McBurney v. Aldrich, 816 S.W.2d 30 (Tenn. Ct. App. 1991). · Go Syfert
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McBurney v. Aldrich, 816 S.W.2d 30 (Tenn. Ct. App. 1991). Cases Citing This Book View Copy Cite
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cited 3× by 3 distinct cases, 1996–2022 · …a judgment is not final and res judicata where an appeal is pending. at p. 34 ✓
cited 3× by 3 distinct cases, 2011–2022 · …may be set aside or amended on motion of a party or upon the court's own motion. ✓
68 citation events (59 in the last 25 years) across 9 distinct courts.
Strongest positive: In re Rainee M. (tennctapp, 2015-12-30) · Strongest negative: Norman v. Bucklew (miss, 1996-12-05)
Treatment trajectory · 1992 → 2026 · click a year to view as-of
1992 2009 2026
Top citers, strongest first. 40 distinct citers. How cited ↗
cited Cited "but see" Norman v. Bucklew
Miss. · 1996 · signal: but see · confidence high
But see McBurney v. Aldrich, 816 S.W.2d 30, 34 (Tenn. App. 1991); People ex rel.
cited Cited "but see" Joe H. Norman v. Henry Bucklew
Miss. · 1994 · signal: but see · confidence high
But see McBurney v. Aldrich, 816 S.W.2d 30, 34 (Tenn.App.1991); People ex rel.
cited Cited "but see" Smith v. Malouf
Miss. · 1992 · signal: but see · confidence high
But see McBurney v. Aldrich, 816 S.W.2d 30, 34 (Tenn. App. 1991); People ex rel.
discussed Cited as authority (verbatim quote) In re Rainee M.
Tenn. Ct. App. · 2015 · quote attribution · 1 verbatim quote · confidence high
it is generally agreed that a judgment is not final and res judicata where an appeal is pending.
discussed Cited as authority (verbatim quote) Freeman v. Marco Transportation Co.
Tenn. · 2000 · signal: see · quote attribution · 1 verbatim quote · confidence high
it is generally agreed that a judgment is not final and res judicata where an appeal is pending
discussed Cited as authority (rule) THE EDWARD JACKSON YOUNGER FAMILY IRREVOCABLE TRUST, BY AND THROUGH ANGELA TRACY YOUNGER, TRUSTEE V. EVELYN W. ROSS, PERSONALLY AND INDIVIDUALLY AND AS SETTLOR OF THE EVELYN W. ROSS IRREVOCABLE LIFE INSURANCE TRUST (2×) also: Cited "see"
Tenn. Ct. App. · 2025 · confidence medium
However, an “amended complaint[,”] complete in itself without adoption or reference to the original, supersedes and destroys the original as a pleading. 816 S.W.2d 30, 33 (Tenn. Ct. App. 1991) (citing Louisville & N.R.
discussed Cited as authority (rule) STACIE SMITH v. GARY MEEK
Tenn. Ct. App. · 2025 · confidence medium
A pleading is an amended complaint when it is “complete in itself without adoption or reference to the original,” whereas an amendment to a complaint “merely modifies the existing complaint[,] which remains before the court as modified.” Jd. (quoting McBurney v. Aldrich, 816 S.W.2d 30, 33 (Tenn. Ct. App. 1991)).
discussed Cited as authority (rule) Stephanie Allen, individually and surviving spouse and next-of-kin of Donald A. Allen v. Benjamin Dehner, M.D.
unknown court · 2025 · confidence medium
On the other hand, an “‘amendment’ to a complaint merely modifies the existing complaint[,] which remains before the court as modified.” Stephens v. Home Depot U.S.A., Inc., 529 S.W.3d 63 , 70 n.4 (Tenn. Ct. App. 2016) (quoting McBurney v. Aldrich, 816 S.W.2d 30, 33 (Tenn. Ct. App. 1991)).
discussed Cited as authority (rule) John Doe Corp. v. Kennerly, Montgomery & Finley, P.C.
unknown court · 2024 · confidence medium
“In Tennessee, it is generally considered that the judgment of a court of record is not final until the expiration of at least 30 days from its entry.” McBurney v. Aldrich, 816 S.W.2d 30, 34 (Tenn. Ct. App. 1991).
cited Cited as authority (rule) Rimmel v. Burke (JRG2)
E.D. Tenn. · 2024 · confidence medium
LEXIS 132524 at *12 (“Unlike federal law, under Tennessee law a ‘judgment is not final . . . where an appeal is pending.’” (quoting McBurney v. Aldrich, 816 S.W.2d 30, 34 (Tenn. Ct. App. 1991))).
discussed Cited as authority (rule) Edward Ronny Arnold v. Allstate Insurance Company
