Levitt, Hamilton, and Rothstein, LLC v. Ghazi Asfour

03/29/2019

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

March 6, 2019 Session

LEVITT, HAMILTON, AND ROTHSTEIN, LLC, ET AL v. GHAZI

ASFOUR

Appeal from the Chancery Court for Davidson County

No. 12-0724-II William E. Young, Chancellor

___________________________________

No. M2018-00938-COA-R3-CV

___________________________________

In appealing a non-final order, Appellant asks this Court to adopt a jurisdictional

exception to the final judgment rule that would allow an immediate appeal of a trial

court’s decision to grant a motion under Rule 60.02 where the trial court purportedly

lacked jurisdiction to do so. We decline to adopt a per se exception to Rule 3(a) of the

Tennessee Rules of Appellate Procedure where the trial court grants a Rule 60.02 motion.

We likewise decline to suspend the finality requirement in this particular case. As such,

this appeal is dismissed for lack of subject matter jurisdiction.

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

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which ARNOLD B.

GOLDIN, and KENNY ARMSTRONG, JJ., joined.

Paul J. Krog, Nashville, Tennessee, for the appellant, Levitt, Hamilton, and Rothstein,

LLC.

Thomas I. Bottorff, Brentwood, Tennessee, for the appellee, Ghazi Asfour.

OPINION

Background

In the course of his business bankruptcy, Defendant/Appellee Ghazi Asfour

(“Appellee”) determined that he wanted to sell his business property. He entered into a

purported contract with Zaleka Awash for the sale of the property. The contract stated

that earnest money had been paid with a copy of the check attached. According to

Appellee, however, no money was ever transferred. Handwritten on the contract was also

a notation that the bankruptcy court was required to approve the sale. Because of the

bankruptcy, Appellee later alleged that he informed Mr. Awash that the earnest money

was necessary for the bankruptcy court to approve the contract. Mr. Awash allegedly

refused to provide the money and Appellee thereafter entered into another agreement

with a separate individual to buy the business property.1

Mr. Awash thereafter sued Appellee for breach of contract in the Davidson County

Chancery Court on May 17, 2012; the complaint sought specific performance on the sales

contract. Mr. Awash also filed an application for a temporary restraining order (“TRO”)

to prevent the sale of the property to the other individual. A summons was issued and

allegedly served on May 18, 2012; there is a dispute as to whether Appellee was properly

served by this summons. In any event, a hearing was later held on the TRO application.

Appellee was not present for the hearing. No TRO was apparently granted as a result of

the hearing. According to Appellee, upon learning that the TRO was not granted and

believing the case to be concluded, he thereafter left the country in July 2012, had brain

surgery overseas, and returned to New York for an additional brain surgery. Appellee

contends that he did not return to Tennessee until July 2013.

In the meantime, on July 18, 2012, Mr. Awash filed an amended petition seeking

damages; the petition was mailed to Appellee’s Tennessee address via regular mail. No

response being filed, Mr. Awash eventually filed a motion for default judgment on

September 14, 2012. Again, the motion was delivered via regular mail. The trial court

granted the motion for default judgment against Appellee on February 27, 2013.

Following a damages hearing, Mr. Awash was awarded $130,000.00 in damages. On July

31, 2013, Mr. Awash recorded a judgment lien on Appellee’s home; again, there is a

dispute as to whether Appellee had personal notice of the lien at the time it was filed.

Petitioner/Appellant Levitt, Hamilton, and Rothstein, LLC (“Appellant”)

thereafter acquired the judgment by assignment from Mr. Awash. Appellant then filed a

post-judgment motion to compel discovery against Appellee in June 2017. On January 8,

2018, Appellee filed a response to the motion to compel, asserting he had no knowledge

of the default judgment and lien. On February 16, 2018, Appellee filed a supplemental

response, a motion to set aside the default judgment pursuant to Rules 55.022 and 60.023

1

The property was sold to the third party in May 2012.

2

Rule 55.02 provides that “[f]or good cause shown the court may set aside a judgment by default

in accordance with Rule 60.02.”

