Big Changes to Appellate Procedure in Tennessee

November 12, 2016

Big changes are coming to Tennessee’s appellate courts in 2017. While news of the move to electronic filing is not new, the recently filed proposed amendments to the Tennessee Rules of Appellate Procedure have some significant changes to make way for the change….The biggest change is that the notice of appeal will be filed with the Appellate Court Clerk’s office and not the trial court clerk’s office. Also, the Appellate Court Clerk’s office will now charge the fees at the initiation of an appeal.

These changes are reflected in Tenn. R. App. P. 3, which is amended to reflect the notice of appeal being filed in the Appellate Court Clerk’s office as well as an addition to subsection (f) that provides: “The notice of appeal should include a list of the parties upon whom service of notice of docketing of the appeal is required by Rule 5 of these rules.” Rule 4 is also amended to change the location of filing from the trial to appellate court clerk’s office. Additionally, Rule 4 contains a “transitional provision” that says effective July 1, 2017, Rule 4(a) is amended to require the new change. However, it goes on to state, that in the event a party, on or after July 1, 2017, incorrectly attempts to file a notice of appeal with the trial court clerk, the trial court clerk “shall note the date and time of receipt of the attempted filing and shall immediately notify the party attempting to file the notice of appeal that the notice must be filed with the appellate court clerk.” If the attempted filing was received by the trial court clerk within 30 days after the entry of the judgment, then the party has an additional 20 days counting from the 30th day after the entry of the judgment, to file the notice of appeal with the appellate court clerk, which will be deemed timely filed. The transitional provision expires on June 29, 2018, at which time the provision is automatically repealed.

Tenn. R. App. P. 5 is amended to direct the appellate court clerk to send a copy of the notice of appeal to the trial court clerk. Rule 6 is amended to address the filing of the litigation taxes and fees contemporaneously with the filing of the notice of appeal. If the fees are not paid, the appellate court is given the authority to issue a show cause order why the appeal should not be dismissed for failure to pay the litigation taxes or fees.  Similar changes were made to Rules 9 and 10.

In addition to the changes regarding the location of filing and fees, Rules 9 and 10 also contain changes regarding citation and appendixes. In the application, pursuant to changes to subsection 9(c), the statement of facts now must contain “appropriate references to the documents contained in the appendix to the application.” While most practitioners were likely doing this to provide assistance to the court, the rule change now requires it. Additionally, it provides that the application shall be contained by “an appendix containing” copies of any order or opinion. Rule 11 was similarly amended.

Lastly, Rule 11 was amended by the deletion in its entirety of the previous cost bond section (h). The comment to the revision states that this was deleted as it is no longer necessary due to the amendments to Rule 6 requiring payment of taxes and costs at the initiation of an appeal.

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