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Cavin v. Independent Asset Group

Court of Appeals of Tennessee, Nashville

May 13, 2019

JOHN and DONNA CAVIN
v.
INDEPENDENT ASSET GROUP ET AL.

          Session May 8, 2019

          Appeal from the Circuit Court for Sumner County No. 2017-CV-801 Joe Thompson, Judge.

         The appellees have moved the court to dismiss this appeal as premature. Because multiple motions remain pending in the trial court, we dismiss the appeal for lack of a final judgment.

         Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

          James Daniel Richardson Roberts, Jr., Nashville, Tennessee, for the appellants, John Cavin and Donna Cavin.

          Abigail Marie Strader, Hendersonville, Tennessee, for the appellee, Independent Asset Group, LLC.

          Walter Hinds Stubbs, Gallatin, Tennessee, for the appellee, The Glaser Firm, P. C.

          Frank G. Clement, Jr., P.J., M.S., Andy D. Bennett, and Richard H. Dinkins, JJ.

          MEMORANDUM OPINION[1]

          PER CURIAM.

         This appeal arises out of the partial dismissal of a counter/cross-complaint filed by the appellants, John and Donna Cavin. On February 19, 2019, the trial court dismissed Count I of Mr. and Mrs. Cavin's counter-complaint against Independent Asset Group, LLC ("IAG"). On the same date, the trial court dismissed Mr. and Mrs. Cavin's counter-complaint against The Glaser Firm, P.C., ("Glaser"). The trial court also determined that there no was just reason for delay and directed the entry of a final judgment under Tenn. R. Civ. P. 54.02 as to both dismissal orders.

         Mr. and Mrs. Cavin filed their notice of appeal with the clerk of this court on March 20, 2019. IAG and Glaser have both filed motions to dismiss the appeal as premature. Mr. and Mrs. Cavin have not filed a response disputing that their appeal is premature or opposing dismissal of the appeal.

         It appears from the unopposed motions to dismiss, and from Mr. and Mrs. Cavin's own docketing statement, that multiple motions remain pending in the trial court, including motions to alter or amend the judgment and a motion for leave to file a second amended answer and counter/cross-complaint. The trial court retains jurisdiction to rule on a timely filed motion to alter or amend, and a notice of appeal filed prior to the trial court's ruling on such a motion is deemed premature. Tenn. R. Civ. P. 4(e). Even where the trial court has directed the entry of a final judgment under Tenn. R. Civ. P. 54.02, the trial court must still rule on any motions to alter or amend before an appeal can proceed. Based on the appellees' unopposed motions, we conclude that this appeal should be dismissed and that the trial court must dispose of all pending motions before Mr. and Mrs. Cavin can pursue an new appeal of the two dismissal orders certified by the trial court as final judgments under Tenn. R. Civ. P. 54.02.[2]

         The appeal is hereby dismissed without prejudice to the filing of a new appeal once a final judgment has been entered. The case is remanded to the trial court for further proceedings consistent with this opinion. Costs of the ...


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