RULES OF THE COURT OF APPEALS OF TENNESSEE

ADOPTED APRIL 14, 1988
EFFECTIVE MAY 1, 1988

Rule 1. Scope of Rules. — (a) The procedures of this Court are governed by Tennessee Code Annotated and by the Tennessee Rules of Appellate Procedure (hereinafter Tenn. R. App. P. ). These court rules are designed only to govern certain aspects of practice of this Court and supersede all previous rules of this Court.

(b) For good cause, including the interest of expediting a decision upon any matter, this Court, or the panel assigned to hear a particular case, may suspend the requirements or provisions of any of these rules in a particular case on motion of a party, or on its own motion, and may order proceedings in accordance with its discretion.

Rule 2. Organization and Operation of the Court. — (a) This Court shall be divided into three sections of four judges each. Unless otherwise designated by order of the presiding judge, the four judges residing in East Tennessee shall compose the Eastern Section, sitting in Knoxville; the four judges residing in Middle Tennessee shall compose the Middle Section, sitting in Nashville; and the four judges residing in West Tennessee shall compose the Western Section, sitting in Jackson.

(b) Unless otherwise ordered, all final judgments of this Court shall be remanded to the trial court for further proceedings, including collection of judgment and costs.

Rule 3. Record on Appeal. — (a) The record on appeal shall be referred to as the record, which may be abbreviated "R". It shall be composed of volumes of not more than 150 pages each. All references to the record shall be by volume and page number.

(b) The record shall be captioned as in the trial court, except that the caption shall specify the position occupied by each party in the trial court and on appeal. For example, John Smith, plaintiff-appellant.

Rule 4. Abridgement of the Transcript of Evidence, Including Depositions.

(a) In all cases where the transcript of evidence, including depositions, exceeds 300 pages, this Court may order counsel to abridge such transcript. Included in the abridgement shall be such testimony, objections, motions, rulings of the trial court, etc. , as are deemed sufficient to convey a fair, accurate and complete account of what transpired with respect to those issues that are the basis of appeal. The abridged transcript shall identify the witness, the party for whom he or she is testifying, whether direct or cross examination, and shall include testimony that properly identifies the witness.

(b) If less than all the testimony, or other material, on any page is to be considered, the material not to be considered shall be deleted or appropriately marked to so indicate. There shall also be shown the exhibit number of each exhibit relied upon by the parties. Exhibits themselves are not to be included in the abridged transcript. The abridged transcript shall be properly indexed and the pages shall be properly numbered as in the original transcript.

(c) The appellant shall designate such portions of the transcript to be included in the abridged transcript, and such designation shall be served on appellee with appellant's brief. The appellee shall designate such other parts of the transcript to be included in the abridged transcript and such designation shall be served on appellant with appellee's brief. The designations are to be by page numbers and, if less than the complete page where testimony is to be included, designated by line numbers. The designations shall not be filed in the cause.

(d) The appellant shall file the complete abridged transcript, including any additional parts not previously designated by either party, at the time that a reply brief is filed. If no reply brief is filed, the appellant shall file the abridged transcript within the time allowed for filing a reply brief. Only one copy of the complete abridged transcript is to be filed with the court clerk.

(e) Nothing in this rule shall be construed to authorize any alteration of the original trial transcript, which shall be and remain a part of the record on appeal.

(f) The cost of the abridgement shall be governed by Tenn. R. App. P. 40.

Rule 5. Preservation of Records. —

(a)(1) Except as provided in subsection (b) of this rule, after a record has been filed, it shall not be taken from the clerk's office except by counsel of record in the case, and only with the clerk's permission. Records may not be removed from the court archives by anyone for any purpose except on order of a judge of this Court for good cause shown.

(2) The clerk shall not permit any record to be taken from the clerk's office or the archives without taking a proper receipt therefor.

(b)(1) Unless otherwise ordered, the clerk of this Court is authorized to dispose of the records and other papers associated with the cases decided by this Court subject to the following conditions: (a) all records and other papers shall be maintained for at least six (6) months after the issuance of this court’s mandate; (b) no record or other paper shall be disposed of until the clerk of the trial court and counsel of record for the parties or the parties themselves if they are proceeding pro se have been given at least thirty (30) days notice of the intended disposition; and (c) the manner of the intended disposition shall comply with the applicable statutes and rules governing the disposition of judicial records and exhibits.

