In Re Conservatorship of June Swinford Spear

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
December 15, 2023 Session

IN RE CONSERVATORSHIP OF JUNE SWINFORD SPEAR

Appeal from the Probate Court for Sevier County | ~
No. 20-CN-349 Jeffrey D. Rader, Judge | FILED
| DEC 19 2023
No. E2023-00389-COA-R3-CV Clerk of the Appellate Courts
Rec'd By

The notice of appeal filed by the Appellant, Myan Joy Spear, stated that the Appellant was

appealing the judgment entered on February 15, 2023. As the orders appealed from do not

constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

KRISTI M. DAVIS, J.; JOHN W. MCCLARTY, J.; and THOMAS R. FRIERSON, II, J.

Andrew S. Roskind, Knoxville, Tennessee, for the appellant, Myan Joy Spear.

R. Alex Johnson, Sevierville, Tennessee, for the appellee, Douglas Williams.

Elizabeth J. Perryman Rauber, Sevierville, Tennessee, Pro Se Appellee.

Bailey Schiermeyer, Knoxville, Tennessee, for the appellee, June Swinford Spear.

MEMORANDUM OPINION'

The Appellant, Myan Joy Spear (“Appellant”), filed a notice of appeal with this
Court on March 15, 2023, which states that Appellant is appealing the February 15, 2023

1 Rule 10 of the Rules of the Court of Appeals provides:

This Court, with the concurrence of all judges participating in the case, may affirm, reverse
or modify the actions of the trial court by memorandum opinion when a formal opinion
would have no precedential value. When a case is decided by memorandum opinion it
shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not
be cited or relied on for any reason in any unrelated case.
order of the Sevier County Probate Court (the “trial court”). Upon receipt of the appellate
record and pursuant to Tenn. R. App. P. 13(b), this Court reviewed the record on appeal to
determine if the Court has subject matter jurisdiction over the appeal. The order to which
the Notice of Appeal is directed does not appear to be “a final judgment adjudicating all
the claims, rights, and liabilities of all parties” from which an appeal as of right would lie.
See Tenn. R. App. P. 3(a). A party is entitled to an appeal as of right only after the trial
court has entered a final judgment. Tenn. R. App. P. 3(a). A final judgment is a judgment
that resolves all the claims between all the parties, “leaving nothing else for the trial court
to do.” Inre Estate of Henderson, 

 (Tenn. 2003) (quoting State ex
rel. McAllister v. Goode, 

 (Tenn. Ct. App. 1997)). An order that
adjudicates fewer than all the claims between all the parties is subject to revision at any
time before the entry of a final judgment and is not appealable as of right. Tenn. R. App.
P. 3(a); In re Estate of Henderson, 

.

We note that the trial court entered four orders on February 15, 2023. This Court is
unable to determine from the notice of appeal which of these orders Appellant is attempting
to appeal. However, it appears that none of the February 15, 2023 orders are final.
Specifically, the February 15, 2023 order on the petition for contempt found “the Petition
for Contempt to be well taken... .” The order, however, does not fix a punishment for the
contempt and suspended the petition for a period of thirty days. “[A] judgment of
contempt, summary or otherwise becomes final upon the entering of punishment therefor
.... Moody v. Hutchinson, 159 8.W.3d 15, 30 (Tenn. Ct. App. 2004) (quoting State v.
Green, 

 (Tenn. Crim. App. 1984)). As the record is devoid of an order
fixing punishment for the contempt, the order of contempt is non-final. Also filed on
February 15, 2023, were orders denying a motion to reconsider a previous order, denying
an amended motion to terminate a conservatorship, and denying a motion to terminate
visits with Douglas Williams. The order denying the amended motion to terminate the
conservatorship states that it is a final order but does not include language under Tenn. R.
Civ. P. 54.02 certifying the judgment as final.

On March 14, 2023, the attorney for June Swinford Spear filed a motion for
attorney’s fees. The record is devoid of an order addressing this motion. The pending
motion for attorney’s fees prevents a final judgment. See e.g., E Solutions for Buildings,
LLC v. Knestrick Contractor, Inc. No. M2017-00732-COA-R3-CV, 

, at
*4 (Tenn. Ct. App. April 17, 2018) (finding that order directing parties to re-submit
requests for attorney’s fees after appeal was “improvidently certified as final,” and holding
that because trial court did not dispose fully and finally of claim for attorney’s fees, this
Court lacked jurisdiction); Grand Valley Lakes Property Owners ’ Assoc., Inc. v. Gunn, No.
W2008-01116-COA-R3-CV, 

, at *3 (Tenn. Ct. App. April 13, 2009)
(stating “the circuit court did not resolve Grand Valley’s request for attorney’s fees ....
As we have stated, except as otherwise permitted in Rule 9 and in Rule 54.02, an order
adjudicating fewer than all the claims of the parties is not a final, appealable order.”).

=2 -
This Court subsequently entered a show cause order, directing Appellant to show
cause why this appeal should not be dismissed for lack of subject matter jurisdiction after
it became clear that there was no final judgment from which an appeal as of right would
lie. Appellant responded to this Court’s show cause order requesting a stay of the appellate
proceedings pending entry of a final judgment in the trial court. This Court entered an
order on June 26, 2023, granting Appellant an extension of time of sixty days to allow
Appellant to obtain a final judgment completely resolving all outstanding matters below.
Appellant, however, failed to notify this Court whether a final judgment had been entered.
During that time, June Swinford Spear died and a suggestion of death notice was filed with
the trial court on June 30, 2023. More than ninety days passed, and the trial court clerk
notified this Court that nothing had been filed in the trial court. See Tenn. R. Civ. P. 25.01.

On October 31, 2023, this Court entered a second order directing Appellant to show
cause why this appeal should not be dismissed for lack of a final judgment. The sixty-day
extension of time granted to Appellant to obtain a final judgment has passed. Appellant
has filed nothing with this Court demonstrating that a final order has been obtained in the
trial court and has failed to respond to this Court’s October 31, 2023 show cause order.

“Except where otherwise provided, this Court only has subject matter jurisdiction
over final orders.” Foster-Henderson v. Memphis Health Center, Inc., 479 $.W.3d 214,
222 (Tenn. Ct. App. 2015). As the order appealed from does not constitute a final
appealable judgment, this Court lacks jurisdiction to consider this appeal. The appeal is
hereby dismissed. Costs on appeal are taxed to the Appellant, Myan Joy Spear, for which
execution may issue.

PER CURIAM