B. APPEAL AS OF RIGHT

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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)(A) or (D) 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, an order or judgment pursuant to Rule 36 or Rule 36.1, Tennessee Rules of Criminal Procedure, from a final judgment in a criminal contempt, habeas corpus, extradition, or post-conviction proceeding, and from a final order on a request for expunction.

(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, from an order or judgment pursuant to Rule 36 or Rule 36.1, Tennessee Rules of Criminal Procedure, and from a final order on a request for expunction.

(d) Definition; One Method of Appeal as of Right.  An appeal as of right is an appeal that does not require permission of the trial or appellate court as a prerequisite to taking an appeal. There shall be one method of appeal as of right to be known as an “appeal as of right.”Writs of error, appeals in the nature of a writ of error, and simple appeals are abolished.

(e) Initiation of Appeal as of Right.  An appeal as of right to the Supreme Court, Court of Appeals, or Court of Criminal Appeals shall be taken by timely filing a notice of appeal with the clerk of the trial court as provided in Rule 4 and by service of the notice of appeal as provided in Rule 5. An appeal as of right may be taken without moving in arrest of judgment, praying for an appeal, entry of an order permitting an appeal or compliance with any other similar procedure. Provided, however, that in all cases tried by a jury, no issue presented for review shall be predicated upon error in the admission or exclusion of evidence, jury instructions granted or refused, misconduct of jurors, parties or counsel, or other action committed or occurring during the trial of the case, or other ground upon which a new trial is sought, unless the same was specifically stated in a motion for a new trial; otherwise such issues will be treated as waived. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal but is ground only for such action as the appellate court deems appropriate, which may include dismissal of the appeal. The trial court clerk shall send the trial judge a copy of all notices of appeal.

(f) Content of the Notice of Appeal.  The notice of appeal shall specify the party or parties taking the appeal by naming each one in the caption or body of the notice (but an attorney representing more than one party may describe those parties with such terms as “all plaintiffs,” “the defendants,” “the plaintiffs A, B, et al.,” or “all defendants except X”), shall designate the judgment from which relief is sought, and shall name the court to which the appeal is taken. An appeal shall not be dismissed for informality of form or title of notice of appeal. [Amended by order filed December 10, 2003; effective July 1, 2004.]

(g) Definition of Judgment.  The term “judgment”as used in these rules includes a decree.

[As amended effective July 1, 1980; as amended effective May 7, 1981; by order effective July 1, 1996; and by order effective July 1, 1998; and by order filed January 31, 2002, effective July 1, 2003, and by order filed January 6, 2005, effective July 1, 2005; by order filed January 23, 2012, effective July 1, 2012; and by order filed December 18 2012, effective July 1, 2013.]

Advisory Commission Comments.

Subdivision (a). This subdivision states the general rule that in civil actions an appeal as of right may be taken only after entry of a final judgment. In addition, the rule offers a definition of finality in those circumstances in which multiple claims or multiple parties are involved. The rule does not otherwise define a final judgment because it is typically clear whether an order is final or interlocutory. Interlocutory appeals are governed by Rules 9 and 10.

Subdivision (b). This subdivision specifies those situations in which the defendant in a criminal action may appeal as of right. Interlocutory appeals by the defendant may be sought as provided in Rules 9 and 10.

Subdivision (c). The only limitation placed upon the right of appeal by the state in criminal actions is that it may not appeal upon a judgment of acquittal. In addition, notions of double jeopardy place constitutional restrictions on the availability of appeals by the state. See e.g., United States v. Martin Linen Supply Co., 430 U.S. 564 (1977). This subdivision specifies situations, within constitutional limits, in which it seems desirable to recognize the state's right of appeal. In addition, the rule provides that appeals as of right lie only in those circumstances specified in the subdivision. Interlocutory appeals by the state may be sought as provided in Rules 9 and 10.

Subdivision (d). These rules recognize two types of appeals: appeals as of right and appeals by permission. This subdivision defines an appeal as of right as one that does not require the permission of either the trial or appellate court as a prerequisite to taking an appeal. Appeals by permission, on the other hand, require that either the trial court or the appellate court expressly authorize the taking of an appeal.

Subdivision (e). The intent of this subdivision is to provide a uniform and simplified method of taking an appeal as of right. This subdivision combined with Rules 4 and 5 require that a notice of appeal be filed with the clerk of the trial court within the time prescribed for taking an appeal and that a copy of the notice of appeal be served on all parties. The form and content of the notice of appeal are set out in official form 1, and Rule 48 specifically provides that the use of this form is sufficient under these rules.

Rule 36 provides that relief need not be granted to a party who fails to take whatever action is reasonably available to prevent or nullify the harmful effect of error. Failure to present an issue to the trial court, therefore, will typically not merit appellate relief. In addition, under Rule 13(c) the appellate court is generally limited in its review to those facts set forth in the record. Thus matters that can only be made a part of the record by a new trial motion must be so included in order to gain appellate review. Jury misconduct provides one example.

Under Rule 16, two or more persons may proceed on appeal jointly. Thus it is entirely proper for parties to file a joint notice of appeal; however, a joint notice of appeal must comply with subdivision (f) of this rule.

Subdivision (f). This subdivision specifies the content of the notice of appeal. The purpose of the notice of appeal is simply to declare in a formal way an intention to appeal. As long as this purpose is met, it is irrelevant that the paper filed is deficient in some other respect. Similarly, the notice of appeal plays no part in defining the scope of appellate review. Scope of review is treated in Rule 13. This subdivision read in conjunction with Rule 13(a) permits any question of law to be brought up for review [except as otherwise provided in Rule 3(e)] as long as any party formally declares an intention to appeal in a timely fashion.

