In Re Elizabeth H. ( 2019 )

03/11/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
March 7, 2019
IN RE ELIZABETH H.
Appeal from the Chancery Court for Putnam County
No. 2017-21-A Ronald Thurman, Chancellor
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No. M2018-01464-COA-R3-PT
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The mother has appealed from a final judgment terminating her parental rights. Because
the mother did not file her notice of appeal within thirty days after entry of the 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
FRANK G. CLEMENT, JR., P.J., M.S., ANDY D. BENNETT, and W. NEAL MCBRAYER, JJ.
Shawn Daniel Wilson, Cookeville, Tennessee, for the appellant, Amanda O.
Gary W. Dodson, Sparta, Tennessee, for the appellees, James H. and Krisshana H.
MEMORANDUM OPINION1
This appeal arises out of a petition to terminate a mother’s parental rights. The
trial court entered a final judgment terminating the mother’s parental rights on July 11,
2018. Under Tenn. R. App. P. 4(a), the mother was required to file her notice of appeal
with the clerk of the appellate court by Friday, August 10, 2018, thirty days after entry of
the judgment. The mother did not file her notice of appeal with the clerk of this court
until Monday, August 13, 2018.
The record on appeal was filed on February 21, 2019. After reviewing the record,
this court ordered the mother to show cause why her appeal should not be dismissed for
failure to file a timely notice of appeal. The mother has filed a response opposing
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Under the rules of this Court, memorandum opinions may not be published, “cited[,] or relied
on for any reason in any unrelated case.” Tenn. Ct. App. R. 10.
dismissal of the appeal. The response is not supported by an affidavit of counsel or by
any other proof. Nevertheless, in light of the rights at stake, we have taken all of
counsel’s factual assertions as true.
The mother first asserts that her counsel mailed the notice of appeal to the clerk of
this court on August 8, 2018, well within the thirty day time period. Papers filed with the
appellate court are considered timely only if they “are received by the clerk within the
time fixed for filing or mailed to the office of the clerk by certified return receipt mail or
registered return receipt mail within the time fixed for filing.” Tenn. R. App. P. 20(a).
Filings will also be considered timely “if placed with a commercial delivery service,
having computer tracking capacity, within the time for filing.” Id. A filing sent by regular
mail will be considered timely only if it is actually received by the clerk within the time
fixed for filing. Id.
Next, the mother contends that Tenn. R. Civ. P. 6.05 “allows for an additional
three days for filings when sent by the United State [sic] Mail service.” First, Tenn. R.
Civ. P. 6.05 does not apply to filings in this court. Tenn. R. Civ. P. 1. Second, even if
Tenn. R. Civ. P. 6.05 did apply to filings in this court, the rule does not allow for an
additional three days for filings sent by mail as suggested by the mother. Tenn. R. Civ. P.
6.05 provides:
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.
Tenn. R. Civ. P. 6.05 only applies when a time period runs from the date of
service of a notice of other paper. By its own terms, it does not apply where a party is
required to take some act within a prescribed period after the filing of a paper or the entry
of a judgment. Halstead v. Niles Bolton Associates, No. 01-A-01-9503-CV00113, 1996
WL 50861 at*2 (Tenn. App. Feb. 9, 1996). Thus, even under the previous version of
Tenn. R. App. P. 4 which required the notice of appeal to be filed with the trial court
clerk, Tenn. R. Civ. P. 6.05 did not apply to the time limit for filing a notice of appeal.
Begley Lumber Co. v. Trammell, 15 S.W.3d 455, 457 (Tenn. Ct. App. 1999).
Finally, the mother asserts that the notice of appeal “likely arrived on the weekend
and was therefore timely in filing.” Even if the notice of appeal had arrived in the clerk’s
office during the weekend, there is no rule that permits a document received by the clerk
over the weekend to be treated as filed on the preceding Friday. Tenn. R. App. P. 21(a)
provides that, if the last day for filing a document falls on a Saturday, Sunday or legal
holiday, the time for filing the document runs until the end of the next day that is not a
Saturday, Sunday or legal holiday. Here, the last day for filing the notice of appeal was
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Friday, August 10, 2018, and the weekend provisions of Tenn. R. App. P. 21(a) do not
apply.
We are reluctant to dismiss an appeal involving the termination of parental rights
based solely on a failure to comprehend and comply with the Tennessee Rules of
Appellate Procedure. Nevertheless, the time limit for filing the 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 failure to file a timely notice of appeal
deprives this court of jurisdiction to hear the matter. Flautt & Mann v. Council of City of
Memphis, 285 S.W.3d at 869.
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.
PER CURIAM
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