The opinion
07/19/2024
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
March 26, 2024 Session
NASHVILLE CHURCH OF CHRIST, INC., AS SUCCESSOR-IN-
INTEREST TO CENTRAL CHURCH OF CHRIST v. AMY GRANT GILL
AND ANDREW M. BURTON, AS CO-ADMINISTRATORS OF THE
ESTATE OF A.M. BURTON, ET AL.
Appeal from the Chancery Court for Davidson County
No. 20-0348-II Anne C. Martin, Chancellor
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No. M2022-00823-COA-R3-CV
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This appeal involves a complaint to quiet title and for declaratory and injunctive relief filed
by a church. The church had purchased property in 1925 pursuant to a deed providing that
if the property ceased to be used for the purposes and objects described in the deed, it would
“revert” to the estate of an individual who was then serving as a trustee of the church. In
2019, an attorney informed the church that he represented several individuals who were
heirs of said trustee and were concerned that the property was not being used in a manner
consistent with the deed. Thus, the church filed the instant complaint and sought a
declaration that the restriction in the deed was no longer valid and enforceable, or in the
alternative, it had not violated the restriction by utilizing the property in a manner
inconsistent with the deed. The parties filed cross motions for partial summary judgment
on the issues surrounding the validity of the deed restriction. The trial court granted partial
summary judgment to the defendants, concluding that the restriction remained enforceable.
Thus, the trial court noted that the remaining issue to be decided was whether the church
had adhered to the applicable restriction. The church filed a motion asking the trial court
to either certify its partial summary judgment order as final pursuant to Tennessee Rule of
Civil Procedure 54.02 or grant it permission to seek an interlocutory appeal pursuant to
Tennessee Rule of Appellate Procedure 9. Before this motion was heard, however, an
agreed order was entered certifying the trial court’s partial summary judgment order as
final pursuant to Rule 54.02. The church appealed. We conclude that the trial court
improvidently certified its order as final and dismiss the appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and JOHN W. MCCLARTY, J., joined.
Joshua R. Denton and Tonya J. Austin, Brentwood, Tennessee, for the appellant, Nashville
Church of Christ, Inc., as successor-in-interest to Central Church of Christ.
John O. Belcher, Elizabeth R. Sykes, and William H. Lassiter, Jr., Brentwood, Tennessee,
for the appellees, Amy Grant Gill and Andrew M. Burton, as co-administrators of the Estate
of A.M. Burton; Nelson Lynch Burton; A.M. Burton, II; George Edward Spain; Kathleen
Grant Harrell and Mimi Grant-Verner, as co-trustees of the Burton P. Grant 2020
Revocable Trust; Mimi Grant-Verner; Carol Grant-Nuismer; Kathy Grant Harrell; Amy
Lee Grant-Chapman-Gill; Jean Walker Campbell; Michael Armstrong Burton; David M.
Dunlap, as the personal representative of the Estate of Mary Burton-Dunlap; Leslie Burton;
Dr. Sloan Burton; Lissa (Burton) Copesky; Elizabeth Carol Burton Roark; Larry Roberts;
Alexander Roberts; Elissa Spiller; Amy Morrison; Captain Dexter Morrison; Sydney G.
Roberts; Eric W. Roberts; and Patricia L. Clark-Palmer.
