IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned June 26, 2012

MARY A. PRICE v. DSI CENTERS FOR DIALYZING EXCELLENCE ET

AL.

Appeal from the Circuit Court for Davidson County

No. 11C3150 Barbara Haynes, Judge

No. M2012-01095-COA-R3-CV - Filed June 27, 2012

The appellant has appealed from a final judgment entered on December 28, 2012. Because

the appellant did not file her notice of appeal with the trial court clerk within the time

permitted by Tenn. R. App. P. 4(a), we dismiss the appeal.

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

PATRICIA J. COTTRELL, P.J., M.S., ANDY D. BENNETT and RICHARD H. DINKINS, JJ.

Mary A. Price, Baton Rouge, Louisiana, Pro Se.

Stephen W. Elliott and Thomas M. Pinckney, Nashville, Tennessee, for the appellee, DSI

Centers for Dialyzing Excellence and Northwest Dialysis Center.

MEMORANDUM OPINION

1

On May 16, 2012, Mary A. Price filed with the trial court clerk a notice of appeal from

a final judgment entered on December 28, 2012. 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. Ms. Price filed her notice of appeal more than four months after entry

Tenn. Ct. App. R. 10 states:

1

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be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited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.
of the trial court’s judgment. Consequently, on June 4, 2012, this court ordered Ms. Price

to show cause why her appeal should not be dismissed for failure to file a timely notice of

appeal.

Ms. Price has not responded to the show cause order. In prior correspondence,

however, Ms. Price has asserted that her failure to meet the deadline is a result of delayed

receipt of a notice from the clerk of this court. Ms. Price first tendered her notice of appeal

and several other documents to the clerk of this court on February 8, 2012. On March 7,

2012, the clerk returned the documents to the appellant because no appeal was pending. Ms.

Price contends she did not receive the clerk’s notice that the documents were being returned

until May 5, 2012.

Tenn. R. App. P. 4 clearly requires that the notice of appeal be filed with and received

by the clerk of the trial court, not the clerk of this court. The filing of a notice of appeal with

the clerk of this court is a nullity. Moreover, the notice of appeal was not even timely

tendered to the clerk of this court. Any delay in receipt of the clerk’s March 7, 2012 notice

was of no consequence because the thirty days time period had already expired.

The reason for the late filing is, in any event, irrelevant. 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. Accordingly, the appeal must be dismissed.

The appeal is hereby dismissed for failure to file a timely notice of appeal. The costs

are taxed to Mary A. Price for which execution, if necessary, may issue.

PER CURIAM

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