Tenn. Ct. App. · 2024 · confidence medium
This court has previously explained that “a judgment is not final and res judicata where an appeal is pending.” McBurney v. Aldrich, 816 S.W.2d 30, 34 (Tenn. Ct. App. 5 In setting forth the elements for applicability of the prior suit pending doctrine, the Tennessee Supreme Court included a footnote that expressly noted that “we have held previously that the doctrine of prior suit pending may also be applicable when a party in a subsequent lawsuit is the privy of a party in the former lawsuit.” West, 256 S.W.3d at 623 n.4 (citing Fultz v. Fultz, 175 S.W.2d 315, 316 (Tenn. 1943)). -9- 1…
discussed Cited as authority (rule) Mindy Donovan v. Joshua R. Hastings
Tenn. · 2022 · confidence medium
Consequently, the trial court’s dismissal of Mr. Hastings’s breach of contract claim was “based on the amended countercomplaint without consideration of the initial countercomplaint.” Id. (citing McBurney v. Aldrich, 816 S.W.2d 30, 33 (Tenn. Ct. App. 1991)).
cited Cited as authority (rule) Brett Hanson v. Sarah J. Levan
unknown court · 2021 · confidence medium
McBurney v. Aldrich, 816 S.W.2d 30, 33 (Tenn. Ct. App. 1991) citing Louisville & N.R.
discussed Cited as authority (rule) Mindy Donovan v. Joshua R. Hastings (2×) also: Cited "see"
Tenn. Ct. App. · 2020 · confidence medium
Upon its filing, the amended countercomplaint was “complete in itself” and “supersede[d] and destroy[ed] the original as a pleading.” McBurney v. Aldrich, 816 S.W.2d 30, 33 (Tenn. Ct. App. 1991); see also H.G.
cited Cited as authority (rule) John Anthony Gentry v. Former Speaker Of The House Glen Casada
Tenn. Ct. App. · 2020 · confidence medium
Hill Realty Co., L.L.C. v. Re/Max Carriage House, Inc., 428 S.W.3d 23, 35 (Tenn. Ct. App. 2013) (citing McBurney v. Aldrich, 816 S.W.2d 30, 33 (Tenn. Ct. App. 1991)).
discussed Cited as authority (rule) Matthew Tolliver v. Tellico Village Property Owners Association, Inc. (2×) also: Cited "see"
Tenn. Ct. App. · 2019 · confidence medium
Such amendments only relate back if the foregoing provision is satisfied and if, within the period provided by law for commencing an action or within 120 days after commencement of the action, the party to be brought in by amendment (1) has received such notice of the 6 “[A]n ‘amendment to’ a complaint merely modifies the existing complaint, which remains before the trial court as modified.” Shell v. Williams, No. M2013–00711–COA–R3–CV, 2014 WL 118376 , at *2 n.4 (Tenn. Ct. App., filed Jan. 14, 2014) (citing McBurney v. Aldrich, 816 S.W.2d 30, 33 (Tenn. Ct. App. 1991)).
discussed Cited as authority (rule) Alan C. Cartwright v. Alice Cartwright Garner
Tenn. Ct. App. · 2018 · confidence medium
Here, the complaint makes reference to the prior litigation, explaining that Mr. Cartwright “intended for matters of breach of fiduciary duty to be included in [Cartwright II], which is now on appeal from an adverse grant of summary judgment.” 10 Under Tennessee law, a “judgment is not final and res judicata where an appeal is pending.” Creech v. Addington, 281 S.W.3d 363, 377 (Tenn. 2009) (quoting McBurney v. Aldrich, 816 S.W.2d 30, 34 (Tenn. Ct. App. 1991)).
cited Cited as authority (rule) Rainbow Ridge Resort, LLC v. Branch Banking And Trust Co.
Tenn. Ct. App. · 2016 · confidence medium
McBurney v. Aldrich, 816 S.W.2d 30, 34 (Tenn. Ct. App. 1991).
discussed Cited as authority (rule) Joan Stephens v. Home Depot U.S.A., Inc.
Tenn. Ct. App. · 2016 · confidence medium
An " 'amended complaint’ [is] complete in itself without adoption or reference to the original," while an “ ‘amendment’ to a complaint merely modifies the existing complaint!,] which remains before the court as modified.” McBurney v. Aldrich, 816 S.W.2d 30, 33 (Tenn. Ct. App. 1991).
discussed Cited as authority (rule) Joe Mosley v. State of Tennessee
Tenn. Ct. App. · 2015 · confidence medium
Aug. 14, 2006) (citing Adams v. Carter County Mem’l Hosp., 548 S.W.2d 307, 309 (Tenn.1977); Lester v. Walker, 907 S.W.2d 812, 814 (Tenn.Ct.App.1995); McB urney v. Aldrich, 816 S.W.2d 30, 32-33 (Tenn.Ct.App.1991)).