OPINION
I. FACTS & PROCEDURAL HISTORY
In 2020, this lawsuit was filed by Nashville Church of Christ, Inc., as successor-in-
interest to Central Church of Christ, in an effort to quiet title and obtain declaratory and
injunctive relief concerning the property where its church building is located in downtown
Nashville. In 1925, Mr. and Mrs. Oliver Timothy had sold the property for $36,500 to the
trustees of Central Church of Christ (A.M. Burton, J.E. Acuff, and C.E.W. Dorris), for and
on behalf of Central Church of Christ. The deed stated that the purpose of the conveyance
was to preserve the property for the benefit and use of the Church of Christ and if at any
time the property ceased to be used for the purposes and objects described therein, in that
event it would “revert” to the “estate” of A.M. Burton. The parties to this appeal agree that
the Estate of A.M. Burton held an unvested executory interest in the property following
execution of this deed. After the death of A.M. Burton in 1966, his estate became subject
to administration in Davidson County, and it was closed in 1968. Mr. Burton’s will left
the residue of his estate to his widow, Lillie Burton. In 1970, Mrs. Lillie Burton had
executed a document purporting to remove “all restrictions, limitations, conditions and
provisions that in any way restrict the use, occupancy and disposition of said real estate”
from the 1925 deed and “clear the title to the real estate” in light of the “love and regard”
she had for the church. Thus, in Count I of its complaint, the church asked the trial court
to declare that the restriction in the deed had been released, waived, or voided, that the
church was the sole and absolute fee simple owner, and that the defendants had no interest
in the property. For Count II of its complaint, in the event that the court found the
restriction was not released, waived, or voided, the church alternatively asked the court to
declare that it had used and continued to use the church property solely for the benefit of
the Church of Christ, it had not violated the restriction, and it remained the fee simple
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owner subject to the restriction. The complaint stated that it was filed against all known
and unknown heirs of Lillie Burton and named numerous defendants.1
The defendants filed a counterclaim against the church, seeking a declaration that
the restriction remained valid and enforceable and that it had been violated by the church,
causing the property to vest in the estate. The church then filed a motion for summary
judgment as to the validity of the restriction, asserting that the church owned the property
in fee simple due to the release executed by Lillie Burton in an effort to clear the title. In
response, the defendants filed a motion for partial summary judgment, arguing that the
deed restriction remained valid and enforceable for various reasons. The defendants
clarified that all issues regarding whether the deed restriction had been violated would be
“reserved for future proceedings.”
After a hearing on the cross motions, the trial court entered partial summary
judgment in favor of the defendants. The trial court found it undisputed that the deed
created an unvested executory interest, but it found that the unvested executory interest did
not pass to Lillie Burton upon her husband’s death, so she was not authorized to release
the restriction, and the document she executed was ineffective. The court concluded that
the interest “remained with the Estate of A.M. Burton, and not an individual or
ascertainable person,” until such time as the restriction was violated, if at all. The
remaining issue to decide, then, was whether the church had adhered to the restriction. The
trial court directed the parties to submit a proposed agreed scheduling order for discovery
and dispositive motions on the issue of whether the church had met the conditions in the
deed.
The church filed a motion asking the court to either certify its order as final pursuant
to Tennessee Rule of Civil Procedure 54.02 or grant it permission to seek an interlocutory
appeal pursuant to Tennessee Rule of Appellate Procedure 9. The trial court established a
briefing schedule for the pending motion, but prior to the date for submitting any opposition
to the motion, an agreed order was submitted indicating the parties’ agreement to certifying
the partial summary judgment order as final pursuant to Rule 54.02. The trial court entered
the agreed order, and the church filed a timely notice of appeal to this Court.
II. DISCUSSION
1
Amy Grant Gill and Andrew M. Burton, as co-administrators of the Estate of A.M. Burton,
petitioned for the re-opening of the Estate of A.M. Burton for the purpose of asserting a potential interest
in the property in this action. The Estate of A.M. Burton was re-opened on November 20, 2020, and the
co-administrators were added as additional defendants by an amended complaint.
We note that the majority of the defendants are jointly represented by counsel, but counsel did
clarify in the trial court and on appeal that a few defendants did not participate in this lawsuit or have died.
For clarity, this opinion will refer to the “defendants” as the majority of the defendants who participated in
this lawsuit, as the few remaining defendants do not impact our decision on appeal.
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Generally, review on appeal extends only to the issues presented for review;
however, appellate courts “shall also consider whether the trial and appellate court have
jurisdiction over the subject matter, whether or not presented for review[.]” Tenn. R. App.
P. 13(b). “Lack of appellate jurisdiction cannot be waived.” Ingram v. Wasson, 379
S.W.3d 227, 237 (Tenn. Ct. App. 2011) (citing Meighan v. U.S. Sprint Commc’ns Co., 924
S.W.2d 632, 639 (Tenn. 1996)). “Unless an appeal from an interlocutory order is provided
by the rules or by statute, appellate courts have jurisdiction over final judgments only.”
