State of Tennessee v. Johnny Summers Cavin (Concur)

06/08/2023

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

September 7, 2022 Session

STATE OF TENNESSEE v. JOHNNY SUMMERS CAVIN

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Sullivan County

No. S72963 James F. Goodwin, Jr., Judge

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No. E2020-01333-SC-R11-CD

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SARAH K. CAMPBELL, J., concurring in part and concurring in the judgment.

I concur in the Court’s judgment reversing the Court of Criminal Appeals, and I

agree with much of the majority opinion’s analysis, including its determination that the

trial court did not err in ordering Johnny Cavin to pay restitution. I also agree with the

majority’s conclusion that the restitution order here was final and appealable, but I reach

that conclusion by way of a slightly different analysis. I write separately to explain how

my reasoning differs from that of the majority. While the majority asks whether the trial

court’s judgment satisfied the statutory requirements for restitution orders, I would focus

instead on whether the record shows that the trial court thought it was finished with the

case. In my view, the restitution order here was final because nothing in the record or on

the face of the order suggests that the trial court believed there was more to be done, not

because it did everything it was supposed to do.

The Court of Criminal Appeals has jurisdiction to review the “final judgments of

trial courts” in criminal cases and “other cases or proceedings instituted with reference to

or arising out of a criminal case.” Tenn. Code Ann. § 16-5-108(a)(1)–(2) (2021). We have

explained that a decision “is final when it decides and disposes of the whole merits of the

case leaving nothing for the further judgment of the court.” Richardson v. Tenn. Bd. of

Dentistry, 913 S.W.2d 446, 460 (Tenn. 1995) (emphasis and internal quotation marks

omitted); see also id. (determining that an order was final because it “conclusively

determined all issues before the [trial court] on their merits and left nothing for further

judgment of that court”). Conversely, “[a]n order that fails to adjudicate all of the parties’

claims is unenforceable and not subject to appeal.” Ball v. McDowell, 288 S.W.3d 833, 836

(Tenn. 2009) (citing Tenn. R. App. P. 3(a)).

In some cases, application of this finality standard is straightforward. A decision in

a run-of-the-mill criminal case, for example, is “final” when there has been both an

adjudication of guilt and imposition of a sentence. See 24 C.J.S. Criminal Procedure and

Rights of the Accused § 2532, Westlaw (database updated Apr. 2023) (“It is generally

necessary that a sentence be rendered and entered, or pronounced, before an appeal will

lie.”). But for other decisions, like the restitution order here, finality can be less clear.

Here, the trial court did not fail to impose a sentence altogether. It imposed two concurrent

sentences for Cavin’s convictions, held a restitution hearing, and set the amount of

restitution. The trial court, however, declined to set terms for the payment of restitution.

Is setting payment terms part of the “whole merits” of the case such that a failure to

complete that task renders the judgment non-final? We have not previously considered that

question or a similar one. But other courts that employ analogous finality standards have,

and they generally treat a trial court’s judgment as final as long as the record demonstrates

that the trial court thought it was finished with the case, even if the judgment was

technically flawed in some respect.1

In United States v. F. & M. Schaefer Brewing Co., for example, the U.S. Supreme

Court considered whether a decision granting summary judgment to a plaintiff on an action

for money damages was final and appealable even though it failed to expressly determine

the full amount awarded. See 356 U.S. 227, 228, 233–34 (1958).2 The Court held that the

decision was not final, reasoning that a decision awarding damages is final only if it

“embodies the essential elements of a judgment for money and clearly evidences the

judge’s intention that it shall be his final act in the case.” Id. at 232 (emphasis added). But

in reaching this conclusion, the Court made clear that the absence of a precise damages

amount was not dispositive; it was instead “strong evidence” that the judge did not in fact

intend the decision to be his “final act in the case.” Id. at 233.

