E. Practice on Appeal
(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.