B. APPEAL AS OF RIGHT

216

Rule 6: Security for Costs on Appeal.

(a) Unless an appellant is exempted by statute or these rules or the Tennessee Rules of Civil Procedure, or has filed a bond for a stay that includes security for the payment of costs on appeal, in civil actions a bond for costs on appeal shall be filed by the appellant in the trial court with the notice of appeal. The trial court shall notify the Appellate Court Clerk of a party's failure to file a bond with the notice of appeal. The appellate court may issue a show cause order as to why the appeal should not be dismissed for failure to file a bond. A bond for costs on appeal shall have sufficient surety, and it shall be conditioned to secure the payment of costs if the appeal is finally dismissed or the judgment affirmed or the payment of such costs as the appellate court may direct if judgment is modified. In order to ensure that a surety is sufficient, the appellate court clerk may require the surety to provide proof that the surety has sufficient assets in the State of Tennessee to pay the costs of the appeal. If the appellate court clerk determines that the surety is not sufficient, the appellate court clerk may reject the bond for costs. The surety may appeal the decision of the appellate court clerk to the appellate court by filing a motion to approve the bond for costs within 10 days of the decision of the appellate court clerk. After a bond for costs on appeal is filed, an appellee may raise on motion for determination by the trial court objections to the form of the bond and/or the sufficiency of the surety. The provisions of Tennessee Rule of Civil Procedure 65A, regarding other forms of security and sureties, apply to a bond given under this rule.

(b) Unless an appellant is exempted by statute or has filed an affidavit of indigency and been permitted to proceed on appeal as an indigent person, the appellant shall pay to the clerk of the appellate court all applicable litigation taxes upon receipt of the notice of docketing of the appeal pursuant to Rule 5(c). If the appellant fails to pay the litigation tax, the appellate court may issue an order requiring the appellant to show cause why the appeal should not be dismissed for failure to pay the litigation tax.

(c) Any party wanting to litigate appellate issues despite dismissal of the original appellant’s appeal shall file with the appellate court clerk a cost bond with sufficient surety to replace the cost bond filed by the original appellant. Filing of the replacement cost bond shall relieve the original appellant and surety of further obligations under the original cost bond.

[As amended by order entered January 24, 1992, effective July 1, 1992 and by order entered January 30, 1998, effective July 1, 1998 and by order entered January 28, 2000, effective July 1, 2000; by order entered January 31, 2002, effective July 1, 2002; and by order entered December 18, 2012, effective July 1, 2013.]

Advisory Commission Comments.

The rule requires that the security be deposited with the filing of the notice of appeal, but the failure to file security contemporaneously is not in and of itself fatal to the validity of the appeal. The failure to file security may be remedied on motion of the appellee, and may ultimately include dismissal of the appeal.

Security given under Tennessee Rule of Civil Procedure 62 to stay execution on appeal includes security for costs. Accordingly, if security is given under that rule, no separate security for costs needs to be filed under this rule. Poor persons may be exempted from the security requirement of this rule pursuant to Rule 18 of these rules, and the state is exempt from any requirement of security by Tennessee Rule of Civil Procedure 62.06.

Advisory Commission Comment [2000].

This rule is intended to provide a simplified method of handling security for costs on appeal in civil actions. A $1,000 cash bond is considered sufficient in the absence of specific direction by the court as to some other amount. Under Rule 65A of the Tennessee Rules of Civil Procedure, the security may be given in the form of a bond or in any other form the court deems sufficient to secure the other party.

Advisory Commission Comment [2002].

New subparagraph (b) states the procedure for payment of all litigation taxes applicable to the appeal. New subparagraph (c) conforms to a similar provision in Appellate Rule 15(a).

Advisory Commission Comment [2008].

The 2008 amendment authorizes the appellate court clerk to require a surety to provide proof that the surety has sufficient assets in the State of Tennessee to pay the costs of the appeal. The purpose of this amendment is to establish a procedure by which the sufficiency of a surety can be reviewed in order to ensure that payment of the costs of an appeal are secured at the beginning of the appeal.

Advisory Commission Comment [2013].

Paragraph (b) of the rule was amended to replace the term “poor person” with the term “indigent person.”  The amendment was not intended to change the meaning or application of the rule.

Back to Top