Bayberry Assocs. v. Jones, 783 S.W.2d 553, 559 (Tenn. 1990) (citing Aetna Casualty &
Surety Co. v. Miller, 491 S.W.2d 85 (Tenn. 1973)). In this context, a “‘final judgment’
refers to a trial court’s decision adjudicating all the claims, rights, and liabilities of all the
parties.” Discover Bank v. Morgan, 363 S.W.3d 479, 488 n.17 (Tenn. 2012) (citing Tenn.
R. App. P. 3(a)). A final judgment resolves all issues and leaves “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]n order that
adjudicates fewer than all of the claims, rights, or liabilities of all the parties is not final[.]”
Id. Clearly, the trial court in the case at bar has not resolved all the issues in a final order.
Tennessee Rule of Appellate Procedure 3(a) provides, in pertinent part:
Except as otherwise permitted in rule 9 and in Rule 54.02 Tennessee Rules
of 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.
(emphasis added). Here, the trial court entered an agreed order certifying its ruling as final
pursuant to Rule 54.02, and it stated that all remaining requests, regarding Rule 9, were
withdrawn by the church and deemed moot. Therefore, we must determine whether the
requirements were met to proceed under Rule 54.02.
Rule 54.02 serves as “an exception to Rule 3 that permits the trial court, without
permission from the appellate court, to certify an order as final and appealable, even if parts
of the overall litigation remain pending in the trial court.” Johnson v. Nunis, 383 S.W.3d
122, 130 (Tenn. Ct. App. 2012). Rule 54.02 provides, in relevant part:
(1) When more than one claim for relief is present in an action, . . . or when
multiple parties are involved, the Court, whether at law or in equity, may
direct the entry of a final judgment as to one or more but fewer than all of the
claims or parties only upon an express determination that there is no just
reason for delay and upon an express direction for the entry of judgment. In
the absence of such determination and direction, any order or other form of
decision, however designated, that adjudicates fewer than all the claims or
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the rights and liabilities of fewer than all the parties shall not terminate the
action as to any of the claims or parties, and the order or other form of
decision is subject to revision at any time before the entry of the judgment
adjudicating all the claims and the rights and liabilities of all the parties.
Essentially, this Rule allows a trial court, in certain circumstances, “to convert an
interlocutory ruling into an appealable order.” Mann v. Alpha Tau Omega Fraternity, 380
S.W.3d 42, 49 (Tenn. 2012). However, “Rule 54.02 does not apply to all orders that are
interlocutory in nature.” Konvalinka v. Am. Int’l Grp., Inc., No. E2011-00896-COA-R3-
CV, 2012 WL 1080820, at *3 (Tenn. Ct. App. Mar. 30, 2012). An interlocutory order can
only be certified as final under Rule 54.02 “in limited circumstances.” Johnson, 383
S.W.3d at 130. Thus, “the trial court’s authority to direct the entry of a final judgment is
not absolute.” Brentwood Chase Cmty. Ass’n v. Truong, No. M2014-01294-COA-R3-CV,
2014 WL 5502393, at *2 (Tenn. Ct. App. Oct. 30, 2014) (citing Crane v. Sullivan, No.
01A01-9207-CH-00287, 1993 WL 15154, at *1-2 (Tenn. Ct. App. Jan. 27, 1993)). “Orders
certifying interlocutory judgments as final ‘should not be entered routinely’ and ‘cannot be
routinely entered as a courtesy to counsel.’” Harris v. Chern, 33 S.W.3d 741, 746 n.3
(Tenn. 2000) (quoting Huntington Nat’l Bank v. Hooker, 840 S.W.2d 916, 921 (Tenn. Ct.
App. 1991)). Likewise, “Tennessee Rule of Civil Procedure 54.02 does not provide a ‘fast
track’ alternative to Tennessee Rule of Appellate Procedure 9.” Tucker v. Capitol Records,
Inc., No. M2000-01765-COA-R3-CV, 2001 WL 1013085, at *7 (Tenn. Ct. App. Sept. 6,
2001) (citing Bayberry Assocs., 783 S.W.2d 553; Mosier v. Mosier, 1989 WL 22832 (Tenn.
