Bringle Farms Partnership v. State of Tennessee

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned May 22, 2013
BRINGLE FARMS PARTNERSHIP v. STATE OF TENNESSEE
Tennessee Claims Commission
No. 20-090-796, Robert Hibbett, Commissioner
No. M2013-01029-COA-R3-CV - Filed May 28, 2013
The claimant has filed a notice of appeal from an Order Denying Claimant’s Motion for En
Banc Review entered by the Tennessee Claims Commission on February 26, 2013. Because
the claimant did not file its notice of appeal with the clerk of the Claims Commission 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., delivered the opinion of the Court, in which A NDY D.
B ENNETT and R ICHARD H. D INKINS, JJ., joined.
Allan Wilson Wages, Millington, Tennessee, for the appellant, Bringle Farms Partnership.
Robert E. Cooper, Attorney General and Reporter, Melissa Ann Brodhag, Assistant Attorney
General, for the appellee, State of Tennessee.
MEMORANDUM OPINION 1
On February 26, 2013, the Tennessee Claims Commission entered an Order Denying
Claimant’s Motion for En Banc Review. The claimant, Bringle Farms Partnership, elected
to appeal and, on March 25, 2013, counsel for Bringle Farms prepared a notice of appeal to
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be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited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.
be mailed to the clerk of the Claims Commission. However, the notice of appeal intended
to be sent to the clerk of the Claims Commission was inadvertently mailed to opposing
counsel instead. Counsel for Bringle Farms subsequently discovered the error and filed the
notice of appeal with the clerk of the Claims Commission on April 24, 2013, fifty-seven days
after entry of the order appealed.
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 order appealed. Bringle Farms
contends its notice of appeal should be considered timely because it was mailed within the
thirty day period even though it was sent to the wrong address. However, mailing a notice
of appeal to the wrong address does not constitute timely filing. Moreover, Tenn. R. App.
P. 4 requires that a notice of appeal be actually received by the trial court clerk within the
thirty day period. Bringle Farms does not dispute that the notice of appeal was received by
the trial court clerk well beyond the thirty days time limit provided by Tenn. R. App. P. 4.
Bringle Farms also asserts that its mistake regarding the address was due to
inadvertence or excusable neglect and that it is entitled to relief under Tenn. R. Civ. P. 60.
It points to a flood at counsel’s home and counsel’s entire office coming down with the flu
during the relevant time period as grounds for Tenn. R. Civ. P. 60 relief. However, 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), and 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). While Bringle Farms may
possibly be entitled to relief from the trial court pursuant to Tenn. R. Civ. P. 60, Tenn. R.
App. P. 4(a) Advisory Commission Comments, McCracken v. Brentwood United Methodist
Church, 958 S.W.2d 792, 795-96 (Tenn. Ct. App. 1997), this court has no authority to grant
such relief. 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. Any
relief under Tenn. R. Civ. P. 60 must be sought in the trial court.
This appeal is hereby dismissed for failure to file a timely notice of appeal. The costs
are taxed to Bringle Farms Partnership and its surety for which execution may issue.
PER CURIAM
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