EFFECTIVE JULY 1, 1979
Rule 1. Scope and Construction of Rules. —These rules shall govern procedure in proceedings before the Supreme Court, Court of Appeals, and Court of Criminal Appeals. These rules shall be construed to secure the just, speedy, and inexpensive determination of every proceeding on its merits.
Advisory Commission Comments. These rules are drawn under the authority of Tenn. Code Ann. §§ 16-3-402 – 16-3-407, and 16-3-601. Those provisions of the Tennessee Code empower the Supreme Court to make rules of practice and procedure in all courts of this state and in all civil and criminal suits, actions and proceedings. Accordingly, these rules govern procedure before all the appellate courts in Tennessee and in all proceedings, whether denominated as appeals or otherwise, in both civil and criminal cases. By the terms of the statute, after the rules have taken effect, all laws in conflict therewith are of no further force and effect.
A principal purpose of these rules is to bring together in one place a simplified, coherent, and modern body of law. Under Rule 45 of these rules and Tenn. Code Ann. § 16-3-407, the intermediate appellate courts are expressly authorized to make and amend rules governing their practice not inconsistent with these rules.
These rules are not identical to the Federal Rules of Appellate Procedure either in their substance or organization. Instead, they reflect a study of existing Tennessee law as well as the rules and statutes of virtually every other state.
As is the case with the Tennessee Rules of Civil Procedure, it is the policy of these rules to disregard technicality in form in order that a just, speedy, and inexpensive determination of every appellate proceeding on its merits may be obtained.
Unlike the rules of many other jurisdictions, these rules do not contain a provision specifying that they shall not be construed to extend or limit the jurisdiction of the appellate courts. Nothing in these rules is intended to affect substantive rights, and all the rules must be construed consistently with the constitutions of the United States and the state of Tennessee.
Rule 2. Suspension of Rules. —For good cause, including the interest of expediting decision upon any matter, the Supreme Court, Court of Appeals, or Court of Criminal Appeals may suspend the requirements or provisions of any of these rules in a particular case on motion of a party or on its motion and may order proceedings in accordance with its discretion, except that this rule shall not permit the extension of time for filing a notice of appeal prescribed in Rule 4, an application for permission to appeal to the Supreme Court from the denial of an application for interlocutory appeal by an intermediate appellate court prescribed in Rule 9(c), an application for permission to appeal to the Supreme Court from an intermediate appellate court’s denial of an extraordinary appeal prescribed in Rule 10(b), an application for permission to appeal prescribed in Rule 11, or a petition for review prescribed in Rule 12. [Amended by filed January 31, 2003, effective July 1, 2003.]
Advisory Commission Comments. The primary purpose of this rule is to make clear the power of the appellate courts to suspend the requirements or provisions of any of these rules in a particular case. The courts are thus empowered to relieve litigants of the consequences of noncompliance with the rules in those circumstances in which it is appropriate to do so. The need for this power is the result of two principal considerations. These rules, as do most rules of law, necessarily speak in somewhat general terms. Otherwise, the rules would be overburdened with qualifications, exceptions, specifications, and provisos. In addition, no person or group of persons can possibly foresee all the situations life may churn up. This rule, therefore, permits the necessary individualization of the law in particular cases, and provides the source of authority for the courts to formulate law in situations not currently foreseeable.
The exceptions to this rule prohibit the appellate courts from extending the time for taking an appeal as of right, applying for permission to appeal from an intermediate appellate court to the supreme court, and for petitioning for review in those rare cases in which the Court of Appeals directly reviews orders of an administrative agency. Those times are specified in Rules 4, 11, and 12. Since filing a notice of appeal is an essential step necessary to a valid appeal of right, this step should not be waivable inasmuch as the rights of parties remain uncertain during the time available for filing a notice of appeal. Similar considerations prompted the other two exceptions.
The rule envisions that the appellate court may act on its own motion or on motion of a party. A motion by a party should be made in the manner provided in Rule 22. If the appellate court does suspend the requirements or provisions of these rules, proceedings thereafter will be had in accordance with the discretion and direction of the court.
The final clause prohibiting extensions in no way affects computation of time under T.R.A.P. 21. For example, if the thirtieth day to file a notice of appeal falls on a holiday, the notice could be filed on the next business day.
Advisory Commission Comment [2003] The rule was amended to clarify that the filing deadlines to the Supreme Court under Rules 9(c) and 10 are jurisdictional, like those in Rules 4, 11 and 12.
Rule 3. Appeal as of Right: Availability; Method of Initiation —(a) Availability of Appeal as of Right in Civil Actions. —In 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. Except as otherwise permitted in Rule 9 and in Rule 54.02 Tennessee Rules of Civil Procedure, if multiple parties or multiple claims for relief are involved in an action, any order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before entry of a final judgment adjudicating all the claims, rights, and liabilities of all parties.
(b) Availability of Appeal as of Right by Defendant in Criminal Actions.–In criminal actions an appeal as of right by a defendant lies from any judgment of conviction entered by a trial court from which an appeal lies to the Supreme Court or Court of Criminal Appeals: (1) on a plea of not guilty; and (2) on a plea of guilty or nolo contendere, if the defendant entered into a plea agreement but explicitly reserved the right to appeal a certified question of law dispositive of the case pursuant to and in compliance with the requirements of Rule 37(b)(2)(i) or (iv) of the Tennessee Rules of Criminal Procedure, or if the defendant seeks review of the sentence and there was no plea agreement concerning the sentence, or if the issues presented for review were not waived as a matter of law by the plea of guilty or nolo contendere and if such issues are apparent from the record of the proceedings already had. The defendant may also appeal as of right from an order denying or revoking probation, and from a final judgment in a criminal contempt, habeas corpus, extradition, or post-conviction proceeding.
(c) Availability of Appeal as of Right by the State in Criminal Actions. —In criminal actions an appeal as of right by the state lies only from an order or judgment entered by a trial court from which an appeal lies to the Supreme Court or Court of Criminal Appeals: (1) the substantive effect of which results in dismissing an indictment, information, or complaint; (2) setting aside a verdict of guilty and entering a judgment of acquittal; (3) arresting judgment; (4) granting or refusing to revoke probation; or (5) remanding a child to the juvenile court. The state may also appeal as of right from a final judgment in a habeas corpus, extradition, or post-conviction proceeding.
(d) Definition; One Method of Appeal as of Right. —An appeal as of right is an appeal that does not require permission of the trial or appellate court as a prerequisite to taking an appeal. There shall be one method of appeal as of right to be known as an “appeal as of right.”Writs of error, appeals in the nature of a writ of error, and simple appeals are abolished.
(e) Initiation of Appeal as of Right. —An appeal as of right to the Supreme Court, Court of Appeals, or Court of Criminal Appeals shall be taken by timely filing a notice of appeal with the clerk of the trial court as provided in Rule 4 and by service of the notice of appeal as provided in Rule 5. An appeal as of right may be taken without moving in arrest of judgment, praying for an appeal, entry of an order permitting an appeal or compliance with any other similar procedure. Provided, however, that in all cases tried by a jury, no issue presented for review shall be predicated upon error in the admission or exclusion of evidence, jury instructions granted or refused, misconduct of jurors, parties or counsel, or other action committed or occurring during the trial of the case, or other ground upon which a new trial is sought, unless the same was specifically stated in a motion for a new trial; otherwise such issues will be treated as waived. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal but is ground only for such action as the appellate court deems appropriate, which may include dismissal of the appeal. The trial court clerk shall send the trial judge a copy of all notices of appeal.
(f) Content of the Notice of Appeal.–The notice of appeal shall specify the party or parties taking the appeal by naming each one in the caption or body of the notice (but an attorney representing more than one party may describe those parties with such terms as “all plaintiffs,” “the defendants,” “the plaintiffs A, B, et al.,” or “all defendants except X”), shall designate the judgment from which relief is sought, and shall name the court to which the appeal is taken. An appeal shall not be dismissed for informality of form or title of notice of appeal. [Amended by order filed December 10, 2003; effective July 1, 2004.]
(g) Definition of Judgment. —The term “judgment”as used in these rules includes a decree.
[As amended effective July 1, 1980; as amended effective May 7, 1981; by order effective July 1, 1996; and by order effective July 1, 1998; and by order filed January 31, 2002, effective July 1, 2003, and by order filed January 6, 2005, effective July 1, 2005.]
Advisory Commission Comments.
Subdivision (a). This subdivision states the general rule that in civil actions an appeal as of right may be taken only after entry of a final judgment. In addition, the rule offers a definition of finality in those circumstances in which multiple claims or multiple parties are involved. The rule does not otherwise define a final judgment because it is typically clear whether an order is final or interlocutory. Interlocutory appeals are governed by Rules 9 and 10.
Subdivision (b). This subdivision specifies those situations in which the defendant in a criminal action may appeal as of right. Interlocutory appeals by the defendant may be sought as provided in Rules 9 and 10.
Subdivision (c). The only limitation placed upon the right of appeal by the state in criminal actions is that it may not appeal upon a judgment of acquittal. In addition, notions of double jeopardy place constitutional restrictions on the availability of appeals by the state. See e.g., United States v. Martin Linen Supply Co., 430 U.S. 564 (1977). This subdivision specifies situations, within constitutional limits, in which it seems desirable to recognize the state's right of appeal. In addition, the rule provides that appeals as of right lie only in those circumstances specified in the subdivision. Interlocutory appeals by the state may be sought as provided in Rules 9 and 10.
Subdivision (d). These rules recognize two types of appeals: appeals as of right and appeals by permission. This subdivision defines an appeal as of right as one that does not require the permission of either the trial or appellate court as a prerequisite to taking an appeal. Appeals by permission, on the other hand, require that either the trial court or the appellate court expressly authorize the taking of an appeal.
Subdivision (e). The intent of this subdivision is to provide a uniform and simplified method of taking an appeal as of right. This subdivision combined with Rules 4 and 5 require that a notice of appeal be filed with the clerk of the trial court within the time prescribed for taking an appeal and that a copy of the notice of appeal be served on all parties. The form and content of the notice of appeal are set out in official form 1, and Rule 48 specifically provides that the use of this form is sufficient under these rules.
Rule 36 provides that relief need not be granted to a party who fails to take whatever action is reasonably available to prevent or nullify the harmful effect of error. Failure to present an issue to the trial court, therefore, will typically not merit appellate relief. In addition, under Rule 13(c) the appellate court is generally limited in its review to those facts set forth in the record. Thus matters that can only be made a part of the record by a new trial motion must be so included in order to gain appellate review. Jury misconduct provides one example.
Under Rule 16, two or more persons may proceed on appeal jointly. Thus it is entirely proper for parties to file a joint notice of appeal; however, a joint notice of appeal must comply with subparagraph (f) of this rule.
Subdivision (f). This subdivision specifies the content of the notice of appeal. The purpose of the notice of appeal is simply to declare in a formal way an intention to appeal. As long as this purpose is met, it is irrelevant that the paper filed is deficient in some other respect. Similarly, the notice of appeal plays no part in defining the scope of appellate review. Scope of review is treated in Rule 13. This subdivision read in conjunction with Rule 13(a) permits any question of law to be brought up for review [except as otherwise provided in Rule 3(e)] as long as any party formally declares an intention to appeal in a timely fashion.
Subdivision (g). This subdivision makes clear that the term "judgment" as used in these rules is not limited to its strict common-law definition but includes equitable decrees. This subdivision is derived from Rule 54.01 of the Tennessee Rules of Civil Procedure.
Advisory Commission Comments [1980]. This amendment adds the following instances in which the state may appeal as of right from a final judgment in criminal actions: (1) habeas corpus proceedings, (2) extradition proceedings, and (3) post-conviction relief proceedings. This amendment does not represent any change in existing law.
Advisory Commission Comments [1996]. The final sentence of Rule 3(e) ensures that trial judges will know what decisions have been appealed.
Advisory Commission Comments [1998]. Because the trial clerk rather than the appellant's lawyer is now responsible for serving the appellate clerk with a copy of the notice of appeal, the words "and service" were deleted from subdivision (e).
Advisory Commission Comments [1999]. It is the policy of the appellate court clerk's office in cases involving cross appeals to consider the appellant to be the party who first files a notice of appeal; in the event that the notices are filed on the same day, the plaintiff in the proceeding below is considered to be the appellant unless the parties otherwise agree or the court otherwise directs.
Advisory Commission Comments [2000]. The third sentence of Rule 3(e) does not bar an appellee who failed to move for a new trial from raising issues on appeal under Rule 13(a). That has been the practice since adoption of the Appellate Rules, and it is the conclusion reached by Prof. John Sobieski–Reporter at the time–in 46 Tenn.L.Rev. at 732-4 (1979).
Advisory Commission Comments [2002]. Specific reference to Criminal Rule 37(b)(2)(i) and (iv) was added to subdivision (b)(2) to ensure awareness of the strict requirements for appealing a certified question of law. See State v. Preston, 759 S.W.2d 647 (Tenn. 1988).
Advisory Commission Comments [2004]. The language of paragraph (f) in parentheses, taken from Federal Rule of Appellate Procedure 3(c), provides a lawyer representing appellants with options other than listing each appellant by name. The lawyer should consult with clients to make sure each wants to appeal, thereby avoiding problems with court costs.
Termination
of Parental Rights Proceedings. Rule 8A imposes special requirements
governing the appeal of any termination of parental rights proceeding.
In particular, Rule 8A(a)(2) imposes a special provision regarding
the content of a notice of appeal in such a proceeding.
Advisory
Commission Comments [2005]. Former subdivision (h) (pertaining
to “assignments of error”)
is deleted because it is obsolete.
Rule 4. Appeal as of Right: Time for Filing Notice of Appeal —(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; however, in all criminal cases the “notice of appeal”document is not jurisdictional and the filing of such document may be waived in the interest of justice. The appropriate appellate court shall be the court that determines whether such a waiver is in the interest of justice. Any party may serve notice of entry of an appealable judgment in the manner provided in Rule 20 for the service of papers.
(b) Termination by Specified Timely Motions in Civil Actions. —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 59.02 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.
(c) Termination by Specified Timely Motions in Criminal Actions. In a criminal action, if a timely motion or petition under the Tennessee Rules of Criminal Procedure is filed in the trial court by the defendant: (1) under Rule 29(c) for a judgment of acquittal; (2) under Rule 32(a) for a suspended sentence; (3) under Rule 32(f) for withdrawal of a plea of guilty; (4) under Rule 33(a) for a new trial; or (5) under Rule 34 for arrest of judgment, the time for appeal for all parties shall run from entry of the order denying a new trial or granting or denying any other such motion or petition. [Amended by order filed December 10, 2003; effective July 1, 2004.]
(d) Premature Filing of Notice of Appeal. —A prematurely filed notice of appeal shall be treated as filed after the entry of the judgment from which the appeal is taken and on the day thereof.
(e) Effect of Specified Timely Motions on Trial Court’s Jurisdiction.–The
trial court retains jurisdiction over the case pending the court’s
ruling on any timely filed motion specified in subparagraph (b) or (c)
of this rule. A notice of appeal filed prior to the trial court’s
ruling on a timely specified motion shall be deemed to be premature and
shall be treated as filed after the entry of the order disposing of the
motion and on the day thereof. If an appellant named in a premature notice
of appeal decides to terminate the appeal as a result of the trial court’s
disposition of a motion listed in subparagraph (b) or (c) of this rule,
the appellant shall file in the appellate court a motion to dismiss the
appeal pursuant to Rule 15.
[As amended by orders entered
January 31, 1984, effective August 15, 1984, January 23, 1986, effective
August 1, 1986, February 12, 1986, and filed February 1, 1995, effective
July 1, 1995; and by order filed January 31, 2002, effective July 1,
2003, and by order filed January 6, 2005, effective July 1, 2005.]
Advisory Commission Comments.
Subdivision (a). The 30-day period specified in this subdivision in which to file notice of appeal is to be uniformly applied. It applies to appeals by the state as well as private parties, and in all civil and criminal proceedings. Statutes prescribing some other time period for an appeal are in conflict with these rules and of no further force or effect.
Thirty days is sufficient time particularly in light of the fact that a party is required to do nothing to initiate the appellate process except file and serve notice of appeal. On the other hand, if it is desirable to expedite decision on any matter, notice of appeal may be filed and served immediately upon entry of the judgment appealed from, and an expedited schedule of appellate review may be established as permitted by Rule 2.
The third sentence of this subdivision is intended to alleviate the problem that results if the appellant is unaware that a judgment has been entered by the trial court. This problem can arise, particularly in nonjury actions, because under Tennessee Rule of Civil Procedure 58 a judgment, signed by the judge, is considered entered for purpose of determining the timeliness of an appeal when it is filed with the clerk of the trial court. No notice of the filing need be given. By giving notice under this subdivision of the entry of an appealable judgment, the party in whose favor the judgment was entered may be able effectively to thwart resort to Tennessee Rule of Civil Procedure 60.02 in an attempt to extend the time for appealing beyond the 30 days specified in this rule on the grounds of mistake, inadvertence, surprise or excusable neglect. 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.
Subdivisions (b), (c), and (d). Subdivisions (b) and (c) specify certain post-trial motions that, if timely filed, terminate the running of the time for filing notice of appeal. These tolling provisions may unduly lengthen litigation if such motions are not ruled on promptly by the trial court. However, unless these motions are abolished, it would be undesirable to proceed with the appeal while the trial court has before it a motion the granting of which would vacate or alter the judgment appealed from, and which might affect either the availability of or the decision whether to seek appellate review. Subdivision (d) establishes the general rule that the right to appeal is not lost by filing a notice of appeal before entry of the judgment appealed from.
Advisory Commission Comment [1995]. 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.
Advisory Commission Comment [1999]. If a bankruptcy automatic stay prevents filing a notice of appeal, the appellant has 30 days after lifting of the stay in which to file the notice. See 11 U.S.C. § 108(c).
Advisory Commission Comment [2000]. A notice of appeal filed by a pro se litigant incarcerated in a correctional facility is governed by the prisoner-filing provision in Rule 20(a).
Advisory Commission Comment [2002]. The amendment to Appellate Rule 4(c) corrects an obsolete reference to Criminal Rule 32(f)(1).
Advisory Commission Comments [2004]. The amendment adds to the list in subdivision (c) a motion for withdrawal of a plea of guilty. See State v. Peele, 58 S.W.3d 701 (Tenn. 2001).
Termination
of Parental Rights Proceedings. Rule 8A imposes special requirements
governing the appeal of any termination of parental rights proceeding.
In particular, Rule 8A(a)(2) imposes a special provision regarding
the filing of a notice of appeal in such a proceeding.
Advisory
Commission Comments [2005]. Paragraphs (b) and (c) of this rule provide
that the time for filing a notice of appeal “shall run from the entry of
the order denying a new trial or granting or denying any other such motion.” Nonetheless,
some parties have filed notices of appeal before post-trial motions specified
in this rule were filed or while such motions were pending decision, raising
questions about the jurisdiction of a trial court to consider such motions. New
paragraph (e) makes clear that a trial court retains jurisdiction over such motions
despite the premature filing of a notice of appeal.
If a post-trial motion specified
in Rule 4 is timely filed after the filing of a notice of appeal and after the
trial court clerk’s service
of the notice of appeal on the clerk of the appellate court pursuant
to Rule 5(a), the trial court clerk must notify the clerk of the appellate
court of the filing of the motion; in addition, the trial court clerk
must promptly notify the clerk of the appellate court of the entry
of the trial court’s order disposing of the motion.
Rule 5. Appeal as of Right: Service of Notice of Appeal; Docketing of the Appeal. —(a) Service of Notice of Appeal in Civil Actions. —Not later than 7 days after filing the notice of appeal, the appellant in a civil action shall serve a copy of the notice of appeal on counsel of record for each party or, if a party is not represented by counsel, on the party. Proof of service in the manner provided in Rule 20(e) shall be filed with the clerk of the trial court within 7 days after service. The appellant shall note on each copy served the date on which the notice of appeal was filed. Service shall be sufficient notwithstanding the death of a party or counsel.
The trial court clerk shall promptly serve all filed notices of appeal on the clerk of the appellate court designated in the notice of appeal. With the notice of appeal, the trial court clerk shall also serve on the clerk of the appellate court either an appeal bond or an affidavit of indigency or a notice of the appellant’s failure to file either an appeal bond or affidavit.
(b) Service of Notice of Appeal in Criminal Actions. —In criminal actions, when the defendant is the appellant and the action was prosecuted by the state, the defendant shall serve a copy of the notice of appeal on the district attorney general of the county in which the judgment was entered and on the attorney general at the Attorney General's Nashville, Tennessee office. When the defendant is the appellant and the action was prosecuted by a governmental entity other than the state for the violation of an ordinance, the copy of the notice of appeal shall be served on the chief legal officer of the entity or, if this officer's name and address does not appear of record, then on the chief administrative officer of the entity at his or her official address. When the state or other prosecuting entity is the appellant, a copy of the notice of appeal shall be served on the defendant and the defendant's counsel. Service shall be made not later than 7 days after filing notice of appeal and proof of service shall be filed with the clerk of the trial court within 7 days after service. The appellant shall note on each copy served the date on which the notice of appeal was filed. The trial court clerk shall promptly serve all filed notices of appeal on the clerk of the appellate court designated in the notice of appeal.
