M.H.L. ET AL.
BOYS AND GIRLS CLUB OF GREATER KINGSPORT, INC. ET AL.
Session March 30, 2017
from the Circuit Court for Sullivan County No. C40820(M) John
S. McLellan, III, Judge.
plaintiffs, Michael Lambert and Pamela Lambert, on behalf of
themselves and their minor child, M.H.L. (collectively,
"Plaintiffs"), seek to appeal from an order
granting summary judgment in favor of the defendant, City of
Kingsport, Tennessee ("the City"), on
Plaintiffs' claims against the City in this negligence
case arising out of injuries sustained by the minor plaintiff
while participating in a youth basketball program. In their
complaint, Plaintiffs asserted claims against not only the
City, the entity who ran the youth basketball program, but
also against the defendant, Boys and Girls Club of Greater
Kingsport, Inc. ("the Boys and Girls Club"), which
owned and managed the property used by the youth basketball
program. The order from which Plaintiffs seek to appeal
resolves only the claim against the City, leaving unresolved
the claim against the Boys and Girls Club. As a result, we
lack jurisdiction to consider this appeal. The appeal is
dismissed without prejudice to the filing of a new appeal
once a final judgment has been entered.
R. App. P. 3 Appeal as of Right; Appeal Dismissed.
C. Jessee, Johnson City, Tennessee, for the appellants.
C. Rose, Kingsport, Tennessee, for the appellee, City of
R. Frierson, II, J., D. Michael Swiney, C.J., and Charles D.
Susano, Jr., J.
to Rule 13(b) of the Tennessee Rules of Appellate Procedure,
this Court reviewed the record for this appeal upon
transmission to determine whether the Court had subject
matter jurisdiction to hear this appeal. After determining
that Plainiffs' claim against the Boys and Girls Club
remains unresolved and that the Trial Court did not
"direct entry of a final judgment" as to the
resolved claim against the City "upon an express
determination that there is no just reason for delay and upon
an express direction for the entry of judgment, " Tenn.
R. Civ. P. 54.02, the Court directed Plaintiffs to show cause
why this appeal should not be dismissed as premature. Counsel
for Plaintiffs has filed a response to the show cause order
acknowledging that the order on review fails to adjudicate
all claims in the proceedings below. Counsel asserts that
Plaintiffs "should be permitted to pursue their claims
against both defendants at trial, " and asks this Court
to allow Plaintiffs "to pursue an interlocutory
appeal" of the order on review pursuant to Rule 9 of the
Tennessee Rules of Appellate Procedure in the event it is
determined that an appeal as of right is not permitted from
the order pursuant to Rule 3 of the Tennessee Rules of
final judgment is one that resolves all the issues in the
case, 'leaving nothing else for the trial court to
do.' " In re Estate of Henderson, 121
S.W.3d 643, 645 (Tenn. 2003) (quoting State ex rel.
McAllister v. Goode, 968 S.W.2d 834, 840 (Tenn. Ct. App.
1997)). "[A]ny order that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the
parties is not enforceable or appealable and is subject to
revision at any time before entry of a final judgment
adjudicating all the claims, rights, and liabilities of all
parties." Tenn. R. App. P. 3(a). Because there are
unresolved claims and issues in the proceedings below, this
Court does not have subject matter jurisdiction to adjudicate
this appeal. See Bayberry Assocs. v. Jones, 783
S.W.2d 553, 559 (Tenn. 1990) ("Unless an appeal from an
interlocutory order is provided by the rules or by statute,
appellate courts have jurisdiction over final judgments
only."). While the Supreme Court in Bayberry
remarked that there is "no bar" to the suspension
of the finality requirements of Rule 3(a) pursuant to Rule 2
of the Tennessee Rules of Appellate Procedure, counsel has
not requested a suspension of the requirements of the Rule
3(a). See id. (noting that "there must be a
good reason for suspension"). Instead, counsel appears to
be requesting a suspension of all of the procedural
requirements of Rule 9(b), (c), and (d), relative to the
taking of an interlocutory appeal, which we decline to do.
because this Court lacks jurisdiction to consider this
appeal, the case is dismissed without prejudice to the filing
of a new appeal once a final judgment has been entered. Costs
on appeal are taxed to Plaintiffs, and their surety, for
which execution may issue if necessary.
Rule 10 of the Rules of the Court of
Appeals provides as ...