3

Rule 60.02 provides, in relevant part, as follows:

On motion and upon such terms as are just, the court may relieve a party or the party’s

legal representative from a final judgment, order or proceeding for the following reasons:

(1) mistake, inadvertence, surprise or excusable neglect; (2) fraud (whether heretofore

denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse

party; (3) the judgment is void; (4) the judgment has been satisfied, released or

discharged, or a prior judgment upon which it is based has been reversed or otherwise

vacated, or it is no longer equitable that a judgment should have prospective application;

or (5) any other reason justifying relief from the operation of the judgment. The motion

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of the Tennessee Rules of Civil Procedure, and a motion to dismiss the amended

complaint. The Rule 60.02 motion alleged that the judgment should be set aside on

grounds that the judgment was void under Rule 60.02(3) and/or that there was “any other

reason justifying relief from the operation of the judgment” under Rule 60.02(5).

Eventually, the trial court entered an order setting aside the default judgment.

Therein, the trial court rejected Appellee’s argument that the judgment was void due to

insufficient service of process and improper notice and perfection of the assignment. The

trial court ruled, however, that Appellee had shown another reason justifying relief under

Rule 60.02(5), based in large part on Appellee’s meritorious defense to the breach of

contract action.4 The trial court noted the significant passage of time between the entry of

the final judgment and the Rule 60.02 motion but ruled that Appellee’s health problems,

travel outside the country, and belief that the case had been resolved, “mitigate against a

finding that [Appellee’s] failure to bring the motion to set aside was willful.” The trial

court also ruled that given that there was no evidence of consideration paid in furtherance

of the sales contract, no prejudice would result from setting aside the default judgment.

The trial court, however, denied Appellee’s motion to dismiss at that time.5 Finally, the

trial court held that Appellant’s motion to compel discovery was rendered moot by its

ruling.

Each party thereafter filed motions to alter or amend the trial court’s ruling. By

order of June 25, 2018, the trial court denied both motions. In this order, the trial court

specifically stated that this order was not a final judgment, as Appellant still had the

opportunity to prosecute its claim against Appellee.

Rather than prosecute the case, Appellant took two actions. First, Appellant filed a

notice to this Court seeking an appeal as of right under Rule 3 of the Tennessee Rules of

Appellate Procedure. Second, Appellant asked the trial court to grant an interlocutory

appeal to this Court pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure.

The trial court granted Appellant’s request by order of August 13, 2018. On September

13, 2018, however, this Court denied permission to appeal, ruling that the court “cannot

conclude that an interlocutory appeal is necessary to prevent irreparable injury, to

shall be made within a reasonable time, and for reasons (1) and (2) not more than one

year after the judgment, order or proceeding was entered or taken.

4

Specifically, the trial court noted that although the sales contract provided that it was

conditioned on bankruptcy court approval, no pleading ever alleged nor was evidence presented that the

bankruptcy court ever approved the sale to Mr. Awash. The trial court also noted that the record did not

reflect that Mr. Awash provided any consideration, as Appellee denied that the earnest money was ever

received by him.

5

The trial court ruled that the motion would be held in abeyance until May 15, 2018, for

Appellant to determine whether it wished to prosecute the suit. If no action was taken by that time, the

case would be dismissed with prejudice. Given the post-trial proceedings concerning interlocutory appeal,

nothing in the record indicates that the trial court ever entered an order dismissing this action.

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develop a uniform body of law, or prevent needless, expensive and protracted litigation.”

As such, Appellant proceeded with this Rule 3 appeal.

During the pendency of this appeal, Appellee filed a motion to dismiss for lack of

jurisdiction, arguing that Appellant had appealed a judgment that was not final. By order

of July 20, 2018, we reserved judgment on the motion pending completion of briefing

and oral argument. The subject matter jurisdiction of this Court is addressed infra.

Discussion

Although the parties raise a number of issues in this case, we must first address

this Court’s subject matter jurisdiction over this appeal, as raised in Appellee’s motion to

dismiss. Rule 3 of the Tennessee Rules of Appellate Procedure provides that if multiple

parties or multiple claims 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 final or

appealable. Except where otherwise provided, this Court only has subject matter

jurisdiction over final orders. See Bayberry Assoc. v. Jones, 783 S.W.2d 553 (Tenn.

1990). But see Tenn. R. App. 9 (governing discretionary interlocutory appeals for which

no final judgment is necessary); Tenn. R. App. 10 (discussing discretionary extraordinary

appeals for which no final judgment is necessary).