discussed Cited as authority (rule) Cynthia A. Wilkerson v. Raynella Dossett Leath
Tenn. Ct. App. · 2012 · confidence medium
In Tennessee, “‘a judgment is not final and res judicata where an appeal is pending.’” Creech v. Addington, 281 S.W.3d 363, 376-78 (Tenn. 2009) (quoting McBurney v. Aldrich, 816 S.W.2d 30, 34 (Tenn. Ct. App. 1991)); see also In re Shyronne D.H., No. W2011-00328-COA-R3-PT, 2011 WL 2651097 , at *6 (Tenn. Ct. App. July 7, 2011) (“[I]t is an inescapable conclusion that, in Tennessee, a judgment from a case in which an appeal is pending is not final and cannot be res judicata until all appellate remedies have been exhausted.”).
discussed Cited as authority (rule) Creech v. Addington
Tenn. · 2009 · confidence medium
Once the thirty-day period for filing a notice of appeal expired on February 1, 2003, the judgments as to all of the other Defendants, including the Links, became final and non-appealable. 16 The rule in Tennessee may well be that a “judgment is not final and res judicata where an appeal is pending.” 17 McBur *378 ney v. Aldrich, 816 S.W.2d 30, 34 (Tenn.Ct.
discussed Cited as authority (rule) Campbell v. Lake Hallowell Homeowners Ass'n
Md. Ct. Spec. App. · 2004 · confidence medium
Co., 169 Ga.App. 504 , 313 S.E.2d 761, 763 (Ga.Ct.App.1984); Dupre v. Floyd, 825 So.2d 1238, 1240-41 (La.Ct.App.2002) (per curium), writ denied, 840 So.2d 546 (La.2003); Petition of Donovan, 137 N.H. 78 , 623 A.2d 1322, 1324 (N.H.1993); Benham v. Plotner, 795 P.2d 510, 512 (Okla.1990); McBurney v. Aldrich, 816 S.W.2d 30, 34 (Tenn.Ct.App.1991); Faison v. Hudson, 243 Va. 413 , 417 S.E.2d 302, 305 (1992); Jordache Enters., Inc. v. Nat’l Union Fire Ins.
discussed Cited as authority (rule) Media Group, Inc. v. Tuppatsch
D. Conn. · 2003 · confidence medium
Under Tennessee law, “an ‘amended complaint,’ complete in itself without adoption or reference to the original, supersedes and destroys the original as a pleading.” McBurney v. Aldrich, 816 S.W.2d 30, 33 (Tenn.Ct.App.1991).
cited Cited as authority (rule) Jeri Vincent v. CNA Insurance
Tenn. Ct. App. · 2002 · confidence medium
Hosp., 548 S.W.2d 307 , 309 (Te nn. 197 7); McBurney v. Aldrich, 816 S.W.2d 30, 33 (T enn.
discussed Cited as authority (rule) Yona Boyd v. Donald Bruce, M.D.
Tenn. Ct. App. · 2001 · confidence medium
P. 12(b)(6) and that in federal courts a dismissal pursuant to that rule is considered “a decision on the merits with full res judicata effect.” Id. 5 Although “where the former suit is still pendin g, a judgm ent rende red therein is not res judicata,” McBurney v. Aldrich, 816 S.W.2d 30, 34 (Tenn. Ct. App. 1991), a nd the ap peal of the denial of th e second Rule 60 .02 mo tion is still pending b efore this court, the cou rt’s final order in Case 1 is still final for purposes of res judicata .
discussed Cited as authority (rule) Linda Parnham v. Wayne Parnham
Tenn. Ct. App. · 2001 · confidence medium
Nance v. Pankey, 880 S.W.2d 944, 946 (Tenn. Ct. App. 1993) (discussing the finality of consent judgments); McBurney v. Aldrich, 816 S.W.2d 30, 34 (Tenn. Ct. App. 1991) (stating that judgments are considered final after thirty days from entry).
discussed Cited as authority (rule) Borg-Warner Protective Services Corp. v. Guardsmark, Inc.
E.D. Ky. · 1996 · confidence medium
Under Tennessee law, “a judgment is not final and res judicata where an appeal is pending.” McBurney v. Aldrich, 816 S.W.2d 30, 34 (Tenn.Ct.App. 1991). 3 This is true unless the appeal has been abandoned and is, therefore, considered adjudged.
cited Cited as authority (rule) Christian v. Lapidus
Tenn. · 1992 · confidence medium
See Railroad v. House, 104 Tenn. 110, 111 , 56 S.W. 836, 836 (1900); McBurney v. Aldrich, 816 S.W.2d 30, 33 (Tenn.Ct.App.1991).
discussed Cited "see" Jayesh Patel v. Shailesh Patel
Tenn. Ct. App. · 2026 · signal: see · confidence high
