appeal was dismissed. After careful consideration, we have determ ined that the intermediate court correctly resolved the case. Accordingly , the judgment of the Court of Appeals is affirmed. Tenn. R. App.P. 11 Appe al by Per mission; Judgment

of the Cour

t of Appeals Affirmed.
F RANK F. D ROWOT A , III, C.J. delivered the opinion of the court, in which E. R IL EY A NDERSON , A DOLPHO A. B IRCH , J R ., J ANICE M. H OLDER , and W IL LI AM M. B ARKER , JJ., joined. Eric J. Morri son and Chad wick B. Tindell, K noxville, Te

nnessee , for the

appella nt, Jeff Henderson. Charles Dungan, Mary

ville, Tennessee, for the appellee, Kenne th Henderson.



### OPINION1 Prior to t he i nit iation of the probat e case, a conserva torshi p case had been fil ed concerning the deceased. In that matter, th e dec eased was ap pare ntly found to be in compete nt be caus e a cons ervator was ap poin ted. Little e lse is know n abo ut that cas e, or the prese nt one , as there is no tran script o f the evid ence or a state men t of the ev idenc e.

2 The defendant’s brief

states t hat the hearing was “quit e informal,” and that no test imony was presented to the cou rt. 3 In resolving t he case, the t

rial judge stat ed that

he “c onsi dered bot

h th e probat e and con serv ator shi p recor ds of th e dec eden t. ” As noted previously, t he records of the conservatorship proceeding were not filed by the p arties in this case. -2- Factua l and Proc

edural Bac

kground This case involves a dispute between theplaintiff, Jeff Henderson, the decedent’s gr andson, and t he defendant, Kenneth Henderson, the decedent’s son, over the estate of Donal d Be n Henderson. After Mr. Henderson’s dea th in Decembe r 1998, the plaintiff filed a petition in the Monroe Co un ty P roba te Court seeking to admit to probate a document dated Aug ust 21, 1996, purporting to be the d

eceden t’s will. A

revoca tion of this

will, date d July

28, 1997, w as also submitted to th e p ro ba te co ur t. Su bs eq ue nt ly, the defendant submitted for probate a document dated October 20, 1998, likewise purporting to be the decedent’s will. A third document purporting to be the decedent’s will dated February 27, 1986, was also fi led wit h the court. Thus, the parties filed a total of three wi lls and a r

evocati on with the

probate court. 1
After holding a h earing, the nature of which is unclea r, 2 the trial court entered an order on October 18, 2001, finding that the 1986 will was revoked by the 1996 will, that the 1997 revocation revoked the 1996 will, and that

the deceased was not competent to execute the 1998 will because he was subject to a conservatorship. 3 Having found that none of the threedocuments submitted by the parties should

be admit ted to probate, the trial court found that the decedent died intestate. T he court’s order also appointed an administrator ad litem, and concluded by stating that the “ propone nts of the wills submitted to this Court file their will contests and/or counterclaims forthwith.”
On Decemb er 6, 200 1, the def endant f iled a moti on to relieve the administrator ad litem of his duties and to appoin

t himself, the defe

ndant, as the personal representative of his father’ s estate. The motion recited that more than thirty da ys had expired since the

entry of the

order rejecting the wills submitted for probate and the finding that the decedent had died intestate. Therefore , the order was a final judgment and as such was res j udicata

as to all is sues rel ated to the validity of the wills. The motion further indicated that the defendant was the only child of

the dece ased and

hence h is only heir given the trial court’s finding of intestacy . The plaintiff filed a response opposing the motion, along with a complaint challenging the validity of one of the re

jected wills. The trial court entered an order on April 23, 2002, appointing the defendant as the personal representativeof the decedent’s estate. The order fur ther found that the earlier order of October 18, 2001, which rejected the wills and held that the deceased died intesta te, was a final order. The4 In an ap pea l as of right to th e Sup reme Court , Cour t of Appeals , or Courtof Cri minal Appeals , the notice of appeal must

be fil ed with the t

rial court cl erk wit

hin t hirt y days aft er th e dat e of ent ry of t he j udgme nt appea led fr om. Te nn. R. A pp. P . 4(a). -3- plaintiff filed a notice of appeal on May