In this case, there is no dispute that the trial court’s order was not a final judgment

for purposes of Rule 3. Instead, Appellant asks this Court to adopt a rule applicable in

federal court that would allow an immediate appeal as of right wherein the trial court

enters an interlocutory order setting aside a final judgment or ordering a new trial but

lacked the authority to do so, a rule that originated in Phillips v. Negley, 117 U.S. 665, 6

S.Ct. 901, 29 L.Ed. 1013 (1886). In Phillips, the defendant moved to set aside a judgment

more than three years after it became final. Id. at 666. The trial court granted the motion

and ordered a new trial, but the Supreme Court reversed, ruling that the trial court had no

authority to rule on the motion during a term of court after the term in which the

judgment was rendered. Id. at 667, 678–79. As to the issue of the allowance of an

immediate appeal of a non-final judgment, the Court explained only that “[i]f . . . the

order [vacating a judgment and granting a new trial] was made without jurisdiction on the

part of the court making it, then it is a proceeding which must be the subject of review by

an appellate court.” Id. at 671–72.

Based on this rule, federal courts have consistently held that there is a right to

immediately appeal an interlocutory order setting aside a final judgment or granting a

new trial if the trial court lacked jurisdiction to enter the order. See, e.g., McDowell v.

Dynamics Corp. of Am., 931 F.2d 380, 382 (6th Cir. 1991) (involving an order setting

aside a final summary judgment order under Rule 60); National Passenger R.R. Corp. v.

Maylie, 910 F.2d 1181, 1182–83 (3d Cir. 1990); (involving an order granting a Rule 60

motion and ordering a new trial); Central Microfilm Serv. Corp. v. Basic/Four Corp.,

688 F.2d 1206, 1211 (8th Cir. 1982), cert. denied, 459 U.S. 1204, 103 S.Ct. 1191, 75

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L.Ed.2d 436 (1983) (involving a suggestion of remitter and conditional order for new

trial); Jones & Guerrero Co. v. Sealift Pac., 650 F.2d 1072, 1073 (9th Cir. 1981)

(involving an order setting aside a previous order of dismissal); Wiggs v. Courshon, 485

F.2d 1281, 1282 (5th Cir. 1973) (involving a order granting a remittitur and conditional

new trial); Rinieri v. News Syndicate Co., 385 F.2d 818, 821–22 (2d Cir. 1967)

(involving an order wherein the trial court set aside a final judgment under Rule 60 and

ordered “the case restored to the calendar”); Tobriner v. Chefer, 335 F.2d 281 (D.C. Cir.

1964) (involving an order setting aside a previous summary judgment order). In many

cases, the lack of jurisdiction results from a motion to set aside being filed outside the

timelines provided in Rule 60 of the Federal Rules of Civil Procedure. See McDowell,

931 F.2d at 384 (holding that the motion raised grounds that required it to have been

brought within one-year but was untimely, thereby depriving the trial court of

jurisdiction); Maylie, 910 F.2d at 1183 (ruling that the trial court’s grant of a new trial

was within its jurisdiction because the motion was timely filed); Jones & Guerrero Co.,

650 F.2d at 1074 (holding that the trial court had jurisdiction over the motion to set aside

because the motion was properly brought under a ground that had no time limit);Rinieri,

385 F.2d at 822 (holding that the motion was filed too late); Tobriner, 335 F.2d at 283

(holding that the trial court lacked jurisdiction to set aside the judgment because the

motion to set aside was untimely). But see Cent. Microfilm Serv. Corp. v. Basic/Four

Corp., 688 F.2d 1206, 1212 (8th Cir. 1982) (involving a claim that the trial court lacked

authority to order a new trial because it did not comply with applicable notice

requirements; declining to decide whether the notice requirements were procedural or

jurisdictional because the purpose of the notice requirements were substantially

achieved).

Likewise, a few state courts have also adopted this rule. See Asset Acceptance,

LLC v. Moberly, 241 S.W.3d 329, 334 (Ky. 2007) (adopting what is referred to as the

“jurisdictional exception” to allow a litigant to immediately appeal an order setting aside

a final judgment on the ground that the trial court lacked jurisdiction over the untimely

motion to set aside); Connecticut Light and Power Company v. Costle, 179 Conn. 415,

426 A.2d 1324 (Conn. 1980) (dismissing appeal after finding that the trial court had

jurisdiction to grant motion to set aside judgment). Other state courts, however, have

expressly rejected a rule that allows an immediate appeal of an interlocutory order that

was purportedly entered without jurisdiction. See Wiechman v. Huddleston, 304 Kan. 80,

