Gina G. Gianopulos Cruz v. Wilhoit Properties

06/27/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
June 24, 2022
GINA G. GIANOPULOS CRUZ, ET AL v. WILHOIT PROPERTIES, ET
AL
Appeal from the Circuit Court for Coffee County
No. 2019-CV-45919 Vanessa Jackson, Judge
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No. M2022-00687-COA-R3-CV
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This is an appeal from a Final Order of Dismissal and Order Approving Minor’s
Settlement. Because the appellant did not file her notice of appeal 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.
Gina Gianopulos Cruz, Nashville, Tennessee, pro se.
William E. Godbold, III, Chattanooga, Tennessee, for the appellees, Wilhoit Properties,
Inc., and Briarwood Apartment Homes.
James Frederick Conley, Tullahoma, Tennessee, Guardian Ad Litem.
MEMORANDUM OPINION1
This is a premises liability case involving a minor child who fell on a staircase. The
defendants and the child’s guardian ad litem moved the trial court to approve a settlement
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shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not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.
agreement. The child’s mother, Gina Gianopulos Cruz, opposed the settlement. On
November 8, 2021, the trial court entered a Final Order of Dismissal and Order Approving
Minor’s Settlement. Ms. Cruz filed a notice of appeal with the clerk of this Court on May
23, 2022.
Tennessee Rule of Appellate Procedure 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. Ms. Cruz did not file her notice of appeal until more than six months after entry
of the judgment appealed. Ms. Cruz attached a letter to her May 23, 2022 notice of appeal
stating that she sent a notice of appeal to the clerk in December of 2021, and that she
believes she sent it on December 7, 2021. However, Ms. Cruz was unable to provide the
clerk with any proof of her attempted filing. In any event, with certain exceptions not
relevant here, a filing is not considered timely unless it is received by the clerk within the
time fixed for filing. Tenn. R. App. P. 20(a). The clerk did not receive a notice of appeal
from Ms. Cruz within the time fixed for filing.
On June 13, 2022, the defendants filed a motion to dismiss the appeal for failure to
file a timely notice of appeal. Ms. Cruz has not filed a timely response. 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. 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. Gina
Gianopulos Cruz is taxed with the costs for which execution may issue.
PER CURIAM
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