A. APPLICABILITY OF RULES
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. §§ 16-112 —16-118 (Supp. 1977) [now §§ 16-3-402 —16-3-407, 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.
Practice and procedure in the appellate courts are now governed by scattered provisions of the Tennessee Code and the rules and decisions of the appellate courts. Some of the current law is complex, technical, and dated. 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. § 16-117 (Supp. 1977) [now § 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. None of these rules affects the types of cases heard by the appellate courts, but some procedures characterized in the past as “jurisdictional”have been either eliminated or substantially altered. Nothing in these rules, however, 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.
(h) Assignments of Error Abolished. —Assignments of error are abolished. [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.]
Advisory Commission Comments. Subdivision (a). This subdivision states the rule that has generally prevailed in civil actions that 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. The most significant change from existing law is that portion of the rule permitting an appeal as of right in certain circumstances in cases in which there has been a plea of guilty or nolo contendere. This portion of the rule was derived from Tennessee Rule of Criminal Procedure 37. According to the committee comment to that rule, this change in existing law should avoid the necessity for many trials. The remaining portions of the subdivision simply embody existing law with regard to the right of appeal from final judgments in criminal contempt, habeas corpus, extradition, or post-conviction proceedings. Interlocutory appeals by the defendant may be sought as provided in Rules 9 and 10.
Subdivision (c). Under current law either party to a criminal proceeding may pray an appeal in the nature of a writ of error or take a writ of error as in civil cases. Tenn. Code Ann. §§ 40-3401 to 40-3402 [repealed] (1975). The only limitation placed upon the right of appeal by the state is that it may not appeal upon a judgment of acquittal. Tenn. Code Ann. § 40-3403 [repealed] (1975). 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. This subdivision specifies those situations with greater particularity than does existing law in order to provide needed guidance. 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.
This [1980] 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. [1980.]
The final sentence of Rule 3(e) ensures that trial judges will know what decisions have been appealed. [1996.]
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.
One of the needless complexities of existing law is the tripartite division among writs of error, appeals in the nature of a writ of error, and simple appeals. These devices for gaining appellate review are of only historical interest with little contemporary utility. In order to simplify appellate procedure these three traditional methods of gaining appellate review are expressly abolished. Though the writ of error does serve a salutary purpose under existing practice, the need for such a mechanism should be substantially eliminated by the simplicity of taking an appeal under these rules.
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 and the clerk of the appellate court. Compliance with the provisions of this subdivision is of the utmost importance, since failure of an appellant to file and serve notice of appeal affects its validity. 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.
This subdivision also eliminates certain highly technical procedural barriers that traditionally have been prerequisites to an appeal or affected the scope of appellate review. Thus, motion in arrest of judgment, prayer for an appeal, entry of an order permitting an appeal, and all other similar procedures are no longer considered prerequisites to taking an appeal. The scope of review generally is treated in Rule 13.
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 as a single appellant. Thus it is entirely proper for parties to file a joint notice of appeal. Alternatively, parties may file separate notices of appeal and their appeals may thereafter be consolidated.
This [1980] amendment incorporates changes in wording in the third sentence of Rule 3(e), substituting the phrase “issue presented for review”for the phrase “assignment of error”; deleting the word “alleged”; substituting the word “evidence”for the word “testimony”; deleting the phrase “in the lower court and decided adversely to the appellant”; and substituting the word “issues”for the word “assignments.”[1980.] The final sentence of Rule 3(e) ensures that trial judges will know what decisions have been appealed. [1996.]
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 subsection (e). [1998.]
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 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.
Subdivision (h). This subdivision abolishes assignments of error. Assignments of error are remnants of the common-law theory that a proceeding in error was an accusation “directed against the [trial] judge . . . based upon a new cause of action arising out of the wrongful act committed by him in rendering his false judgment.”Sunderland, A Simplified System of Appellate Procedure, 17 Tenn. L. Rev. 651 (1943). The appellate court is informed about the issues on appeal and the arguments in support thereof by the briefs, the contents of which are specified in Rule 27.
Advisory Commission Comment [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 Comment [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 Comment [2002] Specific reference to Criminal Rule 37(b)(2)(i) and (iv) was added to subsection (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 Comment [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.
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(a)(2) imposes a special provision regarding the content of a notice of appeal in such a proceeding.
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. [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.]
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 second 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 58.02 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.
The added material is in conformity with the provisions of 1983 Tenn. Public Acts, ch. 417, T.C.A. § 27-1-123. [1984.]
The cross-reference in Rule 4(a) to Rule 20 allows prisoners to file according to procedures in the latter rule. [1998.]
Rule 4(b) adds subsection (3) to fit the requirements of the proposed amendments to the cost statute, T.C.A. § 20-12-119. [1986.]
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. [1984.]