(2) Any party receiving a notice of disposition in accordance with Section (b)(1) may object to the disposition of all or part of the records and other papers. Objections must be made in writing stating the basis for the objection and must be filed with the clerk of the Court within thirty (30) days following the date of the notice of disposition. If an objection is timely filed, the records and other papers shall not be disposed of without an order of this Court.

(3) If any panel of this Court determines that the record and other papers in a case to which it has been assigned has possible historical value, the panel may enter an order directing the clerk of the Court to transfer the record and other papers to the State Library and Archives for preservation or other disposition as the State Library and Archives deems appropriate.

Rule 6. Briefs. —

(a) Written argument in regard to each issue on appeal shall contain:

(1) A statement by the appellant of the alleged erroneous action of the trial court which raises the issue and a statement by the appellee of any action of the trial court which is relied upon to correct the alleged error, with citation to the record where the erroneous or corrective action is recorded.

(2) A statement showing how such alleged error was seasonably called to the attention of the trial judge with citation to that part of the record where appellant's challenge of the alleged error is recorded.

(3) A statement reciting wherein appellant was prejudiced by such alleged error, with citations to the record showing where the resultant prejudice is recorded.

(4) A statement of each determinative fact relied upon with citation to the record where evidence of each such fact may be found.

(b) No complaint of or reliance upon action by the trial court will be considered on appeal unless the argument contains a specific reference to the page or pages of the record where such action is recorded. No assertion of fact will be considered on appeal unless the argument contains a reference to the page or pages of the record where evidence of such fact is recorded.

(c) Where less than the full record is sufficient to convey a fair, accurate and complete account of the issues on appeal (as set out in Tenn. R. App. P. 24) and counsel for one of the parties desires to file a complete transcript of the proceeding in this Court, counsel may do so. However, this Court may require that party or counsel to bear the expense of the unnecessary part of the transcript and to furnish an appendix as provided in Tenn. R. App. P. 28.

(d) Extensions of time in excess of those provided for in Tenn. R. App. P. 29(a) will not be liberally granted by this Court. Any request for such extension shall be in the form of a written motion setting forth the reasons for the extension sought. Such motion shall be filed or presented to a member of this Court within the time initially allowed by Tenn. R. App. P. 29(a) for the doing of the act for which an extension is sought.

Rule 7.

Briefs in Domestic Relations Cases.

            (a)       In any domestic relations appeal in which either party takes issue with the classification of property or debt or with the manner in which the trial court divided or allocated the marital property or debt, the brief of the party raising the issue shall contain, in the statement of facts or in an appendix, a table in a form substantially similar to the form attached hereto. This table shall list all property and debts considered by the trial court, including: (1) all separate property, (2) all marital property, and (3) all separate and marital debts.

[Rule Amended by order filed November 17, 2005]

Rule 8. Copies of Papers Filed. -- (a) Except as required by this rule or by another statute or rule, the original of all papers filed with the clerk of this Court shall be accompanied by one (1) copy of the original paper being filed.

(b) The original of all briefs filed with the clerk of this Court shall be accompanied by four (4) copies.

(c) The original of all applications for interlocutory appeals under Tenn. R. App. P. 9, extraordinary appeals under Tenn. R. App. P. 10, or motions for a stay or injunction pending appeal under Tenn. R. App. P. 7 shall be accompanied by one (1) copy.

Rule 9. Disrespect of Courts. -- Any brief or written argument containing language showing disrespect or contempt for any court of Tennessee will be stricken from the files, and this Court will take such further action relative thereto as it may deem proper.

Rule 10. Memorandum Opinion. -- This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited or relied on for any reason in any unrelated case.

Rule 11. Publication of Opinions Where No Application for Permission to Appeal to the Tennessee Supreme Court Is Filed. -- (a) Opinions of this Court, including abridgements thereof, from which no application for permission to appeal to the Tennessee Supreme Court has been filed, shall be published only with the approval of this Court as provided for herein.