See Hanson v. Levan, 647 S.W.3d 85 , 90 (Tenn. Ct. App. 2021) (concluding that, once the order was entered permitting the plaintiff to file an amended complaint, a motion to amend the answer to the original complaint became moot); see McBurney v. Aldrich, 816 S.W.2d 30, 35 (Tenn. Ct. App. 1991) (ordering that all pleadings other than the amended complaint should be stricken, including a motion to dismiss the original complaint, when the trial court granted leave to amend).
discussed Cited "see" In Re Conservatorship of Susan Davis Malone
unknown court · 2025 · signal: see · confidence high
See State v. Lawson, 291 S.W.3d 864 , 869- - 14 - 70 (Tenn. 2009) (stating that developments in a prior proceeding and matters related to the records of a court are subject to judicial notice by that court). “[A] judgment is not final and res judicata where an appeal is pending.” McBurney v. Aldrich, 816 S.W.2d 30, 34 (Tenn. Ct. App. 1991), perm. app. denied, (Tenn. Sept. 3, 1991).
cited Cited "see" Crystal BLACKWELL, as Next Friend to Jacob Blackwell, a Minor v. SKY HIGH SPORTS NASHVILLE OPERATIONS, LLC
Tenn. Ct. App. · 2017 · signal: see · confidence high
See McBur-ney v. Aldrich, 816 S.W.2d 30, 33 (Tenn. Ct. App. 1991).
discussed Cited "see" The City of Chattanooga Ex Rel. Don Lepard, Qui Tam v. Electric Power Board of Chattanooga
Tenn. Ct. App. · 2016 · signal: see · confidence high
See McBurney v. Aldrich, 816 S.W.2d 30, 33 (Tenn. Ct. App. 1991), perm. app. denied (Tenn. Sept. 3, 1991) (explaining that a motion to dismiss is not a responsive pleading and determining that a “motion to dismiss did not deprive the plaintiff of the absolute right to amend his complaint, and it was error for the Trial Court to strike the amended complaint which must be restored and dealt with upon its merits.”).
discussed Cited "see" Myrtle Robinson v. Kenneth A. Okpor, MD
Tenn. Ct. App. · 2015 · signal: see · confidence high
See Creech v. Addington, 281 S.W.3d 363 , 376–78 (Tenn. 2009) (quoting McBurney v. Aldrich, 816 S.W.2d 30, 34 (Tenn. Ct. App. 1991)); see also In re Shyronne D.H., No. W2011-00328-COA-R3-PT, 2011 WL 2651097 , at *6 (Tenn. Ct. App. July 7, 2011) (“[I]t is an inescapable conclusion that, in Tennessee, a judgment from a case in which an appeal is pending is not final and cannot be res judicata until all appellate remedies have been exhausted.”).
discussed Cited "see" Conley v. Life Care Centers of America, Inc. (2×)
Tenn. Ct. App. · 2007 · signal: see · confidence high
See McBurney v. Aldrich, 816 S.W.2d 30, 33 (Tenn.Ct.App.1991).
cited Cited "see" Michael Mosby v. Roland Colson
Tenn. Ct. App. · 2006 · signal: see · confidence high
See McBurney, 816 S.W.2d at 33 .
cited Cited "see, e.g." Lori S. Fernandez v. Tennessee Department of Revenue
unknown court · 2022 · signal: see also · confidence medium
App. P. 4(a)-(c)); see also McBurney v. Aldrich, 816 S.W.2d 30, 34 (Tenn. Ct. App. 1991).
cited Cited "see, e.g." Loring Justice v. Vey Michael Nordquest, PH.D.
unknown court · 2021 · signal: see also · confidence medium
App. P. 4(a)-(c)); see also McBurney v. Aldrich, 816 S.W.2d 30, 34 (Tenn. Ct. App. 1991).
cited Cited "see, e.g." Kevin Cash v. Turner Holdings, LLC a/k/a Prairie Farms Dairy, Inc.
unknown court · 2017 · signal: see also · confidence medium
App. P. 4(a)-(c)); see also McBurney v. Aldrich, 816 S.W.2d 30, 34 (Tenn. Ct. App. 1991).
cited Cited "see, e.g." In the matter of: Shyronne D. H.
Tenn. Ct. App. · 2011 · signal: see also · confidence medium
App. P. 4(a)-(c)); see also McBurney v. Aldrich, 816 S.W.2d 30, 34 (Tenn. Ct. App. 1991).
Retrieving the full opinion text from the archive…
Randall D. McBURNEY, Plaintiff-Appellant,
v.
Don C. ALDRICH and Teresa Aldrich, Defendants-Appellees
Court of Appeals of Tennessee.
Mar 22, 1991.
816 S.W.2d 30
John D. Kitch, Kitch, Deas & Klein, Nashville, for plaintiff-appellant., J. Russell Heldman, Heiskell, Donelson, Bearman, Adams, Williams & Kirsch, A Professional Corp., Nashville, for defendants-appellees.
Todd, Cantrell, Koch.
Cited by 49 opinions  |  Published

