IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
Submitted on Briefs
June 3, 2003 Session
MICHAEL G. BINKLEY, et al. v. RODNEY TREVOR MEDLING, et al.
Appeal by permission from the Court of Appeals, Middle Section
Chancery Court for Humphreys County
No. 24-001 Allen W. Wallace, Chancellor
No. M2001-01687-SC-R11-CV - Filed September 30, 2003
The issue in this appeal is whether the defendant’s motion to alter or amend filed thirty-three
days after entry of judgment was timely under Tennessee Rule of Civil Procedure 58 and therefore
sufficient to toll commencement of the thirty-day period for filing a notice of appeal. The Court of
Appeals dismissed the defendant’s appeal as untimely. We agree with the intermediate court’s
conclusion that the defendant has failed to carry his burden of proving that the motion to alter or
amend was timely filed. We therefore affirm the judgment of the Court of Appeals, dismissing the
appeal.
Tenn. R. App. P. 11; Judgment of the Court of Appeals Affirmed; Appeal Dismissed
FRANK F. DROWOTA , III, C. J., delivered the opinion of the court, in which E. RILEY ANDERSON,
ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.
Troy Lee Brooks, Mount Juliet, Tennessee, for the appellant, Rodney Trevor Medling.
Michael G. Binkley and wife, Martha Binkley; Robert A. Jones, Sr. and wife, Mary Evelyn Jones;
and Charles H. Cathey and wife, E. Jane Cathey, appellees, pro se.
OPINION
Factual and Procedural Background
In 1997, Michael and Martha Binkley, Robert and Mary Jones, and Charles and Jane Cathey
(collectively, “plaintiffs”), a group of homeowners, obtained a judgment against Rodney Medling
(“defendant”), which required Mr. Medling to restore a road and ditch in their subdivision to its
original condition. The defendant was given sixty (60) days from July 23, 1997 to comply. If the
defendant failed to comply within the sixty-day period, he was required to pay $500.00 per day until
he had complied with the judgment.
On November 24, 1999, the plaintiffs filed a petition for contempt alleging that the defendant
had failed to comply with the 1997 judgment.1 A hearing on the petition was held on October 9,
2000. The trial court found the defendant in contempt and awarded the plaintiffs a judgment in the
amount of $555,500.00,2 representing the penalty of $500.00 per day for each day of noncompliance
subsequent to September 23, 1997. The trial court’s judgment on the petition for contempt was
entered by the clerk on December 20, 2000.
On January 22, 2001, thirty-three days after entry of the trial court’s judgment, the defendant
filed a motion to alter or amend. The plaintiffs did not raise any issue as to the timeliness of the
motion. The trial court denied the defendant’s motion on June 12, 2001, and the defendant filed a
notice of appeal twenty days later, on July 2, 2001.
On January 14, 2002, the Court of Appeals dismissed the defendant’s appeal as untimely.
The defendant filed a petition for rehearing, asserting that he had requested a copy of the entered
judgment from the trial court clerk and that his motion to alter or amend was timely filed pursuant
to Tennessee Rules of Civil Procedure 6.05 and 58. In an order entered on January 31, 2002, the
Court of Appeals reserved judgment on the petition for rehearing, stating: “[i]t is, therefore, ordered
that the appellant [the defendant] shall have ten (10) days from the date this order is entered within
which to supplement his petition for rehearing with [1] a copy of his request for a copy of the entered
judgment and [2] a certificate of the trial court clerk or other documents demonstrating when the
copy of the entered judgment was mailed to the appellant’s counsel.” In response, the defendant
filed an affidavit of his counsel and a copy of a letter to the trial court clerk requesting a copy of the
entered judgment. The defendant did not provide the Court of Appeals with a certificate of the trial
court clerk (or other evidence) indicating the date the clerk mailed the copy of the judgment to the
defendant. Counsel’s affidavit stated: “[i]t is not our office policy to retain or file the envelopes
containing such correspondence.”
The Court of Appeals denied the petition for rehearing on the ground that the defendant had
failed to present any evidence as to when the copy of the judgment was mailed by the trial court clerk
to the defendant’s counsel and that he thereby failed to carry his burden of proving that his motion
to alter or amend was timely filed pursuant to Rule 58. In denying the petition to rehear, the Court
of Appeals stated, “[w]e recognize the confusion created by the amendments to Rule 58 and the
1
The petition for contempt also named a second defendant, the trustee named in a deed of trust securing a bank’s
lien on the property. From our review of the reco rd, it do es not appear that the trustee participated in the contempt
proceed ing, and he is not a party to this app eal.
2
The trial court’s judgment provided that “the amount of the above pen alty shall not exceed the fair market
value of the property.” The record contains no evidence of the fair market value of the property, however it should be
noted that the property is a wooded, five acre parcel in a rural area.