1

The majority contends that I am ignoring the party-presentation principle by proposing to resolve

the finality issue in this case in a manner not argued by the parties. But the party-presentation principle

limits only the issues a court may consider. See State v. Bristol, 654 S.W.3d 917, 923 (Tenn. 2022). Once

“an issue . . . is properly before the court, the court is not limited to the particular legal theories advanced

by the parties, but rather retains the independent power to identify and apply the proper construction of

governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991); see also Bristol, 654 S.W.3d

at 925 (explaining that “we are not precluded from supplementing the contentions of counsel through our

own deliberation and research” (quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983))). Here,

the issue of finality unquestionably was preserved and presented. In any event, finality is a question of

subject-matter jurisdiction, which an appellate court “must consider . . . regardless of whether that issue

was presented by the parties or addressed below.” Bristol, 654 S.W.3d at 926; see also Recipient of Final

Expunction Ord. in McNairy Cnty. Cir. Ct. Case No. 3279 v. Rausch, 645 S.W.3d 160, 167 (Tenn. 2022).

2

Several years before the U.S. Supreme Court decided F. & M. Schaefer, it had explained that “[a]

‘final decision’ generally is one which ends the litigation on the merits and leaves nothing for the court to

do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945) (citing St. Louis, I.M. & S.

Ry. Co. v. S. Express Co., 108 U.S. 24, 28 (1883)). This remains the governing finality standard for federal

courts. See, e.g., Hall v. Hall, 138 S. Ct. 1118, 1123–24 (2018); Coopers & Lybrand v. Livesay, 437 U.S.

463, 467 (1978).

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Federal appellate courts follow a similar approach. Take the U.S. Court of Appeals

for the Seventh Circuit. In Chase Manhattan Mortgage Corp. v. Moore, that court

considered whether a trial court’s order granting summary judgment to a plaintiff was final

and appealable even though it failed to “grant the plaintiff any relief” and did not “order

[the defendant] to do anything or to pay anything.” 446 F.3d 725, 726 (7th Cir. 2006)

(Posner, J.). The court concluded that it was, explaining that “[t]he test is not the adequacy

of the judgment but whether the district court has finished with the case.” Id. at 726; see

also Kaye v. City of Milwaukee, 258 F. App’x 17, 18 (7th Cir. 2007) (Easterbrook, J.)

(“[T]he polestar of finality is not whether the judgment document is technically

flawless . . . but whether the district court has finished with the case.”). The court

acknowledged the Supreme Court’s statement in Coopers & Lybrand that “a final judgment

is one that ‘ends the litigation on the merits and leaves nothing for the court to do but

execute the judgment,’” but observed that this statement, “when wrenched from its

context,” is “overbroad.” Chase Manhattan, 446 F.3d at 726 (quoting Coopers & Lybrand,

437 U.S. at 467). The order at issue in Coopers & Lybrand was “explicitly interlocutory.”

Id. The order in Chase Manhattan, by contrast, purported to be final but was “radically

defective,” “as if the judge had said midway through the case ‘I am tired of this case so I’m

entering a judgment terminating it.’” Id. at 727. The Seventh Circuit thus concluded that it

was “a final order but not a proper disposition.” Id.

While Tennessee’s appellate courts have been less explicit than their federal

counterparts, they, too, have declined to equate finality to technical perfection. Tennessee

appellate courts, for example, regularly remand cases to trial courts when they fail to make

the findings of fact and conclusions of law mandated by the Tennessee Rules of Civil

Procedure. Rule 52.01 requires that trial courts “find the facts specially” and “state

separately [their] conclusions of law” when entering written orders. Tenn. R. Civ. P. 52.01.

