Travis Hewitt v. Karin McClain ( 2019 )

02/14/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 1, 2018 Session
TRAVIS HEWITT ET AL. v. KARIN MCCLAIN
Appeal from the Chancery Court for Knox County
No. 192210-2 Clarence E. Pridemore, Jr., Chancellor
No. E2018-02170-COA-R3-CV
The pro se appellants, Travis Hewitt and Dustin Hewitt, seek to appeal from a final order
entered on October 17, 2018. The Notice of Appeal was not filed until December 3, 2018,
more than thirty (30) days from the date of entry of the final order. The appellants
accompanied their Notice of Appeal with a motion asking this Court to accept the late-
filed notice as having been timely filed. The appellee, Karin McClain, filed a motion to
dismiss this appeal arguing, in part, that the Notice of Appeal was not timely filed.1
Because it appears from all the pleadings filed in this case that the Notice of Appeal was
not timely filed, we have no jurisdiction to consider this appeal and no discretion to
waive the filing of a timely Notice of Appeal pursuant to Rule 4(a) of the Tennessee
Rules of Appellate Procedure.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
D. MICHAEL SWINEY, C.J., CHARLES D. SUSANO, JR., and JOHN W. MCCLARTY, JJ.
Travis Hewitt, Knoxville, Tennessee, appellant, pro se.
Dustin Hewitt, Knoxville, Tennessee, appellant, pro se.
Harold C. Wimberly, Knoxville, Tennessee, for the appellee.
1
The appellee also argued in her motion that both the Notice of Appeal and the accompanying
motion should be “deemed defective” because they were signed only by Lynne Hewitt “on behalf of” the
appellants. However, given that there was no timely invocation of this Court’s jurisdiction, we do not
specifically address in this opinion the alternative argument advanced in support of the appellee’s motion.
MEMORANDUM OPINION2
A notice of appeal must “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). If a notice of appeal is not
filed in a civil case in a timely fashion from the date of entry of the final judgment, we
are not at liberty to waive the procedural defect pursuant to Rule 4(a) and must dismiss
the appeal. See Arfken & Assocs., P.A. v. Simpson Bridge Co., Inc., 85 S.W.3d 789, 791
(Tenn. Ct. App. 2002); Am. Steinwinter Investor Group v. Am. Steinwinter, Inc., 964
S.W.2d 569, 571 (Tenn. Ct. App. 1997); Jefferson v. Pneumo Services Corp., 699 S.W.2d
181, 184 (Tenn. Ct. App. 1985). As such, the appellants’ request to have this Court
accept the late-filed notice as having been timely filed is not well-taken.
Because the Notice of Appeal in this case was not timely filed, we lack
jurisdiction to consider this appeal. The motion to dismiss is granted with regard to the
argument that the Notice of Appeal was not timely filed and this appeal is dismissed.
Costs on appeal are taxed to the appellants, for which execution may issue if necessary.3
PER CURIAM
2
Rule 10 of the Rules of the Court of Appeals provides as follows:
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.
3
We note that a Uniform Civil Affidavit of Indigency was filed on behalf of one of the appellants.
However, that appellant’s alleged indigency would not relieve him from paying the court costs associated
with this appeal. See Tenn. Code Ann. § 20-12-127(b) (stating that the filing of a civil action upon a
pauper’s oath “does not relieve the person filing the action from responsibility for the costs or taxes but
suspends their collection until taxed by the court”).