                                                                                           08/17/2017




                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                 August 1, 2017 Session

                                IN RE DAVID P. ET AL.

                Appeal from the Juvenile Court for Claiborne County
                   No. 2013-JV-1255      Robert M. Estep, Judge


                             No. E2017-00245-COA-R3-PT



This is an appeal from an order terminating the parental rights of the appellant to his minor
children. The only Notice of Appeal filed by the appellant within the time provided in Rule
4(a) of the Tennessee Rules of Appellate Procedure for the filing of a notice of appeal, did
not comply with Tennessee Code Annotated section 36-1-124(d), which states: “Any
notice of appeal filed in a termination of parental rights action shall be signed by the
appellant.” Because this Notice of Appeal was insufficient to invoke the jurisdiction of this
Court, this appeal is dismissed.

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


D. MICHAEL SWINEY, C.J., CHARLES D. SUSANO, JR., AND JOHN W. MCCLARTY, JJ.

Neal W. Stanifer, Tazewell, Tennessee, for the appellant.

Herbert Slatery III, Attorney General and Reporter, and Ellison M. Berryhill, Assistant
Attorney General, General Civil Division, Nashville, Tennessee, for the appellee,
Tennessee Department of Children’s Services.

Misty Kennedy, Tazewell, Tennessee, Guardian Ad Litem.




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                                   MEMORANDUM OPINION1

       Pursuant to Rule 13(b) of the Tennessee Rules of Appellate Procedure, and based
upon the jurisdictional argument raised by the appellee in the responsive brief, this Court
reviewed the record for this appeal after briefing was complete to determine whether we
had subject matter jurisdiction to hear this matter. This Court had just decided In re
Gabrielle W., No. E2016-02064-COA-R3-PT, 2017 WL 2954684, *3-4 (Tenn. Ct. App.
July 11, 2017), in which it was made clear that an appellant’s failure to sign the notice of
appeal in a termination of parental rights appeal in accordance with Tennessee Code
Annotated section 36-1-124(d) deprives this Court of jurisdiction. See also In re Mya V.,
No. M2016-02401-COA-R3-PT, 2017 WL 3209181, *3 (Tenn. Ct. App. July 28, 2017).
Based upon the decision in In re Gabrielle W., the Court directed the appellant to show
cause why this appeal should not be dismissed for lack of jurisdiction. Counsel for the
appellant argues in his response that he promptly “cured” the defect in the Notice of
Appeal, when alerted to it at the outset of this appeal, by filing an Amended Notice of
Appeal in compliance with the statute. However, in the event the Court determines that the
Amended Notice of Appeal did not remedy the defect in the initial Notice of Appeal,
counsel asserts that this Court has the discretion to waive the defect in the initial Notice of
Appeal in order to allow this appeal to proceed. Counsel’s arguments are not well-taken.

       The order terminating the appellant’s parental rights to his minor children was
entered on January 5, 2017. We point out that the order included the following language in
that portion of it which notified the appellant of his appeal rights:

             Pursuant to T.C.A. §36-1-124(d) Effective July 1, 2016, a Notice of
       Appeal must be signed by the Appellant.

(Underlining in original.) The initial Notice of Appeal was filed by counsel for the
appellant on February 2, 2017, without the appellant’s signature despite notice of the
statutory requirement having been given in the order on appeal. Upon being promptly
notified by this Court of the statutory defect in the Notice of Appeal, counsel for the


       1
           Rule 10 of the Rules of the Court of Appeals provides as follows:

                  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.

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appellant filed an Amended Notice of Appeal on February 9, 2017, which was signed by
the appellant.

        In In re Catherine J., No. W2017-00491-COA-R3-PT, 2017-3141825, *2-4 (Tenn.
Ct. App. July 24, 2017), this Court held that any attempt to correct an appellant’s failure to
sign the notice of appeal in a termination of parental rights appeal in accordance with the
statute must occur during the thirty-day time limit for filing a notice of appeal in order for
the jurisdictional defect to be cured. In other words, “an untimely filed amended notice of
appeal in compliance with [the statute] is not sufficient to confer jurisdiction on this
Court.” Id. at *3. As such, we reject counsel’s argument that he “cured” the jurisdictional
defect in his initial Notice of Appeal when he filed the untimely Amended Notice of
Appeal.

        We also reject counsel’s assertion that we have the authority to waive the statutory
defect in the initial Notice of Appeal pursuant to Rule 2 of the Tennessee Rules of
Appellate Procedure. Rule 2 states that this Court may “suspend the requirements or
provisions of any of these rules in a particular case on motion of a party or on its own
motion, “[f]or good cause, including the interest of expediting decision upon any matter.”
Tenn. R. App. P. 2 (emphasis added). The signature requirement set forth in Tennessee
Code Annotated section 36-1-124(d) is not a requirement or provision of the Tennessee
Rules of Appellate Procedure. As such, Rule 2 does not provide us with the authority to
waive the statutory defect in the initial Notice of Appeal. Cf. Muse v. Jolley, No.
E2014-02462-COA- T10B-CV, 2015 WL 303366, * 2 (Tenn. Ct. App. Jan. 23, 2015)
(rejecting request to waive the untimely filing of a petition for recusal appeal, pursuant to
Rule 10B of the Rules of the Supreme Court of Tennessee, on grounds that the “[t]he
time for filing a petition for recusal appeal is not a requirement or provision of any rule of
appellate procedure,” but instead “is a requirement of Rule 10B of the Rules of the
Supreme Court of Tennessee, which we cannot waive pursuant to Rule 2 of the Rules of
Appellate Procedure”). To the extent counsel relies on this Court’s decision in In re
La’trianna W., No. E2016-01379-COA-R3-PT, 2016 WL 7241474, * 5 (Tenn. Ct. App.
Dec. 15, 2016), in support of his apparent request for waiver of the statutory signature
requirement, we note that in In re La’trianna W. this Court merely waived the content
requirements of Rule 3(f) of the Tennessee Rules of Appellate Procedure with regard to a
timely filed notice of appeal, which is entirely permitted by Rule 2.

        Because neither the initial Notice of Appeal nor the Amended Notice of Appeal in
this case was sufficient to invoke this Court’s jurisdiction within the time provided in Rule
4(a) of the Tennessee Rules of Appellate Procedure, we lack jurisdiction to consider this




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appeal.2 This case is dismissed. Costs on appeal are taxed to the appellant, for which
execution may issue if necessary.



                                                                                   PER CURIAM




         2
          Effective July 1, 2017, Rule 4(a) was amended to require that notices of appeal be filed with the appellate
court clerk rather than the trial court clerk. The amendment has no impact on the outcome of this case as the thirty-day
time limit for filing a notice of appeal pursuant to the rule was not changed.
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