                                                                                         07/11/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              February 28, 2017 Session

                   RITA GOINS v. EUGENE LAWSON, ET AL.

                   Appeal from the Circuit Court for Campbell County
                    No. 2013-CV-15480        Don R. Ash, Judge


                            No. E2016-01406-COA-R3-CV


Rita Goins (“Plaintiff”) appeals the May 9, 2016 order of the Circuit Court for Campbell
County (“the Trial Court”) dismissing her case. Plaintiff’s notice of appeal was filed on
July 8, 2016, more than thirty days from the date of entry of the May 9, 2016 final order.
As the notice of appeal was not filed timely, we are constrained to dismiss this appeal for
lack of jurisdiction.

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

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and W. NEAL MCBRAYER, JJ., joined.

David H. Dunaway and Rick A. Owens, LaFollette, Tennessee, for the appellant, Rita
Goins.

G. Gerard Jabaley and Rebecca Brake Murray, Knoxville, Tennessee, for the appellee,
Eugene Lawson.

Arthur F. Knight, III, Knoxville, Tennessee, for the appellee, Campbell County Board of
Education.
                                                OPINION


        Plaintiff sued Eugene Lawson (“Lawson”) and the Campbell County Board of
Education (“Board of Education”) alleging several causes of action including intentional
infliction of emotional distress and tortious interference with an employment relationship.
By order entered on May 9, 2016, the Trial Court granted Lawson’s motion to dismiss as
to the claims for intentional infliction of emotional distress and violation of Tenn. Code
Ann. §§ 39-16-402 and 39-16-403, granted motions for summary judgment filed by both
Lawson and the Board of Education as to the remaining claims, and dismissed the case.

       Lawson then filed a motion for discretionary costs. The Board of Education filed
a motion for sanctions against Plaintiff claiming Plaintiff’s cause of action under Tenn.
Code Ann. § 50-1-310 was frivolous and also filed a motion for discretionary costs. By
order entered June 20, 2016, the Trial Court granted both motions for discretionary costs
and denied the motion for sanctions. Plaintiff filed her notice of appeal on July 8, 2016.

       Tennessee Rule of Appellate Procedure 4 provides that “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 . . . .” 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). Pursuant to Tenn. R.
App. P. 2 this Court may not waive the procedural defect. Tenn. R. App. P. 2.

        As our Supreme Court has explained:

                The date of entry of a final judgment in a civil case triggers the
        commencement of the thirty-day period in which a party aggrieved by the
        final judgment must file either a post-trial motion or a notice of an appeal.
        See Tenn. R. Civ. P. 59.02;1 Tenn. R. App. P. 4(a)-(b).2 If timely, certain
        post-trial motions, such as Defendants’ motion to alter or amend, will toll
        commencement of the thirty-day period for filing a notice of appeal until
        the trial court enters an order granting or denying the motion. Tenn. R.

1
   Rule 59.02 of the Tennessee Rules of Civil Procedure states: “A motion for new trial and all other
motions permitted under this rule shall be filed and served within 30 days after judgment has been entered
in accordance with Rule 58.”
2
  Rule 4(a) of the Tennessee Rules of Appellate Procedure provides that the notice of appeal “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.” Rule 4(b) provides that if a party to a civil action files one of several enumerated post-
trial motions, “the time for appeal for all parties shall run from the entry of the order denying a new trial
or granting or denying any other such motion.”
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        App. P. 4(b); see Binkley v. Medling, 117 S.W.3d 252, 255 (Tenn. 2003). If
        a post-trial motion is not timely, the trial court lacks jurisdiction to rule on
        the motion. See Binkley, 117 S.W.3d at 255. Similarly, if the notice of
        appeal is untimely, the Court of Appeals lacks subject matter jurisdiction
        over the appeal. Id.; see also Tenn. R. App. P. 2 (stating that appellate
        courts may not suspend the thirty-day time period for filing a notice of
        appeal).

Ball v. McDowell, 288 S.W.3d 833, 836 (Tenn. 2009) (footnotes in original but
renumbered).

      With regard to motions that toll the time for filing a notice of appeal, Rule 4(b)
provides:

        In a civil action, if a timely motion under the Tennessee Rules of Civil
        Procedure is filed in the trial court by any party: (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; (4) under Rule 59.04 to alter or amend the
        judgment; the time for appeal for all parties shall run from the entry of the
        order denying a new trial or granting or denying any other such motion.

Tenn. R. App. P. 4(b).

       In the case now before us, both Lawson and the Board of Education filed motions
for discretionary costs, and the Board of Education also filed a motion for sanctions.3
Neither a motion for discretionary costs nor a motion for sanctions, however, is among
the motions which would extend the time for filing a notice of appeal pursuant to Tenn.
R. App. P. 4(b).4 The 1995 Advisory Commission Comments to Tenn. R. App. P. 4

3
   Plaintiff argued that the Board of Education “requested sanctions as additional findings of fact under
Rule 52.02 of the Tennessee Rules of Civil Procedure” and asserted that due to this request the time for
filing a notice of appeal was tolled. A careful and thorough review of the Board of Educations’ motion
for sanctions, however, reveals that the Board of Education did not request additional findings of fact.
Rather, the Board of Education requested sanctions based upon the detailed and specific findings of fact
made by the Trial Court and clearly set forth in its May 9, 2016 order. The Board of Education’s motion
for sanctions did not request new or additional findings of fact.
4
  We note that Plaintiff’s brief on appeal raises issues pertaining solely to the May 9, 2016 final order.
Plaintiff raises no issues with regard to the Trial Court’s June 20, 2016 order on the motions for
discretionary costs and the motion for sanctions. Furthermore, neither of the other parties to this case
raised any issues on appeal with regard to the June 20, 2016 order on the motions for discretionary costs
and the motion for sanctions.
                                                      3
specifically states: “This is an amendment to conform Appellate Rule 4 to Civil Rule 59.
A motion for discretionary costs does not toll the time for filing a notice of appeal.”
Tenn. R. App. P. 4 Advisory Commission Cmt. to 1995 amend.

        The final order in the case now before us was entered on May 9, 2016. Plaintiff
did not file her notice of appeal until July 8, 2016, more than thirty days after entry of the
final order. As Plaintiff’s notice of appeal was filed untimely, this Court lacks
jurisdiction to consider the appeal. We, therefore, dismiss this appeal for lack of
jurisdiction. The costs on appeal are assessed against the appellant, Rita Goins, and her
surety.




                                           _________________________________
                                           D. MICHAEL SWINEY, CHIEF JUDGE




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