80, 370 P.3d 1194, 1195 (Kan. 2016) (rejecting the jurisdictional exception in an action

to set aside a final judgment because the exception conflicts with the statute that sets out

appellate jurisdiction and holding that a desire to maintain consistency with federal courts

should not trump state statutes); Baca v. Atchison, Topeka & Santa Fe Ry. Corp., 1996-

NMCA-054, ¶ 1, 121 N.M. 734, 734, 918 P.2d 13, 13 (N.M. Ct. App. 1996), cert.

quashed, 121 N.M. 783, 918 P.2d 369 (N.M. 1996) (see discussion, infra).

Appellant concedes that this rule has never been adopted in Tennessee, but argues

that this Court should recognize this exception to the well-settled finality rule. In

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contrast, Appellee contends that this Court should adopt the reasoning of the New

Mexico Court of Appeals in Baca v. Atchison, Topeka & Santa Fe Railroad Corp.,

which rejected the jurisdictional exception. Like the federal cases, Baca involves an

attempt to immediately appeal a non-final order. 918 P.2d at 14.6 The court therefore

considered whether it should adopt the jurisdictional exception first adopted by the

Phillips Court. Id. at 15. Ultimately, however, the New Mexico Court of Appeals

declined to adopt the jurisdictional exception. In reaching this result, the court relied on

several factors.

First, the court noted that it had not previously recognized a right to immediately

appeal “a rejection of its challenge to [the trial] court[’s] jurisdiction,” such as where the

trial court denied a motion to dismiss based on lack of personal or subject matter

jurisdiction. Id. Additionally, the court considered the burden on appellate courts and

litigants should the jurisdictional exception be adopted. Id. (“The burden on appellate

courts could certainly be substantial if we were to adopt the view of at least some federal

appellate courts that the district court’s jurisdiction to set aside a judgment depends upon

whether the district court ruled properly on the merits.”). Moreover, New Mexico law

allows litigants to seek either an interlocutory appeal or extraordinary writ to review a

non-final order; the court noted that where an error by the trial court in granting a motion

to set aside is so patent as to necessitate immediate review, “the party challenging the

district court should be able to convince an appellate court to exercise its discretion to

review the matter as an interlocutory appeal or pursuant to an extraordinary writ.” Id. at

16. The court also noted that scholars considering the jurisdictional exception have

generally not favored it. Id. at 16–17 (quoting 15B Charles A. Wright, et al., Federal

Practice and Procedure § 3915.5, at 305, 307-09 (1992) (stating that it is “better to

adhere to a single rule that treats alike all grants of relief” as such a rule would

“discourage imaginative attempts to characterize asserted errors as matters of district

court power”). Indeed, the court noted that even federal courts appear reluctant to apply

the rule, but have done so as binding precedent. Id. at 17 (quoting Demeretz v. Daniels

Motor Freight, 307 F.2d 469, 471–72 (3d Cir. 1962) (“[H]owever doubtful the rationale

of Phillips v. Negley may be, courts of appeals have repeatedly recognized its authority. .

. . Accordingly, we are constrained to hold that we have authority ... to inquire into the

power of the court below to issue its order granting a new trial.”)). Based on these

considerations, the New Mexico Court of Appeals rejected the jurisdictional exception

and dismissed the appeal for lack of a final judgment.

The considerations of the New Mexico Court of Appeals apply equally to this

appeal. First, as previously discussed, although the trial court did not explicitly grant a

new trial, there is no dispute that the trial court’s order granting the Rule 60.02 motion

6

The order at issue in Baca was an order dismissing a case without prejudice for failure to

prosecute. Such an order is not a final appealable judgment under New Mexico law. Id. (“Because it does

not dispose of the case, it is not a final order and therefore it ordinarily would not be appealable as of

right.”)

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and allowing further proceedings is a non-final order. As the Tennessee Practice Series

has explained:

The trial court may relieve a party from a judgment by modifying or setting

it aside, by granting a new trial, or by taking other appropriate action. An

order granting a new trial or entailing further proceedings would be

interlocutory and, therefore, not appealable as of right. The correct

procedure for obtaining appellate review of an order granting a Tenn. R.