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comments thereto as related to the applicability of the three day rule to post-trial motions. However,
we are constrained to follow Begley Lumber [Co., Inc. v. Trammell, 15 S.W.3d 455 (Tenn. Ct. App.
1999)], and respectfully suggest that clarification by another court may be appropriate.” We granted
the defendant’s application for permission to appeal in order to clarify the application of Tennessee
Rules of Civil Procedure 6.05 and 58, and we now affirm the judgment of the Court of Appeals
dismissing the appeal.
Analysis
Several rules of civil and appellate procedure are relevant to the issue in this appeal. We
begin with Tennessee Rule of Appellate Procedure 3(a) which provides 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." Appeals as of right are initiated by filing a notice of appeal with
the clerk of the trial court. Tenn. R. App. P. 3(e). Pursuant to Tennessee Rule of Appellate
Procedure 4, "the notice of appeal . . . 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 . . . ." Tenn. R. App. P. 4(a).
The thirty-day time limit set out in Rule 4 is jurisdictional in civil cases. See, e.g., First Nat’l
Bank of Polk County v. Goss, 912 S.W.2d 147, 148 (Tenn. Ct. App. 1995). However, certain post-
trial motions, including a motion to alter or amend, if timely filed, toll commencement of the thirty-
day period until an order granting or denying the motion is entered. Tenn. R. App. P. (4)(b).
According to Tennessee Rule of Civil Procedure 59.04, a motion to alter or amend a judgment is
timely if “filed and served within thirty (30) days after the entry of the judgment.” (Emphasis added.)
“Entry of judgment” is described by Tennessee Rule of Civil Procedure 58, which provides as
follows:
Entry of a judgment or an order of final disposition is effective when
a judgment containing one of the following is marked on the face by
the clerk as filed for entry:
(1) the signature of the judge and all parties or counsel, or
(2) the signatures of the judge and one party or counsel with
a certificate of counsel that a copy of the proposed order has been
served on all other parties or counsel, or
(3) the signature of the judge and a certificate of the clerk that
a copy has been served on all other parties or counsel.
When requested by counsel or pro se parties, the clerk shall mail or
deliver a copy of the entered judgment to all parties or counsel within
five days after entry; notwithstanding any rule of civil or appellate
procedure to the contrary, time periods for post-trial motions or a
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notice of appeal shall not begin to run until the date of such requested
mailing or delivery.
(Emphasis added.)
Of particular import in the pending case is the language in Rule 58 stating that
“notwithstanding any rule of civil or appellate procedure to the contrary, time periods for post-trial
motions or a notice of appeal shall not begin to run until the date of such requested mailing or
delivery.” That language was added to Rule 58 by a 1997 amendment. According to the 1997
Advisory Commission Comments, the purpose of that language is
to make the right to notice of the judgment entry date meaningful. A
lawyer or party who requests a copy of the judgment stamped with the
entry date should not be prejudiced by a clerk’s failure to comply with
the request.
Having set out the governing authority, we next consider the two issues raised in the
defendant’s brief. As his first issue, the defendant argues that when a party requests notice of entry
of the judgment pursuant to Rule 58 the time for filing a post-trial motion “begins to run on the first
day of service of the copy of the judgment on that party.” (Emphasis added.) The defendant’s
argument on this first issue is based upon the language in Rule 58 that states: “time periods for post-
trial motions . . . shall not begin to run until the date of such requested mailing or delivery.”
(Emphasis added.) Relying on the word “delivery,” the defendant asserts that the time period for
filing his motion to alter or amend did not begin to run until the date the copy of the judgment was
“delivered” to defendant’s counsel, i.e., the date he was “served” with the copy of the judgment. The
defendant’s argument is based upon a strained construction of the word “delivery.” Read in the full
context of Rule 58, the word “delivery” is merely used as an alternate to the word “mailing,”
signifying that the trial court clerk may either mail the copy of the judgment or use some other form
of delivery (e.g., personal delivery or commercial delivery service). In other words, “delivery”
simply means a non-mail method of sending the notice of entry of judgment to the parties – the word
“delivery” does not mean the date on which a mailed copy of the judgment is actually delivered to
a party by the postal service. The defendant’s first issue is without merit.
In his second issue, the defendant argues that his motion to alter or amend, which was filed
thirty-three days after entry of the trial court’s judgment, was timely under Rule 58 because the clerk
mailed his lawyer a copy of the trial court’s entered judgment. Relying upon the Advisory
Commission Comments to Rule 58, particularly the 1984 Comments referring to Tennessee Rule of
Civil Procedure 6.05,3 the defendant asserts that “three days are added when entry of judgment is
delivered by mail.”
