1 Ten n. R. Ct. App . 10 states:
Th is Co urt, with the c onc urren ce of a ll judge s partic ipating in the cas e, may affirm, rev erse o r mo dify the act ions of t

he t ria l cou rt bymemorandu m opini on when a formal opi nion woul d h ave no preceden tial

value. When a case is decided by memo randum opinion it shallbe design ate d “MEMORANDU M OPIN IO N,” shall not be published, and shall not be cited or relied on for any reason i n any un relat ed case. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE Assigned on

Briefs J anuary

12, 2004 METROPOLITAN G OVERNMENT OF NASHVILLE AND

DAVIDSON COUNTY, TENNESSEE v. BASIL MARCEAUX Appeal from the Circuit Court for Davidson County No. 02C-2997 Carol Soloman, Judge

No. M2003-00876-COA-R3-CV - Filed January 23, 2004

Because the

record confirms that the appellant did not perfect a n appeal from an adverse decision of the gen eral se ssions cou

rt within te

n day s of that d

ecision, we affi

rm the tri a l court ’s dismissal of the la te attempted appe al. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed and Remanded
P AT RICIA J. C OTT RELL , J., delivered the opinion of the court, in whichW IL LI AM C. K OCH , J R ., P.J., M.S., and F RANK G. C LEMENT , J R ., J., joined. Basil Marceaux, Soddy D aisy, Tennessee, Pro Se

. Ann O’Connell Simon; P. Jeff Campbell; John L. Kennedy, Nashville, Tenne ssee, for the appellee, Me tr op ol it an Go ve rn me nt of Na sh vi ll e a nd Da vi ds on Co un ty. MEMORAN

DUM OP

INION 1 Appellan t, Mr. Marc eaux, app eals from th e dismissal by the circuit cour t of his attempted appeal of a general sessions court judgme nt because his appeal was filed more than ten days afte

r entry of the g eneral

sessions ju dgment.2 Although the moti on its elf was st amped fil ed October 21, 2002, th e record i ncludes a letter f rom an employee of the clerk’ s offi ce dated September 2 4, 2002, referencing the motion.

3 We are un able to ascer tain for cer tain whether October 18 or 19 is t

he correct

date as the number was wri tten over, and the cor

recti on ini tial ed by M r. M arcea ux, bu t it is unclear w hich is the corr ecti on. One day’ s dif ferenc e does not af fect the re sult

in t his ca se. -2- On June 13, 2002, Mr. Marcea ux was issue d a traf

fic cita tion char ging h imwith driving 70 mph in a 45 mph zo ne, fail ure to ha ve proof of insura nce, and drivin g on an expired lic ense, all violations of city ordinanc es. The citation notified Mr. Marceaux of the date of the hea ring on the charg es, August 22, 20 02. W hen Mr . Marce aux d id no t appe ar at t he hear ing, a default judgment was entered against him. Sometime around September 24, 2002, 2 Mr. Marceaux filed a motion for new trial in the general sessions court which wa s denied by that cour t as not timely filed. Mr. Marceaux then sought to appeal the gene ral sessions judgmen

t to the cir cuit court. I t is unclear from the record before

us exactly

when the notice of appeal was filed. The Metr opolitan Government

state s that Mr. Marceaux appealed on October 21, 2002, and re fers to a document appearing in the record entitled “Notice to Appellant” which was stamped filed October 21, 2002, butsigned by Mr . Marceaux on October 19, 2002. 3 The acc ompany ing Aff id avit o f In di ge nc y, substituting as a cos t bon d, was also s ign ed by Mr. Mar c eaux on Oc tober 19, 2002. Bo th also contain stamps and signatures of deputy clerks dated October 19, 2002. A person dissatisfied with a general sessions court judgment may a

ppeal to the circuit court where the matte

r is heard de novo . Tenn. Code Ann. § 27-5-108(a)(1). Such an appe al must be made within ten

day s of the g eneral

sessions c ourt dec ision by comply ing with t

he applic able statutory provisions. Id . If no appeal is taken wi thi n ten days, execution may issue. Tenn. Code Ann. § 27-5-108(d). The ten- day

time peri od for ap

peal is jur isdictiona l. [T]he timely perfecting of an appeal is no mere technical f o rm ality : it is in fact a mandatory

requirement, and if it is not complied with the court has no jurisdiction over the case. Love v. College Level Assessment Services, Inc. , 928 S.W.2d 36 , 38 (Tenn. 1996). See also The Vanderbi lt

University v. Haynes , No. M2001-02688-COA-2003, 2003 WL 239819, at *1 (Tenn. Ct

. App. Fe b. 4, 2003)(no Tenn . R. App. P. 1 1 applica tion filed ); Watk ins v. Fitz gerald, No. M2000- 03197-COA-R3-CV, 2002 WL 31662404, at *2 (Tenn. Ct. App. Nov. 26, 2002) (no Tenn. R. App. P. 11 applic ation filed); Schein v. Watt s , No. E1999-02128-COA-R3-CV, 2000 WL 222537, at *2 (Tenn. Ct. App. Feb. 28, 2000) (no Tenn. R. App. P. 11 application filed). The record

indicates that the ear liest possi ble date on which the appeal was perfected was October 19, 2002. This date w as well outside the ten-day

period for appeal from a judgment ente red August 22, 2002.-3-

Throughout

most of his briefs Mr. Marceaux attempts to raise substantiveissues regarding the merits of the ordinance violations for which he was cited. Neither the trial court nor this court can consider

those issu es if the circuit co urt lack ed jurisd iction to he ar his case because he did not filea timely

appeal. Howeve

r, in his reply brief, Mr

. Marcea ux also appe ars to as sert that he first requested an appe al or new

trial with in the ten da

ys, but was pr

evented theref rom beca use the clerk didnot “hono

r the indigent status

of the defendant .” This ap pears to be a reference to statements by Mr. Marceaux appearing

elsewhere in his filings to the effect that he ha d already been found indigent by other courts. The clerk was required to obtain a cost bond or affidavit of indigency (or oath for poor persons)as a pre

requisit e to perfecting the appeal. Gill v. State Farm Insurance Co. , 958 S.W.2d 350, 351 (Tenn. Ct. app. 1997), citing Tenn. Code Ann. § 27-5-103. The only a ffidavit of indigency appearing in the record wa s signed by Mr . Marceaux on October 19, 2002. The circuit c ourt dismis sed this case onMarch 6, 2003, for lack of jurisdiction. Because Mr. Marceaux did not timely perfect his appe al from the general sessions court judgment, we a ffirm the judg ment o f the

tria l cou rt. Co sts of

this a ppea l are taxed to the appellant , Mr. Basi l Mar cea ux.

___________________________________ PATRICIA J. COTTREL L, JUDGE