Civ. P. 60.02 motion is by way of appeal from the final judgment after the

new trial on the merits. On the other hand, an order denying relief would be

final and immediately appealable as of right.

4 Tenn. Prac. Rules of Civil Procedure Ann. § 60:17 (4th ed.) (footnote omitted). “This is

because an order granting a new trial [or setting aside a final judgment] does not end the

litigation; rather, it ‘ensure[s] that further proceedings [will] follow.’” Id. (quoting State

v. Miller, No. 02C01-9708-CC-00300, 1998 WL 902592, at *3 (Tenn. Crim. App. Dec.

29, 1998)). Tennessee law, however, like New Mexico law, requires a final judgment in

order to appeal as of right. See Tenn. R. App. P. 3(a). This rule was promulgated by our

Tennessee Supreme Court in our procedural rules and even assuming, arguendo, that we

have the authority to depart from it, we will not do so lightly. Cf. Bayberry Assocs. v.

Jones, 783 S.W.2d 553, 559 (Tenn. 1990) (allowing appellate courts to suspend the

finality requirements of Rule 3(a)) (discussed, infra).

Moreover, like our sister state, Tennessee courts have never recognized a per se

exception to the finality rule where a trial court grants a Rule 60.02 to allow the appellate

court to immediately review whether the trial court had jurisdiction to enter such an

order. To do so would be anomalous where no immediate appeal right exists as to other

orders involving lack of jurisdiction, including the denial of motions based on lack of

personal or subject matter jurisdiction. Cf. Richardson v. Tennessee Bd. of Dentistry,

913 S.W.2d 446, 460 (Tenn. 1995) (“[T]he denial of a motion to dismiss does not end a

lawsuit or constitute a final judgment.”). As such, this Court has reviewed a trial court’s

rulings with regard to lack of jurisdiction on appeal from the final judgment. See

Precision Castings of Tennessee, Inc. v. H & H Mfg. Co., No. M2012-00334-COA-R3-

CV, 2012 WL 3608668, at *3 (Tenn. Ct. App. Aug. 22, 2012) (involving lack of personal

jurisdiction). Such a rule would also conflict with Tennessee’s stated policy against

piecemeal appeals. See Mann v. Alpha Tau Omega Fraternity, 380 S.W.3d 42, 48

(Tenn. 2012) (noting Tennessee’s “policy against piecemeal appeals”).

Importantly, Tennessee jurisprudence already recognizes some general limited

exceptions to the final judgment rule, including interlocutory appeals, see Tenn. R. App.

P. 9, extraordinary appeals, see Tenn. R. App. P. 10, and appeals of separate claims or

parties as provided by Rule 54.02 of the Tennessee Rules of Civil Procedure. 7 Should the

7

Tennessee law also recognizes certain exceptions in specific cases, such as cases involving

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trial court truly lack jurisdiction to grant a motion pursuant to Rule 60.02, we are likewise

convinced that an interlocutory or extraordinary appeal may be appropriate to correct this

error. See Tenn. R. App. P. 9(a) (allowing an interlocutory appeal where there is a need to

prevent irreparable injury or needless litigation); Tenn. R. App. P. 10(a) (allowing an

extraordinary appeal if the trial court “has so far departed from the accepted and usual

court of judicial proceedings as to require immediate review”). It is important to note that

Appellant did seek a Rule 9 interlocutory appeal, which was denied by this Court on the

basis that, inter alia, no immediate appeal was needed to prevent needless litigation, the

same argument that Appellant set forth in support of adoption of the jurisdictional

exception. The denial of Appellant’s motion for an interlocutory appeal is therefore

simply no support for its argument that we should adopt an exception to our final

judgment rule.

One final consideration convinces us that adoption of the jurisdictional exception

is inappropriate under Tennessee law. As previously discussed, the federal jurisdictional

exception has most often been utilized wherein the district court was deprived of

jurisdiction by the untimeliness of the movant’s Rule 60 motion. It is well-settled in

Tennessee, however, that the expiration of an applicable statute of limitations does not

deprive a court of subject matter jurisdiction. See Estate of Brown, 402 S.W.3d 193,

198–99 (Tenn. 2013) (“True statutes of limitations do not constitute grants of subject

matter jurisdiction but rather restrict the powers of a court to act on a claim over which it

has subject matter jurisdiction. . . . A statute of limitations defense challenges the

sufficiency of a particular claim, not the subject matter jurisdiction of the court in which

the claim is filed.”). Recently, this Court applied this rule to a limitations period

contained in the Tennessee Rules of Civil Procedure. See Town & Country Jewelers,

Inc. v. Trotter, 538 S.W.3d 508 (Tenn. Ct. App. 2017), perm. app. denied (Tenn. Nov.