3
The 198 4 Ad visory C omm ission Com ments referred to above are contained in the Tennessee Court Rules
Annotated (2003), the official comp ilation published by L exisN exis. The 19 84 Co mments to Rule 58 are not contained
in the Tennessee Rules of Court (2002), published by Tho mson W est (West Group).
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The second paragraph of the 1984 Advisory Commission Comments to Rule 58 states:
“Because of Rule 6.05, the party actually has 33 days if the Notice of Entry is mailed rather than
personally delivered to the party.” Tennessee Rule of Civil Procedure 6.05, to which the 1984
Comments refer, provides:
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.
Relying upon the 1984 Comments to Rule 58, the defendant argues that Rule 6.05 added three days
to the period within which he was required to file his post-trial motion. We will begin our analysis
of this issue by returning to the text of Rule 58. We then will consider the effect, if any, of Rule 6.05
on notices of entry of judgment requested pursuant to Rule 58.
Rule 58, by its express terms, can add up to five additional days to the thirty-day period for
filing a post-trial motion or notice of appeal when a party has requested of the clerk a copy of the
judgment pursuant to that Rule. Rule 58 says that upon request the clerk “shall” mail or deliver a
copy of the entered judgment within five days after entry and that “notwithstanding any rule of civil
or appellate procedure to the contrary,” the time for filing a post-trial motion or notice of appeal,
“shall not begin to run until the date of such requested mailing or delivery.” Tenn. R. Civ. P. 58
(emphasis added). The foregoing portion of Rule 58 clearly provides that the time for filing a post-
trial motion or a notice of appeal begins to run on the day the trial court clerk fulfilled his or her duty
to mail or deliver the requested copy. Thus, Rule 58 extends the period for filing a post-trial motion
by an additional one to five days, depending upon the “date of such requested mailing or delivery.”
While the text of Rule 58 is clear, that language is rendered less clear when it is read in
conjunction with the second paragraph of the 1984 Advisory Commission Comments to the Rule.
The second paragraph of the 1984 Comments states: “The 30 days mentioned begins to run when
the notice of entry is mailed to the party. Because of Rule 6.05, the party actually has 33 days if the
Notice of Entry is mailed rather than personally delivered to the party.” Based upon this language,
the defendant argues that the “three-day” rule stated in Rule 6.05 applies to his motion to alter or
amend, making the filing of that motion (thirty-three days after entry of the judgment) timely.
As the Court of Appeals correctly stated, Rule 6.05 applies only when a party is required to
do some act after service of a notice or other paper and does not apply when the doing of the act is
triggered by some other event, like the entry of a final judgment. See Begley Lumber Co., Inc., 15
S.W.3d at 457 (stating that Rule 6.05 does not apply to extend by three days the time for filing a
notice of appeal when a copy of the entered judgment, requested pursuant to Rule 58, is sent by
mail). Under Rule 59.02, a motion to alter or amend the judgment (and any other motion listed in
Rule 59.01), “shall be filed and served within thirty (30) days after the judgment has been entered
. . . .” Because the time for filing a motion to alter or amend is not based upon the date of “service
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of a notice or other paper[,]” we agree with the intermediate court that Rule 6.05 does not apply to
the filing of a Rule 59 motion. If that were not the case, a literal reading of Rule 6.05 and 58 would
result in two separate periods being added to the normal thirty-day period for filing a Rule 59 motion
or a notice of appeal– Rule 58 would grant up to an additional five days and Rule 6.05 would grant
an additional three days (in cases in which the clerk mailed the requested copy of the judgment), for
a total of up to eight additional days. We doubt that this result ever was intended by the Rules
Commission, and it certainly was not intended by this Court in its adoption of the amendments to
Rule 58.
From our review of the history of Rule 58, it is clear that the second paragraph of the 1984
Advisory Commission Comments is obsolete. The 1984 version of Rule 58 provided that “the time
for all proceedings on a judgment shall not expire prior to the expiration of 30 days after the date of
service of notice of entry of judgment or 90 days after the date of entry of the judgment, whichever
is earlier.” Tenn. R. Civ. P. 58.03(4) (West 1984) (emphasis added). Because the 1984 version of
Rule 58 measured the “time for all proceedings on a judgment” from the date of service of the notice
of entry of judgment (or 90 days after the date of entry of the judgment), Rule 6.05 applied to that
version of the Rule. However, Rule 58 was substantially rewritten in 1993, and the foregoing portion
of the 1984 version of the Rule was deleted. Consequently, the second paragraph of the 1984
Advisory Commission Comments to Rule 58 became obsolete and should have been deleted from
the Comments to Rule 58.
