C. APPEAL BY PERMISSION

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Rule 10: Extraordinary Appeal by Permission on Original Application in the Appellate Court.

(a) Original Application for Extraordinary Appeal; Grounds.  An extraordinary appeal may be sought on application and in the discretion of the appellate court alone of interlocutory orders of a lower court from which an appeal lies to the Supreme Court, Court of Appeals or Court of Criminal Appeals:  (1) if the lower court has so far departed from the accepted and usual course of judicial proceedings as to require immediate review, or (2) if necessary for complete determination of the action on appeal as otherwise provided in these rules. The appellate court may issue whatever order is necessary to implement review under this rule.

(b) How Sought; Clerk's Fees.  - An extraordinary appeal is sought by filing an application for an extraordinary appeal with the clerk of the appellate court. A sufficient number of copies shall be filed to provide the clerk and each judge of the appellate court with one copy. Unless necessity requires otherwise, the application shall be served on all other parties in the manner provided in Rule 20 for the service of papers. The appeal shall be docketed in accordance with Rule 5(c) upon the filing of the application with the clerk of the appellate court. An appeal from the denial of an application for extraordinary appeal by an intermediate appellate court is sought by filing an application in the Supreme Court as provided for in this rule within 30 days of the filing date of the intermediate appellate court's order. Applicable fees, taxes, or documentation required by Rule 6 shall be submitted with the application.

(c) Content of Application.  The application shall contain: (1) a statement of the questions presented for review; (2) a statement of the facts necessary to an understanding of why an extraordinary appeal lies, with appropriate references to the documents contained in the appendix to the applicaton; (3) a statement of the reasons supporting an extraordinary appeal, and (4) the relief sought.  The application shall be accompanied by an appendix containing copies of any order or opinion relevant to the questions presented in the application and any other parts of the record necessary for determination of the application. The application may also be supported by affidavits or other relevant documents, which also shall be contained in the appendix. The application to the Supreme Court shall include the application filed in the intermediate appellate court and a copy of the intermediate appellate court's order.

(d) Subsequent Procedure.  If the appellate court is of the opinion that an extraordinary appeal should not be granted, it shall deny the application. Otherwise, the appellate court shall order that an answer to the application be filed by the other parties within the time fixed by the order. The order shall be served on all other parties and if the application has not previously been served shall have attached thereto a copy of the application. Such answers shall be accompanied by an appendix containing any additional parts of the record the answering party desires to have considered by the appellate court; any statement of facts in the answer shall contain appropriate references to the documents contained in the appendix to the application or the appendix to the answer. After the answer is filed, the appellate court shall either grant or deny the application. If the application is granted, the trial court clerk must file the record on appeal within 30 days from the date of entry of the order granting permission to appeal or within such other period as the appellate court may direct. The appellate court shall advise the parties of the dates on which briefs are to be filed, if briefs are required, and of the date of oral argument, if oral argument is granted.

(e) Appeal in Criminal Actions.  Permission to appeal under this rule may be sought by the state and defendant in criminal actions.

(f) Color of Covers.  If available, the color of the cover of the application shall be blue. If the appellate court orders that an answer be filed, the cover of the answer shall be red, except that the cover of an answer filed by an amicus curiae shall be green.

[As amended by order entered January 26, 1999, effective July 1, 1999; by order filed January 6, 2005, effective July 1, 2005; by order filed January 2, 2015, effective July 1, 2015; and by order filed December 21, 2016, effective July 1, 2017.]

Advisory Commission Comments.

Interlocutory review under this rule differs from interlocutory review under Rule 9 in that this rule requires the permission of only the appellate court. The circumstances in which review is available under this rule, however, are very narrowly circumscribed to those situations in which the trial court or the intermediate appellate court has acted in an arbitrary fashion, or as may be necessary to permit complete appellate review on a later appeal.

The procedure for applying for extraordinary review under this rule is substantially the same as that set forth in Rule 9. However, an answer to an application need not be filed unless the appellate court so directs based upon its opinion that an extraordinary appeal may lie. If an extraordinary appeal is granted, subsequent proceedings are had as determined appropriate by the appellate court.

Subdivision (a) expressly empowers the appellate court to issue whatever order is necessary to implement review, and Rule 36 permits the court to grant whatever relief is appropriate.

This rule, like Rule 9, is available to both the defendant and the state in criminal actions.

Advisory Commission Comments [1994].

If the intermediate appellate court refuses to hear a Rule 10 extraordinary appeal, the Supreme Court will hear the case only under the criteria of Rule 10.

Advisory Commission Comments [2003].

T.R.A.P. 2 was amended to clarify that the thirty-day filing deadline to the Supreme Court under T.R.A.P. 10(b) is jurisdictional.

Advisory Commission Comments [2005].

Rule 10(c) is amended to add a statement of the questions presented for review to the list of items that must be included in the application.

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.

Subdivision (b). When the intermediate court grants an extraordinary appeal under Rule 10, an appeal of the final decision of the intermediate court to the Supreme Court is governed by Rule 11. Accordingly, a party has 60 days from the date of the intermediate court's judgment in the extraordinary appeal to file an application for permission to appeal under Rule 11. Note,  however, that when the intermediate court denies an extraordinary appeal, Rule 10(b) provides that an application for extraordinary appeal must be filed in the Supreme Court within 30 days of the intermediate court's order denying the extraordinary appeal.

Advisory Commission Comments [2014].

Subdivision (f) was added to the rule to specify the color of covers of applications and answers (if any) filed pursuant to Rule 10.

Advisory Commission Comments [2015].

Subdivision (d) was amended to clarify the procedure to be followed when the appellate court orders the filing of an answer to the application for extraordinary appeal by permission. As amended, the subdivision provides that the appellate court shall either grant or deny the application after the answer is filed, which conforms the text of the rule to the actual practice followed by the appellate courts. The subdivision also was amended to provide that the record on appeal must be filed by the trial court clerk within 30 days of the order granting permission to appeal or within such other period as the appellate court may direct.

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 6 is amended to reflect that fees and taxes are to be paid at the initiation of a case, except under limited circumstances. Subdivision (b) of this rule is amended to reflect that fees are to be submitted with the application, rather than secured under the former procedure of filing a cost bond.

Rule 10(c) is amended to require that the statement of the facts in the application contain appropriate references to the documents contained in the appendix to the application. Rule 10(d) is amended to require that, in the event the appellate court orders the filing of an answer to the application, the answer be accompanied by an appendix containing any additional parts of the record the answering party desires to have considered by the appellate court; subdivision (d) also is amended to require that any statement of facts in the answer contain appropriate references to the documents contained in the appendix to the application or the appendix to the answer. These requirements are intended to facilitate the appellate court's efficient review of the application for an extraordinary appeal on original application in the appellate court.

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