E. PRACTICE ON APPEAL

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Rule 13: Scope of Review.

(a) Questions of Law that May Be Urged Upon Appeal.  Except as otherwise provided in Rule 3(e), any question of law may be brought up for review and relief by any party. Cross-appeals, separate appeals, and separate applications for permission to appeal are not required. Dismissal of the original appeal shall not preclude issues raised by another party from being considered by an appellate court.

(b) Consideration of Issues Not Presented for Review.  Review generally will extend only to those issues presented for review. The appellate court shall also consider whether the trial and appellate court have jurisdiction over the subject matter, whether or not presented for review, and may in its discretion consider other issues in order, among other reasons:  (1) to prevent needless litigation, (2) to prevent injury to the interests of the public, and (3) to prevent prejudice to the judicial process.

(c) Facts that May Be Considered on Appeal.  The Supreme Court, Court of Appeals, and Court of Criminal Appeals may consider those facts established by the evidence in the trial court and set forth in the record and any additional facts that may be judicially noticed or are considered pursuant to Rule 14.

(d) Findings of Fact in Civil Actions.  Unless otherwise required by statute, review of findings of fact by the trial court in civil actions shall be de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. Findings of fact by a jury in civil actions shall be set aside only if there is no material evidence to support the verdict.

(e) Findings of Guilt in Criminal Actions.  Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.

(f) Default Judgments.  A defaulted defendant cannot raise on appeal the defense of failure to state a claim upon which relief can be granted or the defense of failure to join a party under Rule 19 of the Tennessee rules of Civil Procedure.

[As amended effective July 1, 1980; July 1, 2001; July 1, 2002.]

Advisory Commission Comments.

Subdivision (a). This subdivision treats that aspect of scope of review that involves the questions of law that may be urged on appeal. There are three features of this subdivision that are particularly noteworthy.

First, this subdivision provides only that any question of law may be brought up for review and relief [except as otherwise provided in Rule 3(e)], not that the appellate court must decide every question or that it must grant the requested relief. The propriety of granting relief is governed by Rule 36, which provides that relief need not be granted to a party who was responsible for an error or failed to take whatever action was reasonably available to prevent or nullify the harmful effect of error.

Second, this subdivision rejects use of the notice of appeal as a review-limiting device. In federal practice the notice of appeal has limited review in two principal ways. Some courts have limited the questions an appellant may urge on review to those affecting the portion of the judgment specified in the notice of appeal. However, since the principal utility of the notice of appeal is simply to indicate a party's intention to take an appeal, this limitation seems undesirable. The federal courts have also limited the issues an appellee may raise on appeal in the absence of the appellee's own notice of appeal. Here again, since neither the issues presented for review nor the arguments in support of those issues are set forth in the notice of appeal, there seems to be no good reason for so limiting the questions an appellee may urge on review. The 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.

Finally, this subdivision applies not only to appeals from final judgments of the trial court, but also to interlocutory appeals and final decisions of the intermediate appellate courts that are reviewed by the Supreme Court. A separate application for permission to appeal is not necessary to bring up a question of law upon an interlocutory appeal or upon Supreme Court review of the final decision of an intermediate appellate court. As previously noted, the fact that a question of law may be brought up for review does not mean the appellate court must decide the question or grant the requested relief. Ordinarily, therefore, the Supreme Court will refuse to consider an issue not presented to the intermediate appellate court because, as stated in Rule 36, the party raising the issue has failed to take action reasonably available to nullify the error presented by the issue. However, if the issue were presented but not dealt with by the intermediate appellate court, the Supreme Court may decide the issue and grant appropriate relief. Thus the scope of review is as plenary in cases in which the Supreme Court reviews the final decision of an intermediate appellate court as it is when the Supreme Court reviews directly the final decision of a trial court. Full access to the issues and record is also available upon an interlocutory appeal.

Subdivision (b). This subdivision deals with the very difficult question of when an appellate court should consider an issue not raised by the parties. Generally speaking, control over the issues should reside in the parties, not in the court. Accordingly, this subdivision provides that review will typically extend only to the issues set forth in the briefs. Only the absence of subject-matter jurisdiction, whether at the trial or appellate level, must be considered by the appellate court regardless of whether it is presented for review. Cases appealed to the wrong appellate court must be transferred pursuant to Rule 17 of these rules. In all the other situations described in this subdivision, the appellate court has discretion to decide whether it will consider a matter not raised by the parties. It is intended that this discretion be sparingly exercised.

Subdivision (c). This subdivision specifies the facts that may be considered on appeal. Only rarely is it proper for an appellate court to consider facts in addition to those established by the evidence in the trial court. In actions tried before a jury, appellate consideration of facts beyond those established at the trial and relevant to the merits would deprive the parties of their right to trial by jury. In criminal actions consideration of additional facts raises serious problems under the confrontation clause. These factors in conjunction with the power of the trial court in appropriate circumstances to reopen a judgment to hear new evidence combine to foreclose appellate consideration of additional facts except as provided in Rule 14 of these rules.

Subdivision (d). This subdivision deals with appellate review of findings of fact in civil actions. Concurrent findings, see Tenn. Code Ann. § 27-1-113, findings in worker's compensation cases, see Tenn. Code Ann. § 50-6-225, and findings in administrative adjudication, see Tenn. Code Ann. § 4-5-323, are exempted from this subdivision.

Subdivision (e). This subdivision, dealing with appellate review of findings of guilt in criminal actions, is in accord with the latest decisions of the United States Supreme Court concerning the double jeopardy clause. See Burks v. United States, 46 U.S.L.W. 4632 (U.S. June 14, 1978); Greene v. Massey, 46 U.S.L.W. 4636 (U.S. June 14, 1978). In Burks the Court held that an accused may not be subjected to a second trial when his or her conviction is reversed by an appellate court solely for lack of sufficient evidence to sustain the jury's verdict. This holding was applied to a state-court conviction in Greene. Although the Court did not expressly address the standard governing appellate reversal on the ground of insufficient evidence, the standard set forth in this subdivision is consistent with if not compelled by the holdings in Burks and Greene. 

Advisory Commission Comments [1980].

Subdivision (a). This amendment adds the introductory proviso "[e]xcept as otherwise provided in Rule 3(e)" to the phrase "any question of law may be brought up for review and relief by any party." It does not change the substance of either Rule 3 or Rule 13, and is simply designed to remind the appellant of the need to move for a new trial in jury actions.

Advisory Commission Comments [2001].

New Rule 13(f) overrules decisions such as Nickas v. Capadilas, 954 S.W.2d 735 (Tenn. App. 1997). That opinion relied on the pre-Rules precedent of Edington v. Michigan Mutual Life Ins. Co., 134 Tenn. 188, 183 S.W. 728 (1915). When the Rules of Civil Procedure took effect on January 1, 1971, however, Edington was no longer controlling because the holding conflicted with Rule 12.08 of the Civil Rules concerning waiver of defenses not raised by motion to dismiss or answer. See Tenn. Code Ann. § 16-3-406: "After such rules have become effective, all laws in conflict therewith shall be of no further force or effect."

Advisory Commission Comments [2002].

As pointed out in amended Rule 15(a), a party wishing to preserve appellate issues after dismissal of the original appeal should so indicate in response to the motion to dismiss.

Advisory Commission Comment [2009].

See amended Rule 36(b) Tenn. R. App. P., on the plain error doctrine.

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