B. Appeal as of Right
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 the clerk of the appellate 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 timely 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.
Transitional Provision. – Effective July l, 2017, Rule 4(a) is amended to require that the notice of appeal be filed with the appellate court clerk, instead of the trial court clerk. 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 of the notice of appeal with the trial court clerk was received by the trial court clerk within 30 days after the date of entry of the judgment, the party attempting to file the notice with the trial court clerk shall have 20 additional days, counting from the 30th day after the date of entry of the judgment, within which to file the notice of appeal with the appellate court clerk; a notice of appeal filed with the appellate court clerk during the additional period allowed by this transitional provision shall be deemed to have been timely filed. This transitional provision shall expire at 11:59 p.m., appellate court clerk’s local time, on June 29, 2018, after which this transitional provision shall automatically be repealed. During the period this transitional provision is in effect, this provision shall govern all cases meeting its requirements, notwithstanding any other provision of these Rules. See Tenn. R. App. P. 2 and Tenn. R. App. P. 21(b) (stating, in summary, that the time for filing a notice of appeal cannot be suspended or extended by the appellate court).
(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 59.07 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.
(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.
(e) Effect of Specified Timely Motions on Trial Court’s Jurisdiction. The trial court retains jurisdiction over the case pending the court’s ruling on any timely filed motion specified in subdivision (b) or (c) of this rule. If a motion specified in either subdivision (b) or (c) is filed within the time permitted by the applicable rule referred to in that subdivision, the filing of a notice of appeal prior to the filing of the motion, or the filing of a notice of appeal prior to the trial court’s ruling on an earlier filed motion, does not deprive the trial court of jurisdiction to rule upon the motion. A notice of appeal filed prior to the trial court’s ruling on a timely specified motion shall be deemed to be premature and shall be treated as filed after the entry of the order disposing of the motion and on the day thereof. If an appellant named in a premature notice of appeal decides to terminate the appeal as a result of the trial court’s disposition of a motion listed in subdivision (b) or (c) of this rule, the appellant shall file in the appellate court a motion to dismiss the appeal pursuant to Rule 15.
(f) For purposes of this rule, the terms “party” and “parties” shall include any person filing a motion to intervene pursuant to Tenn. R. Civ. P. 24.
[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, 2002; and by order entered December 10, 2003, effective July 1, 2004; by order entered January 6, 2005, effective July 1, 2005, by order entered December 21, 2010, effective July 1, 2011,by order filed December 18, 2012, effective July 1, 2013; by order filed December 21, 2016, effective July 1, 2017; and by order filed January 8, 2018 effective July 1, 2018.]
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 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. This problem can arise, particularly in nonjury actions, because under Tennessee Rule of Civil Procedure 58 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 .
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. Subdivision (d) establishes the general rule that the right to appeal is not lost by filing a notice of appeal before entry of the judgment appealed from.
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 Commission Comment [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]
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 subdivision (c) a motion for withdrawal of a plea of guilty. See State v. Peele, 58 S.W.3d 701 (Tenn. 2001).
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 filing of a notice of appeal in such a proceeding.
Advisory Commission Comment [2005]
Paragraphs (b) and (c) of this rule provide that the time for filing a notice of appeal “shall run from the entry of the order denying a new trial or granting or denying any other such motion.” Nonetheless, some parties have filed notices of appeal before post-trial motions specified in this rule were filed or while such motions were pending decision, raising questions about the jurisdiction of a trial court to consider such motions. New paragraph (e) makes clear that a trial court retains jurisdiction over such motions despite the premature filing of a notice of appeal.
If a post-trial motion specified in Rule 4 is timely filed after the filing of a notice of appeal and after the trial court clerk’s service of the notice of appeal on the clerk of the appellate court pursuant to Rule 5(a), the trial court clerk must notify the clerk of the appellate court of the filing of the motion; in addition, the trial court clerk must promptly notify the clerk of the appellate court of the entry of the trial court’s order disposing of the motion.
Advisory Commission Comment [2011]
The amendment of paragraph (b) corrects an erroneous cross-reference, changing “59.02” to “59.07.”
Advisory Commission Comment [2013]
Subparagraph (e) of the rule is amended to clarify that a trial court does not lose jurisdiction to rule upon a motion referred to in subparagraph (b) or (c) if the motion was filed within the time permitted by the applicable rule. A notice of appeal filed prior to the timely filing of one of the listed motions, or prior to the court’s ruling on the motion, is deemed to be premature and does not deprive the court of jurisdiction to rule upon the motion.
Advisory Commission Comment [2014]
Subdivision (e) was amended by adding the following text to the second sentence: “or the filing of a notice of appeal prior to the trial court’s ruling on an earlier filed motion [.]” That text was added to clarify that the filing of a notice of appeal prior to the trial court’s ruling on a timely motion specified in subdivision (b) or (c) does not affect the trial court’s ability to rule on the pending motion, so long as the motion was timely filed before or after the filing of the notice of appeal.
Subdivision (e) also was amended by substituting (in four places) the word “subdivision” for the word “subparagraph.”
Advisory Commission Comment [2017]
In 2017, the Appellate Court Clerk’s office will implement electronic filing and begin charging fees at the initiation of an appeal. To accommodate these initiatives, subdivision (a) of this rule is amended to change the location for filing the notice of appeal from the office of the trial court clerk to the office of the appellate court clerk. The word “timely” is also added to the second clause of the first sentence in subdivision (a) for the purpose of clarification. The rule is further amended to add a one year transitional rule to lessen the detrimental effect for those who mistakenly attempt to file their notice of appeal at the last minute with the trial court clerk.
Advisory Commission Comment [2018]
The 2018 amendment adds a new subsection (f) to clarify that the terms “party” and “parties” include persons who have filed motions to intervene and desire to take an appeal of right, as is permitted by the 2018 amendments to Rules 3, Tennessee Rules of Appellate Procedure and Rules 24 and 54, Tennessee Rules of Civil Procedure . Effective July 1, 2018, any order granting or denying a motion to intervene shall be a final judgment, and a timely appeal of that final judgment shall be the only method to appeal the grant or denial of a motion to intervene.