Ct. App. Mar. 17, 1989); Williams v. New York Times Broad. Servs., Inc., 1988 WL 27257
(Tenn. Ct. App. Mar. 23, 1988); General Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022
(6th Cir. 1994)).
Because Rule 54.02 allows a trial court to “direct the entry of a final judgment as to
one or more but fewer than all of the claims or parties,” Tenn. R. Civ. P. 54.02, the order
certified as final must be dispositive of either an entire claim or a party. Bayberry, 783
S.W.2d at 558. The Rule also requires “an express determination that there is no just reason
for delay.” Tenn. R. Civ. P. 54.02. Accordingly, “[t]wo prerequisites exist for the
certification of a final judgment: (1) the order must eliminate one or more but fewer than
all of the claims or parties, and (2) the order must expressly direct the entry of final
judgment upon an express finding of ‘no just reason for delay.’” Coleman v. Tenn. Bd. of
Parole, No. M2016-00410-COA-R3-CV, 2016 WL 6248027, at *4 (Tenn. Ct. App. Oct.
25, 2016) (citing FSGBank, N.A. v. Anand, No. E2011-00168-COA-R3-CV, 2012 WL
554449, at *4 (Tenn. Ct. App. Feb. 21, 2012)).
Accordingly, appellate courts “review a trial court’s Rule 54.02 certification of a
judgment as final using a dual standard of review.” Id. (citing King v. Kelly, No. M2015-
02376-COA-R3-CV, 2016 WL 3632761, at *3 (Tenn. Ct. App. June 28, 2016); Brown v.
John Roebuck & Assocs., Inc., No. M2008-02619-COA-R3-CV, 2009 WL 4878621, at *5
(Tenn. Ct. App. Dec. 16, 2009)). The preliminary determination as to “whether a particular
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order disposes of a distinct and separable ‘claim’ that is subject to Rule 54.02 certification
is a question of law reviewed de novo.” Id. (citing Ingram, 379 S.W.3d at 238; Brown,
2009 WL 4878621, at *5). “If the trial court certifies a judgment as final, but it is not
conclusive as to an entire claim or party, an appeal from it will be dismissed even though
the trial court decided to treat the order as final.” Id. (citing FSGBank, 2012 WL 554449,
at *4). In the absence of an adjudication as to one entire claim or party, “Rule 54.02 is
simply inapplicable.” Id. (citing King, 2016 WL 3632761, at *4). If the order does
properly dispose of one claim or party, appellate courts then “determine whether ‘there is
no just reason for delay’ within the meaning of Rule 54.02,” reviewing the trial court’s
determination under an abuse of discretion standard. Id. (citing King, 2016 WL 3632761,
at *3; Ingram, 379 S.W.3d at 238).
To meet the first requirement, “the order at issue must dispose of at least one entire
claim or resolve all of the claims against at least one party.” E Sols. for Buildings, LLC v.
Knestrick Contractor, Inc., No. M2017-00732-COA-R3-CV, 2018 WL 1831116, at *3
(Tenn. Ct. App. Apr. 17, 2018) perm. app. denied (Tenn. Aug. 9, 2018) (citing Konvalinka,
2012 WL 1080820, at *3). The order entered in this case does not dispose of any party.
Before the trial court, the church contended that Rule 54.02 certification was appropriate
because the partial summary judgment order resolved “one of multiple issues.”
Specifically, the church argued that the order resolved “Count I” of its complaint, regarding
the validity of the deed restriction, and so there was “nothing left for [the trial court] to do
with respect to that claim.” The church insisted that “Count II” of its complaint, regarding
whether the deed restriction was violated, was “wholly unrelated to” Count I. The agreed
order certifying the ruling as final likewise stated that the partial summary judgment order
was “dispositive of Count I” of the church’s complaint and the defendants’ counterclaim,
and therefore, Rule 54.02 certification was proper. So, we will limit our discussion to
whether the order resolved at least one entire “claim” within the meaning of Rule 54.02.
