IN THE COURT OF APPEALS OF TENNESSEE FILED
August 25, 1999
AT KNOXVILLE
Cecil Crowson, Jr.
Appellate Court
Clerk
BEG LEY LUM BER COM PAN Y, INC ., ) C/A NO. 03A01-9902-CH-00047
)
Substitute A ppellant, ) SCOTT CHANCERY
)
v. ) HON. BILLY JOE WHITE,
) JUDGE
WENDELL TRAMMELL, )
) AFFIRMED AND
Appellee. ) REMANDED
TIMO THY P. WEB B, Jacksb oro, for A ppellant, W endell Tram mell.
JOSEPH G. COK ER, Jacksboro, for Subsitute appellee.
O P I N IO N
Franks, J.
In this action to quiet title, the Trial Judge ruled in favor of the
plaintiffs, and defendant has appealed to this Court, insisting that the Trial Judge erred
by not applying th e affirmativ e defense of the statute of limitations s et forth in
Tenn essee C ode A nnotate d §66- 5-108 (j).
The plain tiff, Beg ley Lu mbe r Compa ny, 1 asks that this appeal be
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The judgment was in favor of the original plaintiffs, the Stewarts and Tommy Gambrel.
After judgment, the Begley Lumber Company purchased all of the lands and interest previously held
by the plaintiffs and Begley Lumber Company was designated as the substitute appellee by order of
this Court on May 6, 1999.
dismissed f or failure of the appellan t to perfect an appeal by filing notice of a ppeal in
the office of the clerk within thirty days of the entry of final judgment, as required by
Rules 2, 3, 4(a), and 21 of the Tennessee Rules of Appellate Procedure.
Tenness ee Rule o f Appe llate Proced ure 3(a) pro vides that “[ i]n civil
actions every final judgment entered by a trial court from which an appeal lies to the
Supreme Court or Court of Appeals is appealable as of right.” That appeal is initiated
by timely filin g a notic e of ap peal w ith the cle rk of th e trial cou rt. T.R.A .P. Rule 3(e).
“[T]he notice of appeal required by Rule 3 shall be filed with and received by the
clerk of the trial court within 30 days after the date of entry of the judgment appealed
from . . . .” T.R A.P. Rule 4(a). While a Rule allows the court to suspend the
requirements of the Rules for good cause, it specifically states that “this rule shall not
permit the extension of time for filing a notice of appeal prescribed in rule 4, an
application for permission to appeal prescribed in rule 11, or a petition for review
prescribed in rule 12.” T .R A.P. R ule 2. The R ules also allow appellate co urts to
extend the time periods given in the Rules, with the exception of the time for filing a
notice of appeal. T.R .A.P. Rule 21(b).
This Court lacks jurisdiction to hear and decide a case if the notice of
appeal is not timely filed. See First National Bank of Polk County v. Goss, 912
S.W.2d 147, 14 8-149 (Tenn. A pp. 1995).
In this case, it is un disputed tha t the notice of appeal w as not filed u ntil
thirty-one days past the entry of the judgment. Appellant, however, argues that the
time period should be extended to thirty-three days because the judgment required
notice of entry, and that notice of entry was given by mail. He relies on T.R.C.P. 58
and 6.05. R ule 58 states in relevant pa rt:
When requested by counsel or pro se parties, the clerk shall mail or
deliver a co py of the ente red judgm ent to all parties o r counsel w ithin
five days after entry; notwithsta nding any ru le of civil or ap pellate
procedure to the contrary, time periods for post-trial motions or a notice
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of appeal shall not begin to run until the date of such requested mailing
or de liver y.
This provision states that the time for filing a notice of appeal runs from the date of
the requested mailing, if a notice of judgment is mailed. Here, the Certificate of
Service by the Clerk and Master shows that it was mailed on January 4, 1999, the day
before the judgment was filed. Accordingly, this provision, alone, will not extend the
time period in this case. Rule 6.05 then provides as follows:
Whenever a party has the right or is required to do some act or
take some proceedings within a prescribed period after the service of a
notice or other paper upon such party and the notice or paper is served
upon such party by mail, three days shall be added to the prescribed
period.
Cases inter preting this ru le hold that it on ly extends the tim e period w hen a party is
required to do some act after service of a notice or other paper. If the act is predicated
on some other event, like the entry of a final judgment or order, then the rule does not
apply. Cheairs v. Lawson, 815 S.W.2d 53 3, 534 (Tenn. A pp. 1991); Houseal v.
Roberts, 709 S.W.2d 580, 581 (Tenn. App. 1984). In Halstead v. Niles Bolton
Associates, 1996 W L 5086 1 (Tenn. A pp. Feb. 9, 1 996), we said regard ing this rule:
Tenn. R . Civ. P. 6.05 applies only in c ircumstanc es where a party
“is required to do some act . . . within a prescribed period after the
service of a notice or other paper upon such party and the notice or
paper is served upon such party by mail.” By its own terms, it does not
apply in circum stances w here a party is req uired to take some act w ithin
a prescribed period after the f iling of a paper.
In this case, T.R.A.P. Rule 4(a) requires that notice of appeal be filed
and rece ived by the clerk of th e tria l cou rt within 30 days after the date of entry of the
judgment. Thus, it requires an act after the entry of the judgment, not notice of the
judgment, and if notice of the judgment is given by mail, the time period is not
extended by three days. The judgment was entered on January 5, 1999, and the notice
was filed on February 5, 1999. Therefore, it was not timely filed. Accordingly, we
dismiss this ap peal at defe ndant Tra mmell’s co st.
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__________________________
Herschel P. Franks, J.
CONCUR:
___________________________
Houston M. Godd ard, P.J.
___________________________
Charles D. Susano, Jr., J.
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