                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                      June 22, 2006 Session

              DEBORAH BOWERS SMITH v. RILEY DEAN SMITH

                 A Direct Appeal from the Chancery Court for Gibson County
                  No. H 4486     The Honorable George R. Ellis, Chancellor



                      No. W2005-02582-COA-R3-CV - Filed July 24, 2006


        This is a divorce case. In a post-trial proceeding after remand by the Court of Appeals,
Husband appeals the order of the trial court which effectively awarded certain stock to Wife. The
appeal is dismissed for failure to file a timely notice of appeal.

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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER ,
J. and HOLLY M. KIRBY , J., joined.

Sam J. Watridge of Humboldt, Tennessee for Appellant, Riley Dean Smith

Bill R. Barron of Trenton, Tennessee for Appellee, Deborah Bowers Smith

                                              OPINION

       Plaintiff-Appellee, Deborah Bowers Smith (“Wife”), and Defendant-Appellant, Riley Dean
Smith (“Husband”), were divorced by “Order for Absolute Divorce” filed November 21, 2001. The
case subsequently reached this Court on two prior occasions. The present appeal results from the
order of September 23, 2005, entered by the trial court on remand after the second appeal.

         The record reflects that a notice of appeal from the September 23, 2005 order was filed in
the trial court on November 2, 2005. This Court entered an order for Appellant to show cause why
the appeal should not be dismissed for failure to timely file a notice of appeal. In response thereto,
Appellant filed a supplemental brief and the affidavit of Patsy Mittelstaedt, Appellant’s secretary,
wherein she states that she mailed the notice of appeal to the Chancery Court Clerk and Master with
a certificate of service to adversary counsel on October 17, 2005, and that adversary counsel received
service of a copy of the notice of appeal. Appellant’s brief states that the notice of appeal was not
returned to the post office or to the office of Appellant’s counsel. When the trial court clerk
received the notice of filing of transcript on November 1, 2005, Appellant’s attorney was contacted
and told that there was no notice of appeal filed with the trial court. Appellant asserts that the notice
of appeal was timely mailed to the clerk of the court and asked that the notice of appeal be entered
nunc pro tunc.

       We will first deal with the request for the notice of appeal to be filed nunc pro tunc. In
Cantrell v. Humana of Tennessee, Inc., 617 S.W.2d 901 (Tenn. Ct. App. 1981). This Court
discussed the office of an order nunc pro tunc. The Court said:

                       Looking now to the office of an order nunc pro tunc, we find
               the following in Black's Law Dictionary 1267 (3rd Ed.1933):

                       A nunc pro tunc entry is an entry made now, of
                       something which was actually previously done, to
                       have effect as of the former date. Its office is not to
                       supply omitted action by the court, but to supply an
                       omission in the record of action really had where entry
                       thereof was omitted through inadvertence or mistake.

                       In the case of Grizzard v. Fite (1916) 137 Tenn. 103, 191
               S.W. 969, the trial judge had dismissed the plaintiff's lawsuit but
               allowed the filing of an amended declaration within a specified time.
               The amended declaration was not filed within the time allowed, but
               an application was made to file it nunc pro tunc to be within that time
               period. In ruling on the application for the nunc pro tunc order, the
               court held:

                       The application to file the amended declaration “nunc
                       pro tunc” was a misconception. A “nunc pro tunc
                       order” can only be made when the thing ordered has
                       previously been allowed, but by inadvertence has not
                       been entered. It applies only to orders of court, and
                       never to action of counsel.

617 S.W.2d at 902; 137 Tenn. at 115 (emphasis in original).

       Rule 4, Tennessee Rules of Appellate Procedure, provides in pertinent part:

               (a) Generally. – In an appeal as of right to the Supreme Court, Court
               of Appeals or Court of Criminal Appeals, the notice of appeal
               required by Rule 3 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; . . . .




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        Appellant cites Goodwin v. Hendersonville Police Dept., 5 S.W.3d 633 (Tenn. 1999) as
authority for the Court to accept untimely filed notices of appeal. Appellee states that the decision
in Goodwin is within the exception allowing the Court to accept untimely filed notices of appeal in
criminal cases. We must differ with the views expressed by both the Appellant and Appellee on this
point. In Goodwin, the filing was considered timely by virtue of the provision of Rule 20 (g),
Tennessee Rules of Appellate Procedure.

        Although Rule 2, Tennessee Rules of Appellate Procedure, authorizes the Court to suspend
the requirements of the Rules of Appellate Procedure, there is an explicit exception in the rule which
states, “except that this rule shall not permit the extension of time for filing a notice of appeal
prescribed in Rule 4.” See John Barb, Inc. v. Underwriters at Lloyds of London, 653 S.W.2d 422
(Tenn. Ct. App. 1983); Edmundson v. Pratt, 945 S.W.2d 754 (Tenn. Ct. App. 1996).

       Because the notice of appeal was not timely filed pursuant to the provisions of Rule 4,
Tenn.R.App.P., this Court does not have jurisdiction to hear the appeal. Accordingly, the appeal is
dismissed. Costs of the appeal are assessed to the Appellant, Riley Dean Smith, and his surety.


                                               __________________________________________
                                               W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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