Again, “[t]his Court looks de novo at whether the judgment certified as final under Rule
54.02 is in fact as to a separate claim, appropriate for such certification.” Ingram, 379
S.W.3d at 238.
“For purposes of Rule 54.02, a single ‘claim’ is defined as ‘the aggregate of
operative facts which give rise to a right enforceable in the courts,’ even though different
theories of liability may have been asserted.” Adkins v. Adkins, No. M2018-00890-COA-
R3-CV, 2020 WL 9602029, at *4 (Tenn. Ct. App. Dec. 22, 2020) (quoting Tucker, 2001
WL 1013085, at *8). Thus, “‘separate causes of actions or counts in a complaint that arise
out of the same series of closely related factual occurrences constitute one claim for the
purposes of Rule 54.02.’” Fed. Nat’l Mortg. Ass’n v. Quarles, No. M2015-01620-COA-
R3-CV, 2016 WL 5723957, at *6 (Tenn. Ct. App. Sept. 30, 2016) (quoting Carr v.
Valinezhad, No. M2009-00634-COA-R3-CV, 2010 WL 1633467, at *3 (Tenn. Ct. App.
Apr. 22, 2010)). Rule 54.02 “‘cannot be used to appeal a part of a single claim or . . . to
test a single legal theory of recovery.’” Coleman, 2016 WL 6248027, at *5 (quoting
Christus Gardens, Inc. v. Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., No.
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M2007-01104-COA-R3-CV, 2008 WL 3833613, at *5 (Tenn. Ct. App. Aug. 15, 2008)).
Some examples are helpful to illustrate these points. In Duffer v. Lawson, No.
M2009-01057-COA-R3-CV, 2010 WL 3488620, at *1 (Tenn. Ct. App. Sept. 3, 2010), the
executrix of a decedent’s estate filed suit against the decedent’s surviving spouse seeking
a determination as to ownership of property. The surviving spouse counterclaimed,
asserting various theories of ownership. Id. The trial court dismissed the counterclaim to
the extent it sought fee simple ownership of the property. Id. The court certified this order
as final under Rule 54.02, even though other issues as to ownership were reserved. Id. at
*3-4. On appeal, we explained that the trial court’s ruling did not resolve a distinct “claim”
for purposes of Rule 54.02, meaning, “the aggregate of operative facts which give rise to a
right enforceable in the courts.” Id. at *6. We said:
The case at bar concerns a dispute over the ownership of real property
that has been the subject of multiple transfers among family members. In her
counterclaim, Mrs. Lawson asserts an ownership interest in the Northridge
property based on a potpourri of legal theories. Resolution of her claim to an
ownership interest is predicated on the same aggregate of operative facts, i.e.
the circumstances surrounding the multiple documents concerning the
ownership of the Northridge property. Eliminating the legal theories that
would result in fee simple ownership does not constitute resolution of a
“claim.”
Id. As a result, the trial court’s order did not enter judgment on a “claim” for purposes of
Rule 54.02, and we dismissed the appeal for lack of subject matter jurisdiction. Id.
In Infinity Homes, Inc. v. Horizon Land Title, Inc., No. M2022-00829-COA-R3-CV,
2023 WL 3884723, at *1 (Tenn. Ct. App. June 8, 2023), purchasers of real property filed
suit against a title company, asserting five counts based on the title company’s alleged
failure to disclose the existence of a lien lis pendens on the lots. The trial court dismissed
all but one of the counts and certified its order as final under Rule 54.02. Id. On appeal,
we explained that this was impermissible:
Despite the assertion of different theories of liability, the concept of a “claim”
denotes the aggregate of operative facts that give rise to a right enforceable
in the courts. Brown, 2009 WL 4878621, at *6. The trial court’s order of
partial dismissal disposed of all claims against Fidelity except count VII.
However, all of the “counts” set out in Appellants’ amended complaint
involve a single aggregate of operative facts—i.e., the respective duties of
the defendants in regard to the lien lis pendens in effect at the time of
Appellants’ purchase of the subject lots—and therefore constituted a single
claim for purposes of Rule 54.02. Although Appellants pursue relief under
different theories, all of their claims arise out of the same transaction, i.e.,
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the purchase of the lots.
