                                                                                              08/11/2020
                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  Assigned August 6, 2020

            IN RE ESTATE OF GLORIA KAY MURPHY-WALLACE

                   Appeal from the Circuit Court for Hamblen County
                       No. 14CV049         Beth Boniface, Judge
                       ___________________________________

                             No. E2020-00464-COA-R3-CV
                         ___________________________________


This is an appeal of a suit contesting the validity of a Last Will and Testament. Because
the notice of appeal was not timely filed, this Court lacks jurisdiction to consider this
appeal.


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

KRISTI M. DAVIS, J.; D. MICHAEL SWINEY, C.J.; AND JOHN W. MCCLARTY, J.

Michael C. Murphy, Morristown, Tennessee, pro se appellant.

Kelley Hinsley, Morristown, Tennessee, for the appellee, Estate of Gloria Kay Murphy-
Wallace.

                                MEMORANDUM OPINION1

       The appellee, the Estate of Gloria Kay Murphy-Wallace, filed a motion to dismiss
this appeal on grounds that the notice of appeal was not timely filed in accordance with
Rule 4(a) of the Tennessee Rules of Appellate Procedure. The Trial Court’s judgment was
entered on August 16, 2019. The appellant, Michael C. Murphy, timely filed a motion for

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

              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      shall not be published, and shall not be cited or relied on for any reason in any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.
new trial pursuant to Tenn. R. Civ. P. 59.07, which the Trial Court denied by order entered
December 19, 2019. Appellant then filed a motion to alter or amend pursuant to Tenn. R.
Civ. P. 59.04. The Trial Court denied the motion to alter or amend by order entered
February 18, 2020. Appellant filed his notice of appeal in this Court on March 18, 2020.

        A notice of appeal “shall be filed with the clerk of the appellate court within 30 days
after the date of entry of the judgment appealed from . . . .” Tenn. R. App. P 4(a). “The
thirty-day time limit for filing a notice of appeal is mandatory and jurisdictional in civil
cases.” Albert v. Frye, 145 S.W.3d 526, 528 (Tenn. 2004); see also Ball v. McDowell, 288
S.W.3d 833, 836 (Tenn. 2009). If a notice of appeal is not timely filed, this Court is not at
liberty to waive the procedural defect. Tenn. R. App. P. 2.; see also Arfken & Assocs., P.A.
v. Simpson Bridge Co., 85 S.W.3d 789, 791 (Tenn. Ct. App. 2002).

        The thirty-day time limit for filing a notice of appeal may be extended by the timely
filing of one of four allowed motions pursuant to Tenn. R. Civ. P. 59.01. Those motions
are:

       (1) under Rule 50.02 for judgment in accordance with a motion for a directed
       verdict; (2) under Rule 52.02 to amend or make additional findings of fact,
       whether or not an alteration of the judgment would be required if the motion
       is granted; (3) under Rule 59.07 for a new trial; or (4) under Rule 59.04 to
       alter or amend the judgment.

Tenn. R. Civ. P. 59.01. Rule 59.01 clearly and unambiguously provides that these four
motions “are the only motions contemplated in these rules” which will extend the time for
filing an appeal. Id. Furthermore, Rule 59.01 provides: “Motions to reconsider any of
these motions are not authorized and will not operate to extend the time for appellate
proceedings.” Id.

        Appellee’s motion to dismiss argues that appellant’s motion to alter or amend was
in substance a motion for reconsideration, which is not allowed pursuant to Tenn. R. Civ.
P. 59.01. Appellant filed a response2 asserting that his motion to alter or amend was not a
motion to reconsider, but rather more akin to “a Rule 52.02 motion to make additional
findings of fact.” Appellant asserts that his motion to alter or amend was not “attempting
to relitigate the matter,” but was instead attempting to “give the trial Court an opportunity
to revisit and correct a mistake and error.”

