The opinion
05/23/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 21, 2019
ROCKY McELHANEY ET AL. v. HUGHES & COLEMAN PLLC ET AL.
Appeal from the Chancery Court for Wilson County
No. 2017-CV-185 Charles K. Smith, Chancellor
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No. M2019-00124-COA-R3-CV
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The defendants have appealed from the trial court’s rulings granting the plaintiffs a
partial summary judgment and directing the entry of a final judgment under Tennessee
Rule of Civil Procedure 54.02. Because the order appealed was not properly entered
under Tennessee Rule of Civil Procedure 58 and because the order is not appropriate for
certification as final under Tennessee Rule of Civil Procedure 54.02, we dismiss the
appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
FRANK G. CLEMENT, JR., P.J., M.S., ANDY D. BENNETT, and W. NEAL MCBRAYER, JJ.
William Taylor Ramsey, Nashville, Tennessee, for the appellants, Hughes & Coleman,
Joseph Marshall Hughes, Lee Lawrence Coleman, and Thomas R Lewis.
Lindsey Leigh Lawrence, Mount Juliet, Tennessee, for the appellants, Clixsy, LLC, and
Richard Corey Vandenberg.
Larry R. McElhaney, II, Hendersonville, Tennessee, for the appellees, Larry R.
McElhaney, II, and Rocky McElhaney Law Firm, P.C.
MEMORANDUM OPINION1
This appeal involves a dispute between two law firms over an internet marketing
campaign. On August 24, 2018, the trial court granted the plaintiffs, Larry R. McElhaney,
II, and the Rocky McElhaney Law Firm, P.C., a partial summary judgment on the issues
of liability under the Tennessee Personal Rights Protection Act and agency. The
defendants, Hughes & Coleman, Joseph Marshall Hughes, Lee Lawrence Coleman,
Thomas R. Lewis, Clixsy, LLC, and Richard Corey Vandenberg, filed a motion to revise
or alter or amend the partial summary judgment. On January 4, 2019, the trial court
denied the defendants’ motion to revise or alter or amend. The trial court also determined
that there was no just reason for delay and directed the entry of a final judgment under
Tennessee Rule of Civil Procedure 54.02 as to the issues decided in the January 4, 2019
order. On January 17, 2019, the defendants filed their notice of appeal.
After reviewing the record, this court determined that the order appealed from did
not comply with Tennessee Rules of Civil Procedure 58 or 54.02. Thus, on April 26,
2019, the court ordered the parties to show cause within fourteen days why the appeal
should not be dismissed without prejudice to the filing of a new appeal once the trial
court has entered a final judgment that disposes of all the claims between all the parties.
The parties did not respond to this court’s order.
Under Tennessee Rule of Civil Procedure 58, to be effectively entered, a judgment
must contain, in addition to the judge’s signature, either 1) the signatures of all parties or
counsel, 2) the signature of one party or counsel with a certificate of the party or counsel
that a copy of the proposed order has been served on all other parties or counsel, or 3) a
certificate of the clerk that a copy has been served on all other parties or counsel. Tenn.
R. Civ. P. 58. The trial court’s handwritten January 4, 2019 order contains neither a
certificate of service nor the signatures of counsel. It also appears that the trial judge’s
signature is dated after the date the order was marked filed for entry. Thus, the order was
not properly entered under Tennessee Rule of Civil Procedure 58.
If the failure to comply with Tennessee Rule of Civil Procedure 58 were the only
concern, we could allow the parties to remedy the mistake, and the appeal could proceed.
However, we have also determined that the January 4, 2019 order is not appropriate for
certification as final under Tennessee Rule of Civil Procedure 54.02.
1
Under the rules of this Court, memorandum opinions may not be published, “cited[,] or relied
on for any reason in any unrelated case.” Tenn. Ct. App. R. 10.
A party is generally entitled to an appeal as of right only after the trial court has
entered a final judgment that resolves all the claims between all the parties, leaving
nothing else for the trial court to do. Tenn. R. App. P. 3(a); In re Estate of Henderson,
121 S.W.3d 643, 645 (Tenn. 2003); State ex rel. McAllister v. Goode, 968 S.W.2d 834,
840 (Tenn. Ct. App. 1997). The trial court may also direct the entry of a final judgment
“as to one or more but fewer than all of the claims or parties” under Tennessee Rule of
Civil Procedure 54.02. However, the trial court’s authority to direct the entry of a final
judgment is not absolute. Crane v. Sullivan, No. 01-A-01-9207-CH-00287, 1993 WL
15154, at *1 (Tenn. Ct. App. Jan. 27, 1993). First, Tennessee Rule of Civil Procedure
54.02 requires that the order certified as final actually adjudicate one or more of the
claims or the rights and liabilities of at least one of the parties. Bayberry Assocs. v. Jones,
783 S.W.2d 553, 557 (Tenn. 1990). Second, the trial court must determine that there is
“no just reason for delay.” Tenn. R. App. P. 54.02.
The determination of whether an order disposes of a separable claim is a question
of law reviewed de novo. Brown v. John Roebuck & Assocs., Inc., No. M2008-02619-
COA-R3-CV, 2009 WL 4878621, at *5 (Tenn. Ct. App. Dec. 16, 2009). A “claim” for
the purposes of Tennessee Rule of Civil Procedure 54.02 is defined as the “aggregate of
operative facts which give[s] rise to a right enforceable in the courts.” Carr v.
Valinezhad, No. M2009-00634-COA-R3-CV, 2010 WL 1633467 at *2 (Tenn. Ct. App.
Apr. 22, 2010) (citations omitted). Alternate theories in pursuit of one recovery do not
constitute separate claims. Paul v. Watson, No. W2011-00687-COA-R3-CV, 2012 WL
344705, at *4 (Tenn. Ct. App. Feb. 2, 2012). Likewise, a complaint seeking multiple
remedies for the alleged violation of a single right states only a single claim for relief.
Coleman v. Tenn. Bd. of Parole, 2016 WL 6248027, at *5.
Here, the trial court has ruled only on the issues of liability under the Tennessee
Personal Rights Protection Act and agency. It has not determined the amount of damages
owed under the Tennessee Personal Rights Protection Act or addressed the plaintiffs’
other causes of action, including violation of the Tennessee Consumer Protection Act,
arising out of the same operative facts. Thus, the trial court’s ruling is not “dispositive of
an entire claim or party.” Bayberry Assocs., 783 S.W.2d at 558.
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. Without a final
adjudication of at least one claim, Rule 54.02 is simply inapplicable.
Coleman v. Tenn. Bd. of Parole, No. M2016-00410-COA-R3-CV, 2016 WL 6248027, at
*4 (Tenn. Ct. App. Oct. 25, 2016) (citation omitted).
Because the order does not dispose of one or more claims, we need not address the
trial court’s finding of “no just reason for delay.” Carr, 2010 WL 1633467 at *2. We
note, however, that piecemeal litigation is disfavored in Tennessee. Judicial economy
favors having all issues reviewed in a single appeal, and we see no reason why an appeal
in this case should not await the resolution of all issues.
The appeal is hereby dismissed without prejudice to the filing of a new appeal
once the trial court has entered a final judgment that disposes of all the claims between all
the parties. The case is remanded to the trial court for further proceedings consistent with
this opinion.
PER CURIAM