21, 2017). Specifically, we ruled that where a party failed to comply with the ten-year

limitation period to renew judgments pursuant to Rule 69.04 of the Tennessee Rules of

Civil Procedure, the trial court was not deprived of subject matter jurisdiction. Id. at 512–

13 (basing its holding on the fact that the ten-year period in Rule 69.04 is based on the

statute of limitations contained in Tenn. Code Ann. § 28-3-110(a)(2)).

Appellant does not cite nor has our research revealed a single Tennessee case in

which it was held that the failure to timely file a Rule 60.02 motion deprived the trial

court of subject matter jurisdiction to consider the motion. Indeed, at least one court

appears by implication to have rejected such a formulation. See Green v. Champs-

Elysees, Inc., No. M2013-00232-COA-R3-CV, 2014 WL 644726 (Tenn. Ct. App. Feb.

18, 2014). In Green, the trial court denied a Rule 60.02 motion on two grounds: (1) that

the trial court lacked subject matter jurisdiction because of a pending appeal; and (2) that

the motion was untimely. Id. at *8. On appeal, the appellee argued that both rulings were

correct and specifically argued that the untimeliness of the Rule 60.02 motion deprived

arbitration. These exceptions, however, are creatures of statute. See, e.g., Tenn. Code Ann. § 29-5-319

(allowing an immediate appeal where, inter alia, the trial court denies a motion to compel arbitration).

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the trial court of subject matter jurisdiction. Brief for Appellees, Green v. Champs-

Elysees, Inc., 2013 WL 3779620, at *15 (Tenn. Ct. App. June 28, 2013). This Court

reversed as to whether a pending appeal deprived the trial court of subject matter

jurisdiction, but affirmed the trial court’s ruling that the Rule 60.02 motion was untimely.

Green, 2014 WL 644726, at *8–*9. Despite the appellees’ argument, this Court declined

to in any way hold that the untimeliness of the Rule 60.02 motion deprived the trial court

of subject matter jurisdiction to consider the motion. Id. at *9. Rather, we ruled that the

trial court did not abuse its discretion in finding the motion untimely and without merit.

Id. Accordingly, it appears that Rule 60.02 motions follow the general rule that expiration

of a limitations period does not deprive the court of jurisdiction.8

Here, Appellant argues that the trial court lacked authority, i.e., lacked

jurisdiction, to rule on Appellee’s Rule 60.02 motion on two grounds: (1) timeliness, and

(2) that the motion seeks relief encompassed by another rule, which actually goes to the

timeliness of the motion pursuant to the correct ground. Unlike in federal courts,

however, the timeliness of a Rule 60.02 does not deprive the trial court of jurisdiction to

consider the motion. Thus, even if Appellant were to succeed in its argument that

Appellee’s Rule 60.02 motion was untimely, a “jurisdictional exception” would not

provide support for an immediate appeal because this deficiency does not deprive the trial

court of subject matter jurisdiction as a matter of law.

Instead, whether a motion alleges proper grounds and whether it is timely remain

questions left to the trial court’s discretion. See Hussey v. Woods, 538 S.W.3d 476, 487

(Tenn. 2017) (applying the abuse of discretion standard to the question of whether the

motion was timely); Federated Ins. Co. v. Lethcoe, 18 S.W.3d 621, 624 (Tenn. 2000)

(“Relief granted pursuant to Rule 60.02(5) is a matter within the trial court’s discretion,

and the trial court’s decision will be reversed only for abuse of that discretion.”). Such

discretionary decisions, “regardless of their merit, rarely constitute the type of

extraordinary departures from the usual and accepted course of judicial proceedings”

necessary to justify an immediate appeal under Rule 10. See Gilbert v. Wessels, 458

S.W.3d 895, 899 (Tenn. 2014) (involving discretionary evidentiary decisions). For the

same reasons, these types of decisions do not necessitate adoption of a rule that allows an

immediate appeal as of right of the trial court’s decision to grant Rule 60.02 relief. Given

that Tennessee law provides multiple avenues of review in this circumstance, we decline

8

From our review, the only situation typically recognized to deprive the trial court of subject

matter jurisdiction over a Rule 60.02 motion is the fact that jurisdiction has been vested in an another

court. See Jacob v. Partee, No. W2013-01078-COA-R3-CV, 2013 WL 5817450, at *3 (Tenn. Ct. App.