Subdivision (g). This subdivision makes clear that the term "judgment" as used in these rules is not limited to its strict common-law definition but includes equitable decrees. This subdivision is derived from Rule 54.01 of the Tennessee Rules of Civil Procedure.

Advisory Commission Comments [1980].

This amendment adds the following instances in which the state may appeal as of right from a final judgment in criminal actions: (1) habeas corpus proceedings, (2) extradition proceedings, and (3) post-conviction relief proceedings. This amendment does not represent any change in existing law.

Advisory Commission Comments [1996].

The final sentence of Rule 3(e) ensures that trial judges will know what decisions have been appealed.

Advisory Commission Comments [1998].

Because the trial clerk rather than the appellant's lawyer is now responsible for serving the appellate clerk with a copy of the notice of appeal, the words "and service" were deleted from subdivision (e).

Advisory Commission Comments [1999].

It is the policy of the appellate court clerk's office in cases involving cross appeals to consider the appellant to be the party who first files a notice of appeal; in the event that the notices are filed on the same day, the plaintiff in the proceeding below is considered to be the appellant unless the parties otherwise agree or the court otherwise directs.

Advisory Commission Comments [2000].

The third sentence of Rule 3(e) does not bar an appellee who failed to move for a new trial from raising issues on appeal under Rule 13(a). That has been the practice since adoption of the Appellate Rules, and it is the conclusion reached by Prof. John Sobieski–Reporter at the time–in 46 Tenn.L.Rev. at 732-4 (1979).

Advisory Commission Comments [2002].

Specific reference to Criminal Rule 37(b)(2)(i) and (iv) was added to subdivision (b)(2) to ensure awareness of the strict requirements for appealing a certified question of law. See State v. Preston, 759 S.W.2d 647 (Tenn. 1988).

Advisory Commission Comments [2004].

The language of paragraph (f) in parentheses, taken from Federal Rule of Appellate Procedure 3(c), provides a lawyer representing appellants with options other than listing each appellant by name. The lawyer should consult with clients to make sure each wants to appeal, thereby avoiding problems with court costs.

Termination of Parental Rights Proceedings. Rule 8A imposes special requirements governing the appeal of any termination of parental rights proceeding. In particular, Rule 8A(a)(2) imposes a special provision regarding the content of a notice of appeal in such a proceeding.

Advisory Commission Comments [2005].

Former subdivision (h) (pertaining to “assignments of error”) is deleted because it is obsolete.

Advisory Commission Comments [2012].

Generally. Effective July 1, 2012, the Supreme Court adopted Tenn. Sup. Ct. R. 10B, governing motions seeking disqualification or recusal of a judge. Section 2 of Rule 10B provides the procedural framework for appealing the denial of a disqualification or recusal motion by a judge of a court of record. Section 2.01 of the rule provides that such appeals may be effected either by filing an interlocutory appeal as of right authorized by the rule or by raising the disqualification or recusal issue in an appeal as of right at the conclusion of the case. Under Section 2.01, those two methods of appeal are “the exclusive methods for seeking appellate review of any issue concerning the trial court’s ruling on a motion filed pursuant to this Rule.” (Emphasis added.) As a result, “neither Tenn. R. App. P. 9 nor Tenn. R. App. P. 10 may be used to seek an interlocutory or extraordinary appeal by permission concerning the judge’s ruling on such a motion.” Tenn. Sup. Ct. R. 10B, Explanatory Comment to Section 2. Attorneys or self-represented litigants therefore should consult Tenn. Sup. Ct. R. 10B concerning the procedure for appealing from the denial of a disqualification or recusal motion.

Subdivisions (b) and (c). Tenn. R. App. P. 3(b) is amended to update an obsolete cross-reference to Tenn. R. Crim. P. 37(b)(2), changing the subparagraph designations from “(i) or (iv)” to “(A) or (D).”

Rule 3(b) and (c) are amended to provide for an appeal as of right from the trial court’s filing of a corrected judgment or order pursuant to Tenn. R. Crim. P. 36.

Advisory Commission Comments [2013].

Tenn. R. Crim. P. 36.1 was adopted in 2013 to provide a mechanism for the defendant or the State to seek to correct an illegal sentence.  With the adoption of that rule, this rule (Tenn. R. App. P. 3) was amended to provide for an appeal as of right, by either the defendant (see paragraph 3(b)) or the State (see paragraph 3(c)), from the trial court’s ruling on a motion filed under Tenn. R. Crim. P. 36.1 to correct an illegal sentence.

Paragraphs (b) and (c) also were amended to permit appeals as a matter of right for the defendant and the State in expunction requests.  The amendments were designed to address the decision in State v. Adler, 92 S.W.3d 397 (Tenn. 2002), which held that rulings on expunction requests could only be appealed by use of the writ of certiorari, pursuant to Tenn. Code Ann. § 27-8-101 (2000).  Since these matters can be appealed, they now are included under Tenn. R. App. P. 3 as a matter that can be appealed as of right.

Advisory Commission Comments [2014].

The third paragraph of “Subdivision (e)” in the original Advisory Commission was amended by substituting the word “subdivision” for the word “subparagraph.” The text of the rule and the text of the other Advisory Commission Comments were not changed.

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