(c) The clerk of the appellate court shall enter the appeal on the docket immediately upon receipt of the copy of the notice of appeal served upon the clerk of the appellate court by the trial court clerk or, in appeals other than appeals as of right pursuant to Rule 3, upon receipt of the application or petition initiating the appeal. The clerk of the appellate court shall immediately serve notice on all parties of the docketing of the appeal. An appeal shall be docketed under the title given to the action in the trial court, with the appellant identified as such, but if such title does not contain the name of the appellant, the party's name, identified as appellant, shall be added to the title. With the service of the notice of docketing of the appeal, the clerk of the appellate court shall send to the appellant, and the appellant shall fully complete and return to the clerk, a docketing statement in the form prescribed by the clerk. [As amended effective July 1, 1980, and by orders entered January 31, 1984, effective August 15, 1984, January 28, 1985, effective October 1, 1985, January 25, 1991, effective July 1, 1991, and filed February 1, 1995, effective July 1, 1995; and by order effective July 1, 1997; and by order effective July 1, 2003.]
Advisory Commission Comments [1997]. In order to assist the appellate court system in tracking all cases post-trial, the amendment shifts the duty of serving copies of notices of appeal on appellate clerks from counsel to trial court clerks. Service of a copy on the appellate clerk is not jurisdictional.
Advisory Commission Comments [2007].Advisory Commission Comment [2007]. The amended language requires the trial court clerk to promptly serve either the appeal bond or affidavit of indigency with the notice of appeal upon the appellate court clerk. This amendment will ensure that appellants timely file their appeal bond with the notice of appeal. Failure to do so will result in the trial court clerk notifying the appellate court clerk that no appeal bond has been filed so that action can be taken to dismiss the appeal under Rule 6(a) prior to the filing of the record.
Rule 6. Security for Costs on Appeal.
(a) Unless an appellant is exempted by statute or these rules or the Tennessee Rules of Civil Procedure, or has filed a bond for a stay that includes security for the payment of costs on appeal, in civil actions a bond for costs on appeal shall be filed by the appellant in the trial court with the notice of appeal. The trial court shall notify the Appellate Court Clerk of a party's failure to file a bond with the notice of appeal. The appellate court may issue a show cause order as to why the appeal should not be dismissed for failure to file a bond. A bond for costs on appeal shall have sufficient surety, and it shall be conditioned to secure the payment of costs if the appeal is finally dismissed or the judgment affirmed or the payment of such costs as the appellate court may direct if judgment is modified. In order to ensure that a surety is sufficient, the appellate court clerk may require the surety to provide proof that the surety has sufficient assets in the State of Tennessee to pay the costs of the appeal. If the appellate court clerk determines that the surety is not sufficient, the appellate court clerk may reject the bond for costs. The surety may appeal the decision of the appellate court clerk to the appellate court by filing a motion to approve the bond for costs within 10 days of the decision of the appellate court clerk. After a bond for costs on appeal is filed, an appellee may raise on motion for determination by the trial court objections to the form of the bond and/or the sufficiency of the surety. The provisions of Tennessee Rule of Civil Procedure 65A, regarding other forms of security and sureties, apply to a bond given under this rule.
(b) Unless an appellant is exempted by statute or has filed an affidavit of indigency and been permitted to proceed on appeal as a poor person, the appellant shall pay to the clerk of the appellate court all applicable litigation taxes upon receipt of the notice of docketing of the appeal pursuant to Rule 5(c). If the appellant fails to pay the litigation tax, the appellate court may issue an order requiring the appellant to show cause why the appeal should not be dismissed for failure to pay the litigation tax.
(c) Any party wanting to litigate appellate issues despite dismissal of the original appellant’s appeal shall file with the appellate court clerk a cost bond with sufficient surety to replace the cost bond filed by the original appellant. Filing of the replacement cost bond shall relieve the original appellant and surety of further obligations under the original cost bond. [As amended by order entered January 24, 1992, effective July 1, 1992 and by order entered January 30, 1998, effective July 1, 1998 and by order entered January 28, 2000, effective July 1, 2000and by order entered January 31, 2002, effective July 1, 2002.]
Advisory Commission Comments. The rule requires that the security be deposited with the filing of the notice of appeal, but the failure to file security contemporaneously is not in and of itself fatal to the validity of the appeal. The failure to file security may be remedied on motion of the appellee, and may ultimately include dismissal of the appeal.
Security given under Tennessee Rule of Civil Procedure 62 to stay execution on appeal includes security for costs. Accordingly, if security is given under that rule, no separate security for costs needs to be filed under this rule. Poor persons may be exempted from the security requirement of this rule pursuant to Rule 18 of these rules, and the state is exempt from any requirement of security by Tennessee Rule of Civil Procedure 62.06.
Advisory Commission Comments [2000]. This rule is intended to provide a simplified method of handling security for costs on appeal in civil actions. A $1,000 cash bond is considered sufficient in the absence of specific direction by the court as to some other amount. Under Rule 65A of the Tennessee Rules of Civil Procedure, the security may be given in the form of a bond or in any other form the court deems sufficient to secure the other party.
Advisory Commission Comments [2002]. New subparagraph (b) states the procedure for payment of all litigation taxes applicable to the appeal. New subparagraph (c) conforms to a similar provision in Appellate Rule 15(a).
Advisory Commission Comments [2008]. The 2008 amendment authorizes the appellate court clerk to require a surety to provide proof that the surety has sufficient assets in the State of Tennessee to pay the costs of the appeal. The purpose of this amendment is to establish a procedure by which the sufficiency of a surety can be reviewed in order to ensure that payment of the costs of an appeal are secured at the beginning of the appeal.
Rule 7. Stay or Injunction Pending Appeal. —(a) Review of Stay Orders. —Any party may obtain review of an order entered pursuant to Rule 62 of the Tennessee Rules of Civil Procedure by a trial court from which an appeal lies to the Supreme Court or Court of Appeals granting, denying, setting or altering the conditions of a stay of execution pending appeal, or granting, denying, setting or altering the conditions of additional or modified relief pending appeal. As a prerequisite to review, a written motion for the relief sought on review shall first be presented to the trial court unless a motion in the trial court is not practicable.
Review may be had by filing a motion for review in the appellate court to which the appeal has been taken. The motion for review shall be accompanied by a copy of the motion filed in the trial court, any answer in opposition thereto, any written statement of reasons given by the trial court for its action, and shall state: (1) the court that entered the order; (2) the date of the order; (3) the substance of the order, including the amount of any bond or other conditions of stay of execution; (4) the facts relied on, including the facts showing relief in the trial court is not practicable if a motion for the relief sought on review has not been presented to the trial court; (5) the arguments supporting the motion; and (6) the relief sought. If the facts relied on are subject to dispute the motion shall be supported by affidavits or other sworn statements or copies thereof. Review shall be had without briefs after reasonable notice to the other parties, who shall be served with a copy of the motion. The other parties may promptly file an answer. The court, on its own motion or on motion of any party, may order preparation of a transcript of all proceedings had in the trial court on the question of stay. Review shall be completed promptly.
A party may appeal the Court of Appeals’ decision on a motion for review by filing a motion for review in the Supreme Court within 15 days of filing of the Court of Appeals’ order. The motion shall be accompanied by a copy of the trial court’s order, the motion filed in the Court of Appeals, the order of the Court of Appeals, and all other documents (including transcripts) filed in the Court of Appeals on the issue of stay or injunction pending appeal. Review shall be had without briefs after reasonable notice to the other parties, who shall be served with a copy of the motion. The other parties may file an answer within 10 days of the filing of the motion in the Supreme Court. No oral argument shall be permitted except when ordered on the court’s own motion. Review shall be completed promptly. [Amended by order entered December 29, 2005, effective July 1, 2006.]
2006 Advisory Commission Comment
A third paragraph is added to Rule 7(a) to provide a procedure for the Supreme Court’s review of the Court of Appeals’ decision on a Rule 7 motion.
(b) Stay or Injunction May Be Conditioned on Giving of Bond; Proceedings Against Sureties. —Relief available in the appellate court under this rule may be conditioned on the filing of a bond in the trial court as provided in Tennessee Rules of Civil Procedure 62 and 65A.
Advisory Commission Comment. The circumstances in which a stay may be obtained pending appeal in civil actions are specified in Tennessee Rule of Civil Procedure 62. This rule simply specifies the procedure for seeking appellate review of decisions made under Rule 62. This rule should be construed in connection with Tennessee Rule of Civil Procedure 62.08, which expressly preserves the power of an appellate court to stay proceedings or to suspend relief or grant whatever additional or modified relief is deemed appropriate during the pendency of an appeal.
Nothing in this or any other of these rules governs the availability of stays in criminal actions. Release orders of the trial court may be reviewed as provided in Rule 8 of these rules.
Advisory Commission Comments [2004]. Termination of Parental Rights Proceedings. Rule 8A imposes special requirements governing the appeal of any termination of parental rights proceeding. In particular, Rule 8A(b) imposes a special provision regarding a stay or injunction pending appeal of such a proceeding.
Rule 8. Release in Criminal Cases. —(a) Review of Release Orders by Defendant. —Before or after conviction the prosecution or defendant may obtain review of an order entered by a trial court from which an appeal lies to the Supreme Court or Court of Criminal Appeals granting, denying, setting or altering conditions of defendant's release. Before conviction, as a prerequisite to review, a written motion for the relief sought on review shall first be presented to the trial court. After conviction and after the action is pending on appeal, a written motion may be made either in the trial court in which judgment was entered or in the appellate court to which the appeal has been taken. On entry of an order granting or denying a motion for a change in bail or other conditions of release, the trial court shall state in writing the reasons for the action taken.
Review may be had at any time before an appeal of any conviction by filing a motion for review in the Court of Criminal Appeals or, if an appeal is pending, by filing a motion for review in the appellate court to which the appeal has been taken. The motion for review shall be accompanied by a copy of the motion filed in the trial court, any answer in opposition thereto, and the trial court's written statement of reasons, and shall state: (1) the court that entered the order, (2) the date of the order, (3) the crime or crimes charged or of which defendant was convicted, (4) the amount of bail or other conditions of release, (5) the arguments supporting the motion, and (6) the relief sought. Review shall be had without briefs after reasonable notice to the other parties, who shall be served with a copy of the motion. The other parties may promptly file an answer. The court, on its own motion or on motion of any party, may order preparation of a transcript of all proceedings had in the trial court on the question of release. No oral argument shall be permitted except when ordered on the court's own motion. Review shall be completed promptly.
A party may appeal a Court of Criminal Appeals' decision on a motion for review by filing a motion for review in the Supreme Court within 15 days of filing of the Court of Criminal Appeals' order. The motion shall be accompanied by a copy of the trial court's order, the motion filed in the Court of Criminal Appeals, the order of the Court of Criminal Appeals, and all other documents (including transcripts) filed in the Court of Criminal Appeals on the issue of release. Review shall be had without briefs after reasonable notice to the other parties, who shall be served with a copy of the motion. The other parties may file an answer within 10 days of the filing of the motion in the Supreme Court. No oral argument shall be permitted except when ordered on the court's own motion. Review shall be completed promptly.
(b) Release of Defendant Pending Appeal by the State. —A defendant shall not be held in jail or to bail during the pendency of an appeal by the state, or an application for permission to appeal by the state, unless there are compelling reasons for the defendant's continued detention or being held to bail.
(c) Release of Defendant Pending Review in the Supreme Court. —Upon affirmance of the conviction of a defendant in the Court of Criminal Appeals, the defendant may be admitted to bail on bond pending the filing and disposition of an application for permission to appeal to the Supreme Court under Rule 11 upon such terms and under such conditions as shall be fixed by the Court of Criminal Appeals. [As amended by order entered January 28, 2000, effective July 1, 2000.]
Advisory Commission Comments. Subdivision (a). This subdivision governs appellate review of release orders entered both before and after conviction of a defendant. The purpose of this subdivision is to ensure the expeditious review of release orders. It permits review by a simple motion for review. Equally important for appellate review is the requirement that the trial court state the reasons for its decision. When review is sought before conviction, this subdivision contemplates that the initial determination of whether defendant is to be released is to be made by the trial court. The circumstances in which release may be obtained are governed by statute. See Tenn. Code Ann. §§ 40-1201 to 40-1247 [now §§ 40-11-101 —40-11-147], 40-3405 to 40-3408 [now §§ 40-26-101 —40-26-104] (1975 & Supp. 1978).
Subdivision (b). This subdivision is designed to protect the defendant's interest in his liberty pending appellate review sought by the state.
Advisory Commission Comments [2000]. The third paragraph provides a method for appeal to the Supreme Court decisions on Rule 8 motions.
Rule 8A. Appeal as of Right in Termination of Parental Rights Cases. - This rule shall govern any appeal as of right in a termination of parental rights proceeding. The other rules of appellate procedure also apply to such an appeal; however, when a provision of this rule conflicts with another rule of appellate procedure, the provision of this rule shall control.
(a) Appeal as of Right; Time for Filing Notice of Appeal. C (1) It shall not be necessary for a party to file a motion to alter or amend the judgment or a motion for new trial in order to obtain appellate review of the judgment of the trial court.
(2) In addition to meeting the requirements of Rule 3(f) ( A Content of the Notice of Appeal @ ), a notice of appeal in a termination of parental rights proceeding shall indicate that the appeal involves a termination of parental rights case.
(b) Stay or Injunction Pending Appeal. C Any party may obtain review of an order entered pursuant to Rule 62 of the Tennessee Rules of Civil Procedure or Rule 39(g)(4) of the Rules of Juvenile Procedure granting, denying, or altering the conditions of a stay of execution pending appeal, or granting, denying, or altering the conditions of additional or modified relief pending appeal; such appellate review shall be conducted pursuant to Rule 7 of the Rules of Appellate Procedure.
(c) Content and Preparation of the Record. C In addition to the papers excluded from the record pursuant to Rule 24(a), any portion of a juvenile court file of a child dependency, delinquency or status case that has not been properly admitted into evidence at the termination of parental rights trial shall be excluded from the record.
(1) Any transcript of the evidence or proceedings filed pursuant to Rule 24(b) shall be filed within 45 days after filing the notice of appeal. If the appellee has objections to the transcript as filed, the appellee shall file objections thereto with the clerk of the trial court within 10 days after service of notice of the filing of the transcript. Unless the time has been extended by order, if the appellant fails to file within 45 days from the filing of the notice of appeal either the transcript or statement of evidence or notice that no transcript or statement is to be filed, the clerk of the trial court shall provide written notice within 10 days to the clerk of the appellate court of the appellant' s failure to comply with this subdivision, with a copy provided to counsel and pro se parties.
(2) Any statement of the evidence or proceedings filed pursuant to Rule
24(c) shall be filed within 45 days after filing the notice of appeal. If
the appellee has objections to the statement as filed, the appellee shall
file objections thereto with the clerk of the trial court within 10 days
after service of the declaration and notice of the filing of the statement.
(3) If no transcript or statement of the evidence or proceedings is to be filed, the appellant shall, within 15 days after filing the notice of appeal, file with the clerk of the trial court and serve upon the appellee a notice that no transcript or statement is to be filed. If the appellee deems a transcript or statement of the evidence or proceedings to be necessary, the appellee shall, within 15 days after service of the appellant's notice, file with the clerk of the trial court and serve upon the appellant a notice that a transcript or statement is to be filed. The appellee shall prepare the transcript or statement at the appellee's own expense or apply to the trial court for an order requiring the appellant to assume the expense. Subdivisions (c)(1) and (c)(2) of this rule are applicable to the transcript or statement filed by the appellee under this subdivision, except that the appellee under this subdivision shall perform the duties assigned to the appellant in subdivisions (c)(1) and (c)(2) of this rule and the appellant under this subdivision shall perform the duties assigned to the appellee in such subdivisions.
(d) Approval of the Record by the Trial Judge or Chancellor. C After the expiration of the 10-day period for objections by the appellee, the trial judge shall approve the transcript or statement of the evidence and shall authenticate the exhibits. If not approved within 20 days after the expiration of the period for filing objections by the appellee, the transcript or statement of the evidence and the exhibits shall be deemed to have been approved and shall be so considered by the appellate court, except in cases where such approval did not occur by reason of the death or inability to act of the trial judge, which cases shall be governed by Rule 24(f).
(e) Completion and Transmission of the Record. C The record on appeal shall be assembled, numbered and completed by the clerk of the trial court and transmitted to the clerk of the appellate court within 5 days of the approval of the record by the trial judge or by operation of the automatic-approval provision of subdivision (d), whichever occurs first.
(f) Extension of Time for Completion of the Record. C If the record cannot be completed within the time permitted by subdivision (e) of this rule, the clerk of the trial court shall request an extension of time from the appellate court to which the appeal has been taken. The request shall set forth the reasons for the requested extension and must be made within the time originally prescribed for completing the record or within an extension previously granted. Extensions of time for completion of the record in termination of parental rights cases are disfavored and will be granted by the appellate court only upon a particularized showing of good cause. Trial court clerks shall give priority to completion of the record in termination of parental rights cases over other types of cases. The time for completing the record shall not be extended to a day more than 60 days after the date of the filing of the transcript or statement of evidence or the appellant's notice that no transcript or statement is to be filed. In the event of the failure of the clerk of the trial court to complete the record within the time allowed, the clerk of the appellate court shall notify the trial court and take such other steps as may be directed by the appellate court.
(g) Filing and Service of Briefs. C The appellant shall serve and file
a brief within 30 days after the date on which the record is filed
with the clerk. The appellee shall serve and file a brief within 20
days after the appellant 's brief is filed with the clerk. Reply briefs
shall be served and filed within 14 days after filing of the preceding
brief. All other matters regarding briefs of the appellant and appellee
shall be governed by Rules 27, 28, 29, 30 and 32.
(h) Appeal by Permission from Court of Appeals to Supreme Court C The provisions of Rule 11 control review by the Supreme Court in a termination of parental rights proceeding.
(i) Extension of Time. C Extensions of time in an appeal of a termination of parental rights proceeding are disfavored and will be granted by the appellate court only upon a particularized showing of good cause.
Rule 9. Interlocutory Appeal by Permission from the Trial Court. —(a) Application for Permission to Appeal; Grounds. —Except as provided in Rule 10, an appeal by permission may be taken from an interlocutory order of a trial court from which an appeal lies to the Supreme Court, Court of Appeals or Court of Criminal Appeals only upon application and in the discretion of the trial and appellate court. In determining whether to grant permission to appeal, the following, while neither controlling nor fully measuring the courts' discretion, indicate the character of the reasons that will be considered: (1) the need to prevent irreparable injury, giving consideration to the severity of the potential injury, the probability of its occurrence, and the probability that review upon entry of final judgment will be ineffective; (2) the need to prevent needless, expensive, and protracted litigation, giving consideration to whether the challenged order would be a basis for reversal upon entry of a final judgment, the probability of reversal, and whether an interlocutory appeal will result in a net reduction in the duration and expense of the litigation if the challenged order is reversed; and (3) the need to develop a uniform body of law, giving consideration to the existence of inconsistent orders of other courts and whether the question presented by the challenged order will not otherwise be reviewable upon entry of final judgment. Failure to seek or obtain interlocutory review shall not limit the scope of review upon an appeal as of right from entry of the final judgment.
(b) Procedure in the Trial Court. —The party seeking an appeal must file and serve a motion requesting such relief within 30 days after the date of entry of the order appealed from. When the trial court is of the opinion that an order, not appealable as of right, is nonetheless appealable, the trial court shall state in writing the reasons for its opinion. The trial court's statement of reasons shall specify: (1) the legal criteria making the order appealable, as provided in subdivision (a) of this rule; (2) the factors leading the trial court to the opinion those criteria are satisfied; and (3) any other factors leading the trial court to exercise its discretion in favor of permitting an appeal. The appellate court may thereupon in its discretion allow an appeal from the order.
(c) How Sought in Appellate Court; Cost Bond. —The appeal is sought by filing an application for permission to appeal with the clerk of the appellate court within 10 days after the date of entry of the order in the trial court or the making of the prescribed statement by the trial court, whichever is later. A sufficient number of copies shall be filed to provide the clerk and each judge of the appellate court with one copy. The application shall be served on all other parties in the manner provided in Rule 20 for the service of papers. A bond for costs as required by Rule 6 shall be filed with the application. An appeal from the denial of an application for interlocutory appeal by an intermediate appellate court is sought by filing an application in the Supreme Court as provided for in Rule 11, with the exception that the application shall be filed within 30 days of the filing date of the intermediate appellate court's order; the application shall be entitled “Application for Permission to Appeal from Denial of Rule 9 Application.”
(d) Content of Application; Answer. —The application shall contain: (1) a statement of the questions presented for review; (2) a statement of the facts necessary to an understanding of why an appeal by permission lies; and (3) a statement of the reasons supporting an immediate appeal. A statement of reasons is sufficient if it simply incorporates by reference the trial court's reasons for its opinion that an appeal lies. The application shall be accompanied by copies of: (1) the order appealed from, (2) the trial court's statement of reasons, and (3) the other parts of the record necessary for determination of the application for permission to appeal. Within 10 days after filing of the application, any other party may file an answer in opposition, with copies in the number required for the application, together with any additional parts of the record such party desires to have considered by the appellate court. The answer shall be served on all other parties in the manner provided in Rule 20 for the service of papers. The application and answer shall be submitted without oral argument unless otherwise ordered.
(e) Filing the Record. —The trial court clerk must file the record on appeal within 30 days from the date of entry of the order granting permission to appeal.
