Teresa G. Bradford v. Donnie R. Bradford

TERESA G. BRADFORD, )
)
Plaintiff/Appellee, )
) Montgomery Chancery
) No. 92-71-434
VS. )
) Appeal No.
) 01-A-01-9603-CH-00121
DONNIE R. BRADFORD, )
)
Defendant/Appellant. )
FILED
IN THE COURT OF APPEALS OF TENNESSEE June 7, 1996
MIDDLE SECTION AT NASHVILLE Cecil W. Crowson
Appellate Court Clerk
APPEAL FROM THE CHANCERY COURT OF MONTGOMERY COUNTY
AT CLARKSVILLE, TENNESSEE
HONORABLE ALEX W. DARNELL, CHANCELLOR
CLEO GREER HOGAN
107 North Third Street
Clarksville, Tennessee 37041
ATTORNEY FOR PLAINTIFF/APPELLEE
THOMAS R. MEEKS
137 Franklin Street
Clarksville, Tennessee 37040
ATTORNEY FOR DEFENDANT/APPELLANT
MOTION OF THE APPELLANT IS OVERRULED.
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
SAMUEL L. LEWIS, JUDGE
BEN H. CANTRELL, JUDGE
TERESA G. BRADFORD, )
)
Plaintiff/Appellee, )
) Montgomery Chancery
) No. 92-71-434
VS. )
) Appeal No.
) 01-A-01-9603-CH-00121
DONNIE R. BRADFORD, )
)
Defendant/Appellant. )
OPINION
On May 16, 1996, appellant moved this Court to rule that this cause is properly before
this Court.
It appears that, on June 9, 1995, this Court dismissed a previous appeal from a
judgment that did not dispose of all issues pending before the Trial Court.
On March 18, 1996, appellant filed in this Court, the following motion:
Comes now, Donnie R. Bradford, pursuant to Rule 22 of the
Tennessee Rules of Appellate Procedure and respectfully
petitions this court for an order which would allow the
appellant, Donnie R. Bradford to proceed with his appeal from
a judgment of the Chancery Court of Montgomery County,
Tennessee. The movant would show that he filed a notice of
appeal and the court ruled that said notice of appeal was
premature due to a lack of a final order addressing the issue of
back child support. The movant would show subsequent to this
court’s decision, the parties entered an order which stated that
there was no back child support due at the time of the initial
appeal by the appellant. (See exhibit one). The positions of the
appellant and the appellee are the same as they were on the
24th day of May, 1995. The appellant requests that his notice
of appeal be treated as [if it had] been filed subsequent to the
parties’ agreed order as evidenced by Exhibit One of this
motion. The appellant avers that Rule 4 of the Tennessee
Rules of Appellate Procedure allows a premature notice of
appeal to be treated as filed after the entry of the judgment
from which the appeal is taken. The movant respectfully prays
that this court issue an order requiring the Clerk and Master to
transfer the record of the trial court proceedings to this court so
that a proper review of the trial court’s decision can be made.
(See exhibit two).
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Exhibit One to said motion is an agreed order entered on February 1, 1996, reading as
follows:
This cause came on to be heard December 22, 1995 upon the
Motion filed June 26, 1995 of the defendant to declare there
was no back support due and upon the Notice of Withdrawal of
Petition for Contempt filed in this cause on September 20,
1995 pertaining to a Petition for Contempt filed on May 11,
1993 and upon the Notice of Withdrawal of the Petition for
Contempt filed on September 20, 1995 pertaining to a Petition
for Contempt filed on May 20, 1994 by the plaintiff and upon
the record as a whole and on the representation of counsel for
the parties.
The court finds that the parties are in agreement that the Final
Decree of Absolute Divorce filed in this cause on June 15,
1994 was entered with consideration for the respective
Petitions for Contempt and that defendant’s motion to declare
there was no back child support owed at the time of entry of the
Final Decree is well taken, and should be granted.
Wherefore, premises considered; it is hereby ordered,
adjudged and decreed that the Final Decree of Absolute
Divorce in this cause contained consideration of the respective
Petitions for Contempt that have now been withdrawn by the
plaintiff and there was not at the time of the entry of the Final
Decree on June 15, 1994 any issue of Contempt in this cause
and that defendant’s Motion for the Court to find that all child
support arrearages had been resolved by the Final Decree is
granted.