       In Legens v. Lecornu, this Court discussed Rule 59.01 and summarized:


       2
         This Court entered an Order on April 1, 2020, directing appellant to show cause why this
appeal should not be dismissed as having been untimely filed. Appellant filed a response
addressing our show cause order and appellee’s motion to dismiss.
                                              -2-
               We can glean the following principles from Rule 59.01 and from these
       cases. Rule 59.01 prohibits motions to “reconsider,” on the same grounds,
       as a previously decided Rule 59 motion. See Gassaway, 604 S.W.2d at 60;
       Tenn. R. Civ. P. 59.01. Rule 59 also prohibits a party from filing a motion
       to alter or amend a judgment that is not changed when a trial court enters an
       order in response to another party’s timely motion to alter or amend. See
       Graybeal, 2012 WL 4459807, at *10. A party can file a motion to alter or
       amend a judgment that has been changed in response to another party’s Rule
       59 motion. Albert, 145 S.W.3d at 526; Savage, 2001 WL 1013056, at *8;
       Brenneman, 2001 WL 543434, at *3; see also Graybeal, 2012 WL 4459807,
       at *10 (recognizing that a judgment altered in a manner adverse to a party
       will have the effect of starting the time anew for filing a timely motion
       pursuant to Rule 59). In addition, filing two motions to alter or amend is not
       always fatal – a party can file a motion to alter or amend a judgment that was
       amended in response to his opponent’s motion even if he or she has already
       filed one motion to alter or amend prior to the amended judgment. See
       Barnes, 2014 WL 1413931, at *3–4.

              The question remains as to whether a party can file a Rule 59 motion
       in response to an amended judgment when it was that party who successfully
       moved for the amended judgment. We believe that such a party should be
       allowed to do so, assuming, of course, that the second motion is not simply
       a motion to “reconsider” previously asserted grounds. The purpose of a Rule
       59 motion to alter or amend a judgment is to prevent unnecessary appeals by
       providing the trial court with an opportunity to correct errors before the
       judgment becomes final. Discover Bank v. Morgan, 363 S.W.3d 479, 489
       (Tenn. 2012).

Legens v. Lecornu, No. W2013-01800-COA-R3-CV, 2014 WL 2922358, at *12–13 (Tenn.
Ct. App. June 26, 2014).

        As pertinent, appellant’s motion to alter or amend attempted to raise two issues,
one of which concerned a 2009 letter admitted into evidence and another which concerned
a belatedly excused alternate juror. A careful and thorough review of appellant’s motion
for a new trial reveals that these two issues initially were raised in the motion for a new
trial. Furthermore, the Trial Court specifically addressed these two issues in its December
19, 2019 order denying appellant’s motion for a new trial.

        The Trial Court’s February 18, 2020 order denying appellant’s motion to alter or
amend shows that the Trial Court considered the motion to alter or amend to be a motion
for reconsideration. We agree. Appellant’s second Rule 59.01 motion, i.e., the motion to
alter or amend, did not raise new issues in response to changes to the judgment, but instead
was an attempt to have the Trial Court reconsider previously asserted grounds. As such,
                                             -3-
the motion to alter or amend was in substance merely a motion for reconsideration, which
as discussed above, is not permitted.

       The thirty-day time period for filing a notice of appeal began to run when the Trial
Court entered its December 19, 2019 order denying appellant’s motion for a new trial. As
appellant failed to file his notice of appeal within thirty days of entry of the order denying
his motion for a new trial, the notice of appeal was untimely filed, thus depriving this Court
of jurisdiction. Appellee’s motion to dismiss is hereby GRANTED and this appeal is
DISMISSED. Appellee requests an award of costs “pursuant to Rule 40, Tennessee Rules
of Civil Procedure” and reasonable attorney’s fees pursuant to this Court’s “inherent
authority. . . under Rule 11, Tennessee Rules of Civil Procedure.” Rule 40 of the Tennessee
Rules of Civil Procedure does not provide for an award of costs, and appellee has not made
a showing supporting an award of attorney’s fees. Costs on appeal are taxed to appellant,
Michael C. Murphy, for which execution may issue.

                                                         PER CURIAM




                                            -4-
