Torry Holland v. Tennessee Department of Correction ( 2022 )

07/06/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
July 5, 2022
TORRY HOLLAND v. TENNESSEE DEPARTMENT OF CORRECTION
Appeal from the Chancery Court for Davidson County
No. 21-862-IV Russell T. Perkins, Chancellor
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No. M2022-00889-COA-R3-CV
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This is an appeal from a final order dismissing an inmate’s Petition for Declaratory
Judgment. Because the inmate did not file his notice of appeal with the clerk of the
appellate court within thirty days after entry of the final order as required by Rule 4(a) of
the Tennessee Rules of Appellate Procedure, 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.
Torry Holland, Tiptonville, Tennessee, pro se.
William Michael Varnell, II, Nashville, Tennessee, for the appellee, Tennessee Department
of Correction.
MEMORANDUM OPINION1
Torry Holland, an inmate in the Custody of the Department of Correction, filed a
Petition for Declaratory Judgment in the Chancery Court for Davidson County, challenging
his sentence calculation with respect to certain pre-trial jail credits. Both parties filed
1
Tenn. R. Ct. App. 10 states:
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shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not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.
motions for summary judgment. On May 6, 2022, the trial court denied Mr. Holland’s
motion for summary judgment and granted the Department’s motion for summary
judgment. Mr. Holland filed his notice of appeal with the clerk of the appellate court on
June 30, 2022.
Rule 4(a) of the Tennessee Rules of Appellate Procedure requires that a notice of
appeal be filed with the clerk of the appellate court within thirty days after entry of the
judgment appealed. Mr. Holland did not file his notice of appeal until fifty-five days after
entry of the judgment appealed. Because Mr. Holland is an inmate proceeding pro se, his
notice of appeal would be considered timely if it were delivered to the appropriate
individual at his correctional facility within the time fixed for filing. Tenn. R. App. P. 20(g).
However, the envelope containing the notice of appeal indicates it was not delivered to the
appropriate individual at Mr. Holland’s correctional facility until June 28, 2022, well past
the thirty day deadline. We also recognize that Mr. Holland first attempted to file his notice
of appeal with the clerk of the trial court on June 8, 2022. However, under Rule 4(a), the
notice of appeal must be filed with the clerk of the appellate court. A notice of appeal filed
with the trial court clerk is a nullity and does not initiate an appeal as of right or extend the
time for filing a notice of appeal in this Court.2
The thirty day time limit for filing a notice of appeal with the clerk of the appellate
court 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 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. Torry
Holland is taxed with the costs for which execution may issue.
PER CURIAM
2
While the 2017 amendment to Rule 4(a) included a one year transitional provision
providing additional time to parties who mistakenly filed a notice of appeal with the trial court
clerk, that transitional provision expired in 2018.
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