The opinion
09/20/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 17, 2019
TRAVIS MORGAN, ET AL. v. LAND DESIGN COMPANY, INC., ET AL.
Appeal from the Chancery Court for Williamson County
No. 47460 Joseph A. Woodruff, Judge
___________________________________
No. M2019-00563-COA-R3-CV
___________________________________
The plaintiffs have appealed from an order granting in part and denying in part the
defendants’ motion for summary judgment. The trial court also directed the entry of a
final judgment under Tennessee Rule of Civil Procedure 54.02. Because the ruling is not
appropriate for certification as a final judgment 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., RICHARD H. DINKINS, and W. NEAL MCBRAYER, JJ.
Philip L. Robertson, Franklin, Tennessee, for the appellants, Travis Morgan and Leslie
Burton.
Benjamin Ealey Goldammer, Nashville, Tennessee, for the appellees, Land Design
Company, Inc. and Lipsy Arnold.
MEMORANDUM OPINION1
This appeal arises out of the purchase of a newly constructed home. The buyers,
Travis Morgan and Leslie Burton, assert that the defendants, Land Design Company, Inc.
(“LDC”) and Lipsy Arnold, did not construct the home in a workmanlike manner.
1
Tenn. R. Ct. App. 10 states:
This court, with the concurrence of all judges participating in the case, may affirm,
reverse or modify the actions of the trial court by memorandum opinion when a formal
opinion would have no precedential value. When a case is decided by memorandum
opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and
shall not be cited or relied on for any reason in any unrelated case.
In their second amended complaint, the buyers include claims for (1)
misrepresentation and fraudulent concealment, (2) negligence by LDC, and (3) breach of
implied warranty.2 The defendants moved for summary judgment. On February 28,
2019, the trial court granted the defendants’ motion for summary judgment as to the
plaintiffs’ misrepresentation and fraudulent concealment claim but denied the motion as
to the plaintiffs’ breach of implied warranty claim. The trial court treated the negligence
claim as subsumed into the claim for breach of implied warranty. The plaintiffs filed
their notice of appeal on March 28, 2019. On May 9, 2019, the trial court amended the
February 28, 2019 order to include an express determination that there is no just reason
for delay and an express direction for the entry of a final judgment under Tennessee Rule
of Civil Procedure 54.02.3
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(1). 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 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.
Civ. P. 54.02(1).
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).
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).
2
The trial court dismissed the plaintiffs’ negligence claims against Mr. Arnold on January 7, 2019.
3
The trial court also determined that the order was appropriate for interlocutory review under Tennessee
Rule of Appellate Procedure 9. However, no Rule 9 application for permission to appeal was timely filed,
and in any event, we cannot conclude that this is an appropriate case for an interlocutory appeal.
-2-
A “claim” for the purposes of Tennessee Rule of Civil Procedure 54.02 is defined
as the “aggregate of operative facts which give 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. Tennessee Bd. of Parole, 2016 WL 6248027, at *5.
Here, both the breach of implied warranty claim and the misrepresentation and
fraudulent concealment claim arise out of the same operative facts. They are merely
alternative theories in pursuit of one recovery, and for the purposes of Tennessee Rule of
Civil Procedure 54.02, they state a single claim for relief. Thus, the trial court’s ruling is
not “dispositive of an entire claim or party” and is not subject to certification as final
under Rule 54.02. Bayberry Assocs., 783 S.W.2d at 558.
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.
On August 30, 2019, this court ordered the parties to show cause 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. The plaintiffs have responded by agreeing the appeal
should be dismissed without prejudice.4
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. The costs are taxed to the plaintiffs.
PER CURIAM
4
The plaintiffs also filed a motion for an extension of time within which to file their brief. In light of the
dismissal of the appeal, the motion for an extension of time is moot.
-3-