(b) An opinion of this Court from which no application for permission to appeal to the Tennessee Supreme Court has been filed shall be published only if, in the determination of the members of this Court, it meets one or more of the following criteria:

 (1) The opinion establishes a new rule of law or alters or modifies an existing rule or applies an existing rule to a set of facts significantly different from those stated in other published opinions;

 (2) The opinion involves a legal issue of continuing public interest;

 (3) The opinion criticizes, with reasons given, an existing rule of law;

 (4) The opinion resolves an apparent conflict of authority;

 (5) The opinion updates, clarifies or distinguishes a principle of law; or

 (6) The opinion makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law.

 (c)(1) An opinion of this Court, or an abridgement thereof, from which no application for permission to appeal to the Tennessee Supreme Court has been filed may be submitted to this Court for consideration for publication only after the expiration of the period of time permitted by the Tennessee Rules of Appellate Procedure to apply to the Tennessee Supreme Court for permission to appeal. Along with the opinion, the author shall state the reasons why the publication of the opinion is appropriate.

(2) If within thirty (30) days of the date an opinion has been submitted to all members of this Court, seven (7) members have approved publication of the opinion, the presiding judge shall notify the author of the opinion in writing that the opinion may be published.

(3) Approvals or objections to the publication of an opinion shall be made in writing and shall be sent to the presiding judge within thirty (30) days after the opinion has been submitted to the members of this Court. Where no written response is received from a member of this Court within thirty (30) days, the lack of response shall be treated as an affirmative vote for publication. The presiding judge shall, upon request, share the substance of the responses with the author of the opinion.

(d) Any judge of this Court may make minor editorial changes in an opinion authored by that judge once the opinion has been filed. These changes may include corrections in spelling, punctuation, or syntax. However, any abridgement that significantly alters the sense or emphasis of an already filed opinion shall be submitted to this Court prior to publication.

(e) In cases wherein concurring or dissenting opinions have been filed, the author of the concurring or dissenting opinion shall determine whether the concurring or dissenting opinion should be published with the majority opinion or whether only the position of the concurring or dissenting judge should be noted.

Rule 12. Citation of Unpublished Opinions. — (a) No opinion of any court that has not been published shall be cited in papers filed in this Court unless a copy thereof has been furnished to this Court and to adversary counsel. Such unpublished opinions shall be included as appendices to any brief or other paper filed with this Court.

(b) In the case of unpublished Tennessee intermediate appellate court opinions, the title page of any opinion cited to this Court shall contain either a notation that no appeal to the Tennessee Supreme Court has been filed or a notation of the date and manner in which the Tennessee Supreme Court acted upon the application for permission to appeal. Where appropriate, this shall include a notation that an appeal has been applied for but has not been acted upon by the Tennessee Supreme Court.

Rule 13. Accelerated Civil Appeal. —

Counsel for parties to an appeal may stipulate that the appeal may be heard and considered by this Court as follows.

IN THE COURT OF APPEALS OF TENNESSEE

AT _____________

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STIPULATION FOR ACCELERATED CIVIL APPEAL

The undersigned counsel for the parties stipulate that this appeal may be heard and considered by the Court of Appeals as follows:

1. Procedures. Appeal procedures shall be followed according to applicable statutes and the Tennessee Rules of Appellate Procedure and the Rules of Civil Procedure, except as they may conflict with these stipulated procedures. No changes may be made to this form.

2. At Issue. These appeal procedures are no different than any other civil appeal until the briefs have been filed and the case is at issue.

3. Priority for Oral Argument. Oral argument, if requested, will be accelerated and set within 60 days after the case is at issue or 60 days after this stipulation is filed, whichever is later.

Check One:

________ Oral argument is requested.

________ Oral argument is not requested.

4. Oral Argument. Each party is entitled to oral argument as in any other civil appeal.

5. Oral Decision by Court. After arguments are presented, the court will take a short recess and confer. An oral decision will be made from the bench when the court reconvenes. Reasons for the decision will be stated by the court. If the court finds it is unable to rule without further deliberation, an oral decision will not be made, and the court will enter its written order as provided in paragraph 7.