(f) Effect on Trial Court Proceedings. —The application for permission to appeal or the grant thereof shall not stay proceedings in the trial court unless the trial court or the appellate court or a judge thereof shall so order.
(g) Appeal in Criminal Actions. —Permission to appeal under this rule may be sought by the state and defendant in criminal actions. [As amended by order entered January 24, 1992, effective July 1, 1992, and by order entered January 26, 1999, effective July 1, 1999, and by order filed January 31, 2002; effective July 1, 2002, and by order filed December 10, 2003; effective July 1, 2004, and by order filed January 6, 2005, effective July 1, 2005.]
Advisory Commission Comment [2002]. Refer to Rule 24 for details about the content and preparation of the record on appeal.
Advisory Commission Comment [2003]. Tenn.R.App.P. 2 was amended to clarify that the thirty-day filing deadline to the Supreme Court under Rule 9(c) is jurisdictional.
Advisory
Commission Comment [2004]. The
amendment deleted the second sentence in Rule 9(e) (relating to the
docketing of an interlocutory appeal) because that sentence was rendered
obsolete by an amendment to Rule 5(c), effective July 1, 2002.
Advisory
Commission Comment [2005]. Rule 9(d) is amended to add a statement
of the questions presented for review to the list of items that must
be included in the application.
Advisory Commission Comment [2007]. When the intermediate court grants an interlocutory appeal under Rule 9, an appeal of the final decision of the intermediate court to the Supreme Court is governed by Rule 11. Accordingly, a party has 60 days from the date of the intermediate court’s judgment in the interlocutory appeal to file an application for permission to appeal under Rule 11. Note, however, that when the intermediate court denies an interlocutory appeal, Rule 9(c) provides that an application for permission to appeal to the Supreme Court must be filed within 30 days of the intermediate court’s order denying the interlocutory appeal.
Rule 10. Extraordinary Appeal by Permission on Original Application in the Appellate Court. —(a) Original Application for Extraordinary Appeal; Grounds. —An extraordinary appeal may be sought on application and in the discretion of the appellate court alone of interlocutory orders of a lower court from which an appeal lies to the Supreme Court, Court of Appeals or Court of Criminal Appeals: (1) if the lower court has so far departed from the accepted and usual course of judicial proceedings as to require immediate review, or (2) if necessary for complete determination of the action on appeal as otherwise provided in these rules. The appellate court may issue whatever order is necessary to implement review under this rule.
(b) How Sought; Cost Bond. —An extraordinary appeal is sought by filing an application for an extraordinary appeal with the clerk of the appellate court. A sufficient number of copies shall be filed to provide the clerk and each judge of the appellate court with one copy. Unless necessity requires otherwise, the application shall be served on all other parties in the manner provided in Rule 20 for the service of papers. The appeal shall be docketed in accordance with Rule 5(c) upon the filing of the application with the clerk of the appellate court. An appeal from the denial of an application for extraordinary appeal by an intermediate appellate court is sought by filing an application in the Supreme Court as provided for in this rule within 30 days of the filing date of the intermediate appellate court's order. A bond for costs as required by Rule 6 shall be filed with the application.
(c) Content of Application. – The application shall contain: (1) a statement of the questions presented for review; (2) a statement of the facts necessary to an understanding of why an extraordinary appeal lies; (3) a statement of the reasons supporting an extraordinary appeal, and (4) the relief sought. The application shall be accompanied by copies of any order or opinion or parts of the record necessary for determination of the application. The application may also be supported by affidavits or other relevant documents. The application to the Supreme Court shall include the application filed in the intermediate appellate court and a copy of the intermediate appellate court's order.
(d) Subsequent Procedure. —If the appellate court is of the opinion that an extraordinary appeal should not be granted, it shall deny the application. Otherwise, the appellate court shall order that an answer to the application be filed by the other parties within the time fixed by the order. The order shall be served on all other parties and if the application has not previously been served shall have attached thereto a copy of the application. The appellate court shall advise the parties of the dates on which briefs are to be filed, if briefs are required, and of the date of oral argument, if oral argument is granted.
(e) Appeal in Criminal Actions. —Permission to appeal under this rule may be sought by the state and defendant in criminal actions. [As amended by order entered January 26, 1999, effective July 1, 1999, and by order filed January 6, 2005, effective July 1, 2005.]
Advisory Commission Comments. Interlocutory review under this rule differs from interlocutory review under Rule 9 in that this rule requires the permission of only the appellate court. The circumstances in which review is available under this rule, however, are very narrowly circumscribed to those situations in which the trial court or the intermediate appellate court has acted in an arbitrary fashion, or as may be necessary to permit complete appellate review on a later appeal.
The procedure for applying for extraordinary review under this rule is substantially the same as that set forth in Rule 9. However, an answer to an application need not be filed unless the appellate court so directs based upon its opinion that an extraordinary appeal may lie. If an extraordinary appeal is granted, subsequent proceedings are had as determined appropriate by the appellate court.
Subdivision (a) expressly empowers the appellate court to issue whatever order is necessary to implement review, and Rule 36 permits the court to grant whatever relief is appropriate.
This rule, like Rule 9, is available to both the defendant and the state in criminal actions.
Advisory Commission Comments [1994]. If the intermediate appellate court refuses to hear a Rule 10 extraordinary appeal, the Supreme Court will hear the case only under the criteria of Rule 10.
Advisory
Commission Comments [2003]. T.R.A.P. 2 was amended to clarify
that the thirty-day filing deadline to the Supreme Court under T.R.A.P.
10(b) is jurisdictional.
Advisory
Commission Comments [2005].Rule 10(c) is amended to
add a statement of the questions presented for review to
the list of items that must be included in the application.
Rule 11. Appeal by Permission from Appellate Court to Supreme Court. —(a) Application for Permission to Appeal; Grounds. —An appeal by permission may be taken from a final decision of the Court of Appeals or Court of Criminal Appeals to the Supreme Court only on application and in the discretion of the Supreme Court. In determining whether to grant permission to appeal, the following, while neither controlling nor fully measuring the court's discretion, indicate the character of reasons that will be considered: (1) the need to secure uniformity of decision, (2) the need to secure settlement of important questions of law, (3) the need to secure settlement of questions of public interest, and (4) the need for the exercise of the Supreme Court's supervisory authority.
(b) Time; Content. —The application for permission to appeal shall be filed with the clerk of the Supreme Court within 60 days after the entry of the judgment of the Court of Appeals or Court of Criminal Appeals if no timely petition for rehearing is filed, or, if a timely petition for rehearing is filed, within 60 days after the denial of the petition or entry of the judgment on rehearing. The application shall contain a statement of: (1) the date on which the judgment was entered and whether a petition for rehearing was filed, and if so, the date of the denial of the petition or the date of the entry of the judgment on rehearing; (2) the questions presented for review; (3) the facts relevant to the questions presented, but facts correctly stated in the opinion of the intermediate appellate court need not be restated in the application; and (4) the reasons, including appropriate authorities, supporting review by the Supreme Court. The brief of the appellant referred to in subdivision (f) of this rule may be served and filed with the application for permission to appeal. A copy of the opinion of the appellate court shall be appended to the application.
(c) Number of Copies; Service. —The original and six copies of the application shall be filed. The application shall be served on all other parties in the manner provided in Rule 20 for the service of papers.
(d) Answer; Reply. —Within 15 days after filing of the application, any other party may file an answer in opposition, with copies in the number required for the application. An answer shall set forth the reasons why the application should not be granted and any other matters considered necessary for correction of the application. The answer shall be served on all other parties in the manner provided in Rule 20 for the filing of papers. No reply to the answer shall be filed.
(e) Action on Application. —The application shall be granted if two members of the Supreme Court are satisfied that the application should be granted. The appeal shall be docketed in accordance with Rule 5(c) upon entry of the order granting permission to appeal.
(f) Briefs. —If permission to appeal is granted, the appellant shall serve and file his brief within 30 days after the date on which permission to appeal was granted. If the appellant files a brief with the application for permission to appeal as provided in subdivision (b) of this rule, he or she may also file a supplemental brief, which shall likewise be served and filed within 30 days after the date on which permission to appeal was granted. Except by order of the appellate court or a judge thereof, the argument in a supplemental brief shall not exceed 25 pages. If available, the color of the cover of a supplemental brief shall be blue. An appellant who elects not to file a supplemental brief shall, within 30 days after the date on which permission to appeal was granted, file with the clerk of the appellate court and serve on the appellee notice of the appellant's election not to file a supplemental brief; if the appellant fails to file a notice within 30 days, the appellee's time runs from the 30th day after permission to appeal was granted.
The appellee shall serve and file a brief within 30 days after filing of the brief or supplemental brief of the appellant or appellant's notice of election not to file a supplemental brief.
Reply briefs shall be served and filed within 14 days after filing of the preceding brief.
The briefs shall conform with the requirements of Rule 27.
(g) Appeal in Criminal Actions. —Permission to appeal under this rule may be sought by the state and defendant in criminal actions.
(h) Grant of Permission; Cost Bond. —In civil cases, if application for permission to appeal is made by the appellee in the Court of Appeals and there is no appeal bond for costs with sufficient surety filed by the appealing party in the Court below, the appealing party must file an appeal bond for costs with sufficient surety in the amount of $1000. If this amount is deemed insufficient to cover the costs on appeal the Court may require an additional bond in an amount the Court deems sufficient to cover the cost of appeal. If application for permission to appeal is made by the appellant in the Court of Appeals and the appeal bond is insufficient to cover the cost of appeal, the Court may require the appealing party to file an additional bond in an amount the Court deems sufficient to cover the cost of appeal. [As amended by orders entered January 31, 1984, effective August 15, 1984, January 29, 1987, effective August 1, 1987, January 24, 1992, effective July 1, 1992, and December 20, 1993, effective July 1, 1994; and by order filed February 1, 1995, effective July 1, 1995; and by order entered January 26, 1999, effective July 1, 1999.]
Advisory Commission Comments. This rule covers discretionary review by the Supreme Court of final decisions of the intermediate appellate courts. It does not speak to those cases in which an appeal lies directly from the trial court to the Supreme Court, since all direct appeals are either appeals as of right or appeals by permission covered by other rules. Similarly, this rule does not speak to plenary review of cases pending in the intermediate appellate courts, since discretionary review by the Supreme Court is limited to final decisions of the intermediate appellate courts. The essential purpose of the rule, therefore, is to identify those cases of such extraordinary importance as to justify the burdens of time, expense and effort associated with double appeals.
The situations described in subdivision (a) are not exclusive. Instead, subdivision (a) simply sets forth those reasons that typically will be considered sufficient to secure review by the Supreme Court. However, even cases falling within the articulated reasons are subject to review only in the discretion of the Supreme Court.
The application for permission to appeal filed in the Supreme Court serves the purpose of demonstrating to that court that the case is an appropriate one for the exercise of the court's discretion in favor of permitting an appeal. One should be aware, however, that discretionary review by the Supreme Court is rarely granted solely for error-correction purposes. See State v. West, 844 S.W.2d 144, 146 (Tenn. 1992)(stating, “[w]ith the passage of the Appellate Courts Improvements Act of 1992, the jurisdiction of this Court has become almost completely discretionary. This means that as to non-capital criminal cases, we function primarily as a law-development court, rather than as an error-correction court.”). [An exception to the foregoing statement is that the Court does act as an error-correcting court in worker’s compensation cases; worker’s compensation cases, by statute, are appealed directly to the Supreme Court, and the provisions of Rule 11 therefore do not apply to such appeals. See Tenn. Code Ann. § 50-6-225(e).]
Subdivision (b). The 60-day period for filing an application for permission to appeal is jurisdictional and may not be extended. See Rules 2 and 21(b); and State v. Sims, 626 S.W.2d 3 (Tenn. 1981). By cross-reference to T.R.A.P. 21(a) the reader will observe that, should the sixtieth day fall on a weekend or holiday, the application for permission to appeal could be filed on the next business day.
Advisory Commission Comments [1984]. Subdivision (f). The Supreme Court is receptive to a full brief on all issues accompanying the application or permission to appeal, but an application without a brief will meet the requirement of the Rule.
Advisory Commission Comments [1999]. Concerning the scope of an answer under Rule 11(d), consult Rule 13(a), which permits the appellee to raise issues allegedly decided erroneously by the intermediate appellate court.
Advisory Commission Comments [2002]. Pursuant to Rule 39, Rules of the Tennessee Supreme Court, an appellant in a criminal case will be deemed to have exhausted all available state remedies respecting a claim of error following an adverse decision by the Court of Criminal Appeals without the necessity of filing a petition to rehear or an application for permission to appeal under Tenn. R. App. P. 11(a). The Tennessee Supreme Court adopted Rule 39 in response to O'Sullivan v. Boerckel, 526 U.S. 838 (1999), in which the U.S. Supreme Court held that in order to satisfy the exhaustion requirement of collateral federal review under 28 U.S.C. § 2254, a state prisoner must present his or her claims to the state supreme court for discretionary review absent a state court rule or decision to the contrary. This Advisory Commission Comment is to alert attorneys to Rule 39, Rules of the Tennessee Supreme Court, which works no change to Tenn. R. App. P. 11 itself.
For those agencies which are subject to the Tennessee Uniform Administrative Procedures Act and from which appeals are taken directly to the Court of Appeals, the procedure upon review shall be as follows:
(a) Any person who is aggrieved by a final decision in a contested case may seek judicial review by filing a petition for review with the clerk of the Court of Appeals within 60 days after entry of the administrative order appealed from. The agency shall be named respondent.
(b) The petition shall specify the party seeking review, designate the order to be reviewed, and briefly describe the issues which the petitioner intends to raise. If two or more persons are entitled to petition for review of the same order and their interests are such as to make joinder practicable, they may file a joint petition and proceed as a single petitioner.
(c) The petition shall be accompanied by an appropriate bond as provided in Rule 6.
(d) The petitioner shall serve a copy of the petition on the agency, the Attorney General, and on all parties of record to the proceeding before the agency in the manner provided in Rule 5(a).
(e) Any person who was a party of record to the proceeding before the agency may become a party of record to the appeal by filing a written notice of appearance within 30 days after the filing of the petition for review. The notice of appearance shall describe briefly the position the intervenor intends to take and shall be served on the agency and on all parties in the proceeding before the agency.
(f) The record of proceedings before the agency, as described by T.C.A. § 4-5-319, shall be filed by the agency with the clerk of the Court of Appeals, as provided in T.C.A. § 4-5-322(d), within 45 days after filing of the petition for review.
(g) Insofar as applicable, briefs shall be filed in accordance with the time limits and stylistic requirements of Rules 27, 28, 29, and 30. The time for filing briefs begins to run from the day the record is filed. Any party disagreeing, in whole or in part, with the order of the agency shall file a brief within the time allowed for the petitioner. Other parties shall file briefs within 30 days from the last day allowed for filing petitioner's brief. The agency may file a responsive brief but is not required to do so.
(h) Insofar as applicable, proceedings before the Court of Appeals shall be conducted in accordance with these rules except that, where there is conflict between these rules and the provisions of the Tennessee Uniform Administrative Procedures Act, the provisions of the Act are controlling as provided in T.C.A. § 4-5-322(f).
For all other agencies from which appeals are taken directly to the Court of Appeals, the procedure upon review shall be as follows:
(a) Petition for Review. —Review is instituted by filing a petition for review with the clerk of the Court of Appeals within thirty days after the date of entry of the administrative order appealed from. The petition for review shall specify the party or parties seeking review and shall designate the respondent and the order to be reviewed. The agency and all other parties of record shall be named as respondents. The petition for review filed with the clerk of the Court of Appeals shall be accompanied by petitioner's or petitioner's counsel's address, a list of the names and addresses of the parties or counsel upon whom service is required, and an appropriate bond as required in Rule 6. The clerk of the Court of Appeals shall docket the proceeding and serve notice of the docketing as provided in Rule 5(c).
(b) Service of the Petition. —The petitioner shall serve the petition for review on the agency and all other parties of record to the proceeding before the agency in the manner for serving and proving service of a notice of appeal in civil actions prescribed in Rule 5(a).
(c) Other Parties. —If any respondent other than the agency wishes to participate in the proceeding in the Court of Appeals, such respondent shall file a written appearance, and those who do shall be parties in the Court of Appeals.
(d) Composition of the Record. —The entire record before the administrative agency shall be the record on review unless the agency and petitioner stipulate to omit portions. A party unreasonably refusing to stipulate to limit the record may be taxed for the additional cost. Omitted portions of the record shall be transmitted to the Court of Appeals at any time on the request of the agency, the petitioner or any other party, which request shall be served on all parties, or on order of the Court of Appeals. If anything is misstated in the record, the parties may at any time correct the misstatement by stipulation, or the Court of Appeals may at any time order that the misstatement be corrected and, if necessary, that a supplemental record be prepared and filed.
(e) Agency to File Record; Time for Filing; Notice of Filing. —The agency shall file the record within 45 days after filing of the petition for review. Extensions of time for filing the record may be granted by the Court of Appeals or a judge thereof on motion made within the time originally prescribed, or within an extension previously granted, or on motion made within 30 days thereafter supported by a showing of reasonable excuse for failing to file the motion earlier. The clerk of the Court of Appeals shall give notice to all parties of the date on which the record is filed.
(f) Time for Filing Briefs. —The time for filing briefs begins to run from the day the record is filed.
(g) (Reserved).
(h) Application of Other Rules. —Insofar as appropriate, the provisions of these rules (except Rules 24 through 26) are applicable to proceedings under this rule. As used in any applicable rule, the term “appellant”includes a petitioner and the term “appellee”includes a respondent in proceedings to review agency orders. [As amended by order entered January 21, 1988, effective August 1, 1988, and by order entered January 28, 1993, effective July 1, 1993; and by order entered January 26, 1999, effective July 1, 1999.]
Advisory Commission Comments. Initial review of most administrative proceedings takes place in the trial court. Some appeals, however, are taken directly from an administrative proceeding to the Court of Appeals. For example, appeals from the Tennessee Regulatory Authority go to the Middle Section of the Court of Appeals, Tenn. Code Ann. § 4-5-322(b)(1). Rule 12 simply sets forth the procedure to be followed in such circumstances. This rule does not itself create a right of review.
The procedure set forth in Rule 12 is substantially the same as the procedure established in other rules dealing with appeals of right from the trial court. At the same time, this rule has been formulated so as not to conflict with the provisions or the terminology of the Tennessee Uniform Administrative Procedures Act, Tenn. Code Ann. § 4-5-101 et seq.
Advisory Commission Comments [1993]. New Rule 12 I. conforms the rules of appellate procedure to the judicial review provisions of the Tennessee Uniform Administrative Procedures Act. Rule 12 II. is the existing rule applicable to agencies not subject to the Uniform Act.
Advisory Commission Comments [1999]. Appeals from Claims Commission decisions entered after May 7, 1997, are not governed by Rule 12.
Rule 13. Scope of Review. — (a) Questions of Law that May Be Urged Upon Appeal.–Except as otherwise provided in Rule 3(e), any question of law may be brought up for review and relief by any party. Cross-appeals, separate appeals, and separate applications for permission to appeal are not required. Dismissal of the original appeal shall not preclude issues raised by another party from being considered by an appellate court. [Effective July 1, 2002]
(b) Consideration of Issues Not Presented for Review. —Review generally will extend only to those issues presented for review. The appellate court shall also consider whether the trial and appellate court have jurisdiction over the subject matter, whether or not presented for review, and may in its discretion consider other issues in order, among other reasons: (1) to prevent needless litigation, (2) to prevent injury to the interests of the public, and (3) to prevent prejudice to the judicial process.
(c) Facts that May Be Considered on Appeal. —The Supreme Court, Court of Appeals, and Court of Criminal Appeals may consider those facts established by the evidence in the trial court and set forth in the record and any additional facts that may be judicially noticed or are considered pursuant to Rule 14.
(d) Findings of Fact in Civil Actions. —Unless otherwise required by statute, review of findings of fact by the trial court in civil actions shall be de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. Findings of fact by a jury in civil actions shall be set aside only if there is no material evidence to support the verdict.
(e) Findings of Guilt in Criminal Actions. —Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt. [As amended effective July 1, 1980.]
(f) Default Judgments. - A defaulted defendant cannot raise on appeal the defense of failure to state a claim upon which relief can be granted or the defense of failure to join a party under Rule 19 of the Tennessee rules of Civil Procedure. [Effective July 1, 2001]
Advisory Commission Comments. Subdivision (a). This subdivision treats that aspect of scope of review that involves the questions of law that may be urged on appeal. There are three features of this subdivision that are particularly noteworthy.
First, this subdivision provides only that any question of law may be brought up for review and relief [except as otherwise provided in Rule 3(e)], not that the appellate court must decide every question or that it must grant the requested relief. The propriety of granting relief is governed by Rule 36, which provides that relief need not be granted to a party who was responsible for an error or failed to take whatever action was reasonably available to prevent or nullify the harmful effect of error.
Second, this subdivision rejects use of the notice of appeal as a review-limiting device. In federal practice the notice of appeal has limited review in two principal ways. Some courts have limited the questions an appellant may urge on review to those affecting the portion of the judgment specified in the notice of appeal. However, since the principal utility of the notice of appeal is simply to indicate a party's intention to take an appeal, this limitation seems undesirable. The federal courts have also limited the issues an appellee may raise on appeal in the absence of the appellee's own notice of appeal. Here again, since neither the issues presented for review nor the arguments in support of those issues are set forth in the notice of appeal, there seems to be no good reason for so limiting the questions an appellee may urge on review. The result of eliminating any requirement that an appellee file the appellee's own notice of appeal is that once any party files a notice of appeal the appellate court may consider the case as a whole.
