B. Appeal as of Right
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 appellate 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 clerk of the appellate court shall promptly send a copu (sic) of all filed notices of appeal to the trial court and the clerk of the trial 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 in the manner provided in Rule 20(e) shall be filed with the clerk of the appellate 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 clerk of the appellate court shall promptly send copy of all filed notices of appeal to the trial court and the clerk of the trial court designated in the notice of appeal.
(c) Docketing of the Appeal. The clerk of the appellate court shall enter the appeal on the docket immediately upon receipt of the notice of appeal 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 unless otherwise directed by the appellate court. 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.
If more than one party files a notice of appeal in an action appealed to the Court of Appeals pursuant to Tenn. R. App. P. 3, the first party filing a notice of appeal shall be deemed to be the appellant, unless otherwise directed by the court.
[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; by order effective July 1, 1997; by order filed January 31, 2002, effective July 1, 2002; by order filed January 2, 2007, effective July 1, 2007, by order filed January 13, 2012, effective July 1, 2012; and by order filed December 21, 2016, effective July 1, 2017.]
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.
Advisory Commission Comments [2007]
The amended language requires the trial court clerk to promptly serve either the appeal bond or affidavit of indigency with the notice of appeal upon the appellate court clerk. This amendment will ensure that appellants timely file their appeal bond with the notice of appeal. Failure to do so will result in the trial court clerk notifying the appellate court clerk that no appeal bond has been filed so that action can be taken to dismiss the appeal under Rule 6(a) prior to the filing of the record.
Advisory Commission Comments [2012]
Tenn. R. App. P. 13(a) provides that “any question of law may be brought up for review and relief by any party” and that “[c]ross-appeals, separate appeals, and separate applications for permission to appeal are not required.” Tenn. R. App. P. 13(a) goes on to provide that “[d]ismissal of the original appeal shall not preclude issues raised by another party from being considered by an appellate court.” See also Tenn. R. App. P. 6(c) (providing that a party wanting to litigate appellate issues despite dismissal of the original appellant’s appeal shall file a cost bond, with surety, to replace the cost bond filed by the original appellant); Tenn. R. App. P. 15(a) (providing for the voluntary dismissal of an appeal by stipulation or on motion, but also stating, “[a]ny 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”). Thus, once one party files a notice of appeal, other parties are not required to file a separate notice of appeal in order to raise any issue(s) in the appeal. Tenn. R. App. P. 13(a), Advisory Commission Comment (stating, “[t]he 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”). As a practical matter, however, it is not uncommon for more than one party to file a notice of appeal.
Tenn. R. App. P. 5(c) is amended to state that, in cases appealed to the Court of Appeals pursuant to Tenn. R. App. P. 3, the first party to file a notice of appeal is considered to be the appellant. The purpose of the amendment is to clarify the application of other rules of appellate procedure, e.g., Tenn. R. App. P. 6 (governing bond for costs on appeal in civil actions), Tenn. R. App. P. 24 (governing the content and preparation of the record on appeal), and Tenn. R. App. P. 29 (governing the filing and service of briefs). A second (or later) party filing a notice of appeal may file a reply brief pursuant to Tenn. R. App. P. 27(c); that rule permits an appellee who is seeking relief from the judgment to file a brief in reply to the response of the appellant to the issues presented by appellee’s request for relief.
The amendment does not apply to cases appealed to the Court of Criminal Appeals. In criminal cases involving more than one defendant, the trial court enters a separate judgment as to each defendant. For that reason, each defendant filing a notice of appeal (and also the State, when it files a notice of appeal) is considered to be an appellant. See Tenn. R. App. P. 3(b) and (c) (providing for appeals as of right by the defendant and/or the State in specified criminal proceedings) and Tenn. R. App. P. 5(b) (regarding service of the notice of appeal in criminal actions).
Advisory Commission Comments [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, Rule 4 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. Subdivisions (a), (b) and (c) of this rule are amended to reflect this change in Rule 4. Additionally, subdivision (c) is amended to clarify the appellate court’s authority to designate the title given to the appellate action.
