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IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE
Submitted on Briefs June 3, 2003 Session MICHAEL G. BINKLEY, et al. v. RODNEY TREVOR MEDLING, et al.
Appeal by permission from the Court of Appeals, Middle Section Chancery Court for Humphreys County No. 24-001 Allen W. Wallace, Chancellor

No. M2001-01687-SC-R11-CV - Filed September 30, 2003

The issue in this appeal is whether the defendant's motion to alter or amend filed thirty-three days after entry of judgment was timely under Tennessee Rule of Civil Procedure 58 and therefore sufficient to toll commencement of the thirty-day period for filing a notice of appeal. The Court of Appeals dismissed the defendant's appeal as untimely. We agree with the intermediate court's conclusion that the defendant has failed to carry his burden of proving that the motion to alter or amend was timely filed. We therefore affirm the judgment of the Court of Appeals, dismissing the appeal. Tenn. R. App. P. 11; Judgment of the Court of Appeals Affirmed; Appeal Dismissed FRANK F. DROWOTA , III, C. J., delivered the opinion of the court, in which E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined. Troy Lee Brooks, Mount Juliet, Tennessee, for the appellant, Rodney Trevor Medling. Michael G. Binkley and wife, Martha Binkley; Robert A. Jones, Sr. and wife, Mary Evelyn Jones; and Charles H. Cathey and wife, E. Jane Cathey, appellees, pro se.

OPINION Factual and Procedural Background In 1997, Michael and Martha Binkley, Robert and Mary Jones, and Charles and Jane Cathey (collectively, "plaintiffs"), a group of homeowners, obtained a judgment against Rodney Medling ("defendant"), which required Mr. Medling to restore a road and ditch in their subdivision to its

original condition. The defendant was given sixty (60) days from July 23, 1997 to comply. If the defendant failed to comply within the sixty-day period, he was required to pay $500.00 per day until he had complied with the judgment. On November 24, 1999, the plaintiffs filed a petition for contempt alleging that the defendant had failed to comply with the 1997 judgment.1 A hearing on the petition was held on October 9, 2000. The trial court found the defendant in contempt and awarded the plaintiffs a judgment in the amount of $555,500.00,2 representing the penalty of $500.00 per day for each day of noncompliance subsequent to September 23, 1997. The trial court's judgment on the petition for contempt was entered by the clerk on December 20, 2000. On January 22, 2001, thirty-three days after entry of the trial court's judgment, the defendant filed a motion to alter or amend. The plaintiffs did not raise any issue as to the timeliness of the motion. The trial court denied the defendant's motion on June 12, 2001, and the defendant filed a notice of appeal twenty days later, on July 2, 2001. On January 14, 2002, the Court of Appeals dismissed the defendant's appeal as untimely. The defendant filed a petition for rehearing, asserting that he had requested a copy of the entered judgment from the trial court clerk and that his motion to alter or amend was timely filed pursuant to Tennessee Rules of Civil Procedure 6.05 and 58. In an order entered on January 31, 2002, the Court of Appeals reserved judgment on the petition for rehearing, stating: "[i]t is, therefore, ordered that the appellant [the defendant] shall have ten (10) days from the date this order is entered within which to supplement his petition for rehearing with [1] a copy of his request for a copy of the entered judgment and [2] a certificate of the trial court clerk or other documents demonstrating when the copy of the entered judgment was mailed to the appellant's counsel." In response, the defendant filed an affidavit of his counsel and a copy of a letter to the trial court clerk requesting a copy of the entered judgment. The defendant did not provide the Court of Appeals with a certificate of the trial court clerk (or other evidence) indicating the date the clerk mailed the copy of the judgment to the defendant. Counsel's affidavit stated: "[i]t is not our office policy to retain or file the envelopes containing such correspondence." The Court of Appeals denied the petition for rehearing on the ground that the defendant had failed to present any evidence as to when the copy of the judgment was mailed by the trial court clerk to the defendant's counsel and that he thereby failed to carry his burden of proving that his motion to alter or amend was timely filed pursuant to Rule 58. In denying the petition to rehear, the Court of Appeals stated, "[w]e recognize the confusion created by the amendments to Rule 58 and the
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The petition for contempt also named a second defendant, the trustee named in a deed of trust securing a bank's lien on the property. From our review of the reco rd, it do es not appear that the trustee participated in the contempt proceed ing, and he is not a party to this app eal. The trial court's judgment provided that "the amount of the above pen alty shall not exceed the fair market value of the property." The record contains no evidence of the fair market value of the property, however it should be noted that the property is a wooded, five acre parcel in a rural area.
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comments thereto as related to the applicability of the three day rule to post-trial motions. However, we are constrained to follow Begley Lumber [Co., Inc. v. Trammell, 15 S.W.3d 455 (Tenn. Ct. App. 1999)], and respectfully suggest that clarification by another court may be appropriate." We granted the defendant's application for permission to appeal in order to clarify the application of Tennessee Rules of Civil Procedure 6.05 and 58, and we now affirm the judgment of the Court of Appeals dismissing the appeal. Analysis Several rules of civil and appellate procedure are relevant to the issue in this appeal. We begin with Tennessee Rule of Appellate Procedure 3(a) which provides that "[i]n civil actions every final judgment entered by a trial court from which an appeal lies to the Supreme Court or Court of Appeals is appealable as of right." Appeals as of right are initiated by filing a notice of appeal with the clerk of the trial court. Tenn. R. App. P. 3(e). Pursuant to Tennessee Rule of Appellate Procedure 4, "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 . . . ." Tenn. R. App. P. 4(a).