Oct. 30, 2013) (affirming denial of motion where the trial court lacked subject matter jurisdiction due to

remand to the general sessions court); Born Again Church & Christian Outreach Ministries, Inc. v.

Myler Church Bldg. Sys. of the Midsouth, Inc., 266 S.W.3d 421, 424 (Tenn. Ct. App. 2007) (affirming

denial of motion because appeal divests trial court of subject matter jurisdiction to consider Rule 60.02

motion). That situation is not at issue in this appeal.

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to adopt a per se rule allowing an immediate appeal of the grant of a Rule 60.02 motion

as has been recognized in federal courts.

Finally, we address Appellant’s alternative argument—that we should exercise our

discretion under Rule 2 of the Tennessee Rules of Appellate Procedure to consider this

appeal notwithstanding the lack of final judgment. Rule 2 provides, in relevant part, that

“[f]or good cause, including the interest of expediting decision upon any matter, the

Supreme Court, Court of Appeals, or Court of Criminal Appeals may suspend the

requirements or provisions of any of these rules in a particular case on motion of a party

or on its motion and may order proceedings in accordance with its discretion, . . . .”

Tenn. R. App. P. 2 (noting some exceptions not present here). The Tennessee Supreme

Court has previously held that appellate courts have the power to suspend Rule 3(a)’s

final judgment requirements upon a showing of good cause. See Bayberry Assocs. v.

Jones, 783 S.W.2d 553, 559 (Tenn. 1990) (“[W]e find no bar to the suspension of Rule

3(a).”). The court held, however, that “there must be a good reason for suspension and

the record should affirmatively show that the rule has been suspended.” Id.

We have previously found good cause to suspend the final judgment requirement,

inter alia, where the judgment appealed adjudicated all of the rights of a party and a

delay would prejudice the party’s rights, see White v. Johnson, 522 S.W.3d 417, 421 n.1

(Tenn. Ct. App. 2016); where the trial court’s reasoning applied equally to both the

adjudicated and non-adjudicated claims, see Utley v. Tennessee Dep’t of Correction, 118

S.W.3d 705, 711 n.9 (Tenn. Ct. App. 2003); where a case has been ongoing for over ten

“tortured” years and is on its third appeal, see Ruff v. Raleigh Assembly of God Church,

Inc., No. W2001-02578-COA-R3-CV, 2003 WL 21729442, at *5 (Tenn. Ct. App. July

14, 2003); and where the judgment did not adjudicate claims against certain defendants

but the pleadings contained “no competent allegations regarding the defendants in any of

the pleadings.” See Ravenwood Homeowners Ass’n v. Bailey, No. C.A. 758, 1988 WL

87676, at *2 (Tenn. Ct. App. Aug. 26, 1988). See also, e.g., Hopwood v. Hopwood, No.

M2016-01752-COA-R3-CV, 2017 WL 2964886, at *3 n.4 (Tenn. Ct. App. July 12, 2017)

(suspending the finality requirements because of the “the grave nature of proceedings

seeking to incarcerate litigants,” despite the fact that the trial court did not rule on a

request for attorney’s fees); In Re Estate of Goza, No. W2013-00678-COA-R3-CV, 2014

WL 7235166, at *3–4 (Tenn. Ct. App. Dec. 19, 2014) (suspending the finality

requirement after consideration of “the immense amount of resources already expended

in this litigation” in which the parties had “already attempted to litigate the same issue in

three different courts”); In Re Estate of James, No. E2012-01021-COA-R3-CV, 2013

WL 593802, * 7 (Tenn. Ct. App. Feb. 14, 2013) (suspending the finality requirement

where the only issue left unadjudicated was “the issue of approving any additional fees

and expenses that were incidental to the hearing or that were necessary to close the

estate”); Simerly v. City of Elizabethton, No. E2009-01694-COA-R3-CV, 2011 WL

51737, at *8 (Tenn. Ct. App. Jan. 5, 2011) (suspending the finality requirement where the

trial court’s order effectively adjudicated “all of the substantive claims and rights

