James C. Gekas v. HCA Health Services Of Tennessee, Inc.

04/25/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
April 22, 2019
JAMES C. GEKAS v. HCA HEALTH SERVICES OF TENNESSEE, INC.,
ET AL.
Appeal from the Circuit Court for Davidson County
No. 18C-1060 William B. Acree, Senior Judge
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No. M2019-00535-COA-R3-CV
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This is an appeal from an order granting the defendants’ Tenn. R. Civ. P. 12.02 motion to
dismiss for failure to state a claim. Because the plaintiff did not file his notice of appeal
within thirty days after entry of the order 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., RICHARD H. DINKINS, and W. NEAL MCBRAYER, JJ.
James C. Gekas, Brentwood, Tennessee, pro se.
Tim Harvey, Nashville, Tennessee, for the appellees, HCA Health Services of Tennessee,
Inc. d/b/a Tristar Centennial Medical Center, HCA Health Services of Tennessee, Inc.,
Board of Directors, Clarence James Gideon, Gideon, Cooper & Essary, PLC, Heather
Piper, Kelly R. Duggan, Mitchell L. Wiatrak, David P. Reyes, and John Howard Wilters.
MEMORANDUM OPINION1
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opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and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.
The appellees have filed a motion to dismiss this appeal for failure to file a timely
notice of appeal. The appeal arises out of a pro se complaint filed by Dr. James C.
Gekas. The trial court dismissed Dr. Gekas’s complaint under Tenn. R. Civ. P. 12.02 for
failure to state a claim on January 4, 2019. The appellees subsequently filed a motion for
attorney’s fees and costs under Tenn. Code Ann. § 20-12-119(c)(1). The trial court
entered an order denying the motion for attorney’s fees and costs on February 19, 2019.
Dr. Gekas filed his notice of appeal with the clerk of this court on March 25, 2019.
Tenn. R. App. P. 4(a) requires that a notice of appeal be filed with the clerk of the
appellate court within thirty days after entry of the judgment appealed. Dr. Gekas did not
file his notice of appeal until eighty days after entry of the judgment.
Dr. Gekas asserts that he waited to file his notice of appeal until after the trial
court disposed of the appellees’ motion for discretionary costs and attorney’s fees.
However, only the post-judgment motions listed in Tenn. R. Civ. P. 59.01 will extend the
time for filing a notice of appeal. A motion for attorney’s fees and costs under Tenn.
Code Ann. § 20-12-119(c)(1) is not one of the motions listed in Tenn. R. Civ. P. 59.01.
Moreover, Tenn. Code Ann. § 20-12-119(c)(3) provides, in part, that “an award of costs
pursuant to this subsection (c) shall be made only after all appeals of the issue of the
granting of the motion to dismiss have been exhausted and if the final outcome is the
granting of the motion to dismiss.” Thus, a pending motion for fees and costs under
Tenn. Code Ann. § 20-12-119(c) does not does not affect the finality of the judgment or
toll the time for filing a notice of appeal.
Even if the filing of the motion for attorney’s fees and costs had tolled the time for
filing the notice of appeal, Dr. Gekas did not file his notice of appeal within thirty days of
the entry of the February 19, 2019 order.2 Dr. Gekas asserts he did not become aware of
the order until February 25, 2019, and that he filed his notice of appeal within thirty days
of the date he became aware of the order. However, the time for filing a notice of appeal
runs from the date a final order is entered, not from the date the appellant becomes aware
of the order.
Finally, Dr. Gekas requests that the court allow his appeal to proceed despite the
untimely notice of appeal because his case is unique. The thirty day time limit for filing a
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.
2
Although the order was marked filed by the trial court clerk on February 19, 2019, the clerk
dated the certificate of service February 20, 2019. Thus, the order may not have been effectively entered
under Tenn. R. Civ. P. 58 until February 20, 2019. Even if the order was not entered until February 20,
2019, Dr. Gekas’s notice of appeal would still be untimely.
2
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.
James C. Gekas is taxed with the costs for which execution may issue.
PER CURIAM
3