Marina Kotova v. Thomas Kevin True ( 2024 )

10/18/2024
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
October 17, 2024
MARINA KOTOVA v. THOMAS KEVIN TRUE
Appeal from the Circuit Court for Carter County
No. C15219 James E. Lauderback, Judge
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No. E2024-01430-COA-R3-CV
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This is an appeal from a final order entered on June 6, 2024. According to the appellant,
the notice of appeal was mailed to this Court on July 3, 2024, but the notice never arrived
at the Appellate Court Clerk’s Office. The appellant provided a tracking number that was
allegedly used to mail the notice of appeal, but the tracking information does not
demonstrate that the notice was sent via certified mail pursuant to Tenn. R. App. P. 20
during the thirty-day appeal period. 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
D. MICHAEL SWINEY, C.J.; JOHN W. MCCLARTY, J.; AND KRISTI M. DAVIS, J.
Robert M. Asbury, Marion, Virginia, for the appellant, Marina Kotova.
Regina L. Shepherd, Elizabethton, Tennessee, for the appellee, Thomas Kevin True.
MEMORANDUM OPINION1
The Carter County Circuit Court (“Trial Court”) entered a final judgment in the
underlying case on June 6, 2024. More than thirty days later, the appellant, Marina Kotova,
1
Rule 10 of the Rules of the Court of Appeals provides:
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shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not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.
filed a motion with this Court, which this Court construes as a motion to accept a late-filed
notice of appeal. The motion contends that the appellant had previously mailed her notice
of appeal to this Court on July 3, 2024 but that it had never arrived at the Appellate Court
Clerk’s Office. In the motion, the appellant asked this Court to allow the appellant to
resubmit her notice of appeal and proceed with this appeal. The appellant also filed a copy
of the notice of appeal with this Court. The appellee filed a response objecting to such
relief.
In her motion, the appellant states that the notice of appeal was mailed pursuant to
Tenn. R. App. P. 20. Tenn. R. App. P. 20(a) provides that the filing of documents mailed
to the Appellate Court Clerk’s Office “shall not be timely unless the papers are received
by the clerk within the time fixed for filing.” However, documents mailed or sent to the
Appellate Court Clerk’s Office via United States Postal Service or other commercial
delivery service by certified return receipt mail, registered return receipt mail, or other
delivery service with computer tracking shall be considered timely if mailed within the
time fixed for filing. Tenn. R. App. P. 20(a). Because the method utilized by the appellant
in mailing the notice of appeal was unclear from the motion, this Court entered an order
allowing the appellant to demonstrate that the notice of appeal was sent via certified return
receipt mail, registered return receipt mail, or a commercial delivery service with computer
tracking capacity and that it was timely mailed to this Court, pursuant to Rule 20(a).
The appellant filed a response to this Court’s order stating that the notice of appeal
had been mailed via certified mail with the U.S. Postal Service and providing a tracking
number. None of the documentation attached to the response demonstrated the date on
which the notice of appeal had been mailed. When looking at the tracking information on
the U.S. Postal Service’s website, the website reads: “Label Created, not yet in system”
and “A status update is not yet available on your package. It will be available when the
shipper provides an update or the package is given to USPS.” Nothing provided to this
Court proves that the notice of appeal had been mailed via certified mail to this Court
during the appeal period.
In order to be timely, 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 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).
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In her response to this Court’s order, the appellant requested relief from this Court
pursuant to Tenn. R. Civ. P. 60.02. However, Tenn. R. Civ. P. 60 does not apply in this
Court. See Tenn. R. App. P. 1. Although this Court cannot waive the untimely filing of a
notice of appeal or expand the time for filing such notice, a trial court may “under unusual
and compelling circumstances” grant an appellant relief from the failure to timely file a
notice of appeal with the appellate court by means of a Tenn. R. Civ. P. 60 motion.
McCracken v. Brentwood United Methodist Church, 958 S.W.2d 792, 795 (Tenn. Ct. App.
1997); see also Tenn. R. App. P. 4(a), Advisory Comm’n Comments (“[I]n appropriate
circumstances an otherwise untimely appeal may be taken by first securing relief under
Tennessee Rule of Civil Procedure 60.02.”). Generally, such relief consists of a trial court
vacating and re-entering its final order to allow the appellant an opportunity to file a timely
notice of appeal. McCracken, 958 S.W.2d at 795.
The appellant’s motion to accept a late-filed notice of appeal is hereby denied. This
appeal is hereby dismissed for failure to timely file a notice of appeal with this Court, which
deprived this Court of subject matter jurisdiction. However, the dismissal of this appeal is
without prejudice to the appellant’s ability to file a motion seeking relief pursuant to Tenn.
R. Civ. P. 60 from the Trial Court. Costs on appeal are taxed to the appellant, Marina
Kotova, for which execution may issue if necessary.
PER CURIAM
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