Green v. Moore

• Decision Date: 29 April 2003
• Citation: 101 S.W.3d 415
• Parties: Susan GREEN v. Leon MOORE, et al.
• Court: Tennessee Supreme Court

101 S.W.3d 415

Susan GREEN v. Leon MOORE, et al.

Supreme Court of Tennessee, at Nashville.

February 5, 2003 Session.

April 29, 2003.

Pamela M. McCord, for the appellant, Susan Green.

Eugene N. Bulso, Jr. and Barbara Hawley Smith, for the appellees, Leon Moore, ShoLodge, Inc., and ShoLodge Franchise Systems, Inc.

WILLIAM M. BARKER, J., delivered the opinion of the court, in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., and JANICE M. HOLDER, JJ., joined.

OPINION

The sole issue in this appeal is whether the thirty (30)-day notice of appeal period, articulated in Tennessee Rule of Appellate Procedure 4(a) ("Rule 4(a)"), began to run when the appellees filed a notice of voluntary dismissal of the final claim between all parties in this action, or when the trial court entered an order confirming that all claims between all parties in this action had been adjudicated. The Court of Appeals held that the thirty-day period commenced on the date the appellees filed the notice of voluntary dismissal and concluded that the appellant's notice of appeal was untimely filed. We granted permission to appeal and hold that the thirty-day notice of appeal period commenced on the date that the trial court entered an order confirming that all claims between all the parties had been adjudicated. Accordingly, the judgment of the Court of Appeals is reversed, and this case is remanded to the intermediate court for consideration of the merits of the appeal.

STATEMENT OF THE CASE

On July 31, 2000, the appellant, Susan Green, filed a complaint against Leon Moore, ShoLodge, Inc., and ShoLodge Franchise Systems, Inc., the appellees, for an alleged breach of a settlement agreement dated January 29, 1996. Ms. Green, a former employee of ShoLodge, Inc., claimed that the settlement agreement was breached in August 1997 when Leon Moore allegedly referred to her as "a f___ing b-tch" twice in front of co-workers at her new place of employment.¹ The appellees filed a motion to dismiss this action claiming it was barred by the applicable statute of limitations. The trial court granted the appellees' motion with respect to claims it concluded were grounded in tort law and subject to the one-year statute of limitations period for personal injuries. See Tenn.Code Ann. § 28-3-104(a)(1) (2000). However, the trial court refused to dismiss the appellant's various claims for lost wages and loss of earning capacity which the court held were governed by the six-year statute of limitations applicable to contracts. See Tenn.Code Ann. § 28-3-109 (2000).

The appellees filed a motion for permission to appeal the trial court's ruling pursuant to Tennessee Rule of Appellate Procedure 9 ("Rule 9"). The interlocutory appeal was granted, and the Court of Appeals affirmed the ruling of the trial court. Subsequently, the appellees sought and were granted permission to appeal by this Court.

On November 22, 2000, while still appealing the trial court's original ruling on the motion to dismiss, the appellees filed an answer to the appellant's complaint and asserted a counterclaim alleging that it was the appellant who breached the 1996 settlement agreement by filing a frivolous lawsuit. The appellees subsequently filed a motion for summary judgment with respect to the appellant's claims that the trial court had determined were not barred by the statute of limitations. The trial court substantially granted the appellees' motion and dismissed all but one of Ms. Green's claims for damages.

On September 18, 2001, the appellees filed another motion for summary judgment with respect to the appellant's sole remaining claim for damages. The trial court granted the appellees' motion and dismissed with prejudice all claims made by Ms. Green against the appellees. Subsequently, on February 5, 2002, the appellees filed a written notice with the trial court voluntarily dismissing their counterclaim against the appellant pursuant to Tennessee Rule of Civil Procedure 41.01 ("Rule 41.01"). Because all of the appellant's claims had been dismissed, the appellees' counterclaim was the final claim remaining in this action.

On March 13, 2002, the trial court entered an order which confirmed that "as of February 5, 200[2],² all claims of all parties in this action have been adjudicated and this action has therefore been concluded." Additionally, on March 13, 2002, the appellees filed a motion to dismiss their application for permission to appeal in this Court. Citing the trial court's favorable summary judgment rulings, the appellees claimed that because "the trial court's dismissal of the plaintiffs claims is final and non-appealable, the [statute of limitations] issue raised in the [appellees'] Application for Permission to Appeal has become moot." In a per curiam order, this Court, relying on language from the appellees' motion, dismissed the appellees' application for permission to appeal and implied that the trial court's dismissal of Ms. Green's claims was final and non-appealable on February 5, 2002. However, this Court was not faced with the issue of when the Rule 4(a) notice of appeal period commenced. Accordingly, our order was based upon incomplete information, and any language in the order suggesting that the notice of appeal period commenced when the appellees filed their notice of voluntary dismissal on February 5, 2002 is not dispositive of the issue before us.

