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Sabella v. Foreman

Court of Appeals of Tennessee, Nashville

July 23, 2019

DONNA M. SABELLA F/K/A DONNA FRAZIER F/K/A DONNA SABELLA FRAZIER
v.
NAOMI FOREMAN, ET AL.

          Dated: July 18, 2019

          Appeal from the Chancery Court for Wilson County No. 2016-CV-273 Charles K. Smith, Chancellor

         This is an appeal from a final judgment entered on May 14, 2019. Because the defendants did not file their notice of appeal within thirty (30) days after entry of the final 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

          Andrew Harrison Maloney, Nashville, Tennessee, for the appellants, Naomi Foreman Aitchison and Ronald Aitchison.

          Robert D. MacPherson, Lebanon, Tennessee, for the appellee, Donna Sabella.

          Frank G. Clement, Jr., P.J., M.S., Richard H. Dinkins, and W. Neal McBrayer, JJ.

          MEMORANDUM OPINION [1]

          PER CURIAM

         On June 14, 2019, Naomi Foreman Aitchison and Ronald Aitchison filed a notice of appeal from a final judgment entered by the Chancery Court for Wilson County on May 14, 2019. The appellee, Donna Sabella, has filed a motion to dismiss the appeal as untimely. Tenn. R. App. P. 4(a) requires that a notice of appeal be filed with the clerk of the appellate court within thirty (30) days after entry of the judgment appealed. The Aitchisons filed their notice of appeal thirty-one (31) days after entry of the judgment appealed.

         In response to the motion to dismiss, the Aitchisons concede that their notice of appeal was not timely filed but request that the court grant them an extension of time under Tenn. R. App. P. 21(b). Tenn. R. App. P. 21(b) specifically prohibits this court from extending the time limit for filing a notice of appeal. The thirty (30) 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 Aitchisons also request relief under Tenn. R. Civ. P. 60. However, Tenn. R. Civ. P. 60 does not apply in this court. Tenn. R. Civ. P. 1. While a trial court may, under unusual and compelling circumstances, 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; McCracken v. Brentwood United Methodist Church, 958 S.W.2d 792 (Tenn. Ct. App. 1997), such relief must be sought in the trial court.

         Finally, the Aitchisons contend that we should deny the appellee's motion to dismiss because it fails to comply with Tenn. R. App. P. 22. However, the failure to file a timely notice of appeal deprives this court of jurisdiction to hear the appeal. Flautt & Mann v. Council of City of Memphis, 285 S.W.3d at 869. Regardless of the motion's deficiencies, this court may always consider whether we have jurisdiction over an appeal. Tenn. R. App. P. 13(b). Even if no motion had been filed, this court would have reviewed the record to determine whether the notice of appeal was timely filed and, upon discovery of the untimely notice, dismissed the appeal.

         The appeal is hereby dismissed for failure to file a timely notice of appeal. The case is remanded to the trial court for further proceedings consistent with this opinion. Naomi Foreman Aitchison and Ronald ...


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