OPINION

TODD, Presiding Judge.

The plaintiff, Randall D. McBurney, has appealed from all orders entered by the Trial Court, and specifically from orders entered on March 30, 1990, July 24, 1990, and September 7, 1990.

[*31] A proper understanding of the issues requires a detailed recitation of the proceedings in the Trial Court.

On December 22, 1989, plaintiff sued Don C. Aldrich and Teresa Aldrich, individually and d/b/a Pegasus II, Roy Sinkovich, Carl H. Keeran, and Pegasus Entertainment Group, Inc., seeking judgment against all named defendants, for accounting, payment for plaintiffs shares of stock, attorney’s fees and general relief.

On February 16, 1990, Don and Teresa Aldrich and Pegasus Entertainment Group, Inc., moved for dismissal for failure to state a claim for which relief can be granted.

On March 7, 1990, without leave of the Trial Court, plaintiff filed an amended complaint in which Pegasus Entertainment Group, Inc., was omitted from the captioned defendants, and the name of the captioned plaintiff was changed to read:

Randall D. McBurney, Individually and on behalf of Pegasus Entertainment Group, Inc.

The text of the amended complaint was somewhat different from that of the original complaint.

On the same date, March 7, 1990, plaintiff filed his “Response to Motion to Dismiss”.

On the same date, March 7, 1990, plaintiff filed a “Notice of Dismissal” of Pegasus Entertainment Group, Inc.

On March 8, 1990, Don and Teresa Aid-rich and Pegasus Entertainment Group, Inc., filed an “Objection to Filing of Amended Complaint and Motion to Strike Amended Complaint”.

On March 8, 1990, the Trial Court entered an order of dismissal of Pegasus Entertainment Group, Inc.

On March 20, 1990, plaintiff filed his “Rule 12.02 Response to Objection and Motion”.