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between the parties, and all of the legal theories of recovery”); Parker v. Lambert, 206

S.W.3d 1, 3–4 (Tenn. Ct. App. 2006) (suspending the finality requirement where the only

issues left unadjudicated were the calculation of the amount of one party’s attorney’s fees

and the “possibility” that the trial court would have to supervise the sale of property if the

parties could not agree on a sales price or realtor); Rector v. Halliburton, No. M1999-

02802-COA-R3-CV, 2003 WL 535924, at *3 (Tenn. Ct. App. Feb. 26, 2003) (holding

that judicial economy supported suspending the finality requirements where the trial

court failed to rule on a request for punitive damages, but the court was able to consider

the rest of the case on the merits and no prejudice would result to either party).

After reviewing Appellant’s argument and the applicable caselaw, we decline to

suspend the finality required of Rule 3(a). Unlike other cases, more than tertiary issues

are left unadjudicated by the trial court’s order. See In Re Estate of James, 2013 WL

593802, * 7; Simerly, 2011 WL 51737, at *8; Parker, 206 S.W.3d at 3–4; Ravenwood,

No. C.A. 758, 1988 WL 87676, at *2. Nor has this case involved tortured litigation

spanning decades and multiple appeals. See In Re Estate of Goza, 2014 WL 7235166, at

*3–4; Ruff, 2003 WL 21729442, at *5. Likewise, the trial court’s order does not

adjudicate all of the claims raised by one party, see White, 522 S.W.3d at 421 n.1, nor

does it impose the possibility of incarceration upon one party. See Hopwood, 2017 WL

2964886, at *3 n.4. Finally, the trial court’s ruling with regard to the Rule 60.02 motion

cannot be used to determine all of the remaining issues in the case. See Utley, 118 S.W.3d

at 711 n.9. As such, the situation presented in this case generally does not align with

those cases where good cause has been shown.

Appellant contends, however, that suspension of the finality requirement is

appropriate here on the basis of judicial economy and a desire to avoid “pointless

duplication of efforts.” We have previously held that in light of our disfavor of deciding

piecemeal appeals, “judicial economy alone does not justify abandoning the requirement

of finality.” Williams v. Tennessee Farmers Life Reassurance Co., No. M2010-01689-

COA-R3-CV, 2011 WL 1842893, at *6 (Tenn. Ct. App. May 12, 2011) (citing Brown v.

John Roebuck & Associates, Inc., No. M2008-02619-COA-R3-CV, 2009 WL 4878621,

at *5 (Tenn. Ct. App. Dec. 16, 2009)). As such, “we will not suspend Rule 3 as a mere

convenience[.]” Id. Finally, this Court has previously held our discretion under Rule 2

should be utilized “‘very sparingly, only in extraordinary circumstances.’” Harbin v.

Jones, No. W2012-01474-COA-R3-CV, 2013 WL 1249050, at *5 (Tenn. Ct. App. Mar.

28, 2013) (quoting Morgan Keegan & Co. v. Smythe, No. W2010-01339-COA-R3-CV,

2011 WL 5517036, at *18 (Tenn. Ct. App. Nov. 14, 2011), rev’d on other grounds, 401

S.W.3d 595 (Tenn. 2013)). This Court has previously held in its motion denying the

application for interlocutory appeal that Appellant failed to show an immediate appeal is

necessary to prevent needless litigation or irreparable injury. Moreover, a discretionary

decision rarely gives rise to the type of extraordinary circumstances necessitating

immediate review. See Gilbert, 458 S.W.3d at 899; Harbin, 2013 WL 1249050, at *5.

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Given all of the above considerations, we decline to exercise our discretion to suspend

Rule 3(a)’s finality requirement in this particular case.

In sum, we decline to judicially adopt a per se rule allowing an immediate appeal

as of right of an interlocutory order setting aside a final judgment or otherwise granting a

new trial, where it is alleged that the motion was untimely. We also discern no good

cause to suspend the finality requirement of Rule 3(a). In the absence of a final,

appealable order, this Court lacks jurisdiction to consider this appeal. This appeal is

therefore dismissed.

Conclusion

This appeal is dismissed. Costs of this appeal are taxed to Appellant Levitt,

Hamilton, and Rothstein, LLC, for which execution may issue if necessary.

_________________________________

J. STEVEN STAFFORD, JUDGE

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