Finally, this subdivision applies not only to appeals from final judgments of the trial court, but also to interlocutory appeals and final decisions of the intermediate appellate courts that are reviewed by the Supreme Court. A separate application for permission to appeal is not necessary to bring up a question of law upon an interlocutory appeal or upon Supreme Court review of the final decision of an intermediate appellate court. As previously noted, the fact that a question of law may be brought up for review does not mean the appellate court must decide the question or grant the requested relief. Ordinarily, therefore, the Supreme Court will refuse to consider an issue not presented to the intermediate appellate court because, as stated in Rule 36, the party raising the issue has failed to take action reasonably available to nullify the error presented by the issue. However, if the issue were presented but not dealt with by the intermediate appellate court, the Supreme Court may decide the issue and grant appropriate relief. Thus the scope of review is as plenary in cases in which the Supreme Court reviews the final decision of an intermediate appellate court as it is when the Supreme Court reviews directly the final decision of a trial court. Full access to the issues and record is also available upon an interlocutory appeal.
Subdivision (b). This subdivision deals with the very difficult question of when an appellate court should consider an issue not raised by the parties. Generally speaking, control over the issues should reside in the parties, not in the court. Accordingly, this subdivision provides that review will typically extend only to the issues set forth in the briefs. Only the absence of subject-matter jurisdiction, whether at the trial or appellate level, must be considered by the appellate court regardless of whether it is presented for review. Cases appealed to the wrong appellate court must be transferred pursuant to Rule 17 of these rules. In all the other situations described in this subdivision, the appellate court has discretion to decide whether it will consider a matter not raised by the parties. It is intended that this discretion be sparingly exercised.
Subdivision (c). This subdivision specifies the facts that may be considered on appeal. Only rarely is it proper for an appellate court to consider facts in addition to those established by the evidence in the trial court. In actions tried before a jury, appellate consideration of facts beyond those established at the trial and relevant to the merits would deprive the parties of their right to trial by jury. In criminal actions consideration of additional facts raises serious problems under the confrontation clause. These factors in conjunction with the power of the trial court in appropriate circumstances to reopen a judgment to hear new evidence combine to foreclose appellate consideration of additional facts except as provided in Rule 14 of these rules.
Subdivision (d). This subdivision deals with appellate review of findings of fact in civil actions. Concurrent findings, see Tenn. Code Ann. § 27-1-113, findings in worker's compensation cases, see Tenn. Code Ann. § 50-6-225, and findings in administrative adjudication, see Tenn. Code Ann. § 4-5-323, are exempted from this subdivision.
Subdivision (e). This subdivision, dealing with appellate review of findings of guilt in criminal actions, is in accord with the latest decisions of the United States Supreme Court concerning the double jeopardy clause. See Burks v. United States, 46 U.S.L.W. 4632 (U.S. June 14, 1978); Greene v. Massey, 46 U.S.L.W. 4636 (U.S. June 14, 1978). In Burks the Court held that an accused may not be subjected to a second trial when his or her conviction is reversed by an appellate court solely for lack of sufficient evidence to sustain the jury's verdict. This holding was applied to a state-court conviction in Greene. Although the Court did not expressly address the standard governing appellate reversal on the ground of insufficient evidence, the standard set forth in this subdivision is consistent with if not compelled by the holdings in Burks and Greene.
Advisory Commission Comments [1980]. Subdivision (a). This amendment adds the introductory proviso "[e]xcept as otherwise provided in Rule 3(e)" to the phrase "any question of law may be brought up for review and relief by any party." It does not change the substance of either Rule 3 or Rule 13, and is simply designed to remind the appellant of the need to move for a new trial in jury actions.
Advisory Commission Comments [2001]. New Rule 13(f) overrules decisions such as Nickas v. Capadilas, 954 S.W.2d 735 (Tenn. App. 1997). That opinion relied on the pre-Rules precedent of Edington v. Michigan Mutual Life Ins. Co., 134 Tenn. 188, 183 S.W. 728 (1915). When the Rules of Civil Procedure took effect on January 1, 1971, however, Edington was no longer controlling because the holding conflicted with Rule 12.08 of the Civil Rules concerning waiver of defenses not raised by motion to dismiss or answer. See Tenn. Code Ann. § 16-3-406: "After such rules have become effective, all laws in conflict therewith shall be of no further force or effect."
Advisory Commission Comments [2002]. As pointed out in amended Rule 15(a), a party wishing to preserve appellate issues after dismissal of the original appeal should so indicate in response to the motion to dismiss.
Advisory Commission Comment [2009]. See amended Rule 36(b) Tenn. R. App. P., on the plain error doctrine.
Rule 14. Consideration of Post-Judgment Facts in the Appellate Court. —(a) Power to Consider Post-Judgment Facts. —The Supreme Court, Court of Appeals, or Court of Criminal Appeals on its motion or on motion of a party may consider facts concerning the action that occurred after judgment. Consideration of such facts lies in the discretion of the appellate court. While neither controlling nor fully measuring the court's discretion, consideration generally will extend only to those facts, capable of ready demonstration, affecting the positions of the parties or the subject matter of the action such as mootness, bankruptcy, divorce, death, other judgments or proceedings, relief from the judgment requested or granted in the trial court, and other similar matters. Nothing in this rule shall be construed as a substitute for or limitation on relief from the judgment available under the Tennessee Rules of Civil Procedure or the Post-Conviction Procedure Act.
(b) Motion to Consider Post-Judgment Facts. —A motion in the Supreme Court, Court of Appeals, or Court of Criminal Appeals to consider post-judgment facts pursuant to subdivision (a) of this rule shall be made in the manner provided in Rule 22. The appellate court may grant or deny the motion in whole or in part and subject to such conditions as it may deem proper.
(c) Procedure for Consideration of Post-Judgment Facts. —If a motion to consider post-judgment facts is granted or the appellate court acts on its own motion, the court, by appropriate order, shall direct that the facts be presented in such manner and pursuant to such reasonable notice and opportunity to be heard as it deems fair.
Advisory Commission Comments. Although the appellate court should generally consider only those facts established at trial, it occasionally is necessary for the appellate court to be advised of matters arising after judgment. These facts, unrelated to the merits and not genuinely disputed, are necessary to keep the record up to date. This rule gives the appellate court discretion to consider such facts. This rule is not intended to permit a retrial in the appellate court.
Rule 15. Voluntary Dismissal. —(a) Where to File Dismissal. —An appeal may be dismissed by filing in the appellate court a stipulation for dismissal signed by all parties or on motion and notice by appellant. Any party wanting to litigate appellate issues despite dismissal of the original appeal must provide notice of such intent in a response to the motion to dismiss. A copy of the dismissal shall be filed by the clerk of the appellate court with the clerk of the trial court. If the record has not been filed with the clerk of the appellate court, the clerk of the trial court shall file a copy of the appeal bond with the clerk of the appellate court.
(b) Dismissal After Permission to Appeal Granted. —If an application for permission to appeal has been granted under Rule 11 and all parties thereafter wish to have the appeal dismissed, the appellant shall file a motion and proposed order with the clerk of the Supreme Court.
(c) Dismissal Contingent on Settlement Agreement.–If the parties agree to settle a case on appeal and the settlement agreement is subject to the approval of the trial court, the parties shall file a motion in the appellate court asking the court to remand the case to the trial court for the limited purpose of considering the proposed settlement. If the trial court approves the settlement upon remand, the parties jointly shall file in the appellate court a motion to dismiss the appeal; the motion shall provide for the assessment of costs on appeal and shall be accompanied by a copy of the settlement agreement and the trial court’s order approving that settlement. If the trial court disapproves the settlement, the appellant shall file a notice in the appellate court stating that the trial court disapproved the settlement, in which case the appeal shall proceed under these rules. A motion to dismiss the appeal based upon the trial court’s approval of a settlement or a notice of the trial court’s disapproval shall be filed within 30 days of the trial court’s order. [As amended by order entered January 23, 1986, effective August 1, 1986; and by order entered February 12, 1986; and by order effective July 1, 1996; by order effective July 1, 1997; and by order effective July 1, 1998, and by order effective July 1, 2002, and by order filed January 31, 2003, effective July 1, 2003.]
Advisory Commission Comment See internal rule 11 of the Court of Criminal Appeals as it applies to defendants in criminal cases.
The new second sentence in Rule 15(a) provides a procedure for keeping some appellate issues viable despite the original appellant’s dismissal.
Advisory Commission Comment [2003] New paragraph (c) states the procedure for dismissing an appeal that is subject to the trial court’s approval.
Rule 16. Joint and Consolidated Appeals. —(a) Joint Appeals.–If two or more persons are entitled to appeal from a judgment or order and their interests are such as to make joinder practicable, they may proceed on appeal jointly. If two or more persons file separate notices of appeal from one judgment or order, the case shall be docketed in the appellate court as a single appeal.
(b) Consolidated Appeals.–When separate appeals involving a common question of law or common facts are pending before the appellate court, the appeals may be consolidated by order of the appellate court on its own motion or on motion of a party. [Amended by order filed January 6, 2005, effective July 1, 2005.]
Advisory
Commission Comment [2005]. Paragraph (a) is amended to harmonize
this rule with the 2004 amendment to Rule 3(f) (regarding content of notice
of appeal). Under paragraph (a) parties either may file a joint notice
of appeal in compliance with Rule 3(f) or they may file separate notices
of appeal. In either situation, when parties are seeking to appeal from
a single judgment or order, the case will be docketed as a single appeal.
Paragraph (b) is amended to clarify that appeals from separate cases may
be consolidated on the court’s
own motion or on motion of a party, when the separate cases involve
a common question of law or a common set of facts.
Rule 17. Transfer of Cases Appealed to the Wrong Court. —If a case is appealed to the Supreme Court, Court of Appeals, or Court of Criminal Appeals that should have been appealed to another court, the case shall be transferred to the proper court.
Advisory Commission Comments. This rule simply provides that cases appealed to the wrong appellate court shall be transferred to the proper appellate court. This is in accord with existing laws. See Tenn. Code Ann. §§ 16-408 —16-450 (Supp. 1977) [now §§ 16-4-108 —16-5-110].
Rule 18. Appeals by Poor Persons. —(a) Parties Previously Permitted to Proceed as Poor Persons in the Trial Court. —A party who has been permitted to proceed in an action in the trial court as a poor person (which includes a person who has been permitted to proceed there as one who is financially unable to obtain adequate defense in a criminal case) may proceed on appeal as a poor person unless, before or after the appeal is taken, the trial court finds the party is not entitled so to proceed, in which event the trial court shall state in writing the reasons for such finding.
(b) Leave to Proceed as a Poor Person on Appeal. —Except as provided in [subsection] (a), a party to an action in the trial court who desires to proceed as a poor person on appeal shall seek leave so to proceed in the trial court. If leave to proceed as a poor person is granted, the party may proceed without further application in the appellate court and without prepayment of fees or costs in either court or the giving of security therefor. If leave is denied, the trial court shall state in writing the reasons for the denial.
(c) Subsequent Proceedings on Denial of Leave to Proceed as a Poor Person. —If leave to proceed as a poor person is denied, or the trial court finds that the party is not entitled so to proceed, the clerk of the trial court shall forthwith serve notice of such action. A motion for leave to proceed as a poor person may be filed in the appellate court within 30 days after service of notice of the action of the trial court. The motion shall be accompanied by copies of the papers filed in the trial court seeking leave to proceed as a poor person and by a copy of the statement of reasons given by the trial court for its action.
(d) Motion in an Appellate Court for Leave to Proceed as a Poor Person on Appeal. If a party to an action on appeal is unable to bear the expenses of the appeal due to poverty, but that party has not sought leave from the trial court to proceed on appeal as a poor person, or that party becomes indigent during the appeal, the party may seek leave from the appellate court to proceed on appeal as a poor person. A motion for leave to proceed on appeal as a poor person filed in the appellate court shall be accompanied by a Uniform Affidavit of Indigency as set forth in Supreme Court Rule 13 (criminal cases) or by a Uniform Civil Affidavit of Indigency as set forth in Supreme Court Rule 29 (civil cases). If leave to proceed as a poor person is denied by an intermediate appellate court, the appellate court shall state in writing the reasons for the denial.
(e) Subsequent Proceedings on Denial by an Intermediate Appellate Court of Leave to Proceed as a Poor Person on Appeal. If leave to proceed as a poor person is denied by an intermediate appellate court, or an intermediate appellate court finds that the party is not entitled so to proceed, the clerk of the appellate courts shall forthwith serve notice of such action. A motion for leave to proceed as a poor person may thereafter be filed in the Supreme Court within 15 days after service of notice of the action of the intermediate appellate court. The motion shall be accompanied by copies of any papers filed in the trial and appellate courts seeking leave to proceed as a poor person and by a copy of the statement of reasons given by the trial and intermediate appellate courts for their actions.[As amended by order entered January 26, 1990, effective July 9,
1990and by order filed December 29, 2005, effective July 1, 2006..]
Advisory Commission Comments. Authority to allow a person to proceed on appeal in a criminal case with appointed counsel is found in Tenn. Code Ann. § 40-14-203. See also, Tenn. S. Ct. R. 13 (applying to criminal cases and to specified civil cases). A poor person may also obtain a transcript in criminal actions without payment of the reporter's fee pursuant to Tenn. Code Ann. § 40-14-312. Under subdivision (a) a person who has been permitted to proceed as a poor person in the trial court may proceed as a poor person on appeal without a redetermination of indigency, unless the trial court finds that the party is not entitled so to proceed. If a person has not previously been permitted to proceed as a poor person, he or she may seek leave from the trial court to do so on appeal pursuant to subdivision (b). If leave to proceed as a poor person on appeal is granted, there is no requirement that leave be sought from the appellate court.
Whenever the trial court denies leave to appeal as a poor person, the court must state in writing the reasons for its denial. Review of the trial court's denial may be sought in the appellate court within 30 days after service of notice of the action of the trial court. Review in the appellate court is by way of motion, rather than by way of an appeal. This simple and expeditious procedure seems clearly preferable to an appeal.
Compensation and reimbursement of attorneys who appeal criminal cases on behalf of poor persons is permitted by Tenn. Code Ann. § 40-14-207. See also, Tenn. S. Ct. R. 13 (applying to criminal cases and to specified civil cases).
Advisory Commission Comment [1990]. The exception in subdivision (b) referring to subdivision (a) is to make it clear that a person already proceeding as a pauper through the trial need not obtain additional leave to proceed under the pauper's oath on appeal.
Advisory Commission Comment [ 2006]t. Prior to this amendment, the rule authorized trial courts to determine whether a party should be permitted to proceed on appeal as a poor person, but the Rule did not expressly authorize an appellate court to do so. In some cases, however, the issue of a party’s financial condition does not arise until after the notice of appeal is filed. New paragraphs (d) and (e) give the appellate courts the authority to determine whether an appealing party should be permitted to proceed on appeal as a poor person; it should be noted, however, that the new paragraphs do not preclude the appellate court from remanding the matter to the trial court for a hearing on the issue, if necessary. The term "poor person" as used in the Rule is intended to refer to persons who are indigent for purposes of Rule 13 (appointment, qualifications and compensation of counsel for indigent defendants), or Rule 29 (uniform civil affidavit of indigency), Tenn. S. Ct. R., or any other provision of law.
Rule 19. Substitution, Addition and Dropping of Parties. —(a) Death of a Party. —If a party dies after a notice of appeal is filed or while a proceeding is otherwise pending in the appellate court and the claim sought to be enforced is not thereby extinguished, the appellate court may order substitution of the proper parties. A motion for substitution may be made by any party or by the successor or representative of the deceased party. If a party against whom an appeal may be taken dies after entry of a judgment or order in the trial court but before notice of appeal is filed, an appellant may proceed as if death had not occurred. After notice of appeal is filed, substitution shall be effected in the appellate court in accordance with this subdivision. If a party entitled to appeal shall die before filing notice of appeal, notice of appeal shall be filed and served by the deceased party's personal representative or, if there is no such personal representative, by the deceased party's counsel of record within the time prescribed in these rules. After notice of appeal is filed and served, substitution shall be effected in the appellate court in accordance with this subdivision.
(b) Substitution for Other Causes. —If substitution of a party in the appellate court is necessary by reason of marriage, bankruptcy, assignment, or any reason other than death, substitution shall be effected in accordance with the procedure prescribed in subdivision (a) of this rule.
(c) Public Officers; Death or Separation from Office. —When an officer of the state, a county, a city or other governmental agency is a party to an appeal or other proceeding in the appellate court in the officer's official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the officer successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not causing harmful error shall be disregarded.
When an officer of the state, a county, a city or other governmental agency is a party to an appeal or other proceeding in the officer's official capacity, the officer may be described as a party by official title rather than by name; but the appellate court may require that the officer's name be added.
(d) Effect of Failing to Order Substitution. —An order of substitution may be entered at any time, but the omission to enter such order shall not affect the substitution.
(e) Addition and Dropping of Parties. —Parties may be added or dropped by order of the appellate court on its own motion or on motion of a party and on such terms as are just.
Advisory Commission Comments. Subdivisions (a) through (d) provide that no appeal shall be dismissed because of the death or removal from office of any party, as long as the claim sought to be enforced is not extinguished by reason of death. The procedure for substitution described in this rule is similar to the rule on substitution of parties in civil actions specified in Rule 25 of the Tennessee Rules of Civil Procedure.
Subdivision (a) is in accord with Federal Rule of Appellate Procedure 43. It authorizes an attorney of record for the deceased to take an appeal on behalf of successors in interest if the deceased has no personal representative. Without such a provision, it is possible to argue that if a party entitled to appeal dies before the notice of appeal is filed, the appeal can be taken only by the deceased party's legal representative and must be taken within the time ordinarily prescribed. Subdivision (a) also authorizes an appeal to be taken against someone who has died after the entry of a judgment but before notice of appeal is filed.
In accordance with the general spirit of these rules, the omission of an order of substitution is not fatal to an appeal, but may be entered at any time under subdivision (d).
Subdivision (e) permits the addition or dropping of parties by the appellate court. This subdivision finds a parallel in Tennessee Rule of Civil Procedure 21.
Rule 20. Filing and Service of Papers. — (a) Filing.–Papers required or permitted to be filed in the appellate court shall be filed with the clerk. Filing shall not be timely unless the papers are received by the clerk within the time fixed for filing or mailed to the office of the clerk by certified return receipt mail or registered return receipt mail within the time fixed for filing. Filing will also be timely if placed with a commercial delivery service, having computer tracking capacity, within the time for filing.
Official drop boxes for filing of papers shall be located at the Supreme Court Buildings in Knoxville, Nashville, and Jackson and shall be maintained by agents of the Clerk of the Appellate Courts. These boxes shall be opened at the beginning of each business day. Papers found therein will be deemed filed on the last business day preceding opening of the box.
(b) Service of All Papers Required. —Copies of all papers filed by any party shall, at or before time of filing, be served by a party or person acting for that party on all other parties to the appeal or proceeding. Service on a party represented by counsel shall be made on counsel.
(c) Manner of Service. —Service may be personal or by mail. Personal service includes delivery of the copy to a clerk or other responsible person at the office of counsel or, if a party is not represented by counsel, by leaving it at the party's residence with some person of the family of the age of ten years or upwards. Service by mail is complete on mailing.
(d) Several Parties Represented by the Same Counsel; Multiple Counsel. —If one counsel appeals for several parties, the counsel is entitled to only one copy of any paper served upon him or her by any other party. If more than one counsel appeals for a party, service upon one of them is sufficient.
(e) Proof of Service. —Papers presented for filing shall contain an acknowledgment of service by the person served or proof of service in the form of a statement of the date and manner of service and the names of the persons served, certified by the person who made service. Proof of service may appear on or be affixed to the papers filed. The clerk may permit papers to be filed without acknowledgment or proof of service but shall require such to be filed promptly thereafter.
(f) Number of Copies for Court Sitting in Sections. —Whenever these rules require copies for each judge of the appellate court and the appellate court sits in sections, copies are required only for each judge of the section.
(g) Filing by Pro Se Litigant Incarcerated in Correctional Facility. —If papers required or permitted to be filed pursuant to the rules of appellate procedure are prepared by or on behalf of a pro se litigant incarcerated in a correctional facility and are not received by the clerk of the court until after the time fixed for filing, filing shall be timely if the papers were delivered to the appropriate individual at the correctional facility within the time fixed for filing. This provision shall also apply to service of papers by such litigants pursuant to the rules of appellate procedure. “Correctional facility”shall include a prison, jail, county workhouse or similar institution in which the pro se litigant is incarcerated. Should timeliness of filing or service become an issue, the burden is on the pro se litigant to establish compliance with this provision. [As amended by orders entered January 31, 1984, effective August 15, 1984, January 25, 1991, effective July 1, 1991, and January 28, 1993, effective July 1, 1993, January 28, 2000, effective July 1, 2000, and by order filed January 31, 2002, effective July 1, 2002.]