But when parties appeal from orders that fail to include these required components,

Tennessee appellate courts do not treat those orders as non-final. Instead, they vacate the

orders and remand the cases, instructing the trial courts to make the necessary findings and

conclusions. See Lovlace v. Copley, 418 S.W.3d 1, 36 (Tenn. 2013) (observing that “[o]ne

remedy appellate courts typically apply when a trial court’s factual findings fail to satisfy

the Rule 52.01 requirement is to remand the case to the trial court with directions to issue

sufficient findings and conclusions”); Artry v. Artry, No. W2020-00224-COA-R3-CV,

2022 WL 4372775, at *4 (Tenn. Ct. App. Sept. 22, 2022) (noting that “[g]enerally, the

appropriate remedy when a trial court fails to make appropriate findings of fact and

conclusions of law is to vacate the trial court’s judgment and remand the cause to the trial

court for written findings of fact and conclusions of law” (internal quotation marks

omitted)); see also, e.g., Matlock v. Matlock, No. E2022-00041-COA-R3-CV, 2022 WL

16703284, at *4 (Tenn. Ct. App. Nov. 4, 2022) (remanding a case with instructions to the

trial court to issue an order with findings of fact and conclusions of law as required by Rule

52.01).

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Here, the majority correctly asks whether the restitution order at issue “decide[d]

and dispose[d] of the whole merits of the case leaving nothing for the further judgment of

the court.” Richardson, 913 S.W.2d at 460 (emphasis omitted). The majority correctly

concludes that it did, but it reaches that conclusion by focusing on the order’s compliance

with the requirements of Tennessee Code Annotated section 40-35-304. The majority

reasons that the restitution order was final because section -304 does not require trial courts

to include payment terms at all. Although section -304 provides that trial courts “shall

specify” a time for the payment of restitution, Tenn. Code Ann. § 40-35-304(c) (2019 &

Supp. 2022), it provides that they “may permit payment or performance in installments,”

id. (emphasis added). Because payment terms are not statutorily required, the majority

says, the trial court’s failure to include them does not render the restitution order non-final.

I agree with the majority that the question presented here should be resolved by

determining whether the trial court’s order decided and disposed of the whole merits of the

case. I disagree, though, that a trial court’s order meets that standard only when it perfectly

satisfies all applicable statutory requirements. The key question instead should be whether

the trial court’s order shows that it has “finished with the case.” Chase Manhattan, 446

F.3d at 726 (observing that “[t]he test is not the adequacy of the judgment but whether the

district court has finished with the case”); see also F. & M. Schaefer, 356 U.S. at 232

(considering as part of the finality analysis whether the order on appeal “clearly evidences

the judge’s intention that it shall be his final act in the case”); Kerr-McGee Chem. Corp. v.

Lefton Iron & Metal Co., 570 F.3d 856, 857 (7th Cir. 2009) (reasoning that “[i]f the judge

had overlooked [a particular] dispute . . . , then the decision would be final—for the district

court would have completed everything it set out to accomplish—and we would remand

so that the job could be finished”).

Here, nothing in the record or on the face of the restitution order suggests that the

trial court intended to do anything else in the case. The trial court imposed a sentence, held

a restitution hearing, and entered an order directing Cavin to pay $5,500 in restitution

“through the Board of Probation and Parole during [his] supervision.” This, in my view, is

enough for finality.

A focus on whether the trial court appears to be “finished with the case,” Chase

Manhattan, 446 F.3d at 726, rather than on the technical perfection of its order offers at

least one practical advantage. Concluding that “a judgment is final for purposes of appeal

when the [trial] judge is through with the case whether or not he should be” prevents the

case from being “left in limbo—no longer in the [trial] court, but barred from our court by

the final-decision rule.” Wachovia Bank, N.A. v. Foster Bancshares, Inc., 457 F.3d 619,

621 (7th Cir. 2006). An approach that tethers finality to technical perfection, on the other

hand, will allow cases to linger in no-man’s land for months or even years, until the trial

court discovers that it left something undone or an appellate court dismisses the appeal for

lack of finality and forces the parties to return to the trial court to seek correction of the

order. By treating these orders as final, an appellate court can either remand to the trial

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court to correct the technical deficiency if it is one that precludes meaningful appellate

review, or proceed to the merits if it is one that does not. Either way, the case will be one

step closer to resolution, which is far better than being left in limbo.

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SARAH K. CAMPBELL, JUSTICE

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