13, 2002, nearly se

ven months after the trial court rejected the wills and made the finding of intestacy

. On appeal, the Court o f Appea ls conclu ded that it did

not have j urisdicti on to hear the case be c ause the plaintiff did not file a notice of appeal within thirty days of the e

ntry of the orde

r rejecting the wills submitted for probate. 4 The inter mediate court reasoned that the order of October 18, 2001 adjudicated all of the issues related to the propounded wills, and that the language in the order stating that “the propone nts of the wills submitted to this Court file their will contests and/or counter claims forthwith” was “superfluous and did not change t he character of the final orde r.” Thus, the Court o f Appea ls held that

when a c ourt reje

cts all pur ported w ills submitted f

or proba te and enters an order finding that the dece ased diedint estate, the order constitutes a final order for purposes of appeal. Accordingly , the intermediate court dismissed the appeal. Analysis
We begin our analy sis of this case by obse rving that in a civil case an appeal as of right may be taken only afte

r the entry of

a final judgment. Tenn. R. App. P. 3(a). A final judgment is one that resolves all the issues in the case, “leaving nothing else f or the trial court to do .” State ex re l. McAllister

v. Goode , 968 S.W.2d 8 34, 840 (Tenn. Ct. Ap p. 1997). In contrast, an orde r that adjudicat es fewer t

han all of the claim s, right s, or liab ilities of a ll the par ties is not f

inal, but is s ubject to revision any time befor e the entry of

a final judgment. Tenn. R. App. P. 3(a). Such a n order is interlo cutory

or interim in nature and generally cannot be appealed as of right. Id. However, there is a mechanism, found in Rule 54.02 of the Tennessee Rules of Civil Procedure, by which a party may appea

l an order that adjudicates fewer than a ll of the claim s, right s, or liabilities of fewer than all th

e partie s. Rule 54. 02 provide s as follow s: When more than o ne claim for relief i s presen

t in an ac tion . . . or

when multi

ple parties are involved, the court . . . may direct the entry of a

final judgment as to one or m ore b ut fewer

than all o f the cla

ims or par

ties only upon an ex

press determinationthat ther e is no just

reason for

delay and upon a

n express di rection for the ent

ry of judgm

ent . In th

e absenc e of such

determi nation an d direction, any order

or other form of decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties s hall notterminat

e the action as to any of

the claims or parties, and

the order or other form o f decisio n is subject to revision at any time befor e the entry of

the judgment adjudicating all the claims and the rights and liabilities of all the parties. (Emphasi s added). Thus, Rule 5 4.02 requires, as a prerequisite to an appea l as of right of an interlocutory

order, the certi ficat ion b y the tria l jud ge that the ju dge has directed the entry of a final-4-

judgment as to one or more but fewer than all of the issues of the parties, and that the court has made an express determination that there is no just reason for delay

. Stidham v. Fickle Heirs , 643 S.W.2d 324, 325 (Tenn. 1982). Such certification by the trial court

create s a final judgment appealable as of right. Id. With the foregoing principles in mind, we turn to the plaintiff’s c ontention that the order of the probate

court en tered on October 18, 2001, w as not a f

inal orde r that ha d to be app ealed w ithin thirty days. The plaintiff a

rgues that the orde r did not a

djudicat e all of the issues in the case given that the order directs the par ties to “file their will contests and/or counterclaims forthwith.” According to the plaintiff, that language contemplates f urther proce edin gs regarding the contesta bility of the wills previously

submitted t

o the cour t. The pla intiff fu rther su gges ts that

there are unadjudicated rights still at issue, such as potential claims ag ainst the estate. We are not persuaded by

the plaintiff’s arguments, and agree with the finding of the Court of Appeals that the language in the or der about filing “will contests and/or counterclaims” wa s superfluous because