6. No Written Opinion. A written decision in the form of a published opinion or unpublished memorandum is waived by the parties.

7. Written Order. The decision of the court will be incorporated in a written order following argument.

8. Review by Tennessee Supreme Court Waived. The Court of Appeals will consider a motion for rehearing as in any other civil appeal following the entry of the written order deciding the case. Review by the Tennessee Supreme Court is waived.

9. Suspension of Rules. The filing of this stipulation for an accelerated appeal shall be deemed to be a motion to suspend any of the rules under Tenn. R. App. P. 2, which may be in conflict with these procedures.

At any time subsequent to the filing of this stipulation, either before or after oral argument, the court on its own motion may enter an order removing this case from the Accelerated Hearing Calendar and placing it on the Regular Calendar for disposition.

DATED this ________ day of ________, 20__.

__________________________________ __________________________________

__________________________________ __________________________________

IN THE COURT OF APPEALS OF TENNESSEE

AT _______________

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ORDER ON STIPULATION FOR ACCELERATED CIVIL APPEAL

IT IS ORDERED that this case be placed upon the Accelerated Hearing Calendar for disposition in accordance with the stipulation of the parties.

ENTER: This the ________ day of ________, 20__.

____________________________

JUDGE

Rule 14. Appeals from Juvenile Courts. -- The clerk of this Court shall place under seal, subject to more specific order, all records and briefs filed in appeals from juvenile courts, except for those types of cases listed in Tenn. Code Ann. § 37-1-154(b) as subject to public disclosure. (Adopted March 5, 2001 and effective April 2, 2001. )

Rule 15. Filing Documents Under Seal

a. Applicability. All documents filed with the clerk of this court are public records unless they are protected from disclosure by a statute, rule, or court order. Tenn. S. Ct. R. 34. Except as provided in subdivisions (f) and (g), this order applies only to documents filed under seal or proposed to be filed under seal pursuant to a court order and not to documents sealed or made confidential by a statute or rule.

b. Documents previously filed under seal in the trial court.

i. Documents filed in the trial court under seal pursuant to a specific order of the trial court shall be filed under seal in this court subject to the same restrictions as set forth in the trial court’s order unless this court orders otherwise.

ii. For a document to be filed under seal in the appellate court pursuant to subdivision (b), the trial court must have made an individualized determination that the particular document should be filed under seal. A document will not be filed under seal in this court based solely on the stipulation of the parties or on a party’s designation of the document as confidential pursuant to a protective order.

iii. Where documents filed under seal in the trial court are included in the record on appeal, the trial court clerk shall place the sealed documents in a separate envelope with a copy of the trial court’s sealing order on the cover.

iv. Where documents filed under seal in the trial court are first presented to this court by a party in support of an application or motion, the sealed documents shall be attached as an exhibit in a separate envelope with a copy of the trial court’s sealing order on the cover.

c. Documents not previously filed in the trial court. A document that has not been filed in the trial court may be filed under seal in this court only by an order of this court. The party seeking to file such a document must file a motion demonstrating that protection from disclosure is necessary and that the relief requested is the least restrictive means available to protect the confidential matters.

d. Briefs, applications, and motions.

i. Briefs, applications, and motions filed originally in this court will not be filed under seal absent a showing of extraordinary circumstances.

ii. Where a party deems it unavoidable to disclose protected information in a brief, application or motion, the party shall file a motion to seal those portions which must refer to protected information. The moving party shall have the burden of demonstrating that protection from disclosure is necessary and that the brief, application or motion cannot be adequately prepared by referring to sealed portions of the record without disclosing the protected information. Only those portions of the brief, application or motion which actually disclose protected information will be sealed.

iii. A party moving to seal a portion of a brief, application or motion shall lodge the complete brief, application or motion containing the confidential information and shall file a second, public brief, application or motion with the protected matters redacted. The complete brief, application or motion shall identify by typeface, brackets or other means those portions which are protected and have been redacted from the public version. Only the original and one copy of the public version need be filed.

e. Lodging under conditional seal.

