Tracy Langston Ford-Lincoln-Mer v. Corey Lea ( 2018 )

10/25/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 17, 2018
TRACY LANGSTON FORD-LINCOLN-MER v. COREY LEA
Appeal from the Circuit Court for Robertson County
No. 74CC1-2018-CV-29 Ross H. Hicks, Judge
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No. M2018-01006-COA-R3-CV
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This is an appeal from a final judgment entered on April 10, 2018. Because the
appellant did not file his notice of appeal within thirty days after entry of the judgment as
required by Tenn. R. App. P. 4(a), we dismiss the appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
FRANK G. CLEMENT, JR., P.J., M.S., ANDY D. BENNETT, AND RICHARD H. DINKINS, JJ.
Corey Lea, Murfreesboro, Tennessee, pro se.
Mike J. Urquhart, Nashville, Tennessee, for the appellee, Tracy Langston Ford, LLC.
MEMORANDUM OPINION1
On April 10, 2018, the Circuit Court for Robertson County entered a final
judgment dismissing the defendant’s appeal from a decision of the General Sessions
Court for Robertson County. The defendant, Corey Lea, filed his notice of appeal with
1
Tenn. R. Ct. App. 10 states:
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“MEMORANDUM OPINION,” shall not be published, and shall not be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.
the trial court clerk on May 11, 2018, and with the clerk of this court on June 1, 2018.
Tenn. R. App. P. 4(a) requires that a notice of appeal be filed with the clerk of the
appellate court within thirty days after entry of the judgment appealed. At the time the
Mr. Lea filed his notice of appeal, a one year transitional provision to the 2017
amendment to Tenn. R. App. P. 4(a) was still in effect. Under the transitional provision,
if a party attempts to file a notice of appeal with the trial court clerk within the original
thirty day period, the party attempting the filing is allowed an additional twenty days
within which to file the notice with the appellate court clerk. Here, however, Mr. Lea
first attempted to file his notice of appeal with the trial court clerk on May 11, 2018,
thirty-one days after entry of the judgment appealed. Because the attempted filing was
not received by the trial court clerk within the original thirty day time period, the
transitional provision does not apply. Even if the transitional provision did apply, Mr.
Lea did not file his notice of appeal with the clerk of this court within the additional
twenty days allowed by the provision.
On June 5, 2018, this court ordered Mr. Lea to show cause why his appeal should
not be dismissed for failure to file a timely notice of appeal. Mr. Lea responded by
asserting that the trial court clerk informed him the judgment was not entered until April
11, 2018, and that the trial court clerk’s online system also stated the judgment was
entered on April 11, 2018. In addition, Mr. Lea filed a motion in the trial court for relief
under Tenn. R. Civ. P. 60.
On June 21, 2018, this court remanded the matter to the trial court for
consideration of Mr. Lea’s Tenn. R. Civ. P. 60 motion and for factual findings related to
the date the order was entered, the date communicated to Mr. Lea, and the date listed on
the trial court clerk’s online system. On August 16, 2018, the trial court denied the Mr.
Lea’s Tenn. R. Civ. P. 60 motion. The trial court found that the final order was filed on
April 10, 2018, that the trial court clerk mailed Mr. Lea a copy of the filed order dated
April 10, 2018, and that Mr. Lea did not contact the trial court clerk’s office after April
10, 2018, to determine when the order was entered. While the trial court clerk’s online
system states the case was “disposed of” on April 11, 2018, it does not state the final
order was entered on that date. Further, the online system has a disclaimer that plainly
indicates that it is not the official record information of the clerk and should not be relied
upon.
While a trial court can grant an appellant relief under Tenn. R. Civ. P. 60 from the
failure to file a timely notice of appeal, Tenn. R. App. P. 4(a), Advisory Commission
Comments, such relief is available “only under the most unusual, rare, compelling and
propitious circumstances.” First Nat. Bank of Polk Cty. v. Goss, 912 S.W.2d 147, 151
(Tenn. Ct. App. 1995). Requests for such relief are addressed to the trial court's
discretion, and thus appellate courts review decisions regarding Tenn. R. Civ. P. 60.02
relief using the abuse of discretion standard. Underwood v. Zurich Ins. Co., 854 S.W.2d
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94, 97 (Tenn. 1993). Here, we find no grounds to reverse the trial court’s decision
denying relief under Tenn. R. Civ. P. 60.
The time limit for filing a notice of appeal is mandatory and jurisdictional. Albert
v. Frye, 145 S.W.3d 526, 528 (Tenn.2004); Binkley v. Medling, 117 S.W.3d 252, 255
(Tenn. 2003). This court can neither waive nor extend the time period. Tenn. R. App. P.
2 and 21(b); Flautt & Mann v. Council of City of Memphis, 285 S.W.3d 856, 869 (Tenn.
Ct. App. 2008); Jefferson v. Pneumo Serv. Corp. 699 S.W.2d 181, 184 (Tenn. Ct. App.
1985). The failure to file a timely notice of appeal deprives this court of jurisdiction to
hear the matter. Flautt & Mann v. Council of City of Memphis, 285 S.W.3d at 869.
This appeal is hereby dismissed. The case is remanded to the trial court for further
proceedings consistent with this opinion. Corey Lea is taxed with the costs for which
execution may issue.
PER CURIAM
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