Advisory Commission Comments. It is commonplace to require service of all papers filed with the clerk. Rules of some other jurisdictions provide for the service of papers only on "adverse" parties. In view of the simplicity of service by mail, and the difficulty in some circumstances of determining who is an "adverse" party, there seems to be no good reason why a party who files a paper should not be required to serve all other parties to the proceeding in the appellate court. The common requirement of proof of service is retained, but the rule permits it to be made by certification, which may be endorsed on the copy that is filed.
Whenever these rules require a copy for each judge of the appellate court, and the appellate court sits in sections, a party is required to furnish copies only for each judge of the section. Thus, for example, appeals to the intermediate court of appeals will generally require the filing of only four copies of a brief, one for the clerk and one for each judge of the section.
Advisory Commission Comments [2000]. Pro se litigants who are incarcerated in correctional facilities cannot ensure the timely mailing for their mail and, as a consequence, cannot control the timely filing of their legal papers. This amendment deletes the previous pro se prisoner-filing provision contained in Rule 20(a) and substitutes a clarified provision in the new Rule 20(g). The pro se prisoner-filing provision covers all "papers required or permitted to be filed pursuant to the rules of appellate procedure," including notices of appeal.
Advisory Commission Comments [2002]. Two changes are made to subdivision (a). Commercial delivery services are approved for transmitting filings, assuming computer tracking capacity. Also, official drop boxes can be utilized at the three Supreme Court Buildings.
Rule 20A. Facsimile Filing. -- (a) Definitions.
(1) "Facsimile filing" means the facsimile transmission of an original document which is received in the original document 's entirety by the appellate court clerk and filed by the clerk.
(2) "Facsimile machine" means a device capable of sending a facsimile transmission using the international standard for scanning, coding, and transmission established for Group 3 machines by the Consultative Committee of International Telegraphy and Telephone of the International Telecommunications Union in regular resolution. Any facsimile machine used to send documents to a court must send at an initial transmission speed of no less that 4800 baud and be able to generate a transmission record.
(3)"Facsimile transmission" is the transmission of a document by a system that encodes a document into electrical signals, transmits these electrical signals over a telephone line, and reconstructs the signals to print a duplicate of the original document at the receiving end.
(4) "Sender" is the person or entity sending the facsimile transmission to the court.
(5) "Transmission record" means the document printed by the sending facsimile machine stating the telephone number of the receiving machine, the number of pages sent, the transmission time and date, and an indication of any errors in transmission.
(b) Filing procedures.
(1) The appellate court clerk shall accept for filing by facsimile transmission only those papers designated in subparagraph (b)(4) of this rule. No other papers shall be filed by facsimile transmission, except as provided in subparagraph (b)(5) of this rule.
(2) Each document filed by facsimile transmission shall be accompanied by the uniform cover sheet set forth in Appendix A to the appellate rules stating: the caption of the case; the appellate docket number; the title of the transmitted document; the number of pages of the facsimile transmission (including the cover sheet); the sender 's name, address, voice telephone number, and facsimile telephone number; and the date of the facsimile transmission. The cover sheet shall also contain clear and concise instructions as to the filing of the transmitted document.
(3) The filing of the original document shall not be required after facsimile filing. The sender shall retain the original document in the sender' s possession or control during the pendency of the action and shall produce such document upon request by the court or any party to the action. Upon failure to produce such document, the court may strike the document filed by facsimile transmission.
(4) Only the following documents may be filed in an appellate court by facsimile transmission:
(a) copy of notice of appeal served on the appellate court clerk by the trial court clerk;
(b) motion for extension of time within which to file transcript of the evidence;
(c) request from trial court clerk for extension of time within which to file appellate record;
(d) motion to correct, modify, or supplement record;
(e) motion relating to bond;
(f) motion for extension of time to file brief;
(g) motion to waive page limitation on brief;
(h) motion to submit case on briefs;
(i) motion relating to oral argument;
(j) motion for continuance;
(k) motion or stipulation to dismiss appeal;
(l) motion to withdraw as counsel of record;
(m) response to any motion listed in this subparagraph;
(n) response to show cause order entered by the appellate court.
For purposes of subparagraph (b)(4), "motion" and "response" shall include any affidavit, exhibit or proposed order submitted in support thereof.
(5) Notwithstanding subparagraph (b)(4), the appellate court, in its discretion, may direct the appellate court clerk to accept any document for filing by facsimile transmission if the court finds that extraordinary circumstances necessitate facsimile filing.
(6) No facsimile filing shall exceed ten (10) pages in length, including the cover sheet, unless authorized by the court. A facsimile filing may not be split into multiple facsimile transmissions to avoid this page limitation. All documents filed by facsimile transmission shall comply with all applicable rules of court, including, without limitation, rules governing the content and form of the papers, and the service of all papers.
(7) The original document sent by facsimile transmission shall be on letter-sized paper (8 2 by 11 inches). Originals on larger-sized paper may be reduced prior to facsimile transmission if the reduction to 8 2 by 11 inch paper renders a legible and complete copy of the original.
(8) The clerk is not required to notify the sender by return facsimile transmission or voice telephone call that the facsimile document has been received by the clerk or that the facsimile document has not been received in its entirety. This provision shall not relieve the clerk of any notice requirements imposed by law or by the court.
(c) Effect of facsimile filing.
(1) A facsimile transmission received by the clerk after 4:30 p.m. but before midnight, clerk' s local time, on a day the clerk's office is open for filing shall be deemed filed as of that business day. A facsimile transmission received after midnight but before 8:00 a.m., clerk 's local time, on a business day, or a facsimile transmission received by the clerk on a Saturday, Sunday, legal holiday, or other day on which the clerk 's office for filing is closed, shall be deemed filed on the preceding business day. Upon receiving a facsimile transmission in its entirety, the clerk shall note the filing date on the facsimile filing in the same manner as with original pleadings or other documents filed by mail or in person. For purposes of this provision, "received by the clerk" means the date and time the facsimile transmission is received by the clerk as indicated by the date and time printed on the facsimile transmission by the clerk's facsimile machine.
(2) A signature reproduced by facsimile transmission shall be treated as an original signature.
(3) The sender bears the risk of using facsimile transmission to convey a document to a court for filing, including, without limitation, malfunction of facsimile equipment, whether the sender 's or the clerk' s equipment; electrical power outages; incorrectly dialed telephone numbers; or receipt of a busy signal from the clerk 's facsimile telephone number. In the event that a facsimile transmission to the clerk is unsuccessful, the sender may file the document by mail or in person; in such cases, the filing date shall be determined as provided in Rules 20 and 21. However, if a facsimile transmission is not received in its entirety by the clerk because of a transmission error, the sender may move acceptance nunc pro tunc by filing a written motion with the court. The motion shall be accompanied by the sender' s transmission record, the original document that was the subject of the attempted transmission, and an affidavit of the sender detailing the facts concerning the attempted transmission. The court, in its discretion, may order filing of the original document nunc pro tunc.
(d) Facsimile service charge. The sender of the facsimile transmission shall pay to the appellate court clerk a service charge for each facsimile filing in the amount of five dollars ($5.00) plus one dollar ($1.00) per page of the facsimile filing (including the cover sheet) as a photocopying charge for the clerk's processing of the facsimile filing. Payment of the service charge and photocopying charge, accompanied by a copy of the facsimile filing cover sheet, shall be received by the appellate court clerk not later than ten (10) calendar days after the facsimile filing. The facsimile service charge and photocopying charge shall be paid by the sender as provided in this rule and shall not be taxed as court costs. The trial court clerk shall not be liable for a facsimile service charge for filing any document that may be filed by the trial court clerk pursuant to this rule.
TENNESSEE APPELLATE COURTS
UNIFORM FACSIMILE FILING COVER SHEET
TO (COURT CLERK): ____________________________________________________
WITH (COURT): ____________________________________________________
CLERK' S FAX NUMBER: ____________________________________________________
CASE NAME: ____________________________________________________
DOCKET NUMBER: ____________________________________________________
TITLE OF DOCUMENT: ____________________________________________________
FROM (SENDER): ____________________________________________________
SENDER' S ADDRESS: ____________________________________________________
____________________________________________________
SENDER' S VOICE TELEPHONE NUMBER: ____________________________________
SENDER' S FAX TELEPHONE NUMBER: ____________________________________
DATE: _______________ TOTAL PAGES, INCLUDING COVER PAGE: ___________
FILING INSTRUCTIONS/COMMENTS (attach additional sheet if necessary): [Added by order filed January 31, 2002, effective July 1, 2002.]
Rule 21. Computation and Extension of Time. —(a) Computation of Time. —In computing any period of time prescribed or allowed by these rules, the date of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the court clerk inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays and legal holidays shall be excluded from the computation. [Amended by order filed December 10, 2003; effective July 1, 2004.]
(b) Extension of Time. – For good cause shown the appellate court may enlarge the time prescribed by these rules or by its order for doing any act or may permit an act to be done after the expiration of such time; however, the court may not enlarge the time for filing a notice of appeal prescribed in Rule 4, an application for permission to appeal to the Supreme Court from the denial of an application for interlocutory appeal by an intermediate appellate court prescribed in Rule 9(c), an application for permission to appeal to the Supreme Court from an intermediate appellate court’s denial of an extraordinary appeal prescribed in Rule 10(b), an application for permission to appeal prescribed in Rule 11, or a petition for review prescribed in Rule 12. [Amended by order filed December 10, 2003; effective July 1, 2004.]
(c) Unaffected by Expiration of Term. —The period of time provided for the doing of any act or the taking of any proceeding shall not be affected or limited by the continued existence or expiration of a term of court. The continued existence or expiration of a term of court in no way affects the power of a court to do any act or take any proceeding. [As amended by order entered January 21, 1988, effective August 1, 1988; and by order effective July 1, 1997.]
Advisory Commission Comments. Subdivision (b), on extension of time, should be read in connection with Rule 2 of these rules, dealing with the time for filing a notice of appeal, an application for permission to appeal, or a petition for review.
If a motion is made for extension of time, it should comply with Rule 22, which provides for the service of all motions on all parties.
Advisory Commission Comments [1988]. If a clerk's office is closed all day on a date other than a Saturday, Sunday, or legal holiday, a lawyer would be unable to gain entrance to file a document on the "deadline." Consequently the amendment extends the deadline to the next business day that the courthouse is open.
Advisory Commission Comments [2004]. The second sentence of Rule 21(a) is altered to adopt federal language covering snow days and the like which make a clerk's office "inaccessible" for filing. Earlier language required that the office be "closed."
Rule 21(b) was amended to conform with Rule 2, which was recently amended to clarify that the filing deadlines to the Supreme Court under Rules 9(c) and 10(b) are jurisdictional, as are those in Rules 4, 11 and 12.
Termination
of Parental Rights Proceedings. Rule 8A imposes special requirements
governing the appeal of any termination of parental rights proceeding.
In particular, Rule 8A(i) imposes a special provision regarding
extensions of time in such an appeal.
Rule 22. Motions. —(a) Content of Motion; Response. —Unless another form is elsewhere prescribed by these rules, an application for an order, unless made during a hearing, shall be made by filing a written motion for such order or relief with proof of service on all other parties. The motion shall contain or be accompanied by any matter required by a specific provision of these rules governing such a motion and the papers, if any, on which it is based. The motion shall state the grounds on which it is based and the order or other relief requested. Each copy of a motion shall be accompanied by a memorandum of law and if the motion is based on matters not appearing of record, by affidavits or other evidence in support thereof. Any showing in opposition to a motion, other than a procedural motion, shall be served and filed within 10 days after the motion is filed. The court may shorten or extend the time for responding to any motion.
(b) [Expeditious Disposition of Procedural Motions.] —Notwithstanding the provisions of (a) of this Rule 22 as to motions generally, motion for procedural orders, including any motion under Rule 21(b), may be acted upon at any time, without awaiting a response. The motion shall contain a statement concerning efforts to contact adverse counsel and shall reflect whether there is opposition to the motion. An party adversely affected by such action may by application to the court request consideration, vacation or modification of such action. Pursuant to rule or order of the courts, motions for specified types of procedural orders may be disposed of by the clerk.
(c) [Disposition of Motions.] —On request of a party or on its own motion, the appellate court may place any motion on the calendar for hearing or the court may otherwise dispose of the motion as it may determine. When a motion has been placed on the calendar for hearing, the clerk shall notify each party of the date and the time designated for the hearing. Pursuant to rule or order of the court, motions for specified types of procedural orders may be disposed of by the clerk.
(d) Power of Single Judge to Entertain Motions. —A single judge of the appellate court may entertain and may grant or deny any request for relief that under these rules may be sought by motion, except that a single judge may not dismiss or otherwise finally dispose of an appeal or other proceeding. The action of a single judge may be reviewed by the court.
(e) Form of Motions; Number of Copies. —All papers relating to motions shall comply with the form prescribed in Rule 30. Two copies of the motion shall be filed, but the court may require that additional copies be furnished. [As amended by order filed February 1, 1995, effective July 1, 1995; and by order effective July 1, 1997.]
Advisory Commission Comments. Subdivision (d). This subdivision permits a single judge to grant or deny any requested relief that under these rules may be sought by motion. It is, however, expressly provided that a single judge may not dismiss or otherwise finally dispose of an appeal or other proceeding. Final disposition of an appeal means the termination of an appeal, whether by decision, dismissal, or otherwise. Nothing in this subdivision authorizes a single judge of an appellate court to grant relief that must be sought by some procedure other than by a motion. Some rules require preparation of an application or petition. Since relief under those rules may not properly be sought by motion, a single judge may not grant the requested relief. It would, therefore, be inappropriate for a single judge to grant a request for permission to appeal, since permission is requested by the filing of an application, not by a motion. On the other hand, a single appellate judge may grant a stay or injunction under Rule 7 pending disposition of an application for permission to appeal by the full court. In all cases, the disposition of a motion by a single judge is subject to review by the entire court.
Advisory Commission Comment [1995]. Paragraph (b) allows expeditious disposition of purely procedural motions by the court or the clerk, without awaiting a response. In instances where justice miscarries, a lawyer could apply to the court for retroactive remedy. Paragraph (c) authorizes the court, in its discretion, to grant a hearing on a motion.
Advisory
Commission Comment [1997]. Filing rather than service of a motion triggers
the response time. The time for opposing a motion is extended from
5 to 10 days.
Rule 23. Duty of Clerk to Give Notice of Filed Orders. —Immediately on the filing of an order the clerk of the appellate court shall serve by mail notice of its filing on each party to the proceeding, together with a copy of any written reasons respecting the order if not explicitly stated in the notice, and shall make a record of the mailing. [As amended by order entered January 26, 1999, effective July 1, 1999.]
Advisory Commission Comments. This rule imposes a duty upon the clerk of the appellate court to notify all parties immediately upon the entry of an order by the appellate court. The purpose of this rule is to keep the parties up-to-date with regard to the disposition of the appeal or other proceeding before the appellate court.
Rule 24. Content and Preparation of the Record. —(a) Content of the Record. —The record on appeal shall consist of: (1) copies, certified by the clerk of the trial court, of all papers filed in the trial court except as hereafter provided; (2) the original of any exhibits filed in the trial court; (3) the transcript or statement of the evidence or proceedings, which shall clearly indicate and identify any exhibits offered in evidence and whether received or rejected; (4) any requests for instructions submitted to the trial judge for consideration, whether expressly acted upon or not; and (5) any other matter designated by a party and properly includable in the record as provided in subdivision (g) of this rule.
The following papers filed in the trial court are excluded from the record: (1) subpoenas or summonses for any witness or for any defendant when there is an appearance for such defendant; (2) all papers relating to discovery, including depositions, interrogatories and answers thereto, reports of physical or mental examinations, requests to admit, and all notices, motions or orders relating thereto; (3) any list from which jurors are selected; and (4) trial briefs; and (5) minutes of opening and closing of court. Any paper relating to discovery and offered in evidence for any purpose shall be clearly identified and treated as an exhibit. No paper need be included in the record more than once.
If less than the full record on appeal as defined in this subdivision is deemed sufficient to convey a fair, accurate and complete account of what transpired with respect to those issues that are the bases of appeal or if a party wishes to include any papers specifically excluded in this subdivision, the party shall, within 15 days after filing the notice of appeal, file with the clerk of the trial court and serve on the appellee a description of the parts of the record the appellant intends to include on appeal, accompanied by a short and plain declaration of the issues the appellant intends to present on appeal. If the appellee deems any other parts of the record to be necessary, the appellee shall, within 15 days after service of the description and declaration, file with the clerk of the trial court and serve on the appellant a designation of additional parts to be included. All parts of the record described or designated by the parties shall be included by the clerk of the trial court as the record on appeal. The declaration and description of the parts of the record to be included on appeal provided in this subdivision may be filed and served with the declaration and description of the parts of the transcript to be included in the record provided in subdivision (b) of this rule. If a party wishes to included any papers specifically excluded in this subdivision, but fails to timely designate such items, the trial court clerk may supplement the record as provided for in subdivision (e) without modifying the previously prepared record.
(b) Transcript of Stenographic or Other Substantially Verbatim Recording of Evidence or Proceedings. —If a stenographic report or other contemporaneously recorded, substantially verbatim recital of the evidence or proceedings is available, the appellant shall have prepared a transcript of such part of the evidence or proceedings as is necessary to convey a fair, accurate and complete account of what transpired with respect to those issues that are the bases of appeal. Unless the entire transcript is to be included, the appellant shall, within 15 days after filing the notice of appeal, file with the clerk of the trial court and serve on the appellee a description of the parts of the transcript the appellant intends to include in the record, accompanied by a short and plain declaration of the issues the appellant intends to present on appeal. If the appellee deems a transcript of other parts of the proceedings to be necessary, the appellee shall, within 15 days after service of the description and declaration, file with the clerk of the trial court and serve on the appellant a designation of additional parts to be included. The appellant shall either have the additional parts prepared at the appellant's own expense or apply to the trial court for an order requiring the appellee to do so. The transcript, certified by the appellant, the appellant's counsel, or the reporter as an accurate account of the proceedings, shall be filed with the clerk of the trial court within 60 days after filing the notice of appeal. Upon filing the transcript, the appellant shall simultaneously serve notice of the filing on the appellee. Proof of service shall be filed with the clerk of the trial court with the filing of the transcript. If the appellee has objections to the transcript as filed, the appellee shall file objections thereto with the clerk of the trial court within fifteen days after service of notice of the filing of the transcript. Any differences regarding the transcript shall be settled as set forth in subdivision (e) of this rule.
Within 15 days after filing the notice of appeal the appellant in a criminal action shall order from the reporter a transcript of such parts of the evidence or proceedings not already on file as the appellant deems necessary. The order shall be in writing and within the same period a copy shall be filed with the clerk of the trial court. If funding is to come from the state of Tennessee, the order shall so state.
(c) Statement of the Evidence When No Report, Recital, or Transcript Is Available. —If no stenographic report, substantially verbatim recital or transcript of the evidence or proceedings is available, the appellant shall prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection. The statement should convey a fair, accurate and complete account of what transpired with respect to those issues that are the bases of appeal. The statement, certified by the appellant or the appellant's counsel as an accurate account of the proceedings, shall be filed with the clerk of the trial court within 60 days after filing the notice of appeal. Upon filing the statement, the appellant shall simultaneously serve notice of the filing on the appellee, accompanied by a short and plain declaration of the issues the appellant intends to present on appeal. Proof of service shall be filed with the clerk of the trial court with the filing of the statement. If the appellee has objections to the statement as filed, the appellee shall file objections thereto with the clerk of the trial court within fifteen days after service of the declaration and notice of the filing of the statement. Any differences regarding the statement shall be settled as set forth in subdivision (e) of this rule.
(d) Procedure When No Transcript or Statement Is to Be Filed. —If no transcript or statement of the evidence or proceedings is to be filed, the appellant shall, within 15 days after filing the notice of appeal, file with the clerk of the trial court and serve upon the appellee a notice that no transcript or statement is to be filed. If the appellee deems a transcript or statement of the evidence or proceedings to be necessary, the appellee shall, within 15 days after service of the appellant's notice, file with the clerk of the trial court and serve upon the appellant a notice that a transcript or statement is to be filed. The appellee shall prepare the transcript or statement at the appellee's own expense or apply to the trial court for an order requiring the appellant to assume the expense. The other provisions of subdivisions (b) and (c) of this rule are applicable to the transcript or statement filed by the appellee under this subdivision, except that the appellee under this subdivision shall perform the duties assigned to the appellant in subdivisions (b) and (c) of this rule and the appellant under this subdivision shall perform the duties assigned to the appellee in subdivisions (b) and (c) of this rule.
(e) Correction or Modification of the Record. —If any matter properly includable is omitted from the record, is improperly included, or is misstated therein, the record may be corrected or modified to conform to the truth. Any differences regarding whether the record accurately discloses what occurred in the trial court shall be submitted to and settled by the trial court regardless of whether the record has been transmitted to the appellate court. Absent extraordinary circumstances, the determination of the trial court is conclusive. If necessary, the appellate or trial court may direct that a supplemental record be certified and transmitted.
(f) Approval of the Record by the Trial Judge or Chancellor. —The trial judge shall approve the transcript or statement of the evidence and shall authenticate the exhibits as soon as practicable after the filing thereof or after the expiration of the 15-day period for objections by appellee, as the case may be, but in all events within 30 days after the expiration of said period for filing objections. Otherwise the transcript or statement of the evidence and the exhibits shall be deemed to have been approved and shall be so considered by the appellate court, except in cases where such approval did not occur by reason of the death or inability to act of the trial judge. In the event of such death or inability to act, a successor or replacement judge of the court in which the case was tried shall perform the duties of the trial judge, including approval of the record or the granting of any other appropriate relief, or the ordering of a new trial. Authentication of a deposition authenticates all exhibits to the deposition. The trial court clerk shall send the trial judge transcripts of evidence and statements of evidence.
