Tywan Sykes v. James Berrong ( 2021 )

07/26/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
July 23, 2021
TYWAN SYKES v. JAMES BERRONG, ET AL.
Appeal from the Circuit Court for Blount County
No. L-19542 David Reed Duggan, Judge
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No. E2021-00726-COA-UNK-CV
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Because the notice of appeal in this case was not timely filed this Court lacks jurisdiction
to consider this appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
THOMAS R. FRIERSON, II, J.; JOHN W. MCCLARTY, J.; AND KRISTI M. DAVIS, J.
Tywan Montrease Sykes, Maryville, Tennessee, pro se appellant.
Craig Lawrence Garrett, Maryville, Tennessee, for the appellees, James Berrong, and
Shannon Carswell.
MEMORANDUM OPINION1
The pro se appellant did not file a notice of appeal in this Court, but instead filed a
document titled “Motion to Continue,” which appears to seek an extension of time within
which to appeal the May 21, 2021 judgment of the Circuit Court for Blount County. The
Motion to Continue was filed in this Court on June 22, 2021. As such, even if this Court
were to construe the Motion to Continue as a notice of appeal2, it was untimely filed to
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shall not be published, and shall not be cited or relied on for any reason in any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.
2
Rule 3 of the Tennessee Rules of Appellate Procedure provides: “An appeal shall not be
initiate an appeal. By Order entered June 30, 2021, this Court ordered appellant to show
cause why this appeal should not be dismissed. Appellant failed to respond to our show
cause order.3
A notice of appeal “shall be filed with the clerk of the appellate court within 30 days
after the date of entry of the judgment appealed from . . ..” Tenn. R. App. P 4(a). “The
thirty-day time limit for filing a notice of appeal is mandatory and jurisdictional in civil
cases.” Albert v. Frye, 145 S.W.3d 526, 528 (Tenn. 2004); see also Ball v. McDowell, 288
S.W.3d 833, 836 (Tenn. 2009). If a notice of appeal is not timely filed, this Court is not at
liberty to waive the procedural defect. Tenn. R. App. P. 2.; see also Arfken & Assocs., P.A.
v. Simpson Bridge Co., 85 S.W.3d 789, 791 (Tenn. Ct. App. 2002).
Appellant filed the Motion to Continue thirty-two days after entry of the Trial
Court’s May 21, 2021 judgment.4 As appellant failed to file his notice of appeal within
thirty days of entry of the Trial Court’s judgment, the notice of appeal was untimely filed,
thus depriving this Court of jurisdiction. This Court is not at liberty to waive the procedural
defect or to grant an extension of time to file an appeal. This appeal is hereby DISMISSED.
Costs on appeal are taxed to the appellant, Tywan Montrease Sykes, for which execution
may issue.
PER CURIAM
dismissed for informality of form or title of notice of appeal.” Tenn. R. App. P. 3(f).
3
Appellant is a pro se litigant incarcerated in a correctional facility. As such, Rule 20(g)
of the Tennessee Rules of Appellate Procedure would apply. Rule 20(g), however, provides:
“Should timeliness of filing or service become an issue, the burden is on the pro se litigant to
establish compliance with this provision.” Tenn. R. App. P. 20(g). As noted above, appellant
failed to respond to our show cause order and, thus, has failed to carry the burden of showing
compliance with Tenn. R. App. P. 20(g).
4
The thirtieth day after entry of the Trial Court’s May 21, 2021 judgment was June 20,
2021, which was a Sunday. As such, pursuant to Rule 21 of the Tennessee Rules of Appellate
Procedure, appellant had until Monday, June 21, 2021 within which to timely file his appeal. See
Tenn. R. App. P. 21(a) (“The last day of the period so computed shall be included unless it is a
Saturday, a Sunday, or a legal holiday . . ..”). Appellant filed his Motion to Continue on Tuesday,
June 22, 2021.
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