On March 30, 1990, the Trial Court entered an “Order of Dismissal of Complaint and Striking Amended Complaint” stating:

... The motion to dismiss is well taken and should be granted and the original complaint should be dismissed; the amended complaint is not properly before the Court and, therefore, defendants’ motion to strike the amended complaint is well taken and should be granted, ...
It is, therefore, ORDERED, ADJUDGED and DECREED that the motion of defendants, Don C. Aldrich and Teresa Aldrich, individually and d/b/a Pegasus II, and Pegasus Entertainment Group, Inc., to dismiss the original complaint is granted and plaintiffs original complaint against these defendants is dismissed.
It is further ORDERED, ADJUDGED and DECREED that the motion of defendants, Don C. Aldrich and Teresa Aid-rich, individually and d/b/a Pegasus II, and Pegasus Entertainment Group, Inc., to strike the amended complaint is hereby granted and that plaintiff’s amended complaint filed on March 7, 1990, should be stricken from the record in this cause. (Emphasis supplied.)

On June 11, 1990, plaintiff moved the Trial Court to modify the foregoing order.

On the same date, plaintiff moved for leave to amend to add Don and Teresa Aldrich as parties defendant and to file an amended complaint substantially identical with that previously filed and stricken. (It appears that Don and Teresa Aldrich were already named defendants).

On July 11, 1990, Don and Teresa Aid-rich, individually and d/b/a Pegasus II filed an “Objection and Motion to Strike Those Portions of the Motion to Modify Order and Motion for Permission to Amend” which states (sic) “that he is suing on behalf of Pegasus Entertainment Group, Inc.”

On the same date, July 11, Don and Teresa Aldrich, individually and d/b/a Pegasus II filed a: “Response and Objection to Plaintiff’s Motion to Amend”, attaching a copy of a new complaint filed by plaintiff on July 11, 1990, in the same court, but under a new and separate case number, 90-1071-1, which appears to be identical or substantially identical with that tendered with the Motion for Leave to Amend. (The[*32] Trial Court case number of the case on appeal is 89-3565-1.)

Also attached to said “Response and Objection” was a copy of a Motion to Dismiss filed in the new case (90-1071-1) by Don and Teresa Aldrich individually and d/b/a Pegasus II, seeking dismissal of the new complaint on grounds of res judicata, based upon the order of Dismissal entered on March 30, 1990, in the first case (89-3565-1).

On July 24,1990, in the original case (89-3565-1), the Trial Court entered an order reciting:

... [t]he Court having earlier this day already granted these same defendants’ motion to dismiss the complaint in case number 90-1071-1, Randall D. McBur-ney, individually and on behalf of Pegasus Entertainment Group, Inc., v. Don C. Aldrich and Teresa Aldrich, individually and d/b/a Pegasus II, Roy Sinkovich and Carl H. Keeran, Davidson County Chancery Court, on the grounds that the complaint in case number 90-1071-1 fails to state a claim upon which relief can be granted under T.R.C.P. 12.02(6), the Court is of the opinion that the motion for permission to amend is not well taken and should be denied. The court specifically finds that the proposed amended complaint which is the subject of plaintiff’s motion for permission to amend is identical to the complaint in case number 90-1071-1 which has already been dismissed as against these same defendants. The Court further is of the opinion that defendants’ objection to plaintiff’s use of “on behalf of PEGASUS ENTERTAINMENT GROUP, INC.”, in said motion for permission to amend should be sustained and that those words should be stricken from said motion.
It is, therefore, ORDERED that plaintiff’s motion for permission to amend his complaint is hereby denied, that the objection and motion to strike is hereby sustained and granted, and that the words “on behalf of PEGASUS ENTERTAINMENT GROUP, INC.,” shall be stricken from plaintiff’s motion.

On September 6, 1990, plaintiff filed notice of voluntary dismissal of defendants Roy Sinkovich and Carl H. Keeran, and on September 7, 1990, an order was entered accordingly.

On September 26, 1990, the notice of appeal was filed in the present case (No. 89-3565-1). On the same date, plaintiff filed notice that no transcript or statement of the evidence would be filed.

On November 14, 1990, an “Order of Correction” was entered stating:

It is hereby ORDERED that the motion of the defendants shall be granted and that the phrase: “and on behalf of PEGASUS ENTERTAINMENT GROUP, INC.” which appears in the caption of the Order of Dismissal of March 8, 1990, shall be deleted and stricken, and further treated as such for purposes of the record in this cause.

On the same date, November 14,1990, an “Order Pursuant to TRAP 24(e)” was entered requiring that designated portions of the record of the new suit (No. 90-1071-1) be included in the record of this appeal. Included in this appendage to this record are the new complaint, motion to dismiss, response thereto and order of dismissal entered on July 23, 1990.

