James E. Bell v. Tennessee Department of Corrections

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
JAMES E. BELL v. TENNESSEE DEPARTMENT OF CORRECTIONS
Appeal from the Chancery Court for Wayne County
No. 2012CV5136 Stella L. Hargrove, Judge
No. M2013-00729-COA-R3-CV - Filed July 29, 2013
This is an appeal from the dismissal of an inmate’s petition for common law writ of
certiorari. Because the inmate did not file his notice of appeal with the trial court clerk
within the time permitted by Tenn. R. App. P. 4, we dismiss the appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
P ATRICIA J. C OTTRELL, P.J., M.S.; A NDY D. B ENNETT AND R ICHARD H. D INKINS, JJ.
James Bell, Jr., Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter, Lee Pope, Assistant Attorney General,
and Leslie E. Price, Assistant Attorney General, for the appellee, Tennessee Department of
Correction.
MEMORANDUM OPINION 1
The appellees have filed a motion to dismiss this appeal for failure to file a timely
notice of appeal or to serve the notice of appeal on opposing counsel. The appellees assert
that James E. Bell, an inmate in the custody of the Department of Correction, filed a petition
for common law writ of certiorari in the Chancery Court for Wayne County in August of
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be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited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.
2012, seeking review of a disciplinary action. The trial court dismissed the petition on
November 6, 2012. Mr. Bell then filed a motion to alter or amend on December 7, 2013.
The trial court denied the motion on January 7, 2013. Mr. Bell filed his notice of appeal on
February 12, 2013, but did not serve opposing counsel. Mr. Bell has not filed a response to
the motion to dismiss disputing the dates set forth by the appellees or otherwise opposing
dismissal of his appeal.
Tenn. R. App. P. 4(a) requires that a notice of appeal be filed with and received by the
trial court clerk within thirty (30) days after entry of the judgment appealed. If one of the
post-judgment motions listed in Tenn. R. App. P. 4(b) and Tenn. R. Civ. P. 59.01 is timely
filed, the time for filing the notice of appeal will run from the date of the order granting or
denying the motion. The trial court denied Mr. Bell’s Tenn. R. App. P. 59 motion to alter
or amend on January 7, 2013, and Mr. Bell was thus required to file his notice of appeal by
February 6, 2013. Mr. Bell did not file his notice of appeal until February 12, 2013, six days
late.
Because Mr. Bell is an inmate in a correctional facility, his notice of appeal would be
considered timely if it were delivered to the appropriate individual at the correctional facility
within the thirty (30) day period. Tenn. R. App. P. 4 and 20(g). However, the burden of
proving timely delivery is on the inmate. In this case, Mr. Bell has not asserted timely
delivery, and there is no evidence of timely delivery.
The 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. 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. Accordingly, the appeal
must be dismissed.2
The appeal is hereby dismissed for failure to file a timely notice of appeal. The costs
of the appeal are taxed to James E. Bell for which execution may issue.
PER CURIAM
2
Because the appeal must be dismissed based on the failure to file a timely notice of
appeal with the trial court clerk, we need not address the failure to serve a copy of the notice
of appeal on opposing counsel.
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