In Re: Dakota D. ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on April 24, 2013
IN RE: DAKOTA D., ET AL.
Appeal from the Circuit Court for Anderson County
No. B2LA0237 William E. Lantrip, Chancellor
No. E2013-00229-COA-R3-JV-FILED-APRIL 24, 2013
The order from which the appellant, Charlie D., seeks to appeal was entered on November
30, 2012. The Notice of Appeal was filed on January 4, 2013, more than thirty (30) days
from the date of entry of the November 30, 2012 order. Because the Notice of Appeal was
not timely filed, we have no jurisdiction to consider this appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
T HOMAS R. F RIERSON, II, J., C HARLES D. S USANO, J R., P.J., AND D. M ICHAEL S WINEY, J.
Kevin D. Angel, Oak Ridge, Tennessee, for the appellant, Charlie D.
Robert E. Cooper, Jr., Attorney General and Reporter, and Derek C. Jumper, Assistant
Attorney General, General Civil Division, Nashville, Tennessee, for the appellee, Tennessee
Department of Children’s Services.
Timothy G. Elrod, Knoxville, Tennessee, Guardian Ad Litem.
MEMORANDUM OPINION 1
By order entered on March 28, 2013, this Court directed the appellant to show cause
why this appeal should not be dismissed “as having been untimely filed.” In response to that
order, counsel for the appellant filed a motion asking this Court to find “good cause” for the
late filing of the Notice of Appeal. The motion is supported by an affidavit from counsel and
other documents seeking to demonstrate that the Notice of Appeal was filed “less than a
week” after counsel became aware of the entry of the final order to which the Notice of
Appeal was directed. The motion does not dispute that the final order was entered on
November 30, 2012, or that the Notice of Appeal was not filed until January 4, 2013.
In order to be timely, a notice of appeal must “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). “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 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).
Because the Notice of Appeal in this case was filed more than thirty (30) days after
the date of entry of the final order, we lack jurisdiction to consider the appeal. This appeal
is dismissed. Costs on appeal are taxed to the appellant, Charlie D., for which execution may
issue if necessary.
PER CURIAM
1
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.
-2-