(g) Limit on Authority to Add or Subtract from the Record. —Nothing in this rule shall be construed as empowering the parties or any court to add to or subtract from the record except insofar as may be necessary to convey a fair, accurate and complete account of what transpired in the trial court with respect to those issues that are the bases of appeal.
(h) Filing of Transcript or Statement; Service of Notice to Parties. –Nothing
in this rule shall be construed as prohibiting any party from preparing
and filing with the clerk of the trial court a transcript or statement
of the evidence or proceedings at any time prior to entry of an appealable
judgment or order. Upon filing, the party preparing the transcript or
statement shall simultaneously serve notice of the filing on all other
parties, accompanied by a short and plain declaration of the issues the
party may present on appeal. Proof of service shall be filed with the
clerk of the trial court with the filing of the transcript or statement.
Any differences regarding the transcript or statement shall be settled
as set forth in subdivision (e) of this rule.
[As amended effective
July 1, 1980; as amended effective May 7, 1981, and by order entered
January 21, 1988, effective August 1, 1988; and by order entered February
18, 1996, effective July 1, 1996; as amended effective July 1, 2000,
and by order filed January 6, 2005, effective July 1, 2005.]
Advisory Commission Comments. General Note. This rule seeks to provide a method of preparation of the record that is both inexpensive and simple, and to provide that the record conveys an accurate account of what transpired in the trial court.
Subdivision (a). Under this subdivision the parties need do nothing (other than order preparation of a transcript) if the full record is deemed necessary for the appeal. The full record consists of: (1) copies of all papers filed in the trial court, (2) the original of any exhibits, (3) the transcript or statement of the evidence or proceedings, and (4) any other matter designated by a party and properly includable in the record. Certain papers filed in the trial court, such as subpoenas, summonses, papers relating to discovery, and jury lists, are automatically excluded from the record since they are typically unnecessary. However, if any party desires such matters to be included in the record on appeal, the party may have them included by designating in writing that such matters are to be included.
In some situations it may not be desirable to prepare a full record as defined in the first paragraph of this subdivision. The third paragraph of this subdivision gives the parties the opportunity to designate which matters are to be included in the record on appeal. All matters designated by the parties are included by the clerk in the record on appeal.
Subdivision (b). Because of the need to have an exact record of what transpired in the trial court and to avoid the inaccuracies that inevitably attend preparation of a narrative record, this subdivision requires a verbatim transcript if a stenographic report or other contemporaneously recorded, substantially verbatim recital of the evidence or proceedings is available. This subdivision does not require that a stenographic report be made of all the evidence or proceedings. If a stenographic or other substantially verbatim record is not available, subdivision (c) establishes a procedure for generating a narrative record.
The procedure for preparing a verbatim transcript of the proceedings is similar to the procedure specified in subdivision (a) for taking an appeal on less than a full record as defined in that subdivision. Each party has the option to designate and have included whatever portions of the transcript the party deems relevant and appropriate for the appellate court to consider. The designation of the parts of the record to be included on appeal may be filed and served with the designation of the parts of the transcript to be included in the record.
Subdivision (c). This subdivision is available only in those situations in which a stenographic report or other substantially verbatim recital or transcript of the evidence is unavailable. It permits the preparation of a narrative record of the evidence or proceedings.
Subdivision (e). This subdivision sets forth the procedure to be followed if it is necessary to correct or modify the record. Omissions, improper inclusions, and misstatements may be remedied at any time, either pursuant to stipulation of the parties or on the motion of a party or the motion of the trial or appellate court. If it is necessary to inform the appellate court of facts that have arisen after judgment in the trial court, resort should be made not to this subdivision but to Rule 14 of these rules.
Subdivision (f). This subdivision preserves the current requirement that the record be approved by the trial judge. This rule makes clear it is unnecessary for the judge or chancellor who presided at the trial to approve the record if such approval cannot be obtained by reason of the death or inability to act of the presiding judge or chancellor. In such circumstances any successor or replacement judge or chancellor may approve the record, though in some circumstances the fact that the judge or chancellor who presided at the proceedings is unavailable may require the ordering of a new trial. If, however, a stenographic transcript of the proceedings is available, only rarely would it be necessary to order a new trial due to the death or inability to act of the presiding judge or chancellor.
Subdivision (g). Under subdivision (a) the parties are empowered to designate any matter to be included in the record on appeal even though it is not automatically includable under the provisions of that subdivision. This subdivision makes clear, however, that the ability to designate additional parts to be included in the record extends only insofar as it is necessary to convey a fair, accurate and complete account of what transpired in the trial court. The ability to designate additional parts under subdivision (a) does not permit a party to augment the record by evidence entered ex parte.
Subdivision (h). This subdivision permits the preparation of a transcript or statement of the evidence prior to the entry of an appealable judgment if it is deemed desirable to do so. It would only be in unusual cases that it would be necessary to resort to this subdivision if a stenographic report of the proceedings is made.
Advisory Commission Comments [1980]. Most of the changes in Rule 24 amount to a simple relettering of subdivisions. There is an addition to Rule 24(b), which requires appellant in a criminal action to order the transcript from the court reporter within 15 days after filing notice of appeal, so that the court reporter will not be notified at the last minute of the need for a transcript. The only other change of substance in Rule 24 is the addition of a new subdivision (d). In some cases, no transcript or statement of the evidence or proceedings will be filed. For example, an action may be dismissed on a pretrial motion without a hearing in open court. This subdivision sets forth the procedure to be followed in such cases and any other case in which no transcript or statement is to be filed.
Advisory Commission Comment [1986]. Amended T.R.Civ.P. 30.02(4)(B) allows for videotape depositions without a stenographic record at the parties' option. Because the appellate courts generally do not review lengthy videotapes, however, an appellant must make certain that relevant portions of any videotape deposition introduced in evidence be presented to the appellate tribunal in written form. Usually the court reporter at trial should take down the testimony while the videotape is being played in the courtroom.
Advisory Commission Comments [1988]. Subdivision (a). The new fourth category of documents constituting the record makes clear that special requests for jury instructions automatically go to the appellate court. Probably that has always been the case, because the first category consists of papers "filed," which under Tenn. R. Civ. P. 5.06 includes papers filed with the trial judge as well as those filed with the clerk. The request need not be made an exhibit to the transcript of evidence, although that is a permissible procedure.
The amendment requires only submission to the judge of written requests for a jury charge under Tenn. R. Civ. P. 51 or Tenn. R. Crim. P. 30; the judge's failure to expressly deny a request does not affect inclusion of the request in the record. The traditional judicial method of writing the action, date, and signature on the document itself continues to be a desirable but not essential procedure under the amendment. The important element is that the judge be made aware of the request and be given an opportunity to charge it or decline. If the requested instruction is submitted at a pretrial proceeding or simply filed with the clerk before trial, the better practice would be to specifically direct the judge's attention to the document, but that practice is not mandatory. Again, the only criterion is that the request be "submitted to the trial judge for consideration."
Trial briefs are superfluous in view of appellate briefs, and they should not be sent to the appellate court absent unusual circumstances.
Subdivision (f). The next-to-last sentence in (f) was added to relieve the trial judge from any supposed duty to separately authenticate each deposition exhibit. If a document was made an exhibit during the deposition and the deposition is authentic, the exhibits become part of the transcript of evidence.
Advisory Commission Comments [1996]. The final sentence of Rule 24(f) ensures that trial judges will have a record in chambers to approve.
Advisory Commission Comments [2000]. The amendment excludes from the appellate record various items, including minutes of opening and closing of court. The third paragraph provides for inclusion at a party's request.
Advisory
Commission Comments [2004]. Termination of Parental Rights Proceedings. Rule
8A imposes special requirements governing the appeal of any termination
of parental rights proceeding. In particular, Rules 8A(c) and 8A(d)
impose special provisions regarding the content and preparation of
the record in such an appeal.
Advisory
Commission Comments [2005].Paragraph (h) is amended to remove obsolete
references to “bills of exception” and “wayside
bills of exception.”
Advisory Commission Comments [2007]. A transcript or statement of the evidence must be filed with the trial court clerk within 60 days after the filing of the notice of appeal unless extended by the court. The period was formerly 90 days.
Rule 25. Completion and Transmission of the Record. —(a) Time for Completion of the Record; Duty of the Parties. —The record on appeal shall be assembled, numbered and completed by the clerk of the trial court within 45 days after filing of the transcript or statement prepared in accordance with Rule 24(b) or 24(c) or, if no transcript or statement is to be filed, within 45 days after filing of appellant's notice under Rule 24(d) that no transcript or statement is to be filed, unless the time is extended by an order entered under subdivision (d) of this rule or if proof of service of the notice of appeal has not been filed. Unless the time has been extended by order, if the appellant fails to file within 60 days from the filing of the notice of appeal either the transcript or statement of evidence prepared pursuant to Rule 24(b) or 24(c) or the notice under Rule 24(d) that no transcript or statement is to be filed, the clerk of the trial court shall provide written notice within 10 days to the clerk of the appellate court of the appellant’s failure to comply with Rule 24(b) or (c) or (d), with a copy provided to counsel and pro se parties. After filing notice of appeal the parties shall comply with the provisions of Rule 24 and shall take any other action necessary to enable the clerk to complete the record. The clerk of the trial court shall number the pages of the documents comprising the record and shall prepare for transmission with the record a list of the documents correspondingly numbered and identified with reasonable definiteness.
Exhibits shall be compiled in numerical order and bound in a volume or
volumes separate from the volume of papers filed in the trial court and
separate from the transcript or statement of the evidence or proceedings.
The volume of exhibits shall contain a table of contents listing all exhibits,
whether or not they are included in the record. Each exhibit to be included
in the record shall be securely stapled to a blank page, or placed in
a durable envelope which shall be securely stapled to a blank page, or
placed within a plastic sheet protector; each such page or plastic sheet
protector then shall be bound within the volume of exhibits. If an exhibit
is not included in the record pursuant to subdivision (b) of this rule,
or if an exhibit is included in the record but cannot be bound into the
volume of exhibits due to the nature of the exhibit, the trial court clerk
shall include in numerical order in the volume of exhibits a page indicating
the number of the exhibit, a description of the exhibit, and a statement
of the reason the exhibit is not contained in the volume of exhibits.
All exhibits which are to be included in the record but which cannot be
bound in the volume of exhibits due to the nature of the exhibits shall
be placed securely in a durable envelope or other suitable container,
which shall be labeled with the style of the case, the docket number,
and the exhibit number of the exhibit contained therein.
(b) Duty of Clerk to Transmit the Record. —When the record is complete for purposes of the appeal, the clerk of the trial court shall transmit the record to the clerk of the appellate court and shall transmit therewith the list identifying the documents required by subdivision (a) of this rule. Documents of unusual bulk or weight and physical exhibits, other than documents, shall not be transmitted by the clerk. The clerk of the trial court shall notify the parties if any documents or physical exhibits are not to be transmitted. The clerk of the trial court shall transmit any such documents or physical exhibits if directed to do so by a party or the clerk of the appellate court. A party must make advance arrangements with the clerks for the transportation and receipt of exhibits or documents of unusual bulk or weight.
Transmission of the record is effected when the clerk of the trial court mails or otherwise forwards the record to the clerk of the appellate court. The clerk of the trial court shall indicate by endorsement on the face of the record or otherwise the date upon which it is transmitted to the appellate court.
(c) Duty of Clerk to Make Record Available to Prepare Appellate Papers.
—An attorney may request the clerk of the appellate court to transmit
the record for the purpose of preparing appellate papers. The clerk shall
comply with the request by making the record available at the clerk's office
or by sending the record to the attorney at the attorney's expense. Upon
receiving the record, the attorney is responsible for its safekeeping and shall
return the record to the clerk of the appellate court not later than
the day upon which the party's brief is to be filed.
The attorney shall return
the record to the clerk in its entirety and in an organized manner, with all
volumes of the record intact and with all exhibits accounted for. In the event
the returned record is either incomplete or in disarray, the appellate court
in its discretion may require the attorney to pay the cost of reconstructing
the record and/or may suspend the attorney’s privilege to check out records
in the future. The clerk shall keep a written account of requests for and return
of the record.
Pro se litigants shall be allowed to remove the record from the appellate clerk’s
office only upon order of the appellate court. However, pro se litigants may
inspect the record at the appellate clerk’s office pursuant to Supreme
Court Rule 34.
(d) Extension of Time for Completion of the Record. —If the record cannot be completed within the time permitted by subdivision (a) of this rule, the clerk of the trial court shall request an extension of time from the appellate court to which the appeal has been taken. The request shall set forth the reason for the requested extension and must be made within the time originally prescribed for completing the record or within an extension previously granted. The time for completing the record shall not be extended to a day more than 60 days after the date of the filing of the transcript or statement prepared in accordance with Rule 24(b) or 24(c) or the appellant's notice filed in accordance with Rule 24(d). In the event of the failure of the clerk of the trial court to complete the record within the time allowed, the clerk of the appellate court shall notify the trial court and take such other steps as may be directed by the appellate court.
(e) Retention of the Record in the Trial Court by Order of the Court. —If the record or any part thereof is required in the trial court for use there pending the appeal, the trial court may make an order to that effect, and the clerk of the trial court shall retain the record or parts thereof subject to the request of the appellate court. The clerk of the trial court shall transmit a certified copy of the order together with such parts of the original record as the trial court shall allow and certified copies of any retained parts.
(f) Stipulation of Parties that Parts of the Record Be Retained in the Trial Court. —The parties may agree by written stipulation filed in the trial court that designated parts of the record shall be retained in the trial court unless thereafter the appellate court shall order or any party shall request their transmittal. The parts thus designated shall nevertheless be a part of the record on appeal for all purposes.
(g) Record for Preliminary Hearing in the Appellate Court. —If prior to the time the record is transmitted a party desires to make in the appellate court a motion or application for an order appropriately granted by the appellate court, the clerk of the trial court shall transmit to the appellate court such parts of the record or certified copies thereof as any party shall designate. [As amended effective July 1, 1980; and by order entered January 26, 1999, effective July 1, 1999, and by order entered January 31,2003, effective July 1, 2003, and by order filed January 6, 2005, effective July 1, 2005.]
Advisory Commission Comments. After the transcript or statement prepared in accordance with Rule 24(b) or 24(c) has been filed with the clerk of the trial court, or after a notice is filed in accordance with Rule 24(d), the clerk must assemble, number and complete the record within 45 days after filing of the transcript or statement or notice. If unable to complete the record within 45 days, the clerk, not one of the parties, must request an extension from the appellate court to which the appeal has been taken. Under Rule 40(g), the clerk forfeits the clerk's entire cost of preparing and transmitting the record, or such portion thereof as appropriate, if the clerk fails to complete the record on appeal within the time specified in this rule. When the record is complete for purposes of appeal, the clerk of the trial court transmits the record to the clerk of the appellate court.
Advisory Commission Comments [1980]. Subdivision (a). Rule 25(a) makes clear that the clerk is not required to bind together the transcript of evidence with the other parts of the record.
Advisory Commission Comments [2003]. Subdivision (a). The new second sentence covers situations where lawyers take no action concerning the transcript of evidence after notice of appeal is filed.
Advisory Commission Comments [2004]. Termination of Parental Rights Proceedings. Rule 8A imposes special requirements governing the appeal of any termination of parental rights proceeding. In particular, Rules 8A(e) and 8A(f) impose special provisions regarding the completion and transmission of the record in such an appeal.
Advisory Commission Comments [2005]. Subdivision (a). The amendment to subdivision (a) changes the manner in which the exhibits included in the record are transmitted to the appellate court. Because individual exhibits occasionally are lost by attorneys who check out the record or by appellate court personnel, the rule is amended to require that the exhibits to the extent possible be compiled into bound volumes separate from the transcript of the evidence or proceedings. The Commission believes that having the original exhibits bound into volumes will reduce the possibility that an individual exhibit will be lost.
Because individual exhibits occasionally are lost after the record is transmitted to the appellate court, attorneys are well-advised to retain duplicates of all exhibits pending the final disposition in the case. If the parties have duplicates of the exhibits, a lost exhibit can be replaced with relative ease; on the other hand, if neither party has a copy of the missing exhibit, it might not be possible to replace the missing exhibit. In the latter case appellate review of the case can be adversely affected.
Subdivision (c). The appellate court clerk’s experience shows that some attorneys have returned records to the clerk with bound volumes of the record disassembled, with exhibits missing, or with the components of the record disorganized. The purpose of the amendment to the first paragraph of subdivision (c), requiring attorneys to return the record intact and in an organized manner, is two-fold: (1) to assist the clerk’s personnel in efficiently verifying that each record returned to the appellate clerk is complete; and (2) to assist the appellate court, which subsequently will be reviewing the record when deciding the appeal.
The second paragraph of subdivision (c) is amended to refer to Rule 34, Rules of the Tennessee Supreme Court, governing access to appellate judicial records.
Advisory Commission Comment [2007]. A transcript or statement of the evidence must be filed with the trial court clerk within 60 days after the filing of the notice of appeal unless extended by the court. The period was formerly 90 days.
Rule 26. Filing of the Record. —(a) Filing and Notice of Filing of the Record. —Upon receipt of the record following transmittal, the clerk of the appellate court shall file the record. The clerk shall immediately serve notice on all parties of the date on which the record was filed.
(b) Dismissal for Failure of Appellant Timely to File the Transcript or Statement. —If the appellant shall fail to file the transcript or statement within the time specified in Rule 24(b) or (c), or if the appellant shall fail to follow the procedure in Rule 24(d) when no transcript or statement is to be filed, any appellee may file a motion in the appellate court to dismiss the appeal. The motion shall be supported by a certificate of the clerk of the trial court showing the date and substance of the judgment or order from which the appeal was taken and the date on which the notice of appeal was filed. The appellant may respond within 14 days after the motion is filed. In lieu of granting the motion or at any time on its own motion, the appellate court may order filing of the transcript or statement. Nothing in this subdivision shall be construed to authorize dismissal of an appeal due to the errors or omissions of the clerk of the trial court. [Amended by order effective July 1, 1997.]
Advisory Commission Comments. Subdivision (a). The docketing of an appeal under these rules takes place when the clerk of the appellate court receives a copy of the notice of appeal from the trial court clerk. Under this subdivision the clerk of the appellate court files the record immediately upon its receipt and notifies all parties of the date on which the record was filed.
Subdivision (b). The failure of a party to file the transcript or statement within the time specified in Rule 24 may result in dismissal of the appeal upon motion. The motion should be in the form set forth in Rule 22 of these rules. Nothing in this rule permits the dismissal of an appeal due to the errors or omissions of the clerk of the trial court.
Advisory Commission Comments [1997]. Subdivision (b). The amendment to the first sentence fills a gap left in the original rule. If an appellant did not intend to file a transcript of evidence, but failed to follow the prescribed procedure in Rule 24(d), it was unclear where the appellee would file a motion to dismiss. The amended language makes it clear that the appellate court is the proper forum. The amendment to the third sentence keys response deadlines concerning a motion to dismiss to filing dates, not service dates.
Rule 27. Content of Briefs. —(a) Brief of the Appellant. —The brief of the appellant shall contain under appropriate headings and in the order here indicated:
(1) A table of contents, with references to the pages in the brief;
(2) A table of authorities, including cases (alphabetically arranged), statutes and other authorities cited, with references to the pages in the brief where they are cited;
(3) A jurisdictional statement in cases appealed to the Supreme Court directly from the trial court indicating briefly the jurisdictional grounds for the appeal to the Supreme Court;
(4) A statement of the issues presented for review;
(5) A statement of the case, indicating briefly the nature of the case, the course of proceedings, and its disposition in the court below;
(6) A statement of facts, setting forth the facts relevant to the issues presented for review with appropriate references to the record;
(7) An argument, which may be preceded by a summary of argument, setting forth the contentions of the appellant with respect to the issues presented, and the reasons therefor, including the reasons why the contentions require appellate relief, with citations to the authorities and appropriate references to the record (which may be quoted verbatim) relied on;
(8) A short conclusion, stating the precise relief sought.
(b) Brief of the Appellee. —The brief of appellee and all other parties shall conform to the foregoing requirements, except that items (3), (4), (5) and (6) of subdivision (a) of this rule need not be included except to the extent that the presentation by the appellant is deemed unsatisfactory. If appellee is also requesting relief from the judgment, the brief of the appellee shall contain the issues and arguments involved in his request for relief as well as the answer to the brief of appellant.
(c) Reply Briefs. —The appellant may file a brief in reply to the brief of the appellee. If the appellee also is requesting relief from the judgment, the appellee may file a brief in reply to the response of the appellant to the issues presented by appellee's request for relief.
(d) Citation of Supplemental Authorities. —When pertinent and significant authorities come to the attention of a party after the party's brief has been filed, or after oral argument but before decision, a party may promptly advise the clerk of the court, by letter, extra copies to the clerk for each judge of the appellate court, and a copy to all other parties, setting forth the citations. There shall be a reference either to the page of the brief or to a point argued orally to which the citations pertain, but the letter shall without argument state the reasons for the supplemental citation. Any response shall be made promptly and shall be similarly limited.
