Jefferson v. Pneumo Services Corp.

• Citation: 699 S.W.2d 181
• Decision Date: 20 August 1985
• Docket Number: No. 85-93-II,85-93-II
• Parties: James M. JEFFERSON, Plaintiff/Appellant, v. PNEUMO SERVICES CORPORATION, Cleveland Pneumatic Company and Cleveland Pneumatic Product Service Division, Inc., Defendants/Appellees.
• Court: Court of Appeals of Tennessee

Page 181

699 S.W.2d 181

James M. JEFFERSON, Plaintiff/Appellant, v. PNEUMO SERVICES CORPORATION, Cleveland Pneumatic Company and Cleveland Pneumatic Product Service Division, Inc., Defendants/Appellees.

No. 85-93-II

Court of Appeals of Tennessee,

Middle Section, at Nashville.

Aug. 20, 1985.

Permission to Appeal Denied by

Supreme Court Oct. 21, 1985.

Robert L. Huskey, Manchester, for plaintiff/appellant.

Donald J. Ray, Ray & Van Cleave, Tullahoma, for defendants/appellees.

OPINION

KOCH, Judge.

We are called upon by this appeal to determine whether Tenn.R.Civ.P. 60 can be used to provide relief to a party whose lawyer failed to file a timely notice of appeal because he was busy with other clients' work. We conclude that the normal press of an attorney's workload alone does not provide a basis for Tenn.R.Civ.P. 60 relief.

I.

James M. Jefferson was employed by Pneumo Services Corporation as a night shift superintendent. He was discharged by the company by letter dated July 22, 1982. On July 21, 1983, Mr. Jefferson filed an action against the company ¹ in the Circuit Court for Coffee County alleging that the company had breached his employment contract and that he had been wrongfully terminated. He sought $512,500 in actual and punitive damages.

A trial before a jury commenced on August 1, 1984. However, following the plaintiff's proof, the trial court directed a verdict in the company's favor. Thus, on August 10, 1984, the trial court entered an order granting a judgment for the company and dismissing the plaintiff's case. This order was approved for entry by Mr. Jefferson's counsel, and there is no question that both Mr. Jefferson and his lawyer had timely notice of its entry.

Immediately following the entry of this Order, Mr. Jefferson instructed his lawyer to perfect an appeal from the trial court's decision. Mr. Jefferson's counsel assured him that an appeal would be filed. However, rather than filing a notice of appeal, Mr. Jefferson's counsel contacted the company's lawyer to offer to settle the case to avoid further litigation. Opposing counsel provided him with no encouragement. ² Following this discussion, in counsel's words:

I laid the file back and delayed preparing and filing a Notice of Appeal for if there could be a settlement of the case prior to the passage of time of filing the notice, and the case could be settled without actually filing a Notice of Appeal, expense in the way of Court costs of the Court of Appeals could be saved. ³

Therefore I waited hoping to get a response of a possible settlement before having to file the Notice of Appeal. I placed the file in what I call my "to do" stack with a notice clipped to the front of the file reflecting "Notice of Appeal" and did so with the intention of filing a notice within the thirty (30) day period if settlement were not reached.

After placing Mr. Jefferson's file in his "to do stack," Mr. Jefferson's counsel stated that he would normally have prepared and filed a notice of appeal during the week prior to the deadline for filing the notice of appeal. However, he did not do so because he was

actively involved in a number of matters, which is [sic] a result of which I failed to note the approaching deadline in this case.

In accordance with Tenn.R.App.P. 4(a), the notice of appeal in Mr. Jefferson's case should have been filed with and received by the clerk of the trial court no later than September 10, 1984. It was not. On September 12, 1984, Mr. Jefferson's lawyer remembered that some action needed to be taken with regard to this appeal. When he confirmed that he had, in fact, permitted the time for filing the notice of appeal to expire, Mr. Jefferson's counsel filed a notice of appeal in the trial court on September 12, 1984. ⁴

On September 14, 1984, counsel filed a motion for relief pursuant to Tenn.R.Civ.P. 60.02(1) and (4) in the trial court. Accompanying this motion was counsel's affidavit setting forth the reasons why he had failed to file a timely notice of appeal. In this affidavit, counsel conceded:

the failure to file a Notice of Appeal timely was strictly due to the oversight on my part, and in no way results from any neglect on the part of the client.

The company opposed this motion.

The trial court filed a memorandum opinion and order on October 29, 1984, granting Mr. Jefferson's motion but stating that it had "considerable doubt concerning whether or not it can grant the relief sought." Later, on December 4, 1984, the trial court entered an order setting aside its earlier order of August 10, 1984, and re-entering its order dismissing the case. Mr. Jefferson's counsel then filed a notice of appeal on December 11, 1984. The company also appealed from the trial court's decision to permit Mr. Jefferson to proceed with this delinquently filed appeal.

II.

The time limit within which an appeal must be filed is found in Tenn.R.App.P. 4(a) which provides, in part:

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.