there we re no will s admitted t

o probate to contest. The only issue befor e the probate court was whether the decease d had a valid will, and the only c laim for relief sought by the parties was the admission of the various wills to probate. The un a mbiguous rejection by the trial court of those wil ls and the f

inding of intestac y le

ft nothing further to be dec ided with r

espect t o those instruments. Simply put, there were no wills to set aside in a contest proceeding. The trial judge himself found in a later order that his previous order of October 18, 2001 was meant to be a final order. The plaintiff

also reli es upon Rul e 54.02 of the Tennessee Rules of Civi l Procedu re in arguing that unless the trial court makes an express determination that there is no just reason for delay and that the judgment is a final judgment, the order is subject to re vision and cannot be appeal ed. The plaintiff maintains that the probate court’s order of October 18, 2001 c annot b e regarded as a fina l judgme nt b ecause the orde r did not c ontain the

certifi cation r

equired by R ule 54.02. Again, we arenot persuaded by the plaintiff’s contention. In our view, Rule 54.02 does not apply to this case because the only issue before the trial court at the time was whether the decedent had a valid will. The trial court found that none of the three instruments were valid wills, and thus the order was final for purposes of appea l. It is apparent based on the scant record be fore us that the case did not involve multiple claims that needed to be resolved. Accordingly , it was not necessary for the trial court to make the certification required by Rule 54.02.
Fi na ll y, we wish to

notethat we agree with the plaintiff’s observa tion thatit is importa

nt to establish a degr ee of ce rtainty as t o the fina

li ty o f intesta

cy orders s o that par

ties know w

hen to appeal. To that end, we embrace an observation made by

a court more than a

century a go: “[W]hen a will has been propounded by a party inter

ested, and fairly

rejected on themerits, it w ould defeat the policy of the law, a

nd be producti ve of man

y mis chiefs, if it

could be again propounded by the sameparty

or by others wh

o might be

interest ed, and th e contes tthus renewed from time to time.”5 W e do not de cide in thi s appeal t he int rins ic corre ctness of th e tri al court ’s deci sion t o reject the t hree wills, as that i ssue is not before us. Even if t he issue had bee n raised in a timely a ppe al, we wo uld b e unab le to de cide it because no tran script o r state ment of the evi dence has been filed. In t he absence of a transcript or statement of t

he evidence, a presumpti on aris es tha t there was suf fici ent evi dence to sup por t the trial co urt’s jud gme nt. M frs. Co nsol. Serv . v. Ro dell , 42 S .W .3d 8 46, 8 65 ( Te nn. Ct. A pp. 2 000 ). -5- Shultz v. Shultz , 51 Va. (10 Gratt.) 358 (1853). I t seems to us that

once a court has determined that a will should not be admitted to probate, it would indeed be “productive of many mischiefs” to allow a contest e ssentiall

y raising the same issues after the time for appe al has passed. Thus, a judgment rejecting a will “must b e rega rded as a judgmen t again st all cla

iming und

er it . . . w

hich, bein g adjudications upon the su bject mat ter, ar e rega rded as f inal and c onclusive

not only in the cou

rts in which they are

propounded, but all others in whi ch th e que stion aris es.” Jack W. Robinson, Sr. and Jeff Mobley, 1 Pritchard on the Law of Wills and Administration of Estates § 340 (5th ed. 1994). Ac co rd in gl y, we hold that when a court rejects all purported wills submitted for probate and enters an order finding that the deceased died intestate, the order c onstitutes a final order for purposes of appeal. Conclusion
After caref ully considering the record and re levant authorities, we conclude that the lower courts correctly

found that the trial court’s order of October 18, 2001, wa s a final order th at had to be app ealed, i f at all , within thi rty day s. 5 Since the notice of appeal in this case was filed bey ond thirty days, the Court of Appe als correctly dismissed the appeal as untimely. Ac cordingly , the ju dgment of the Court of Appeals is affirmed. Costs of this appeal are taxed to the plaintiff, Jeff Henderson, for which execution may issue if necessary

.

_____________________________________ FRANK F . DROWOTA, II I, CHIEF JUSTICE