As Christus Gardens demonstrates, “trial courts may not certify as
final a decision that adjudicates only some of the legal theories upon which
a plaintiff bases his or her case.” Paul v. Watson, No. W2011-00687-COA-
R3-CV, 2012 WL 344705, at *4 (Tenn. Ct. App. Feb. 2, 2012). “‘[A]
complaint asserting only one legal right, even if seeking multiple remedies
for the alleged violation of that right, states a single claim for relief.’”
Christus Gardens, 2008 WL 3833613, at *5 (quoting Liberty Mut. [Ins. Co.
v. Wetzel, 424 U.S. 737, 743 (1976)]. “[S]eparate causes of action or counts
in a complaint that arise out of the same series of closely related factual
occurrences constitute one claim for the purposes of Rule 54.02.” Carr, 2010
WL 1633467, at *3. Here, Appellants’ claims for relief are based on the
same aggregate of operative facts and constituted a single claim for purposes
of Rule 54.02. Accordingly, we conclude that Rule 54.02 is ineffective to
permit an appeal of some of Appellants’ theories without disposing of all of
them. Christus Gardens, 2008 WL 3833613, at *5.
Id. at *5. See also Brentwood Chase Cmty. Ass’n, 2014 WL 5502393, at *1-2 (holding that
a complaint alleging violations of three different rules of a homeowners association
constituted a single claim for purposes of Rule 54.02); Carr, 2010 WL 1633467, at *1, *4
(explaining that a suit to invalidate a series of transactions and alleged gifts, asserting eight
counts including breach of fiduciary duty, undue influence, conversion, fraud, conspiracy,
unjust enrichment, exploitation, etc., arose out of “the same aggregate of operative facts –
the alleged improper and systematic exercise of undue influence over Ms. Carr and her
finances”); Tucker, 2001 WL 1013085, at *10 (explaining that the relationship between the
parties involved a single aggregate of operative facts, regardless of whether it established
breach of contract, termination of contract, or alternative tort liability).
Keeping these principles in mind, it is clear that the trial court’s partial summary
judgment order on Count I did not resolve a separable “claim” between the parties. Despite
the fact that the complaint and counter-complaint set forth two separate “counts,” regarding
the validity of the deed restriction and whether the deed restriction was violated, these
counts are based on the same aggregate of operative facts and constitute a single claim for
purposes of Rule 54.02. “The court’s order, therefore, does not dispose of one or more but
fewer than all of the claims before it and is not certifiable as a matter of law under Rule
54.02.” Carr, 2010 WL 1633467, at *4. “Without a final adjudication of at least one claim,
Rule 54.02 is simply inapplicable.” Coleman, 2016 WL 6248027, at *4 (citing King, 2016
WL 3632761, at *4).
As we have said before under similar circumstances: “We would like nothing more
than to bring about a final resolution of this litigation. Alas, it is not to be.” City of Jackson
v. Hersh, No. W2008-02360-COA-R3-CV, 2009 WL 2601380, at *4 (Tenn. Ct. App. Aug.
25, 2009) (quoting Grand Valley Lakes Prop. Owners’ Ass’n, Inc. v. Gunn, W2008-01116-
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COA-R3-CV, 2009 WL 981697, at *4 (Tenn. Ct. App. Apr. 13, 2009)). It is clear from
the record in this case that the church initially sought the trial court’s permission for
interlocutory appeal, but subsequently abandoned that request. “Where an interlocutory
order is not appropriate for Rule 54.02 certification but the trial court desires immediate
appellate review of the order, the trial court may grant permission for interlocutory appeal
of the order pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure.”
Konvalinka, 2012 WL 1080820, at *3 n.7. However, “permission for the interlocutory
appeal must also be granted by the appellate court.” Id.
III. CONCLUSION
For the aforementioned reasons, this appeal is hereby dismissed. Costs of the appeal
are taxed one-half to the appellants and one-half to the appellees, for all of which execution
may issue if necessary.
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CARMA DENNIS MCGEE, JUDGE
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