This time limit is mandatory and jurisdictional in civil cases. ⁵ John Barb, Inc. v. Underwriters at Lloyds of London, 653 S.W.2d 422, 424 (Tenn.App.1983). The Tennessee Rules of Appellate Procedure specifically provide that this Court can neither waive [Tenn.R.App.P. 2] nor extend [Tenn.R.App.P. 21(b) ] this time period. Thus, Tenn.R.App.P. 3(e) makes it clear that failure to file a timely notice of appeal is the only procedural omission that will effect the validity of an appeal. ⁶ These procedural restrictions are sufficiently definite that the liberal construction provisions of Tenn.R.App.P. 1 should not be used to circumvent the plain intent of Tenn.R.App.P. 4(a). See Gassaway v. Patty, 604 S.W.2d 60, 61 (Tenn.App.1980).

Even though our appellate courts have not been given the authority to extend the time period within which an appeal must be filed, the drafters of the Tennessee Rules of Appellate Procedure never intended that no relief would be available to parties who failed to file a timely notice of appeal. The Advisory Commission's Comments to Tenn.R.App.P. 4(a) provide in this regard that

Nothing in this rule or any other rule permits the time for filing notice of appeal to be extended beyond the specified 30 days, although in appropriate circumstances an otherwise untimely appeal may be taken by first securing relief under Tennessee Rule of Civil Procedure 60.02.

Thus, it is now settled that trial courts can, in certain extraordinary circumstances, grant relief in accordance with the requirements of Tenn.R.Civ.P. 60.02 to parties who failed to file their notice of appeal within the period of time provided for in Tenn.R.App.P. 4(a). Moody v. Moody, 681 S.W.2d 545, 546 (Tenn.1984); Jerkins v. McKinney, 533 S.W.2d 275, 281 (Tenn.1976); and John Barb, Inc. v. Underwriters at Lloyds of London, 653 S.W.2d 422, 423 (Tenn.App.1983). However, this relief is generally granted in only the most extraordinary circumstances. Travis v. City of Murfreesboro, 686 S.W.2d 68, 69 (Tenn.1985). When such relief is granted, it usually takes the form of vacating the original final judgment and then re-entering it thus causing the thirty day period within which to file a notice of appeal to begin to run again. See Note, Failure to Timely File Notice of Appeal for First Tier Appellate Review: A Client's Rights, 14 Mem.St.U.L.Rev. 483, 498 (1984).

Parties seeking to file an untimely appeal usually invoke Tenn.R.Civ.P. 60.02(1) as a basis for relief. This rule provides that a party may be relieved from a final judgment based upon an adequate showing of "mistake, inadvertence, surprise or excusable neglect." These criteria are substantially similar to those found in the Federal Rules of Civil Procedure and the Federal Rules of Appellate Procedure as well as analogous rules adopted by other states. Therefore, decisions from these jurisdictions can provide persuasive precedents when we are called upon to construe our own rules. Bowman v. Henard, 547 S.W.2d 527, 530 (Tenn.1977); Jerkins v. McKinney, 533 S.W.2d 275, 280-281 (Tenn.1976); and Knapp v. Holiday Inns, Inc., 682 S.W.2d 936, 940 n. 4 (Tenn.App.1984).

Litigants seeking to file an untimely appeal in the Federal Courts have two alternatives available to them. Like litigants in our courts, they may seek relief pursuant to Fed.R.Civ.P. 60(b). In the alternative, they may seek a thirty day extension of time in which to file a notice of appeal in accordance with Fed.R.App.P. 4(a)(5). In both of these proceedings, the party seeking relief is required to prove that its failure to file a timely notice of appeal was the result of "excusable neglect." ⁷ Decisions from jurisdictions with comparable rules demonstrate that the "excusable neglect" standard remains the same no matter which avenue of relief is pursued.

Federal precedents applying the "excusable neglect" standard to circumstances such as the one before us have found this standard to be very strict. Sprout v. Farmers Insurance Exchange, 681 F.2d 587, 588 (9th Cir.1982); Pellegrino v. Marathon Bank, 640 F.2d 696, 698 (5th Cir.1981); and Prowswood, Inc. v. Mountain Fuel Supply Co., 676 P.2d 952, 959 (Utah 1984). See also 16 C. Wright, A. Miller, E. Cooper & E. Gressman Federal Practice and Procedure, Section 3950, at 366 (1977). Relief is granted only in extraordinary circumstances. Spound v. Mohasco Industries, Inc., 534 F.2d 404, 410-11 (1st Cir.1976); State v. One 1977 Blue Ford Pick-up Truck, 447 A.2d 1226, 1229 (Me.1982); and Bosworth Data Services, Inc. v. Gloss, 41 Colo.App. 530, 587 P.2d 1201, 1203 (1978). See also Annot., 26 A.L.R.Fed. 569 Section 3 (1976).

The mere unilateral inadvertence or mistake of counsel is generally not considered to be "excusable neglect." Thus, courts have...