15 S.W.3d 455 | Tenn. Ct. App. | 1999
FILED
IN THE COURT OF APPEALS OF TENNESSEE August 25, 1999 AT KNOXVILLE Cecil Crowson, Jr. Appellate Court
Clerk BEG LEY LUM BER COM PAN Y, INC ., ) C/A NO. 03A01-9902-CH-00047 ) Substitute A ppellant, ) SCOTT CHANCERY ) v. ) HON. BILLY JOE WHITE, ) JUDGE WENDELL TRAMMELL, ) ) AFFIRMED AND Appellee. ) REMANDED TIMO THY P. WEB B, Jacksb oro, for A ppellant, W endell Tram mell. JOSEPH G. COK ER, Jacksboro, for Subsitute appellee.
O P I N I O N Franks, J. In this action to quiet title, the Trial Judge ruled in favor of the plaintiffs, and defendant has appealed to this Court, insisting that the Trial Judge erred by not applying th e affirmativ e defense of the statute of limitations s et forth in Tenn essee C ode A nnotate d §66- 5-108 (j).
The plain tiff, Beg ley Lu mbe r Compa ny, [1] asks that this appeal be This Court lacks jurisdiction to hear and decide a case if the notice of
appeal is not timely filed. See First National Bank of Polk County v. Goss, 912 S.W.2d 147, 14 8-149 (Tenn. A pp. 1995).
In this case, it is un disputed tha t the notice of appeal w as not filed u ntil thirty-one days past the entry of the judgment. Appellant, however, argues that the time period should be extended to thirty-three days because the judgment required notice of entry, and that notice of entry was given by mail. He relies on T.R.C.P. 58 and 6.05. R ule 58 states in relevant pa rt:
When requested by counsel or pro se parties, the clerk shall mail or deliver a co py of the ente red judgm ent to all parties o r counsel w ithin five days after entry; notwithsta nding any ru le of civil or ap pellate procedure to the contrary, time periods for post-trial motions or a notice
2 of appeal shall not begin to run until the date of such requested mailing or de liver y.
This provision states that the time for filing a notice of appeal runs from the date of the requested mailing, if a notice of judgment is mailed. Here, the Certificate of Service by the Clerk and Master shows that it was mailed on January 4, 1999, the day before the judgment was filed. Accordingly, this provision, alone, will not extend the time period in this case. Rule 6.05 then provides as follows:
Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon such party and the notice or paper is served upon such party by mail, three days shall be added to the prescribed period.
Cases inter preting this ru le hold that it on ly extends the tim e period w hen a party is required to do some act after service of a notice or other paper. If the act is predicated on some other event, like the entry of a final judgment or order, then the rule does not apply. Cheairs v. Lawson , 815 S.W.2d 53 3, 534 (Tenn. A pp. 1991); Houseal v. Roberts , 709 S.W.2d 580, 581 (Tenn. App. 1984). In Halstead v. Niles Bolton Associates, 1996 W L 5086 1 (Tenn. A pp. Feb. 9, 1 996), we said regard ing this rule:
Tenn. R . Civ. P. 6.05 applies only in c ircumstanc es where a party “is required to do some act . . . within a prescribed period after the service of a notice or other paper upon such party and the notice or paper is served upon such party by mail.” By its own terms, it does not apply in circum stances w here a party is req uired to take some act w ithin a prescribed period after the f iling of a paper. In this case, T.R.A.P. Rule 4(a) requires that notice of appeal be filed
and rece ived by the clerk of th e tria l cou rt within 30 days after the date of entry of the judgment. Thus, it requires an act after the entry of the judgment, not notice of the judgment, and if notice of the judgment is given by mail, the time period is not extended by three days. The judgment was entered on January 5, 1999, and the notice was filed on February 5, 1999. Therefore, it was not timely filed. Accordingly, we dismiss this ap peal at defe ndant Tra mmell’s co st.
__________________________ Herschel P. Franks, J.
CONCUR:
___________________________ Houston M. Godd ard, P.J. ___________________________ Charles D. Susano, Jr., J.
NOTES
[1] The judgment was in favor of the original plaintiffs, the Stewarts and Tommy Gambrel. After judgment, the Begley Lumber Company purchased all of the lands and interest previously held by the plaintiffs and Begley Lumber Company was designated as the substitute appellee by order of this Court on May 6, 1999. dismissed f or failure of the appellan t to perfect an appeal by filing notice of a ppeal in the office of the clerk within thirty days of the entry of final judgment, as required by Rules 2, 3, 4(a), and 21 of the Tennessee Rules of Appellate Procedure. Tenness ee Rule o f Appe llate Proced ure 3(a) pro vides that “[ i]n civil actions every final judgment entered by a trial court from which an appeal lies to the Supreme Court or Court of Appeals is appealable as of right.” That appeal is initiated by timely filin g a notic e of ap peal w ith the cle rk of th e trial cou rt. T.R.A .P. Rule 3(e). “[T]he notice of appeal required by Rule 3 shall be filed with and received by the clerk of the trial court within 30 days after the date of entry of the judgment appealed from . . . .” T.R A.P. Rule 4(a). While a Rule allows the court to suspend the requirements of the Rules for good cause, it specifically states that “this rule shall not permit the extension of time for filing a notice of appeal prescribed in rule 4, an application for permission to appeal prescribed in rule 11, or a petition for review prescribed in rule 12.” T .R A.P. R ule 2. The R ules also allow appellate co urts to extend the time periods given in the Rules, with the exception of the time for filing a notice of appeal. T.R .A.P. Rule 21(b).
