OPINION
delivered the opinion of the Court,
This appeal involves subject matter jurisdiction. After a trial, the trial court entered a judgment in favor of the plaintiff church and against the defendant builder on August 10, 2006. The final order was mailed to the attorney for the defendant, but it was mailеd to the attorney’s former address. The order reached the defendant’s counsel’s office on August 18, 2006, and it was stamped “received” with this date. Although the deadline for filing an
This case is an unfortunate сautionary tale for practicing litigators. Plaintiff/Ap-pellee Born Again Church & Christian Outreach Ministries, Inc. (“Born Again Church”), sued Defendant/Appellant Myler Church Building Systems of the Midsouth, Inc. (“Myler”), over the construction of a church building. The casе went to trial on May 2, 2006, and the trial court subsequently made a ruling from the bench in favor of Born Again Church and against Myler.
On August 10, 2006, the trial court entered an order consistent with its oral ruling in favor of Born Again Church. A copy of the order was sent to Myler’s attorney, but it was sent to the attorney’s former address. This error caused a delay, and Myler’s attorney’s office received the order on August 18, 2006. It was stamped “received” on that date by Myler’s attorney’s office personnеl.
Based on entry of the order on August 10, 2006, the thirty-day period for filing an appeal of the order expired September 11, 2006. One day after the deadline, on September 12, 2006, Myler filed a notice of appeal in the trial cоurt. The notice was accompanied by a “Motion to Appeal the Judgment of the Trial Court.” In the motion, Myler requested that the order entered on August 10, 2006 be set aside pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedurе based on excusable neglect. Myler explained that the final order had been mailed to counsel of record at his previous address. When the order finally arrived at the attorney’s correct address on August 18, 2006, the deadline for appeal was mistakenly noted on the attorney’s calendar for September 15, 2006. Myler argued that the failure of a clerk to provide counsel with a copy of an order in a timely manner constitutes exсusable neglect under Rule 60.02, which justified relieving Myler from the judgment and thereby extending the time for filing the notice of appeal. Born Again Church objected, arguing that Myler’s notice of appeal was filed one day too latе and urging strict enforcement of the requirement that the notice of appeal be timely filed. Thus, Born Again Church argued that Myler was not entitled to relief under Rule 60.02 based on the facts alleged.
The matter was argued before thе trial court on October 13, 2006. The appellate record does not contain a transcript of those proceedings, but the parties have each submitted a Statement of the Evidence including facts material to this appeal.
1
On November 20, 2006, the trial
On appeal, Myler argues that the trial court abused its discrеtion in declining to grant the relief requested. Myler contends that the undisputed facts demonstrate that the appeal was untimely due to excusable neglect. Myler asserts further that the trial court’s decision was borne of the misperception that it did not have the discretion to allow an appeal to be filed outside the thirty-day time period. Thus, Myler argues, because the trial court erroneously believed that its powers were limited in this regard, we must reverse its decision and remand the case in order to give the trial court an opportunity to address the merits of the issue.
At the outset, we must address the trial court’s subject matter jurisdiction, even though neither party has raised thе issue.
First Am. Trust Co. v. Frankliru Murray Dev. Co.,
Under Rule 4(a) of the Tennessee Rules of Appellate Procedure, a notice of appeal “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.... ” Tenn. R.App. P. 4(a). Thus, as а general rule, a trial court’s judgment becomes final thirty days after its entry unless a timely notice of appeal or a specified post-trial motion is filed.
See State v. Pendergrass,
In this case, the thirty-day period after entry of the trial court’s August 10, 2006 judgment had еlapsed on September 11, 2006. Thus, the judgment became final at that time. Acknowledging this fact, Myler filed a Rule 60.02 motion for relief from the trial court’s final judgment, seeking to extend the time for appeal based on extenuating circumstances. Indeed, the advisory committee comments to Rule 4 state, “Nothing in this rule or any other rule permits the time for filing notice of appeal to be extended beyond the specified 30 days, although in appropriatе circumstances an otherwise untimely appeal may be taken by first securing relief under
The issue is complicated, however, by the fact that Myler filed a notice of appeal contemporaneously with the filing of his Rule 60.02 motion for relief from the judgment. The issue then becomes whether the trial court retained jurisdiction to address the Rule 60.02 motion once the notice of appeal was filed. The Tennessee Supreme Court has acknowledged the difficulty with this issue, noting that “there is no guidance in Rule 60.02 as to the proper court in which to file the motion once an appeal is pending.”
3
Spence v. Allstate Ins. Co.,
In the instant case, out of an apparent abundance of caution, Myler filed a notice of appeal on September 12, 2006, on the same date he filed a motion for Rule 60 relief. Though this obviously was not the intended result, the filing of the notice of appeal caused the trial court to lose subject matter jurisdiction over the Rule 60 motion. Meanwhile, Myler’s original appeal was dismissed by this Court on Novеmber 2, 2006, presumably for lack of timeliness. Mandate was issued to the trial court on January 8, 2007. A trial court reacquires jurisdiction over a case
Thus, from the date the notice оf appeal was filed until January 8, 2007, this Court had subject matter jurisdiction over this case. The trial court’s decision denying Myler’s request for Rule 60.02 relief was rendered on November 20, 2006, at a time when the trial court lacked subject matter jurisdiсtion over the case. Therefore, the order issued by the trial court was void, and the appeal must be dismissed.
See First Am. Trust,
The appeal is dismissed. Costs on appeal are to be taxed to Appellant Myler Church Building Systems, Inc., and its surеty, for which execution may issue, if necessary.
Notes
. Born Again Church objected to Myler’s Statement of the Evidence, claiming that it did not comply with Rule 24 of the Tennessee Rules of Appellate Procedure, and that it contained "еrrors and impermissible statements.” Apparently, the matter was not set-tied in the trial court in accordance with Rule 24(e). However, the facts upon which we rely in reaching our conclusion herein are undisputed and are properly documented in the record. Any discrepancies in the Statements of the Evidence submitted by the par
. Myler’s Rule 60.02 motion was timely filed, because а motion for relief from judgment due to “mistake, inadvertence, surprise or excusable neglect” must be filed “not more than one year after the judgment, order or proceeding was entered or taken.” Tenn. R. Civ. P. 60.02.
. The filing of a notiсe of appeal does not prevent the trial court from ruling on ancillary matters relating to the enforcement or collection of its judgment.
See First Am. Trust,
. According to Rule 42(a) of the Tennessee Rules of Appellate Procedure, a mandate consists of certified copies of the appellate court’s judgment, any order as to costs or instructions as to interest, and the appellate court’s opinion.