C. APPEAL BY PERMISSION

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Rule 11: Appeal by Permission from Appellate Court to Supreme Court.

(a) Application for Permission to Appeal; Grounds.  An appeal by permission may be taken from a final decision of the Court of Appeals or Court of Criminal Appeals to the Supreme Court only on application and in the discretion of the Supreme Court. In determining whether to grant permission to appeal, the following, while neither controlling nor fully measuring the court's discretion, indicate the character of reasons that will be considered:  (1) the need to secure uniformity of decision, (2) the need to secure settlement of important questions of law, (3) the need to secure settlement of questions of public interest, and (4) the need for the exercise of the Supreme Court's supervisory authority.

(b) Time; Content.  The application for permission to appeal shall be filed with the clerk of the Supreme Court within 60 days after the entry of the judgment of the Court of Appeals or Court of Criminal Appeals if no timely petition for rehearing is filed, or, if a timely petition for rehearing is filed, within 60 days after the denial of the petition or entry of the judgment on rehearing. Except
for an application seeking to appeal the Court of Criminal Appeals’ disposition of an appeal pursuant to Rule 9 or Rule 10, the time period for filing an application for permission to appeal is not jurisdictional in a case arising from the Court of Criminal Appeals and may be waived by the Supreme Court in the interest of justice. The application shall contain a statement of: (1) the date on which the judgment was entered and whether a petition for rehearing was filed, and if so, the date of the denial of the petition or the date of the entry of the judgment on rehearing; (2) the questions presented for review and, for each question presented, a concise statement of the applicable standard of review (which may appear in the discussion of the issue or under a separate heading placed before the discussion of the issues);  (3) the facts relevant to the questions presented, but facts correctly stated in the opinion of the intermediate appellate court need not be restated in the application; and (4) the reasons, including appropriate authorities, supporting review by the Supreme Court.   Except by order of the Supreme Court, the argument in an application for permission to appeal shall not exceed 50 pages. The brief of the appellant referred to in subdivision (f) of this rule may be served and filed with the application for permission to appeal. A copy of the opinion of the appellate court shall be appended to the application.

(c) Number of Copies; Service; Colors of Covers.  The original and five copies of the application shall be filed. The application shall be served on all other parties in the manner provided in Rule 20 for the service of papers. If available, the color of the cover of the application shall be blue; the cover of an answer shall be red, except that the cover of an answer filed by an amicus curiae shall be green.

(d) Answer; Reply.  Within 15 days after filing of the application, any other party may file an answer in opposition, with copies in the number required for the application. An answer shall set forth the reasons why the application should not be granted and any other matters considered necessary for correction of the application. Except by order of the Supreme Court, the argument in an answer in opposition shall not exceed 25 pages. The answer shall be served on all other parties in the manner provided in Rule 20 for the filing of papers. No reply to the answer shall be filed.

(e) Action on Application.  The application shall be granted if two members of the Supreme Court are satisfied that the application should be granted. The appeal shall be docketed in accordance with Rule 5(c) upon entry of the order granting permission to appeal.

(f) Briefs.  If permission to appeal is granted, the appellant shall serve and file his brief within 30 days after the date on which permission to appeal was granted. If the appellant files a brief with the application for permission to appeal as provided in subdivision (b) of this rule, he or she may also file a supplemental brief, which shall likewise be served and filed within 30 days after the date on which permission to appeal was granted. Except by order of the Supreme Court, the argument in a supplemental brief shall not exceed 25 pages. If available, the color of the cover of a supplemental brief shall be blue. An appellant who elects not to file a supplemental brief shall, within 30 days after the date on which permission to appeal was granted, file with the clerk of the appellate court and serve on the appellee notice of the appellant's election not to file a supplemental brief; if the appellant fails to file a notice within 30 days, the appellee's time runs from the 30th day after permission to appeal was granted.

 The appellee shall serve and file a brief within 30 days after filing of the brief or supplemental brief of the appellant or appellant's notice of election not to file a supplemental brief.  

Reply briefs shall be served and filed within 14 days after filing of the preceding brief.  

The briefs shall conform with the requirements of Rule 27.

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

(h) Grant of Permission; Cost Bond.  In civil cases, if application for permission to appeal is made by the appellee in the Court of Appeals and there is no appeal bond for costs with sufficient surety filed by the appealing party in the Court below, the appealing party must file an appeal bond for costs with sufficient surety in the amount of $1000. If this amount is deemed insufficient to cover the costs on appeal the Court may require an additional bond in an amount the Court deems sufficient to cover the cost of appeal. If application for permission to appeal is made by the appellant in the Court of Appeals and the appeal bond is insufficient to cover the cost of appeal, the Court may require the appealing party to file an additional bond in an amount the Court deems sufficient to cover the cost of appeal.

[As amended by orders entered January 31, 1984, effective August 15, 1984, January 29, 1987, effective August 1, 1987, January 24, 1992, effective July 1, 1992, and December 20, 1993, effective July 1, 1994; and by order filed February 1, 1995, effective July 1, 1995; and by order entered January 26, 1999, effective July 1, 1999; by order entered December 14, 2009, effective July 1, 2010; by order filed January 13, 2012, effective July 1, 2012; an by order filed December 18, 2012, effective July 1, 2013.]

Advisory Commission Comments.