The thirty-day time limit set out in Rule 4 is jurisdictional in civil cases. See, e.g., First Nat'l Bank of Polk County v. Goss, 912 S.W.2d 147, 148 (Tenn. Ct. App. 1995). However, certain posttrial motions, including a motion to alter or amend, if timely filed, toll commencement of the thirtyday period until an order granting or denying the motion is entered. Tenn. R. App. P. (4)(b). According to Tennessee Rule of Civil Procedure 59.04, a motion to alter or amend a judgment is timely if "filed and served within thirty (30) days after the entry of the judgment." (Emphasis added.) "Entry of judgment" is described by Tennessee Rule of Civil Procedure 58, which provides as follows: Entry of a judgment or an order of final disposition is effective when a judgment containing one of the following is marked on the face by the clerk as filed for entry: (1) the signature of the judge and all parties or counsel, or (2) the signatures of the judge and one party or counsel with a certificate of counsel that a copy of the proposed order has been served on all other parties or counsel, or (3) the signature of the judge and a certificate of the clerk that a copy has been served on all other parties or counsel. When requested by counsel or pro se parties, the clerk shall mail or deliver a copy of the entered judgment to all parties or counsel within five days after entry; notwithstanding any rule of civil or appellate procedure to the contrary, time periods for post-trial motions or a -3-

notice of appeal shall not begin to run until the date of such requested mailing or delivery. (Emphasis added.) Of particular import in the pending case is the language in Rule 58 stating that "notwithstanding any rule of civil or appellate procedure to the contrary, time periods for post-trial motions or a notice of appeal shall not begin to run until the date of such requested mailing or delivery." That language was added to Rule 58 by a 1997 amendment. According to the 1997 Advisory Commission Comments, the purpose of that language is to make the right to notice of the judgment entry date meaningful. A lawyer or party who requests a copy of the judgment stamped with the entry date should not be prejudiced by a clerk's failure to comply with the request. Having set out the governing authority, we next consider the two issues raised in the defendant's brief. As his first issue, the defendant argues that when a party requests notice of entry of the judgment pursuant to Rule 58 the time for filing a post-trial motion "begins to run on the first day of service of the copy of the judgment on that party." (Emphasis added.) The defendant's argument on this first issue is based upon the language in Rule 58 that states: "time periods for posttrial motions . . . shall not begin to run until the date of such requested mailing or delivery." (Emphasis added.) Relying on the word "delivery," the defendant asserts that the time period for filing his motion to alter or amend did not begin to run until the date the copy of the judgment was "delivered" to defendant's counsel, i.e., the date he was "served" with the copy of the judgment. The defendant's argument is based upon a strained construction of the word "delivery." Read in the full context of Rule 58, the word "delivery" is merely used as an alternate to the word "mailing," signifying that the trial court clerk may either mail the copy of the judgment or use some other form of delivery (e.g., personal delivery or commercial delivery service). In other words, "delivery" simply means a non-mail method of sending the notice of entry of judgment to the parties

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