IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

IN RE: THE CONSERVATORSHIP OF JOYCE D. BENNY

Appeal from the Chancery Court for Washington County

No. 36262 G. Richard Johnson, Chancellor

No. E2010-00322-COA-R3-CV - FILED AUGUST 3, 2010

This is an appeal in a conservatorship case. The notice of appeal was mailed via overnight

delivery. Had the notice of appeal been delivered the next day, it would have been timely.

Unfortunately, the notice of appeal was not delivered the next day and, therefore, was not

timely filed. Because the notice of appeal was not filed within thirty (30) days of entry of

the final judgment, this Court lacks subject matter jurisdiction and this appeal must be

dismissed.

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

Joyce B. Denny, Johnson City, Tennessee, pro se.

Monica Franklin, Knoxville, Tennessee, for the Appellant, Judy S. Wyrick.

MEMORANDUM OPINION

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The order appealed from in this case was entered by the Trial Court on January

5, 2010. A notice of appeal was filed on February 5, 2010, which is thirty-one (31) days

from entry of the final judgment. On July 13, 2010, this Court entered an Order directing the

Appellant to show cause why this appeal should not be dismissed because the notice of

appeal was not filed within thirty (30) days and was, therefore, untimely.

Rule 10 of the Rules of the Court of Appeals provides: “This Court, with the concurrence of all

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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opinion it shall be designated ‘MEMORANDUM OPINION,’ shall not be published, and shall not be cited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.”
Appellant responded to the show-case motion, indicating that the notice of

appeal was sent via overnight mail on February 3, 2010, and had it been delivered overnight

as promised by the United States Postal Service, then the notice of appeal would have been

timely. Thus, Appellant argued that she acted in good faith at all times.

The requirement that a notice of appeal be filed within thirty (30) days of entry

of a final judgment cannot be waived. Cobb v. Beier, 944 S.W.2d 343, 344 n.2 (Tenn. 1997)

(noting that in civil cases, Tenn. R. App. P. 2 does not permit suspension of the rules to

extend the time for filing a notice of appeal as prescribed in Rule 4). The requirement that

a notice of appeal must be filed within 30 days of entry of the final judgment is jurisdictional

in civil cases. Absent a timely notice of appeal, this Court lacks subject matter jurisdiction

and cannot entertain the appeal, even if an appellant has acted in the utmost good faith. See

Ball v. McDowell, 288 S.W.3d 833, 837 (Tenn. 2009) (dismissing an appeal because the

notice of appeal was not filed within thirty (30) days of entry of the final judgment and the

Court of Appeals, therefore, lacked subject matter jurisdiction).

Because the notice of appeal in the present case was not filed within thirty (30)

days of entry of the final judgment, this appeal is dismissed. Costs on appeal are taxed to the

Appellant, Judy S. Wyrick, and her surety, for which execution may issue, if necessary.

PER CURIAM

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