This rule covers discretionary review by the Supreme Court of final decisions of the intermediate appellate courts. It does not speak to those cases in which an appeal lies directly from the trial court to the Supreme Court, since all direct appeals are either appeals as of right or appeals by permission covered by other rules. Similarly, this rule does not speak to plenary review of cases pending in the intermediate appellate courts, since discretionary review by the Supreme Court is limited to final decisions of the intermediate appellate courts. The essential purpose of the rule, therefore, is to identify those cases of such extraordinary importance as to justify the burdens of time, expense and effort associated with double appeals.

The situations described in subdivision (a) are not exclusive. Instead, subdivision (a) simply sets forth those reasons that typically will be considered sufficient to secure review by the Supreme Court. However, even cases falling within the articulated reasons are subject to review only in the discretion of the Supreme Court.

The application for permission to appeal filed in the Supreme Court serves the purpose of demonstrating to that court that the case is an appropriate one for the exercise of the court's discretion in favor of permitting an appeal. One should be aware, however, that discretionary review by the Supreme Court is rarely granted solely for error-correction purposes. See State v. West, 844 S.W.2d 144, 146 (Tenn. 1992)(stating, “[w]ith the passage of the Appellate Courts Improvements Act of 1992, the jurisdiction of this Court has become almost completely discretionary. This means that as to non-capital criminal cases, we function primarily as a law-development court, rather than as an error-correction court.”). [An exception to the foregoing statement is that the Court does act as an error-correcting court in worker’s compensation cases; worker’s compensation cases, by statute, are appealed directly to the Supreme Court, and the provisions of Rule 11 therefore do not apply to such appeals. See Tenn. Code Ann. § 50-6-225(e).]

Subdivision (b). The 60-day period for filing an application for permission to appeal is jurisdictional and may not be extended. See Rules 2 and 21(b); and State v. Sims, 626 S.W.2d 3 (Tenn. 1981). By cross-reference to T.R.A.P. 21(a) the reader will observe that, should the sixtieth day fall on a weekend or holiday, the application for permission to appeal could be filed on the next business day.

Advisory Commission Comment [1984].

Subdivision (f). The Supreme Court is receptive to a full brief on all issues accompanying the application or permission to appeal, but an application without a brief will meet the requirement of the Rule.

Advisory Commission Comment [1999].

Concerning the scope of an answer under Rule 11(d), consult Rule 13(a), which permits the appellee to raise issues allegedly decided erroneously by the intermediate appellate court.

Advisory Commission Comment [2002].

Pursuant to Rule 39, Rules of the Tennessee Supreme Court, an appellant in a criminal case will be deemed to have exhausted all available state remedies respecting a claim of error following an adverse decision by the Court of Criminal Appeals without the necessity of filing a petition to rehear or an application for permission to appeal under Tenn. R. App. P. 11(a). The Tennessee Supreme Court adopted Rule 39 in response to O'Sullivan v. Boerckel, 526 U.S. 838 (1999), in which the U.S. Supreme Court held that in order to satisfy the exhaustion requirement of collateral federal review under 28 U.S.C. § 2254, a state prisoner must present his or her claims to the state supreme court for discretionary review absent a state court rule or decision to the contrary. This Advisory Commission Comment is to alert attorneys to Rule 39, Rules of the Tennessee Supreme Court, which works no change to Tenn. R. App. P. 11 itself.

Advisory Commission Comment [2010].

Rule 11 is amended to require that the application for permission to appeal include, for each question presented, a statement of the applicable standard of review. Although Tenn. R. App. P. 11 (a) lists various criteria considered by the Court in deciding whether or not to grant an application for permission to appeal, the "applicable standard of review" means the standard of review which would be applied by the Court in deciding the case on the merits, if the Court were to grant the application for permission to appeal.

Advisory Commission Comment [2012].

Paragraph (b) is amended to provide that the time period for filing an application for permission to appeal pursuant to Rule 11 is not jurisdictional in cases arising from the Court of Criminal Appeals (subject to two exceptions discussed below) and may be waived by the Supreme Court in the interest of justice. The amendment is based upon a similar provision governing notices of appeal in criminal cases. See Tenn. R. App. P. 4(a).

The discretionary waiver authority granted to the Supreme Court in the amended rule is limited to cases arising from the Court of Criminal Appeals. Thus, the amendment does not apply to cases arising from the Court of Appeals. Additionally, the amended rule provides that the waiver authority granted to the Supreme Court does not extend to cases arising from the Court of Criminal Appeals’ disposition of an interlocutory appeal filed pursuant to Rule 9 or an extraordinary appeal filed pursuant to Rule 10. Consequently, in cases arising from the Court of Appeals and in cases arising from interlocutory or extraordinary appeals filed in the Court of Criminal Appeals, the applicable time periods for filing an application for permission to appeal to the Supreme Court are jurisdictional and cannot be waived.

Advisory Commission Comment [2013].

Paragraphs (b) and (d) were amended to provide that the argument section of an application for permission to appeal cannot exceed 50 pages and that the argument section of an answer in opposition cannot exceed 25 pages, unless otherwise ordered by the Supreme Court.  The third sentence of paragraph (f) was amended to replace “appellate court or a judge thereof” with “Supreme Court,” thereby making that sentence consistent with the amended language in paragraphs (b) and (d).

Advisory Commission Comment [2014].

Subdivision (c) was amended to reduce from six to five the number of copies to be filed with the original application for permission to appeal. Subdivision (c) also was amended to specify the color of the covers of applications and answers filed pursuant to Rule 11.

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