Liberty State Bank v. Charles Wayne Smithson ( 2010 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 5, 2010
LIBERTY STATE BANK v. CHARLES WAYNE SMITHSON
Appeal from the Circuit Court for Dekalb County
No. 2010-CV-50 John J. Maddux, Jr., Judge
No. M2010-01881-COA-R3-CV - Filed October 7, 2010
The defendant has appealed from a default judgment granting the plaintiff possession of his
1995 Lincoln Towncar. Because the defendant did not file his notice of appeal within the
time permitted by Tenn. R. App. P. 4, we dismiss the appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
P ATRICIA J. C OTTRELL, P.J., M.S., F RANK G. C LEMENT, J R. and A NDY D. B ENNETT, JJ.
Charles Wayne Smithson, Jr., Smithville, Tennessee, Pro Se.
Bratten Hale Cook, Smithville, Tennessee, for the appellee, Liberty State Bank.
MEMORANDUM OPINION 1
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On June 18, 2010, Liberty State Bank filed a complaint in the Circuit Court for
DeKalb County alleging that the defendant, Charles Wayne Smithson, had defaulted on a
February 7, 2009 note secured by a 1995 Lincoln Towncar. Liberty State Bank sought
possession of the vehicle as well as a monetary judgment, interest and attorney fees. On June
28, 2010, the trial court entered a default judgment awarding Liberty State Bank possession
of the vehicle. No monetary damages were awarded. Mr. Smithson filed his notice of appeal
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be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited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.
on August 3, 2010.
Tenn. R. App. P. 4(a) requires that a notice of appeal be filed with and received by the
trial court clerk within thirty (30) days after entry of the order appealed. Mr. Smithson did
not file his notice of appeal with the trial court clerk until thirty-six (36) days after entry of
the order appealed. On September 13, 2010, this court ordered Mr. Smithson to show cause
why his appeal should not be dismissed for failure to file a timely notice of appeal. Mr.
Smithson failed to respond.
The thirty day 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.
The appeal is hereby dismissed for failure to file a timely notice of appeal. The costs
are taxed to Charles Wayne Smithson and his surety for which execution, if necessary, may
issue.
PER CURIAM
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