(e) Reproduction of Constitutional Provisions, Statutes, Rules and Regulations. —If determination of the issues presented requires consideration of a constitutional provision, statute, rule, regulation or other similar matter, they shall be reproduced in pertinent part in the brief or in an addendum at the end of the brief, or they may be supplied to the court in pamphlet form.
(f) Reference in Briefs to the Parties. —In the briefs the parties shall be referred to as in the trial court or in the other proceedings under review, or by using the actual names of the parties or descriptive terms.
(g) Reference in Briefs to the Record. —Except as provided in Rule 28(c), reference in the briefs to the record shall be to the pages of the record involved. Intelligible abbreviations may be used. If reference is made to evidence, the admissibility of which is in controversy, reference shall be made to the pages in the record at which the evidence was identified, offered, and received or rejected.
(h) Citation of Authorities. —Citation of cases must be by title, to the page of the volume where the case begins, and to the pages upon which the pertinent matter appears in at least one of the reporters cited. It is not sufficient to use only supra or infra without referring to the page of the brief at which the complete citation may be found. Citation of Tennessee cases may be to the official or South Western Reporter or both. Citation of cases from other jurisdictions must be to the National Reporter System or both the official state reports and National Reporter System. If only the National Reporter System citation is used, the court rendering the decision must also be identified. All citations to cases shall include the year of decision. Citation of textbooks shall be to the section, if any, and page upon which the pertinent matter appears and shall include the year of publication and edition if not the first edition. Tennessee statutes shall generally be cited to the Tennessee Code Annotated, Official Edition, but citations to the session laws of Tennessee shall be made when appropriate. Citations of supplements to the Tennessee Code Annotated shall so indicate and shall include the year of publication of the supplement.
(i) Page Limitations. —Except by order of the appellate court or a judge thereof, arguments in principal briefs shall not exceed 50 pages, and arguments in reply briefs shall not exceed 25 pages.
(j) Briefs in Cases Involving Multiple Parties. —In cases involving multiple parties, including cases consolidated for purposes of the appeal, any number of parties may join in a single brief, and any party may adopt by reference any part of the brief of another party. Parties may similarly join in reply briefs.
Advisory Commission Comments. Briefs will be oriented toward a statement of the issues presented in a case and the arguments in support thereof.
Subdivision (g) envisions that the clerk of the trial court will have numbered the pages of the record consecutively from start to finish as provided in Rule 25(a) of these rules.
The page limitations on arguments in briefs are based on the expectation that most arguments need not extend beyond the 50 pages authorized under subdivision (i). It should be noted that the limitation relates to the argument. The full brief may exceed the 50-page limitation.
This rule should be read in connection with Rule 40(f), which provides that the cost of reproducing briefs cannot be taxable at rates higher than those generally charged for photocopying. The parties may have their briefs commercially printed only at their own expense.
Advisory Commission Comment [1994]. In addition to this rule, internal rules of the intermediate appellate courts state that no trial error will be considered on appeal if briefs do not cite pages of the trial record where the alleged error occurred. The advocate is directed to Rule 6 of the Court of Appeals and Rule 10 of the Court of Criminal Appeals.
Rule 28. Optional Appendix to the Briefs. —(a) Option of Appellant to Prepare and File Appendix; Contents; Time for Filing; Number of Copies. —The appellant may prepare and file an appendix to the briefs that shall contain: (1) any relevant portions of the pleadings, charge, findings or opinion; (2) the judgment, order or decision in question; and (3) any other parts of the record as the appellant deems essential for the judges to read in order to determine the issues presented. The appellant shall accurately reproduce in the appendix all parts of the record that must be studied in order to determine the issues presented; the appellant may not reproduce only those parts that support the appellant's argument. If in the judgment of the appellee the parts of the record reproduced by the appellant are inadequate for the determination of the issues presented, the appellee may reproduce in an appendix to the appellee's brief such other parts of the record as the appellee deems essential for the judges to read. The parties are encouraged to agree as to the contents of the appendix. The fact that parts of the record are not included in the appendix shall not prevent the parties from relying on such parts. The appendix shall be served and filed with the brief. A sufficient number of copies of the appendix shall be filed to provide the clerk and each judge of the appellate court with one copy, and one copy thereof shall be served on each party in the manner provided in Rule 20 for the service of papers unless the appellate court shall by order direct the filing or service of a greater or lesser number.
(b) Unnecessary Reproduction of Record To Be Avoided. —In determining the parts of the record to be reproduced in an appendix, the parties shall have regard for the fact that the entire record is always available to the court for reference and examination and shall avoid reproduction of parts that need not be read by the judges in determining the issues presented.
(c) Reference in Briefs to the Record. —References in the briefs to parts of the record reproduced in an appendix shall be to the pages of the appendix at which those parts appear. If references are made to parts of the record not reproduced, the reference shall be to the pages of the record involved.
(d) Arrangement of the Appendix. —At the beginning of the appendix there shall be inserted a list of the parts of the record that it contains, in the order in which the parts are set out therein, with references to the pages of the appendix at which each part begins. The parts of the record shall be set out in chronological order. The pages of the appendix shall be numbered consecutively at the bottom thereof. When matter contained in a transcript of the evidence or proceedings is set out in the appendix, the page of the transcript at which such matter may be found shall be indicated in brackets immediately before the matter that is set out. Omissions in the text of papers or of the transcript must be indicated by asterisks. Immaterial formal matters ( e. g., captions, subscriptions, acknowledgments) shall be omitted. A question and its answer may be contained in a single paragraph.
(e) Reproduction of Exhibits. —Exhibits or parts thereof designated for inclusion in the appendix may be contained in a separate volume, or volumes, suitably indexed. If contained in a separate volume, the appellant shall prepare, file and serve the same number of copies of such volume as are required for the appendix.
Advisory Commission Comments. Perhaps the most notable feature of this rule is the fact that preparation of an appendix is not required but is an option afforded the parties if they care to take advantage of this rule. Each party is free to reproduce as an appendix to that party's brief those portions of the record that party deems essential for the judges to read. If an appendix is prepared, it is important to keep in mind that the full record always remains available to the court for reference and examination. It should also be noted that under Rule 40(c) the cost of preparing an appendix is not a recoverable cost on appeal.
Rule 29. Filing and Service of Briefs. —(a) Time for Serving and Filing Briefs. —The appellant shall serve and file a brief within 30 days after the date on which the record is filed with the clerk. The appellee shall serve and file a brief within 30 days after the appellant's brief is filed with the clerk. Reply briefs shall be served and filed within 14 days after filing of the preceding brief. If separate briefs are filed on behalf of multiple appellants or multiple appellees, the time for filing and serving a responsive brief shall not commence to run until all briefs on behalf of all appellants or appellees have been filed.
(b) Number of Copies to Be Filed and Served. —A sufficient number of copies of each brief shall be filed with the clerk of the appellate court to provide the clerk and each judge of the appellate court with one copy, and one copy shall be served on each party in the manner provided in Rule 20 for the service of papers unless the appellate court shall by order direct the filing or service of a greater or lesser number.
(c) Consequence of Failure to File Briefs. —If an appellant fails to file his brief within the time provided by this rule or within the time as extended, any appellee may file a motion in the appellate court to dismiss the appeal. The appellant may respond within 14 days after filing of the motion. In lieu of granting the motion or at any time on its own motion, the appellate court may order service and filing of any brief. If an appellee fails to file a brief within the time provided by this rule or within the time as extended, any appellant may file a motion in the appellate court to have the case submitted for decision on the record and appellant's brief. The appellee may respond within 14 days after filing of the motion. [As amended effective July 1, 1980; and by order filed February 1, 1995, effective July 1, 1995; and by order effective July 1, 1997.]
Advisory Commission Comments. The time for filing briefs is measured from the date on which the record is filed in the appellate court.
Under subdivision (c) an appellee may move for dismissal of an appeal if the appellant does not timely file a brief. Similarly, an appellant may move to have a case determined on the appellant's brief alone if the appellee fails timely to file a brief. In addition, under Rule 35(a) of these rules a party who has not filed a brief may not argue orally.
Advisory Commission Comments [1980]. The sentence added to Rule 29(a) deals with situations in which there are multiple appellants or multiple appellees. It allows a party to wait to respond until all of the briefs have been served by all adverse parties.
Advisory Commission Comment [1995]. Amended Rule 29(a) substitutes court filing dates for service dates, making more precise the running of time periods.
Advisory Commission Comment [1997]. The response time runs from the filing date rather than the service date of a motion.
Advisory Commission Comment [2004]. Termination of Parental Rights Proceedings. Rule 8A imposes special requirements governing the appeal of any termination of parental rights proceeding. In particular, Rule 8A(g) imposes a special provision regarding the filing of briefs in such an appeal.
Rule 30. Form of Briefs and Other Papers. —(a) Production Methods; Paper. —Briefs, transcripts or statements, applications, answers in opposition, petitions, motions, supporting papers, and objections should be produced on opaque, unglazed white paper by any printing, duplicating, or copying process that provides a clear black image. The use of recycled paper with the highest feasible percentage of postconsumer waste content is recommended and encouraged. Original typewritten pages may be used, but not carbon copies except on behalf of parties allowed to proceed as poor persons. All printed matters should be on paper 61/8 by 91/4 inches in type not smaller than 11 point and type matter 41/4 by 71/4 inches. If not printed, copies should be on paper 81/2 by 11 inches, double spaced, except for quoted matter, which may be single spaced, with the text not smaller than standard elite typewriting and not to exceed 61/2 by 91/2 inches. Papers should be numbered on the bottom and fastened on the left.
(b) Content of Front Covers of the Briefs. —The front covers of the briefs shall contain: (1) the number of the case in the appellate court and the name of that court; (2) the title of the case as it appeared in the trial court, except that the status of each party in the appellate court shall also be indicated; (3) the nature of the proceeding in the appellate court and the name of the court, agency or board below; (4) the title of the document; and (5) the name and address of counsel or, if unrepresented by counsel, the party filing the brief.
(c) Colors of Covers of the Briefs. —If available, the colors of the covers shall be: the brief of the appellant, blue; the brief of the appellee, red; reply briefs, gray; briefs of amicus curiae, green.
(d) Caption on Other Papers. —Papers other than briefs addressed to the appellate court shall contain a caption setting forth: (1) the number of the case in the appellate court and the name of that court, (2) the title of the case as it appeared in the trial court, (3) a brief descriptive title indicating the purpose of the paper. [As amended by order entered May 25, 1993, effective July 1, 1993.]
Advisory Commission Comments. This rule adopts a uniform system of page size for briefs, transcripts, applications, answers in opposition, petitions, motions, supporting papers, and objections. This rule permits, in effect, the use of any process, other than the carbon copy process, that produces a clean, readable page. It should be noted that while appellate papers may be commercially printed, under Rule 40(f) of these rules the cost of reproducing appellate papers is taxable at a rate not higher than that generally charged for photocopying.
Court and Advisory Commission Comment [1993]. —It is the public policy of the State of Tennessee to encourage recycling and the use of recycled products and materials. This policy is reflected in the Tennessee Solid Waste Planning and Recovery Act (title 68, ch. 211, part 6) and in the Solid Waste Management Act of 1991 (title 68, ch. 211, part 8). The underlined portion of Rule 30(a) denotes the addition to Rule 30(a) effective July 1, 1993, in which the Court recommends and encourages that all papers filed in the Tennessee courts be submitted on recycled paper.
Rule 31. Brief and Oral Argument of an Amicus Curiae. —(a) Leave or Request of Court Necessary. —A brief of an amicus curiae may be filed only by leave of court granted on motion or at the request of the appellate court. A brief may be conditionally filed with the motion for leave. A motion for leave shall identify the interest of the applicant and shall state how a brief of an amicus curiae will assist the appellate court.
(b) Form; Time; Conditions. —A brief of an amicus curiae shall follow the form prescribed for the brief of an appellee. The court shall fix the time and conditions for the filing of the amicus curiae brief.
(c) Oral Argument. —An amicus curiae may participate in oral argument only by leave of court granted on motion or at the request of the appellate court.
(d) Costs of Amicus Curiae Filing.–The court in its discretion may assess the costs of filing the motion for leave to file an amicus curiae brief and all related filings against the amicus curiae, to be paid to the Appellate Court Clerk at the time of entry of the order granting or denying the motion.
Advisory Commission Comments. This rule follows the practice of requiring leave of court before an amicus brief may be filed. In addition, this rule permits the appellate court on its own motion to request the filing of an amicus brief. Unlike Federal Rule of Appellate Procedure 29, this rule does not permit the filing of an amicus brief by consent of all of the parties, since generally such consent is so rarely granted as to make the provision meaningless. Moreover, most amicus briefs are in fact a type of adversary intervention rather than objective assistance to the court. Accordingly, subdivision (a) requires an amicus to identify the amicus's interest as well as to state how the amicus brief will assist the appellate court. However, if the court requests an amicus brief, it may obtain the outside objective assistance that an amicus in theory renders. This rule also needs to be construed in conjunction with Rule 32 of these rules, which permits the Attorney General of this state to participate by brief and argument in certain specified circumstances.
Advisory Commission Comment [2007]. New Rule 31(d) provides a procedure for assessing court costs against amici curiae.
Rule 32. Notice to Attorney General When Validity of Statute, Rule or Regulation Is Questioned. —(a) Service; When Required. —When the validity of a statute of this state or an administrative rule or regulation of this state is drawn in question in any appeal to which the state or an officer or agency is not a party, the party raising such question shall serve a copy of the party's brief on the Attorney General.
(b) Proof of Service. —Proof that service has been made on the Attorney General shall be filed with the brief of the party raising such question.
(c) Right to Respond. —The Attorney General is entitled, within the time allowed for the filing of a responsive brief by a party, to file a brief. The Attorney General is also entitled to be heard orally, regardless of whether he or she files a brief.
(d) Consequence of Failure to Comply. —Except by order of the court, in the absence of notice, the appellate court will not dispose of an appeal until notice has been given and the Attorney General has been given such opportunity to respond as shall be set by the court.
Advisory Commission Comments. Under this rule the Attorney General is entitled to file a brief whenever the validity of a statute of this state or an administrative rule or regulation is drawn in question in any appeal to which the state or an officer or agency of this state is not a party. The Attorney General may be heard orally even if he or she decides not to file a brief. Subdivision (d) ensures that in the absence of notice to the Attorney General the appellate court will not dispose of the appeal.
The provisions of this rule are supplementary to, and do not affect the provisions of Tenn. Code Ann. § 29-14-107 and Rule 24.04 of the Tennessee Rules of Civil Procedure, with respect to notice to the Attorney General in trial court proceedings.
Rule 33. Prehearing Conference. —The Supreme Court, Court of Appeals, or Court of Criminal Appeals may direct counsel for the parties to appear before the court or a judge thereof for a prehearing conference to consider the simplification of the issues and such other matters as may aid in the disposition of the proceeding by the court. The court or judge shall make an order that recites the action taken at the conference and the agreements made by the parties as to any of the matters considered and that limits the issues to those not disposed of by admissions or agreements of counsel, and such order when entered controls the subsequent course of the proceeding unless modified. Modification shall be freely granted to permit determination of the proceeding on its merits if no prejudice results.
Advisory Commission Comments. The provisions of this rule for a pretrial conference were considered to be a potentially valuable tool to the appellate court for simplifying complex appeals in a manner similar to the pretrial conference used at the trial level. In this connection, Tennessee Rule of Civil Procedure 16 should be consulted. While this rule will not be used in routine cases, it is expected to be helpful in protracted and complex litigation. Although designated as a “prehearing conference,”it is contemplated that the conference could be convened by the appellate court at any stage of the proceedings when the court concludes that a conference would be of value. As is the case with pretrial conferences, those matters agreed upon or admitted by counsel at the conference are binding upon the parties, though modification should be freely granted to permit determination of the proceeding on its merits if no prejudice results.
Rule 34. Voluntary Mediation.—(a) Within five days following the receipt of the notice of appeal in all cases appealed to the Court of Appeals, the Clerk of the Appellate Courts shall notify the parties or their counsel that, consistent with the requirements of this rule, they may jointly request a suspension of the processing of the appeal for the purpose of engaging in voluntary mediation.
(b) Parties desiring to engage in voluntary mediation shall file a joint stipulation requesting suspension of the appeal with the Clerk of the Appellate Courts within fifteen days after the date of the notice provided for in Section (a). Upon the filing of a timely joint stipulation, the time for preparing the transcript or statement of the evidence, the record on appeal, and the briefs shall be suspended for no more than sixty days to enable the parties to mediate their dispute. The Clerk of the Appellate Courts shall notify the trial court clerk of the filing of the stipulation of suspension of the appeal. However, the provisions of this rule providing for the suspension of the processing of the appeal pending voluntary mediation shall not apply to (1) appeals required to be expedited by statute, rule, or order of a court, (2) appeals in which the constitutionality of a statute, or rule or the constitutionality of an application of a statue, ordinance or rule is an issue, or (3) appears involving the imposition of criminal contempt sanctions.
(c) If the voluntary mediation is successful, the parties shall file a notice of voluntary dismissal of the appeal in accordance with Tenn. R. App. P. 15(a) within five days following the conclusion of the mediation. The Clerk of the Appellate Courts shall notify the trial court clerk of the filing of voluntary dismissal of the appeal. The notice of voluntary dismissal shall provide for the taxation of costs. If the voluntary mediation is not successful as to all issues, the parties shall file a notice with the Clerk of the Appellate Courts within five days requesting the resumption of the appeal. If the voluntary mediation is successful as to some but not all issues, the parties shall file a notice with the Clerk of the Appellate Courts within five days identifying the remaining issues requesting a resumption of the appeal as to those issues only. The Clerk of the Appellate Courts shall notify the trial court clerk of the notice of resumption of the appeal. If no notice of voluntary dismissal has been filed with the Court of Appeals within sixty days after the filing of the joint stipulation, the appeal shall be returned to the active docket, and the applicable appellate deadlines shall be reactivated. If, within sixty days after the filing of the joint stipulation, the parties and the mediator jointly file a notice of an extension of up to an additional thirty days to complete the mediation process, the Clerk of the Appellate Courts shall return the case to the active docket after the expiration of the extended period if no notice of voluntary dismissal has been filed. The Clerk of the Appellate Courts shall notify the trial court clerk when the appeal has been returned to the active docket.
(d) The parties may voluntarily resolve their disputes in any appeal filed in the Court of Appeals without requesting the suspension of the processing of the appeal.
(e) Evaluation of Voluntary Appellate Mediation by the Parties.
(1) In those appeals in which the parties invoke voluntary appellate mediation under this rule, each party shall complete an evaluation form supplied by the Clerk of the Appellate Courts and shall forward the evaluation to the Clerk's office in the grand division in which the case is filed within ten (10) days of the completion of mediation. The evaluation shall be maintained as confidential and shall not be entered into the case file.
(2) the completed evaluation form shall be placed in an evaluation envelope supplied with the evaluation form, and the evaluation envelope shall be sealed. The sealed evaluation envelope shall then be placed in a cover envelope and mailed to the Clerk of the Appellate Courts in the grand division in which the case is filed. The case name and number shall be noted on the cover envelope ONLY.
(3) Upon receipt of the cover envelope, the Clerk of the Appellate Courts shall note the receipt of the evaluation envelope in the case file, open the cover envelope, remove the sealed evaluation envelope, and forward the unopened evaluation envelope to the Programs Manager of the Administrative Office of the Courts for processing.
(4) The Programs Manager of the Administrative Office of the Courts shall receive the evaluation envelopes, remove the evaluations, and compile the results of the evaluations; the Programs Manager shall provide information to the Supreme Court and/or Court of Appeals on the results of the evaluations on a periodic basis set by the Supreme Court and/or Court of Appeals.
Advisory Commission Comment [2009] Rule 34 introduces a new procedure to appellate practice in civil cases. If the parties voluntarily decide to mediate their dispute, pursuant to the provisions of section (b) of this rule, various deadlines are suspended. There is also an evaluation process for voluntary appellate mediation.
One should note that Rule 34(a) provides that this rule applies to "all cases appealed to the Court of Appeals." Consequently, the rule does not apply to workers' compensation cases, which are appealed to the Supreme Court. See Tenn. Sup. Ct. R. 37 for provisions governing appellate mediation in workers' compensation cases.
Rule 35. Conduct of Oral Argument. —(a) Request; Waiver. —Any party to an appeal who desires oral argument shall so request by stating at the bottom of the cover page of the party's brief that oral argument is requested. If any party to an appeal requests oral argument it is unnecessary for any other party to do so except as otherwise provided in this subdivision. No party may argue unless the party has filed a brief as required by these rules. A party who has requested oral argument and who thereafter determines to waive oral argument shall notify the clerk of the appellate court and all other parties. Any other party who has not previously requested oral argument may then request oral argument by notifying the clerk of the appellate court and all other parties.
(b) Notice of Argument; Postponement. —The clerk of the appellate court shall give the parties advance notice of the time and place a case is to be argued and the amount of time for oral argument. A request for postponement of the argument must be made by motion filed reasonably in advance of the date fixed for hearing.
(c) Time Allowed for Argument. —Unless the appellate court otherwise orders, each side requesting the same relief shall be allowed 30 minutes for argument. If a party is of the opinion that additional time is necessary for the adequate presentation of the case, the party may request additional time by motion filed reasonably in advance of the date fixed for hearing. A party is not obligated to use all of the time allowed, and the court may terminate the argument whenever in its judgment further argument is unnecessary.