On April 11, 2002, Ms. Green filed a notice of appeal. The notice of appeal was filed within thirty days of the trial court's entry of an order indicating that all claims by the parties had been adjudicated. However, it was not filed within thirty days of the appellees' notice of voluntary dismissal of their counterclaim. The Court of Appeals held that "it is the filing of the written notice of dismissal, not the entry of the confirmatory order, that triggers the commencement of the time within which a notice of appeal must be filed." Thus, the Court of Appeals held that the appellant's notice of appeal was untimely filed.

We granted the appellant's application for permission to appeal to determine whether the thirty-day period for filing a notice of appeal pursuant to Rule 4(a) commenced on the date the appellees filed their notice of voluntary dismissal, or rather on the date that the trial court entered an order stating that all claims between the parties had been adjudicated. For the reasons stated herein, we reverse the decision of the Court of Appeals and hold that for purposes of filing a notice of appeal under Tennessee Rules of Appellate Procedure 3 and 4, the thirty-day appeal period commenced on the date that the trial court entered its order confirming that all claims by all parties had been adjudicated. Accordingly, we remand this case to the Court of Appeals for proceedings consistent with this opinion.

STANDARD OF APPELLATE REVIEW

In this case, our review concerns when the thirty-day notice of appeal period articulated in Rule 4(a) commenced. Interpretation of Rule 4(a) is a pure question of law, for which the standard of review is de novo with no presumption of correctness given to the Court of Appeals. Doyle v. Frost, 49 S.W.3d 853, 856 (Tenn.2001); Reeves v. Granite State Ins. Co., 36 S.W.3d 58, 60 (Tenn.2001); In re Estate of Hume, 984 S.W.2d 602, 604 (Tenn.1999).

ANALYSIS

Tennessee Rule of Appellate Procedure 3(a) ("Rule 3(a)") states that a final judgment in a civil action "entered by a trial court from which an appeal lies to the Supreme court or Court of Appeals is appealable as of right." However, Rule 3(a) also states that "[e]xcept as otherwise permitted in Rule 9 and in Rule 54.02 Tennessee Rules of Civil Procedure, if multiple parties or multiple claims for relief are involved in an action, any order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable. ..." (Emphasis added). Hence, until the appellees' counterclaim was adjudicated, Ms. Green was unable to appeal the unfavorable rulings of the trial court " against her. However, once all claims between the parties had been adjudicated, Rule 4(a) states that the notice of appeal "shall be filed with and received by the clerk of the trial court within 30 days after the date of entry of the judgment appealed from...." Thus, this case turns on whether "the date of entry of the judgment appealed from" was February 5, 2002 (the date the appellees filed the notice of voluntary dismissal) or March 13, 2002 (the date the trial court entered its order confirming that all claims between the parties in this actions were adjudicated).

The appellees contend that the thirty-day appeal period commenced on February 5, 2002, the date they filed the notice of voluntary dismissal. In support of their argument, the appellees cite to the case of Rickets v. Sexton, 533 S.W.2d 293 (Tenn. 1976). In Rickets, this Court held that Rule 41.01 "specifies that a plaintiff `shall have the right to take a voluntary nonsuit or [sic] to dismiss an action without prejudice by filing a written notice of dismissal at any time before the trial of a cause.'" Id. at 294 (quoting Tenn. R. Civ. P. 41.01). The Court further noted that, subject to limited exceptions, when deciding whether to voluntarily dismiss an action, the "lawyer for the plaintiff is the sole judge of the matter and the trial judge has no control over it. It is not necessary that [the trial judge] approve the action of plaintiff's counsel by signing any order...." Id. at 294. Relying on this language, the appellees assert that by voluntarily dismissing their counterclaim, the final remaining claim in the action, on February 5, 2002, the trial court's summary judgment rulings against the appellant became immediately appealable.

Additionally, the appellees cite as authority the case of Parker v. Vanderbilt Univ., 767 S.W.2d 412 (Tenn.Ct.App.1988). In Parker, the Court of Appeals,...