I. DISPOSITION OF APPEALS

216

Rule 40: Costs.

(a) To Whom Allowed.  Except as otherwise provided by statute or these rules, if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise agreed by the parties or ordered by the court; if a judgment is affirmed, costs shall be taxed against the appellant unless otherwise ordered; if a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered; if a judgment is affirmed or reversed in part, or is vacated, costs shall be allowed only as ordered by the appellate court. Costs related to the filing of motions, orders and briefs by amicus curiae shall be assessed and collected against the amicus curiae filer unless the court orders otherwise.

(b) Costs for and Against the State of Tennessee.  In cases involving the state of Tennessee, its officers, or agencies, costs shall be awarded in accordance with the provisions of subdivision (a) of this rule.

(c) Recoverable Costs on Appeal.  Recoverable costs on appeal include the cost of preparing and transmitting the record, the cost of a transcript of the evidence or proceedings, the cost of producing necessary copies of briefs and the record, the premiums paid for bonds to preserve rights pending appeal, and any other fees of the appellate court or clerk.

(d) Party’s Statement of Recoverable Costs; Objections.  If a party has not been assessed costs on appeal under section (a) of this rule, that party may file with the appropriate appellate court a Party’s Statement of Recoverable Costs in order to recover costs on appeal pursuant to section (c) of this rule. The party shall file the Party’s Statement of Recoverable Costs no later than 15 days after the issuance of the mandate; the Party’s Statement of Recoverable Costs may not be filed before the issuance of the mandate. The party against whom costs have been assessed under section (a) shall be liable for such costs. If the court assesses costs against both the appellant and appellee, the parties shall bear their own costs and may not recover any costs on appeal under section (c) of this rule. Any party shall have 15 days after the filing of the Party’s Statement of Recoverable Costs to file any objections with the appellate court clerk.

(e) Rate of Cost for Producing.  A party’s costs of producing necessary copies of briefs or other appellate papers which are recoverable costs under section (c) shall be taxable at rates not higher than those generally charged for photocopying in the area where the office of the attorney seeking such costs is located.

(f) Resolution of Objections to Party’s Statement of Recoverable Costs.  If objections are timely filed to the Party’s Statement of Recoverable Costs, the appellate court clerk shall consider all of the documents filed relative to the Party’s Statement of Recoverable Costs and issue a clerk’s report in which the clerk shall approve and/or disapprove such costs in whole or in part as being authorized and/or not authorized by law. Any party may file an objection to the clerk’s decision with the appropriate appellate court within 10 days of the filing of the clerk’s report.

(g) Amended Mandate.  If no objection to a Party’s Statement of Recoverable Costs is timely filed, the appellate court clerk shall issue an amended mandate with the addition of the Party’s Statement of Recoverable Costs. If no objection to the clerk’s report is timely filed, the appellate court clerk shall issue an amended mandate with the addition of the clerk’s report and accompanying Party’s Statement of Recoverable Costs to the mandate. If an objection to the clerk’s report is timely filed, the appellate court clerk shall issue an amended mandate by adding the order of the appropriate appellate court resolving the cost dispute.

(h) Enforcement of Amended Mandate.  A party who seeks to enforce collection of the Party’s Statement of Recoverable Costs in the amended mandate from the liable party may do so by filing a motion in the trial court from which the appeal originated.

(i) Forfeiture of Costs of the Clerk of the Trial Court.  For failure to complete and transmit the record on appeal in the time and manner provided in these rules, the clerk of the trial court shall forfeit the clerk’s entire fee set forth in Tenn. Code Ann. §8-21-401(i)(11) for preparing and transmitting the record or such portion thereof as appropriate to the appellant(s) who paid such a fee.

Advisory Commission Comments.

Subdivision (a). This subdivision states the general rule that except as otherwise provided by a statute or these rules, costs are to be taxed in favor of the prevailing party. In all cases, however, the appellate court has the discretion to award costs in a manner other than that specified in this subdivision.

Subdivision (b).  The effect of this subdivision is to place the state of Tennessee on the same footing as a private party with respect to award of costs.

Subdivision (c).  This subdivision makes costs taxable based on the principle that all items of cost expended in the prosecution of a proceeding should be recoverable by the successful party.

Subdivision (d).  A party who desires the costs of producing briefs or any other recoverable costs not included in the trial clerk's bill of costs must file an itemized and verified bill of costs with the clerk of the appellate court within 75 days after entry of the judgment. Objections to the bill of costs as filed must be made within 10 days after the filing of the bill of costs unless extended by the court. Under Rule 38 of these rules the entry of judgment is not delayed for the taxation of costs.

Subdivision (e). The task of initially preparing and certifying an itemized statement of costs is with the clerk of the appellate court. However, any party dissatisfied with the action of the clerk may seek review from the appellate court.

Subdivision (f). This subdivision makes clear that commercially printed appellate papers are not required. In order to minimize the costs of appeal, this subdivision also provides that the cost of producing briefs and other papers shall be taxable at rates not higher than those generally charged for photocopying.

Advisory Commission Comments [1998].

The second sentence of subdivision (d) is amended to provide for assessment of costs concerning questions certified from a federal tribunal.

Advisory Commission Comments [2008].

The 2008 amendment to Rule 40 amends the rule to conform to the present practice in the appellate court clerk’s office in the following respects:

(1) To avoid confusion with the appellate court clerk’s "bill of costs," the document submitted by attorneys has been renamed as the "Party’s Statement of Recoverable Costs."

(2) The 2008 amendment makes clear that the party against whom the costs, i.e., appellate court clerk’s costs, are assessed are also liable for costs properly included in a Party’s Statement of Recoverable Costs. Where the court divides the costs, neither party can seek "recoverable costs" from the other party, but instead the parties must bear their own costs of copying briefs, etc.

(3) The 2008 amendment requires parties to file the Party’s Statement of Recoverable Costs no more than 15 days after the issuance of the mandate but no sooner than the date of the issuance of the mandate. Under the prior rule, parties could file their "verified bill of costs" before the mandate issued, which created an unnecessary administrative burden on the clerk’s staff.

(4) The 2008 amendment also sets forth a process by which disputes concerning a Party’s Statement of Recoverable Costs are resolved.

(5) Depending upon at what stage of the process the Party’s Statement of Recoverable Costs is resolved, the 2008 amendment makes clear that the Party’s Statement of Recoverable Costs, the clerk’s report, or the order of the appellate court is to be included in an amended mandate to be transmitted to the trial court clerk.

(6) Finally, the 2008 amendment provides that the party entitled to recover these costs may do so by filing a motion in the trial court which already has the original judgment in which costs are assessed against the other party and the amended mandate in which the prevailing party’s Party’s Statement of Recoverable Costs are included.

Advisory Commission Comments [2010].

The amendment to Rule 40(a) provides that costs associated with the filing of an amicus brief will automatically be assessed against the amicus at the time of the filing of the amicus brief unless the court provides otherwise.

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