Also attached to said motion is the following affidavit:
I, Thomas R. Meeks, hereby state and aver that I have been
the attorney of record for Donnie R. Bradford from the
inception of the divorce proceedings filed in Montgomery
County Chancery Court, Docket Number 92-71-434. On May
24th, 1995 the Court of Appeals determined that the appeal that
the appellant had perfected in case number 01-A-01-9505-CH-
00207 should be dismissed on the basis that an issue of back
child support had not been resolved by the trial court. Both
attorneys of record, Cleo Hogan, attorney for appellee, and
myself recognized that the issue of back child support was non
existent and not a viable issue which either party sought the
Court of Appeals to address. An agreed order acknowledging
that back child support was not an issue and that all child
support arrearage had been resolved by the final decree which
the appellant sought to appeal in case number 01-A-01-9505-
CH-00207. The respective parties’ positions are the same prior
the entry of the Court of Appeals order to dismiss, Donnie R.
Bradford’s appeal as it stands today. (See March 11th, 1996
letter from Cleo Hogan). Neither parties’ positions have been
changed, altered, or modified by the entry of the agreed order in
the Chancery Court for Montgomery County, Tennessee on
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February 1, 1996. The appellant did not file a notice of appeal
after entry of the February 1, 1996 Chancery Court order. It is
the affiant’s belief that relief under Rule 2 and Rule 4 of the
Tennessee Rules of Appellate Procedure allows this court to
utilize the notice of appeal filed in 01-A-01-9505-CH-00207,
and allow the appellant to proceed with his appeal without
filing another notice of appeal after the entry of the agreed
order filed by the parties in the Chancery Court of Montgomery
County, Tennessee.
On March 29, 1996, this Court entered the following order:
On May 24, 1995, this court dismissed the appellant’s appeal
for lack of a final order. The trial court apparently entered a
final order on February 1, 1996 but the appellant failed to file a
new notice of appeal within the time permitted by Tenn. R.
App. P. 4. The appellant has now filed a motion requesting an
order allowing his appeal to proceed based on his original
notice of appeal. The appellant’s request addresses itself in the
first instance to the trial court. This court declines to rule upon
the appellant’s right to appeal unless and until the trial court
has ruled on the issue.
It is, therefore, ordered that the appellant’s motion be
overruled.
On May 16, 1996, the appellant filed in this court the first mentioned motion reading
as follows:
Comes the movant, Donnie Ray Bradford, by and through his
attorney, Thomas R. Meeks, and respectfully requests the Court
to rule that this case is properly before the Court and there are
no issues left for the trial court to review or try. This matter is
accepted by the Court of Appeals for proper review. The
movant further requests that any failure on the part of Donnie
Ray Bradford to file a new notice of appeal is excused pursuant
to Rule 2 of the Tennessee Rules of Appellate Procedure.
T.R.A.P. Rule 4(d) reads as follows:
(d) Premature Filing of Notice of Appeal - A prematurely
filed notice of appeal shall be treated as filed after the entry of
the judgment from which the appeal is taken and on the day
thereof.
As explained in the Committee Comment, the quoted provision was for the limited
purpose of preserving the validity of a notice of appeal filed after entry of final judgment but
before the disposition of post-judgment motions such as motions to alter or amend. It was
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not intended to validate notices of appeal filed, for example, with the complaint. Nor was it
intended to preserve the effectiveness of a notice of appeal from a non-final judgment when
that appeal is dismissed by the appellate court for lack of a final judgment.
When the previous appeal was dismissed, the appellant had the opportunity of petition
to rehear and/or application for permission to appeal to the Supreme Court. Upon the
expiration of the time for same or the exhaustion of such remedies, the judgment of this
Court was final, and not subject to revision by this Court.
The agreed order of February 1, 1996, if it completed the disposition of all issues
before the Trial Court, constituted a final judgment from which a new appeal on all issues
was available by timely notice of appeal which, apparently, was not filed.
The motions of March 18, 1996, and May 16, 1996, are an effort to rely upon the
original notice of appeal from the non-final judgment. By Rule 4(d), said notice was deemed
to have been filed on the date of entry of the judgment “from which (the appeal) was taken.”
Undoubtedly, the judgment named in the notice was the non-final judgment. It has served its
purpose by causing a record to be transmitted to this Court. Having served its purpose, it
became “functus officio” (a task performed). Black’s Law Dictionary, Fourth Edition, p.802,
and useless for any further purpose. City Finance Co. v. Harris, 60 Tenn. App. 188, 445
S.W.2d 467 (1968); State v. Stafford, 183 Tenn. 186, 191 S.W.2d 442 (1946).
The motions seek relief under T.R.A.P. Rule 2, but said rule specifically denies to this
Court the power to waive the timeliness of a notice of appeal.
The motion of the appellant is overruled, and appellant is taxed with accrued cost for
which execution may issue.
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MOTION OF THE APPELLANT IS OVERRULED.
_______________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
_____________________________________
SAMUEL L. LEWIS, JUDGE
_____________________________________
BEN H. CANTRELL, JUDGE
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