On appeal, plaintiff presents three issues, of which the first two challenge the rulings of the Trial Court striking the amendment filed without leave of court and refusing leave to amend when sought by motion.

TRCP Rule 15.01 states:

Amendments. — A party may amend his pleadings once as a matter of course at any time before a responsive pleading is served ... Otherwise a party may amend his pleadings only by written consent of the adverse party or by leave of court; and leave shall be freely given when justice so requires.... (Emphasis supplied.)

Prior to March 7, 1990, when plaintiff filed the amended complaint, the defendants Don and Teresa Aldrich and Pegasus Entertainment Group, Inc., had, on Febru[*33] ary 16, 1990, filed a motion to dismiss, but no answer to the complaint.

In Adams v. Carter County Memorial Hospital, Tenn.1977, 548 S.W.2d 307, the defendants moved to dismiss for failure to state a claim upon which relief may be granted. When the Trial Judge indicated his inclination to sustain the motion, plaintiff moved to amend. The Trial Court overruled the motion to amend and sustained the motions to dismiss. The Supreme Court said:

The trial court further erred in denying plaintiffs motion to amend. Rule 15.01, Tenn.R.C.P., provides that “a party may amend his pleadings once as a matter of course at any time before a responsive pleading is served.” Under this provision, the plaintiff clearly had the right to amend without leave of court since no responsive pleading to the complaint had been served. A motion is not such a responsive pleading, [citing authorities]

Based upon the foregoing, the motion to dismiss did not deprive the plaintiff of the absolute right to amend his complaint, and it was error for the Trial Court to strike the amended complaint which must be restored and dealt with upon its merits.

Defendants assert that striking of the amended complaint was not error because it did not state a claim for which relief could be granted. The issue of the sufficiency of the amended complaint was not presented to or decided by the Trial Court in this case. Therefore it is not a proper issue for consideration by this Court in this appeal. Chilton Air Cooled Engines, Inc. v. First Citizens Bank of Hohenwald, Tenn.App.1987, 726 S.W.2d 526, and authorities cited therein.

Defendants argue that the original complaint was subject to dismissal. An “amendment” to a complaint merely modifies the complaint which remains before the court as modified. However, an “amended complaint”, complete in itself without adoption or reference to the original, supersedes and destroys the original as a pleading. Louisville & N.R. Co. v. House, 104 Tenn. 110, 56 S.W. 836 (1900). The motion for dismissal must be considered in relation to the amended complaint.

The foregoing renders moot the issue of refusal of leave to file the amended complaint. Such leave was unnecessary because a “responsive pleading” had not been filed. Amendment without leave was a matter of right, and the amended complaint was and is properly before the Court.

Defendants assert that the plaintiff is estopped to proceed under his amended complaint because an identical pleading has been dismissed in the second case (No. 90-1071-1). Superficially, this argument may appear to have merit; but, upon closer examination of the record, it appears otherwise.

The separate judgment upon which defendants claim estoppel was rendered in the second case which is not before this Court for review. The motion for dismissal of the second suit states:

As grounds for this motion, defendants would state that the Order of Dismissal of Complaint and Striking Amended Complaint entered by this Court on March 30, 1990, in the case of Randall D. McBurney v. Don C. Aldrich and Teresa Aldrich, individually and d/b/a Pegasus II, Roy Sinkovich, Carl H. Keeran and Pegasus Entertainment Group, Inc., Chancery Court No. 89-3565-1, was an order of dismissal on the merits against these defendants pursuant to T.R.C.P. 41.02(3). The issues raised by the Complaint in this cause are the identical issues raised by the complaint in the preceding cause and they are directed at the same alleged wrong and same subject matter. Furthermore, the parties and their privies are identical. Therefore, the present action has already been litigated and any new fact alleged in the instant cause reasonably could have been litigated in case number 89-3565-1. Therefore, according to the doctrine of res judicata, the order of March 30, 1990, in case number 89-3565-1 forecloses and bars plaintiff from re-litigating the prior cause and any issue which[*34] might have been raised in said cause under the form and guise of the instant complaint against these defendants. Accordingly, plaintiff’s Complaint in this cause against these defendants should be dismissed.
Defendants rely upon the attached certified copy of the order of March 30, 1990, in case number 89-3565-1, as well as the Complaint, Motion to Dismiss, Amended Complaint, and Objection and Motion to Strike Amended Complaint in case number 89-3565-1, which are also attached to the instant motion.

