DONNA M. SABELLA F/K/A DONNA FRAZIER F/K/A DONNA SABELLA FRAZIER
NAOMI FOREMAN, ET AL.
July 18, 2019
from the Chancery Court for Wilson County No. 2016-CV-273
Charles K. Smith, Chancellor
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.
R. App. P. 3 Appeal as of Right; Appeal Dismissed
Harrison Maloney, Nashville, Tennessee, for the appellants,
Naomi Foreman Aitchison and Ronald Aitchison.
D. MacPherson, Lebanon, Tennessee, for the appellee, Donna
G. Clement, Jr., P.J., M.S., Richard H. Dinkins, and W. Neal
MEMORANDUM OPINION 
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.
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).
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.
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.
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 ...