Having reviewed the relevant authorities and procedural rules, we agree with the Court of
Appeals’s conclusion that Rule 6.05 does not apply in this case. Although Rule 6.05 does not apply,
the Court of Appeals correctly noted that Rule 58 could afford up to five additional days for filing
a post-trial motion; the intermediate court therefore directed the defendant to file “a certificate of the
trial court clerk or other documents demonstrating when the copy of the entered judgment was
mailed to the appellant’s counsel.” The defendant, however, failed to submit such a certificate or
other evidence showing when the trial court clerk mailed the requested copy of the judgment.
The affidavit submitted by defendant’s counsel in response to the intermediate court’s
directive states the date on which counsel received the copy of the judgment from the trial court
clerk. The defendant, however, submitted no evidence as to when the copy of the judgment was
mailed by the clerk. The trial court’s judgment was signed by the Chancellor on December 19, 2000
and was entered by the trial court clerk on December 20, 2000. If the copy of the judgment was
mailed by the clerk on the day the judgment was entered (December 20), the motion to alter or
amend was untimely. If, however, the copy of the judgment was not mailed until December 21 (or
thereafter), the motion to alter or amend was timely.4 Due to the defendant’s failure to submit any
evidence indicating the date on which the clerk mailed the requested copy of the judgment, we are
4
December 21, 2 000 was a T hursday. Th e thirtieth day following that date was Saturday, January 20, 2001.
Because the thirtieth day fell on a Saturday, the defendant would have had until Monday, January 22, to file his motion
to alter or am end. See Tenn. R. C iv. P. 6.01 (T ime – Compu tation). T he de fendant’s motion was filed on January 22,
2001.
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unable to determine that the motion to alter or amend was timely, and the defendant therefore has
failed to carry his burden of proof on the issue. Consequently, we affirm the intermediate court’s
dismissal of the appeal.
In affirming the intermediate court’s decision, we are not unaware that the obsolete language
of the 1984 Advisory Commission Comments to Rule 58 could engender confusion in future cases.5
We are directing LexisNexis, the publisher of Tennessee Court Rules Annotated, the official
compilation of the rules of procedure, to expeditiously delete the second paragraph of the 1984
Advisory Commission Comments to Rule 58.6 In addition, we ask the Advisory Commission on the
Rules of Practice & Procedure to undertake a review of the various rules of procedure and to
recommend the removal of any other Advisory Commission Comments that are obsolete or
otherwise inconsistent with later amendments to the various rules. The Advisory Commission also
should review Rule 58 and recommend any changes it deems advisable to clarify the Rule.7
Conclusion
In summary, Rule 6.05 does not apply to the mailing of a copy of entry of judgment requested
pursuant to Rule 58; consequently, the “three-day rule” contained in Rule 6.05 (and relied upon by
the defendant) does not apply in the pending case. While the text of Rule 58 can extend the time for
filing a post-trial motion, we find that the defendant has failed to carry his burden of proving his
compliance with Rule 58 (i.e., that he failed to prove the date on which the clerk mailed the notice
of entry of the judgment). Accordingly, we conclude that the defendant’s motion to alter or amend
was untimely; as a result, the defendant’s subsequent notice of appeal also was untimely. We
therefore affirm the judgment of the Court of Appeals, dismissing the appeal.
The costs of this appeal are taxed to the defendant, Rodney Trevor Medling, for which
execution may issue if necessary.
5
W e note, however, that counsel for the defendant in the pend ing case has no t asserted , either in his affidavit
filed in the Court of Appe als or in the defendant’s brief filed in this Court, that he a ctually was misled by the o bsolete
portion of the 1984 Comments. But even if he had made such an assertion, the Court cannot extend the time for filing
a notice of ap peal. See Tenn. R. App . P. 2 and 21(b).
6
The following language shall be deleted from the 19 84 C omm ent: “T he 30 days mentioned begins to run when
the notice of entry is mailed to the party. B ecause of R ule 6.0 5, the p arty actually has 33 days if the No tice of E ntry is
mailed rather than personally delivered to the party. [1984]”
7
For exam ple, we note tha t Rule 5 8 is silent as to the po ssibility that a trial court clerk, through oversight, might
not ever send a requested copy of the judgment to the parties. In such a situation, the time for filing a post-trial motion
or a notice of ap peal could be uncertain. Also, the current Rule d oes not exp licitly address the p ossibility that one
counsel could request a copy of the judgment and opposing counsel could later file a post-trial motion or notice of appeal
relying on the extra time granted by Rule 58. The Advisory Commission should consider both of these issues, as well
as any other issue(s) identified by the Commission.
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________________________________________
FRANK F. DROWOTA, III,
CHIEF JUSTICE
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