(d) Order; Reading Prohibited. —The party initiating review of the judgment below is entitled to open and conclude the argument. Reading at length from the record, briefs or authorities cited will not be permitted.
(e) Multiple Parties Requesting Relief. —If more than one party is requesting relief from the judgment, the sequence of oral argument shall be as the parties agree or the appellate court otherwise directs.
(f) Divided Argument. —No more than two counsel or parties will be heard from each side requesting the same relief except by leave of the appellate court, which will be granted when there are parties on the same side with diverse interests. Divided arguments are not favored and care shall be taken to avoid duplication of arguments.
(g) Nonappearance of Parties. —If a party fails to appear for argument, the appellate court will hear argument on behalf of the parties present. If no party appears, the case will be decided upon the record and briefs unless the court shall otherwise order. If the party who requested oral argument fails to appear to present argument, the court may assess against that party the reasonable costs incurred by the party who does appear for argument. In its discretion, the court may include a reasonable attorney's fee as a part of such costs.
(h) When Oral Argument Not Requested. —If no party requests oral argument, the clerk, when the briefs from all the parties are filed, shall submit the case for decision on the record and briefs. If no party has requested oral argument, the appellate court may nevertheless direct that the case be argued.
Advisory Commission Comments. Under subdivision (a) a party to an appeal desiring oral argument must request argument. If a party inadvertently fails to request oral argument, the appellate court may relieve the party of this omission.
The rule allows 30 minutes for each side to argue a case on appeal. As the Advisory Committee note to Federal Rule of Appellate Procedure 35 points out, “[t]he term ‘side’ is used to indicate that the time allowed by the rule is afforded to opposing interests rather than to individual parties. Thus if multiple appellants or appellees have a common interest, they constitute only a single side. If counsel for multiple parties who constitute a single side feel that additional time is necessary, they may request it.” It is in the spirit of this rule that the appellate court grant additional time if there is a reasonable basis for the requested additional time.
Subdivision (g) of this rule also provides that a party who appears for oral argument shall be heard even if the opponent does not appear. Sanctions are provided for failure of a party to appear when that party has requested oral argument. In the discretion of the appellate court, such a sanction may include the reasonable attorney's fees of the party who did appear.
Rule 36. Relief; Effect of Error. —(a) Relief To Be Granted; Relief Available. —The Supreme Court, Court of Appeals, and Court of Criminal Appeals shall grant the relief on the law and facts to which the party is entitled or the proceeding otherwise requires and may grant any relief, including the giving of any judgment and making of any order; provided, however, relief may not be granted in contravention of the province of the trier of fact. Nothing in this rule shall be construed as requiring relief be granted to a party responsible for an error or who failed to take whatever action was reasonably available to prevent or nullify the harmful effect of an error.
(b) Effect of Error. —A final judgment from which relief is available and otherwise appropriate shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process. When necessary to do substantial justice, an appellate court may consider an error that has affected the substantial rights of a party at any time, even though the error was not raised in the motion for a new trial or assigned as error on appeal.
Advisory Commission Comments. Subdivision (a). This subdivision makes clear that the appellate courts are empowered to grant whatever relief an appellate proceeding requires. In addition, this subdivision states that the appellate court should grant the relief to which a party is entitled. The last sentence of this rule is a statement of the accepted principle that a party is not entitled to relief if the party invited error, waived an error, or failed to take whatever steps were reasonably available to cure an error. This subdivision also makes clear that an appellate court should not grant relief if in so doing it would contravene the province of the trier of fact.
Subdivision (b). This subdivision deals with the very difficult question of determining whether an error is harmless or prejudicial. The principal thrust of this subdivision is that the harmful effect of an error is measured by the effect the error had on the judgment entered. Under this rule an error is prejudicial if it "more probably than not" affected the judgment. This rule also requires reversal of a judgment when affirmance would be prejudicial to the judicial process. Although this concept cannot be fully defined, it certainly would include situations in which, for example, an accused was denied the effective assistance of counsel, or the decisionmaker was obviously biased, or there was improper discrimination in jury selection.
A second sentence is added to Rule 36(b) incorporating the plain error doctrine. The initial sentence state the harmless error doctrine.
See Tenn. R. App. P. 13(b) on consideration of issues not presented for review.
Rule 38. Entry of Judgment; Copies of Opinion and Judgment. —The notation of a judgment in the docket constitutes entry of the judgment. The clerk of the appellate court shall prepare and enter the judgment following receipt of the opinion of the appellate court unless the court orders otherwise. The clerk shall, on the day judgment is entered, mail a copy of the opinion and notice of the date of entry of the judgment to the parties. Entry of the judgment shall not be delayed for the taxing of costs.
Rule 39. Rehearing. —(a) On Petition; Grounds. —Rehearing may be granted by the Supreme Court, Court of Appeals, or Court of Criminal Appeals on its own motion or on petition of a party. In determining whether to grant a rehearing, the following, while neither controlling nor fully measuring the court's discretion, indicate the character of reasons that will be considered: (1) the court's opinion incorrectly states the material facts established by the evidence and set forth in the record; (2) the court's opinion is in conflict with a statute, prior decision, or other principle of law; (3) the court's opinion overlooks or misapprehends a material fact or proposition of law; and (4) the court's opinion relies upon matters of fact or law upon which the parties have not been heard and that are open to reasonable dispute. A rehearing will not be granted to permit reargument of matters fully argued.
(b) Time; Content; Length. —A petition for rehearing must be filed with the clerk of the appellate court within 10 days after entry of judgment unless on motion the time is shortened or enlarged by the court or a judge thereof. Motions for extending time to file petitions for rehearing will be allowed only in extreme and unavoidable circumstances. The petition shall set forth the reasons the appellate court should reconsider, with proper references to the particular portions of the opinion, record or briefs relied upon. Except by permission of the court or a judge thereof, the petition shall not exceed 15 pages.
(c) Number of Copies; Service. —A sufficient number of copies of each petition shall be filed with the clerk of the appellate court to provide the clerk and each judge of the appellate court with one copy, and one copy shall be served on each party in the manner provided in Rule 20 for the service of papers unless the appellate court shall by order direct the filing or service of a greater or lesser number.
(d) Answer; Oral Argument. —No answer to the petition will be permitted unless requested by the court, but no action will be taken except to grant or deny rehearing. Oral argument will be permitted only if ordered by the court on its own motion.
(e) Action on the Petition; Subsequent Proceedings. —Rehearing will be granted if a majority of the members of the appellate court are satisfied rehearing is appropriate. If a petition is granted, the appellate court shall make such order as to reargument or resubmission as is deemed proper under the circumstances of the particular case.
(f) Limitation on Consecutive Petitions. —When the Court of Appeals or the Court of Criminal Appeals has acted upon a petition for rehearing, no further petitions for rehearing shall be filed in that court. No second petition for rehearing shall be filed in the Supreme Court except upon motion and leave granted by the court or a judge thereof. [As amended by order effective July 1, 1996.]
Advisory Commission Comments. Subdivision (a) states that a rehearing is not granted to permit reargument of matters already fully argued. Instead, the petition to rehear, though granted solely in the discretion of the appellate court, will generally lie only in those instances specified in subdivision (a).
Subdivision (d) provides that no answer to the petition will be permitted, but that no action will be taken except to grant or deny rehearing. Rehearing will be granted only if a majority of the appellate court concludes that a rehearing is appropriate. If rehearing is granted the appellate court must make such order as to reargument or resubmission as is deemed appropriate.
Subdivision (f) provides that only one petition for rehearing will ordinarily be entertained. A second petition for rehearing by any party in the Supreme Court may be submitted only upon motion and leave granted by that court or a judge thereof.
Advisory Commission Comments [1993]. The Supreme Court generally disfavors petitions to rehear following denials of applications for permission to appeal.
Advisory Commission Comments [1996]. The amendment to Rule 39(f) makes clear that one cannot file multiple petitions to rehear.
Rule 40. Costs. —(a) To Whom Allowed. —Except as otherwise provided by statute or these rules, if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise agreed by the parties or ordered by the court; if a judgment is affirmed, costs shall be taxed against the appellant unless otherwise ordered; if a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered; if a judgment is affirmed or reversed in part, or is vacated, costs shall be allowed only as ordered by the appellate court.
(b) Costs for and Against the State of Tennessee. —In cases involving the state of Tennessee, its officers, or agencies, costs shall be awarded in accordance with the provisions of subdivision (a) of this rule.
(c) Recoverable Costs on Appeal. —Recoverable costs on appeal include the cost of preparing and transmitting the record, the cost of a transcript of the evidence or proceedings, the cost of producing necessary copies of briefs and the record, the premiums paid for bonds to preserve rights pending appeal, and any other fees of the appellate court or clerk.
(d) Party’s Statement of Recoverable Costs; Objections.–If a party has not been assessed costs on appeal under section (a) of this rule, that party may file with the appropriate appellate court a Party’s Statement of Recoverable Costs in order to recover costs on appeal pursuant to section (c) of this rule. The party shall file the Party’s Statement of Recoverable Costs no later than 15 days after the issuance of the mandate; the Party’s Statement of Recoverable Costs may not be filed before the issuance of the mandate. The party against whom costs have been assessed under section (a) shall be liable for such costs. If the court assesses costs against both the appellant and appellee, the parties shall bear their own costs and may not recover any costs on appeal under section (c) of this rule. Any party shall have 15 days after the filing of the Party’s Statement of Recoverable Costs to file any objections with the appellate court clerk.
(e) Rate of Cost for Producing.–A party’s costs of producing necessary copies of briefs or other appellate papers which are recoverable costs under section (c) shall be taxable at rates not higher than those generally charged for photocopying in the area where the office of the attorney seeking such costs is located.
(f) Resolution of Ojections to Party’s Statement of Recoverable Costs.–If objections are timely filed to the Party’s Statement of Recoverable Costs, the appellate court clerk shall consider all of the documents filed relative to the Party’s Statement of Recoverable Costs and issue a clerk’s report in which the clerk shall approve and/or disapprove such costs in whole or in part as being authorized and/or not authorized by law. Any party may file an objection to the clerk’s decision with the appropriate appellate court within 10 days of the filing of the clerk’s report.
(g) Amended Mandate.–If no objection to a Party’s Statement of Recoverable Costs is timely filed, the appellate court clerk shall issue an amended mandate with the addition of the Party’s Statement of Recoverable Costs. If no objection to the clerk’s report is timely filed, the appellate court clerk shall issue an amended mandate with the addition of the clerk’s report and accompanying Party’s Statement of Recoverable Costs to the mandate. If an objection to the clerk’s report is timely filed, the appellate court clerk shall issue an amended mandate by adding the order of the appropriate appellate court resolving the cost dispute.
(h) Enforcement of Amended Mandate.–A party who seeks to enforce collection of the Party’s Statement of Recoverable Costs in the amended mandate from the liable party may do so by filing a motion in the trial court from which the appeal originated.
(i) Forfeiture of Costs of the Clerk of the Trial Court.–For failure to complete and transmit the record on appeal in the time and manner provided in these rules, the clerk of the trial court shall forfeit the clerk’s entire fee set forth in Tenn. Code Ann. §8-21-401(i)(11) for preparing and transmitting the record or such portion thereof as appropriate to the appellant(s) who paid such a fee.
Advisory Commission Comments. Subdivision (a). This subdivision states the general rule that except as otherwise provided by a statute or these rules, costs are to be taxed in favor of the prevailing party. In all cases, however, the appellate court has the discretion to award costs in a manner other than that specified in this subdivision.
Subdivision (b). The effect of this subdivision is to place the state of Tennessee on the same footing as a private party with respect to award of costs.
Subdivision (c). This subdivision makes costs taxable based on the principle that all items of cost expended in the prosecution of a proceeding should be recoverable by the successful party.
Subdivision (d). A party who desires the costs of producing briefs or any other recoverable costs not included in the trial clerk's bill of costs must file an itemized and verified bill of costs with the clerk of the appellate court within 75 days after entry of the judgment. Objections to the bill of costs as filed must be made within 10 days after the filing of the bill of costs unless extended by the court. Under Rule 38 of these rules the entry of judgment is not delayed for the taxation of costs.
Subdivision (e). The task of initially preparing and certifying an itemized statement of costs is with the clerk of the appellate court. However, any party dissatisfied with the action of the clerk may seek review from the appellate court.
Subdivision (f). This subdivision makes clear that commercially printed appellate papers are not required. In order to minimize the costs of appeal, this subdivision also provides that the cost of producing briefs and other papers shall be taxable at rates not higher than those generally charged for photocopying.
Advisory Commission Comments [1998]. The second sentence of subdivision (d) is amended to provide for assessment of costs concerning questions certified from a federal tribunal.
Advisory Commission Comments [2008]. The 2008 amendment to Rule 40 amends the rule to conform to the present practice in the appellate court clerk’s office in the following respects: (1) To avoid confusion with the appellate court clerk’s "bill of costs," the document submitted by attorneys has been renamed as the "Party’s Statement of Recoverable Costs." (2) The 2008 amendment makes clear that the party against whom the costs, i.e., appellate court clerk’s costs, are assessed are also liable for costs properly included in a Party’s Statement of Recoverable Costs. Where the court divides the costs, neither party can seek "recoverable costs" from the other party, but instead the parties must bear their own costs of copying briefs, etc. (3) The 2008 amendment requires parties to file the Party’s Statement of Recoverable Costs no more than 15 days after the issuance of the mandate but no sooner than the date of the issuance of the mandate. Under the prior rule, parties could file their "verified bill of costs" before the mandate issued, which created an unnecessary administrative burden on the clerk’s staff. (4) The 2008 amendment also sets forth a process by which disputes concerning a Party’s Statement of Recoverable Costs are resolved. (5) Depending upon at what stage of the process the Party’s Statement of Recoverable Costs is resolved, the 2008 amendment makes clear that the Party’s Statement of Recoverable Costs, the clerk’s report, or the order of the appellate court is to be included in an amended mandate to be transmitted to the trial court clerk. (6) Finally, the 2008 amendment provides that the party entitled to recover these costs may do so by filing a motion in the trial court which already has the original judgment in which costs are assessed against the other party and the amended mandate in which the prevailing party’s Party’s Statement of Recoverable Costs are included.
Rule 41. Interest on Judgments. —If a judgment for money in a civil case is affirmed or the appeal is dismissed, whatever interest is allowed by law shall be payable computed from the date of the verdict of the jury or the equivalent determined by the court in a non-jury case, which date shall be set forth in the judgment entered in the trial court. If a judgment is modified or reversed with a direction that a judgment for money be entered in the trial court, the mandate shall contain instructions with respect to allowance of interest. [As amended effective July 1, 1980.]
Advisory Commission Comments. This rule does not modify any existing law providing for interest before judgment, nor does it affect the rate of interest. The second sentence permits flexibility in cases in which a judgment is modified or reversed. The rule expressly provides for the allowance of interest if an appeal is dismissed as well as if the judgment is affirmed.
Advisory Commission Comments [1980]. The change in the first sentence of Rule 41 deals with the computation of interest in civil actions in both jury and non-jury cases. The existing rule provides for interest from the date of entry of judgment. The amendment provides for interest from the time of the announcement of a jury verdict or of announcement of decision by the trial judge. The reason for the amendment is that there sometimes is a delay between the announcement of the jury verdict or announcement of decision by the trial judge and the formal entry of judgment.
Rule 42. Issuance, Stay, and Recall of Mandates From the Appellate Court. —(a) Definition; Issuance; Stay on Petition for Rehearing. —Copies, certified by the clerk of the appellate court, of the judgment, any order as to costs or instructions as to interest, and a copy of the opinion of the appellate court shall constitute the mandate.
The clerk of the Supreme Court shall transmit to the clerk of the trial court the mandate of the Supreme Court, with notice to the parties, 11 days after entry of the judgment unless the court orders otherwise. The timely filing of a petition for rehearing will stay the mandate until disposition of the petition unless the court orders otherwise. If the petition is denied, the mandate shall issue immediately upon the filing of an order denying rehearing. In cases remanded to the Court of Appeals or Court of Criminal Appeals, a formal mandate shall not issue unless the Supreme Court orders otherwise, but the provisions of this rule are otherwise applicable.
The clerk of the Court of Appeals and Court of Criminal Appeals shall transmit to the clerk of the trial court the mandate of the Court of Appeals or Court of Criminal Appeals, with notice to the parties, 64 days after entry of judgment unless the court orders otherwise. The timely filing of a petition for rehearing will stay the mandate until disposition of the petition unless the court orders otherwise. The mandate shall issue 64 days after denial of the petition for rehearing or, if the petition for rehearing is granted, 64 days after entry of judgment on rehearing.
Issuance of the mandate in all cases shall not be delayed for the taxing of costs. The clerk of the appellate court shall be responsible for collecting the clerk's fees.
(b) Stay When Review by Supreme Court Is Sought. —Unless otherwise ordered by the Supreme Court, Court of Appeals, Court of Criminal Appeals, or a judge thereof, the timely filing of an application for permission to appeal in the Supreme Court shall stay the issuance of the mandate of the Court of Appeals or Court of Criminal Appeals, which stay is effective until final disposition by the Supreme Court. Upon the filing of an order of the Supreme Court denying the application for permission to appeal, the mandate shall issue immediately.
(c) Stay When Review May Be Sought in the Supreme Court of the United States. —In cases in which review by the Supreme Court of the United States may be sought, the appellate court whose decision is sought to be reviewed or a judge thereof, and in any event the Supreme Court of Tennessee or a judge thereof, may stay the mandate.
(d) Recall of a Mandate. —The power to stay a mandate includes the power to recall a mandate. [As amended effective July 1, 1980; and by order effective July 1, 1996; and by order entered January 26, 1999, effective July 1, 1999.]
Advisory Commission Comment. Subdivisions (b) and (c) specify the procedure to be followed when the decision of an intermediate appellate court is the subject of an application for permission to appeal to the Supreme Court of this state, and when any decision of any court of this state may be reviewed by the Supreme Court of the United States.
The rule provides that a formal mandate is not necessary when the Supreme Court remands a case to the Court of Appeals or Court of Criminal Appeals. In addition, the rule specifies when the mandate issues from an intermediate appellate court upon the grant or denial of a petition for rehearing.
Advisory Commission Comments [1996]. This is an amendment to conform to the 1995 amendment extending application for permission to appeal time from 30 days to 60 days.
Rule 43. Filing of Mandate in the Trial Court and Proceedings Thereafter. —(a) Filing of Mandate. —The clerk of the trial court shall file the mandate promptly upon receiving it.
(b) Dismissal or Affirmance. —When the appellate court dismisses the appeal or affirms the judgment and the mandate is filed in the trial court, execution may issue and other proceedings may be conducted as if no appeal had been taken.
(c) Remandment. —When the appellate court remands the case for a new trial or hearing and the mandate is filed in the trial court, the case shall be reinstated therein and the subsequent proceedings conducted after at least 10 days notice to the parties.
Rule 44. Process in the Appellate Court. —(a) Form. —The form of process in appellate courts shall be as near as may be to similar process issued pursuant to the Tennessee Rules of Civil or Criminal Procedure.
(b) Service, Execution and Return. —Process in the appellate court shall be served, executed and returned in the same manner as process issued pursuant to the Tennessee Rules of Civil or Criminal Procedure.
Rule 45. Rules by the Court of Appeals and Court of Criminal Appeals. —The Court of Appeals and Court of Criminal Appeals by action of a majority of the judges may make and amend rules governing their practice not inconsistent with these rules. Rules and amendments so made shall be published. In all cases not provided for by rule, the Court of Appeals and Court of Criminal Appeals may regulate their practice in any manner not inconsistent with these rules.
Rule 47. Title. —These rules shall be known and cited as the Tennessee Rules of Appellate Procedure.
Rule 48. Forms. —The forms contained in the Appendix of Forms are sufficient under the rules and are intended to indicate the simplicity and brevity of statement that the rules contemplate.
Rule 49. Effective Date. —These rules shall take effect on July 1, 1979. They govern all appellate proceedings brought after they take effect and also all further procedure in proceedings then pending except to the extent in the opinion of the appellate court their application in a particular proceeding pending when the rules take effect would not be feasible or would work injustice, in which event the former procedure applies.
In the _________ Court for _________ County, Tennessee
No. _____________________
A. B., Plaintiff
v. Notice of Appeal
C. D., Defendant
Notice is hereby given that C. D., defendant above named, hereby appeals to the (Supreme Court of Tennessee or Court of Appeals or Court of Criminal Appeals) from the final judgment entered in this action on the _____ day of _______, 20__.
/s /_____________________
_____________________
(Address)
1 The copy of the notice of appeal filed with the clerk of the appellate court should include a list of the parties upon whom service of notice of docketing of the appeal is required by Rule 5 of these rules.
Court of Appeals for the _________ Section of Tennessee
No. _____________________
A. B., Petitioner
v. Petition for Review
X, Y, Z Commission, Respondent
A. B. hereby petitions the court for review of the order of the X, Y, Z Commission entered on the _____ day of _______, 20__.
/s /_____________________
_____________________
(Address)
2 The copy of the Petition for Review filed with the clerk of the court of appeals shall include a list of the parties upon whom service of notice of docketing of the proceeding is required by Rule 12 of these rules.