# State of Tennessee v. Johnny Summers Cavin (Concur)

> Tennessee Supreme Court · June 8, 2023

URL: https://www.frixlaw.com/law-library/cases/9897614

## Case

- **Court:** Tennessee Supreme Court
- **Decided:** June 8, 2023
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9897614

## How later opinions describe it (automated extraction)

- 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”
- 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”
- observing that “[t]he test is not the adequacy of the judgment but whether the district court has finished with the case”

## Opinion text

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
___________________________________

No. E2020-01333-SC-R11-CD
___________________________________

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).

-2-
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).

-3-
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

-4-
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.

_____________________________
SARAH K. CAMPBELL, JUSTICE

-5-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9897614. Public record. Not legal advice.