Subdivision (d) establishes the general rule that the right to appeal is not lost by filing notice of appeal before entry of the judgment appealed from. he Commission is concerned that some lawyers have misread the original draft and have failed to file a new notice of appeal when the earlier notice is of “no effect”because a motion disposition intervened. See the unreported decisions cited at Pivnick, Tennessee Circuit Court Practice § 30-3 (1983 Suppl.). Believing that even a premature notice of appeal suffices to inform the adversary that an appeal is intended, the Commission proposes deleting portions of subdivisions (b) and (d) to give an early notice an effective date identical to the date of entry of an order overruling a post-trial motion. [1984.]
Rule 4(a) starts the running of thirty days for notice of appeal at entry of “the judgment appealed from,”typically the order overruling a motion for new trial following a jury verdict. Under the amendment this “premature”but now effective notice of appeal would operate to challenge the judge's subsequent order overruling the post-trial motion. But what if the judge grants a new trial§ The sense of the Commission is that a second notice of appeal must be filed following the second trial, as the judgment appealed from would be the order overruling the second motion for new trial. [1984.]
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 Committee Comments [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] [Change
in the original comment to Rule 4(a) at the third paragraph, first sentence:]
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.
The amendment to Appellate Rule 4(c) corrects an obsolete
reference to Criminal Rule 32(f)(1).
Advisory Commission Comment [2004] The amendment adds to the list in subsection (c) a motion for withdrawal of a plea of guilty. See State v. Peele, 58 S.W.3d 701 (Tenn. 2001).
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(a)(1) imposes a special provision regarding the filing of a notice of appeal in such a proceeding.
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.
(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 [1984]. The experience of the appellate clerks has been that the requirement of serving a notice of appeal at the appellate level accomplished no vital purpose, but instead resulted in a surplus of notices where the appeal was abandoned because of settlement or otherwise. The amendment drops the requirement, and not until receipt of the record will the appellate clerk notify the parties.
Advisory Commission Comments [1991]. The amendment requires a lawyer to serve the appellate court clerk with a copy of the notice of appeal, thereby restoring the rule to its original tenor.
Advisory Commission Comments [1995]. The amendment to subsection (b) requiring an additional service copy on the appellate clerk conforms criminal practice to the civil practice outlined in subsection (a).
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.
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. 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. This rule is intended to provide a simplified method of handling security for costs on appeal in civil actions. The sum of $500 in a bond or otherwise is considered sufficient in the absence of specific direction by the court as to some other amount. Under proposed 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.
The rule requires that the security be deposited with the filing of 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 proposed new 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 proposed new Tennessee Rule of Civil Procedure 62.06.
Advisory Commission Comments [1998]. The amendment deletes the set amount of $1,000 for an appeal bond and leaves the amount open.
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 Comment [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).
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.
(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 proposed new 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 proposed new 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 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(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 facts necessary to an understanding of why an appeal by permission lies and (2) 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. [Amended by order filed December 10, 2003; effective July 1, 2004.]
(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.]
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.
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 facts necessary to an understanding of why an extraordinary appeal lies, (2) a statement of the reasons supporting an extraordinary appeal, and (3) 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.]
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.
This rule abandons old terminology associated with the writ system of interlocutory review in order to avoid irrelevant historical considerations associated with the writs. 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 interlocutory appeal, the Supreme Court will hear the case only under the criteria of Rule 10.
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 10(b) is jurisdictional.
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. See Tenn. Code Ann. §§ 16-452, 27-819 (1955 & Supp. 1977) [§§ 16-5-112 (repealed), 27-8-119 (repealed)]. 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 procedure for securing review by the Supreme Court is essentially the same as the procedure for seeking permission for interlocutory review under Rule 9. It should be noted that 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. The application is not designed to serve the office of arguing the merits of the decision of the intermediate appellate court.
In order to avoid confusion with constitutional, common law and statutory certiorari, this rule changes existing terminology. This rule also differs from existing law in at least two additional respects. First, the rule requires two justices to vote in favor of granting permission to appeal, as opposed to the current law under which only one justice need favor granting certiorari in order for the case to be heard. See Tenn. Code Ann. § 27-819 (1955) [§ 27-8-119 (repealed)]. In addition, the time for filing an application for permission to appeal is 30 days from the date of entry of the judgment of the intermediate appellate court, and no extensions are permitted. This differs from the 45 days currently permitted for seeking certiorari, which time may be extended an additional 45 days. See Tenn. Code Ann. § 27-820 (1955) [repealed].
The [1987] amendments to (b) and (f) seek to clarify the prior rule in two respects. First, the appellant formerly was not required to notify the appellee of the election to file or not file a supplemental brief. Consequently, the appellee was unable to calculate the time for filing a responsive brief. The revised language requires the appellant to notify the appellee of an election not to file a supplemental brief; without such notice, the appellee will properly assume that time begins to run only upon service of the appellant's supplemental brief. Second, nothing in the earlier rule indicated the correct form for a supplemental brief. The revision limits the argument section to 25 pages and provides for a blue cover. [1987.]