i. Parties who have filed in this court a motion to seal a document may lodge the document under a conditional seal by placing it in a separate envelope with “Conditionally Under Seal” on the cover. The clerk shall treat the document as sealed until the court rules on the motion to seal.

ii. If the motion to seal is denied, the clerk shall return the lodged document to the submitting party unless the submitting party notifies the clerk in writing within ten (10) days that the document should be filed.

iii. If the motion to seal is granted, the clerk shall attach a copy of the sealing order to the envelope.

f. Documents made confidential or sealed pursuant to a statute or rule. Documents made confidential or sealed pursuant to a statute or rule, including those records and briefs filed in appeals from juvenile courts subject to Tenn. Ct. App. R. 14, shall contain a prominent notation on their cover stating that they are confidential or sealed and indicating the authority for such protection. The trial court clerks shall ensure that the records on appeal in such cases contain the appropriate notation.

Access to sealed documents. Unless otherwise provided by statute, rule or the order placing the documents under seal, documents filed under seal in this court may be examined or withdrawn only by:

i. Counsel of record or their agents;

ii. Judges of this court and their staff having need to examine the documents in the performance of their duties. ; and

iii. Deputy clerks having need to examine the documents in the performance of their duties.

(Amended by Order filed October 26, 2004)

INTERNAL OPERATING PROCEDURES OF THE
COURT OF APPEALS

1. Each section of this Court shall select its own presiding judge except that the presiding judge of the entire Court shall preside over the section where he or she resides and over any panel of which he or she is a member.

2. Each section shall sit in panels of three judges each as assigned by the presiding judge of the section.

3. If a majority of this Court or any section or panel thereof shall fail to attend any session of the Court, a judge who is present, or the clerk in the absence of all judges, may adjourn the Court from day to day.

4. Sessions for hearing oral argument and for other needful purposes may be held by each section as determined by the presiding judge of the section.

5. Cases in each section shall be heard and assigned generally in the order received, but the presiding judge of the section shall control the docketing and assignment of cases.

6. (a) This Court may consider and decide a case en banc when a majority of the members of this Court determine that consideration and determination by the full Court is warranted based upon the recent or pending release of an opinion which conflicts with a prior opinion of this Court that has not been reversed or disapproved by the Supreme Court. An en banc proceeding may be initiated by the recommendation of a majority of the judges on the panel issuing or preparing the conflicting opinion. Upon receipt of such recommendation, the presiding judge shall poll the members of this Court, and if a majority of those members who are not disqualified from deciding the case vote to hold an en banc hearing, the presiding judge shall convene such hearing at a convenient time and place.

(b) Absent exceptional circumstances, all members of this Court shall participate in the en banc hearing unless disqualified for conflicts. The hearing shall proceed as scheduled notwithstanding the unavoidable absence of one or more judges. Any judge who is unavoidably absent from the hearing may participate in the determination of the case by reviewing the tape of the oral argument.

(c) If an opinion which conflicts with a prior opinion of this Court has been issued fewer than thirty (30) days before the issuing panel makes a recommendation for an en banc hearing, the issuing panel shall vacate and withdraw the conflicting opinion, pending the full Court’s determination on whether to consider the case en banc. If the en banc hearing is called, the conflicting opinion shall not be issued. If not more than thirty (30) days has elapsed since the issuance of the earlier of the conflicting opinions, the panel issuing the earlier opinion shall also vacate and withdraw that opinion pending reconsideration by the full Court.

(d) After hearing and consideration en banc, the judgment of the majority of the members of this Court participating in the case shall be entered as the judgment of this Court.

7. The presiding judge of this Court shall be elected pursuant to Tenn. Code Ann. § 16-4-104 at this Court's annual meeting for a one year term commencing on April 1 of each year. If for any reason the election for presiding judge has not taken place by April 1, the incumbent presiding judge shall continue to serve until the election takes place. The presiding judge shall serve at the will and pleasure of this Court.

8. This Court shall meet annually in January, or on such other date as the majority of this Court shall determine, at a time and place to be fixed by the presiding judge to discuss such court business as may lawfully come before it. (Adopted March 5, 2001 and shall be effective from that date. )