The order of dismissal in the first action, which is the subject of this appeal, states:

... The motion to dismiss is well taken and should be granted and the original complaint should be dismissed; the amended complaint is not properly before the Court and, therefore, defendants’ motion to strike the amended complaint is well taken and should be granted, and the amended complaint should be stricken from the record in this cause; ...

The order of dismissal in the second action, upon which defendants base their es-toppel argument, states:

... The Court specifically finds that the March 30, 1990, order of dismissal for failure to state a claim in case number 89-3565-1, Randall D. McBurney v. Don C. Aldrich and Teresa Aldrich, individually and d/b/a Pegasus II, Roy Sinkovich, Carl H. Keeran and Pegasus Entertainment Group, Inc., Davidson County Chancery Court, was an adjudication on the merits pursuant to T.R.C.P. Rules 12.02(6) and 41.02(3) and therefore entitled to full res judicata effect in the instant case. The Court further finds that under the doctrine of res judicata, plaintiff is foreclosed from bringing the instant action against defendants, Don C. Aldrich and Teresa Aldrich, individually and d/b/a Pegasus II.

It is seen that both the motion to dismiss and the judgment of dismissal of the second suit (upon the amended complaint stricken in the first suit) were based upon a prior dismissal of the original complaint, and not the amended complaint in the first suit. It was error for the Trial Court to sustain a defense of res judicata to the complaint in the second suit which was not the same as the original complaint in the first suit. The complaint in the second suit was substantially the same as the amended complaint in the first suit which had not been dismissed.

However, defendants argue that, since plaintiff did not appeal from the judgment in the second suit, it has become final and is binding upon plaintiff even though it may be erroneous. This Court is unable to agree.

A final judgment effectively suspended by injunction is not grounds for a defense of res judicata. Batey v. D.H. Overmyer Warehouse Co., 60 Tenn.App. 310, 446 S.W.2d 686 (1969).

Where the former suit is still pending, a judgment rendered therein is not res judicata. Mitchell v. Waddell, 6 Tenn.App. 589 (1926).

It is generally agreed that a judgment is not final and res judicata where an appeal is pending. 50 C.J.S. Judgments § 623, p. 48.

In Tennessee, it is generally considered that the judgment of a court of record is not final until the expiration of at least 30 days from its entry. TRCP Rule 59.02, Jerkins v. McKinney, Tenn.1976, 533 S.W.2d 275. A judgment of a court of record is “within the bosom of the court” for 30 days after entry, during which time it may be set aside or amended on motion of a party or upon the court’s own motion.

A judgment which does not dispose of all parties and issues is not a final judgment and is subject to modification by the court at any time before final judgment disposing of all parties and issues. TRCP Rule 54.02, TRAP Rule 3(a).

The judgment entered in the first case on March 30, 1990, did not become final until after the dismissal of Roy Sinkovitch and Carl H. Keeran on September 7, 1990. It therefore was not res judicata on July 23, 1990. It therefore could not be the proper[*35] basis for a judgment entered on that date sustaining a defense of res judicata.

Likewise, the order entered in the second case on July 23, 1990, was not final on July 24, 1990, when the Trial Judge relied upon it to dismiss the present suit.

It is clear that there has been no adjudication upon the merits of the sufficiency of the amended complaint in the first suit or of its counterpart, the first complaint in the second suit.

Under the circumstances of the present case, it would be the height of futility, and destructive of the appellate process, to permit the adjudication of the Trial Court in the separate case to deprive this Court of the power to adjudicate the issues in an appeal pending before it.

Under the circumstances related above, the motion and judgment in the second case probably should have been based upon former suit pending, in which event the judgment in the second case would have had no effect upon the proceedings in the present case, including the process of appeal.

Without commenting upon the convoluted proceedings herein, it is fervently hoped that, upon remand, the Trial Court will be spared a continuation of the same in favor of a straight-forward presentation of issues.

The judgment of the Trial Court in the present case is reversed and vacated at the cost of the defendants-appellees, and the cause is remanded with directions to strike all pleadings except the amended complaint and to conduct proper and unconvoluted proceedings thereon.

Reversed and remanded.

CANTRELL, J., concurs. KOCH, J., concurs in results only.