Subdivision (b). The Supreme Court has been constrained to dismiss applications for permission to appeal filed more than the absolute maximum of 60 days from the Court of Appeals judgment. Examples are recited in State v. Sims, 626 S.W.2d 3 (Tenn. 1981). Perhaps some lawyers have requested an extension of time when the initial 30-day period ended on a weekend or holiday; and those lawyers have calculated the extra 30 days to begin on the following business day; that calculation is erroneous, dangerous, and sometimes fatal. The Commission recommends the amended language for emphasis and clarity. [1984.]
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 permission to appeal application could be filed on the next business day. In this instance, the total time interval would actually exceed sixty days. In no event would the deadline be extended where the thirtieth day was not a court day. [1984.]
The insertion of “timely”in two places in the first sentence of subsection (b) clarifies the language. The proviso allows a discretionary extension. [1994.]
The amendment to Rule 11(b) gives an absolute 60-day period for filing an application for permission to appeal. [1995.]
Subdivision (f). The Supreme Court is receptive to a full brief on all issues accompanying the application for permission to appeal, but an application without brief will meet the requirement of the Rule. [1984.]
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 Comment [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. Examples are appeals from the Public Service Commission, which go to the Middle Section, T.C.A. § 4-5-322(b)(1), and appeals from the Claims Commission, T.C.A. § 9-8-403(a)(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, T.C.A. § 4-5-101 et seq.
In those few situations where appeal is direct from an administrative tribunal to the Court of Appeals, there has been no time limit for petition to the appellate court. The [1988] amendment sets a thirty-day limit. [1988.]
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 will not prevent cross-appeals from being considered by an appellate court. [Effective july 1, 2001]
(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. This is in accord with existing law. See Tenn. Code Ann. § 27-823 (1955) [repealed]. 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.
This [1980] amendment adds the introductory proviso “except 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 appellant of the need to move for a new trial in jury actions. [1980.]
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, dealing with appellate review of findings of fact in civil actions, incorporates existing law. See Tenn. Code Ann. § 27-303 (Supp. 1977) [repealed]; Tenn. Sup. Ct. R. 14(7). Concurrent findings, see Tenn. Code Ann. § 27-113 (Supp. 1977) [now § 27-1-113], findings in workmen's compensation cases, see Tenn. Code Ann. § 50-1018 (Supp. 1977) [now § 50-6-225], and findings in administrative adjudication, see Tenn. Code Ann. § 4-524 (Supp. 1977) [now § 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.
Subdivision (f). New Rule 13(f) overrules decisions such as Nickas v. Capadailas, 953 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 T.C.A. §16-3-406: “After such rules shall have become effective, all laws in conflict therewith shall be of no further force or effect.”
Advisory Commission Comment [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.
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 as a single appellant.
(b) Consolidated Appeals. —When 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.
Advisory Commission Comments. Under subdivision (a), two or more parties may file a joint notice of appeal and proceed thereafter on appeal as a single appellant. Alternatively, parties may file separate notices of appeal and their appeals may thereafter be consolidated under subdivision (b). Consolidation of appeals is encouraged whenever feasible.
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) Appointment of Counsel in Criminal Actions. —In a criminal action, on overruling a motion for a new trial or in arrest of judgment, whichever is later, the trial court shall advise the defendant and appoint counsel on appeal as provided in Rule 37 (c) of the Tennessee Rules of Criminal Procedure. [As amended by order entered January 26, 1990, effective July 9, 1990.]
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. § 40-2018 [now § 40-14-203] (1975). A poor person may also obtain a transcript in criminal actions without payment of the reporter's fee pursuant to Tenn. Code Ann. § 40-2040 [now § 40-14-312] (1975). 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. § 40-2023 [now § 40-14-207] (1975).
The exception in part [subsection] (b) referring to part [subsection] (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. [1990.]
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.
Registered mail, which is authorized by Rule 20(a), differs significantly from certified mail. The Postal Service records the date of deposit of registered mail at the Post Office, but not of certified mail. Rule 20(a) permits use of registered mail with a return receipt as an alternative to filing papers with the Clerk. Neither certified mail nor private delivery service is authorized for that purpose.
Advisory Commission Comments [1991]. The amendment permits certified return receipt mail as well as registered return receipt mail. Under the original rule, the Supreme Court found it necessary to dismiss many applications for permission to appeal for failure to timely file. Lawyers should note that there is no provision for private delivery services.
Advisory Commission Comments [1993]. Should timeliness of filing become an issue, the burden is on the incarcerated person to establish compliance with the amended language.
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 Comment [2002] Two changes are made to subsection (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.