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 established indigency in accordance with Rule 18 and been permitted  to proceed on appeal as an indigent person, the appellant shall pay to the clerk of the appellate court all applicable fees established by order or rule of the Supreme Court. Contemporaneous with the filing of appellant's notice of appeal or other initiating document,  appellant shall (1) pay all applicable litigation taxes and all applicable fees required by the clerk of the appellate court, (2) establish to the satisfaction of the clerk of the appellate court the basis for an exemption, or (3) apply for, or establish proof of, indigency in accordance with Rule 18. If the appellant  fails to pay the applicable litigation taxes or fees or to establish indigency or an appropriate exemption, 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 applicable litigation taxes or fees.

(b) [Reserved.]

(c) Any party wanting to litigate appellate issues despite dismissal of the original appellant’s appeal shall comply with the requirements of this rule for payment of applicable fees and/or taxes as required by the clerk of the appellate court.

[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, by order entered December 18, 2012, effective July 1, 2013; and by order filed December 21, 2016, filed July 1, 2017.]

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 subdivision (b) states the procedure for payment of all litigation taxes applicable to the appeal. New subdivision (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.

Advisory Commission Comment [2014].

The 2002 Advisory Commission Comment was amended by substituting (in two places) the word "subdivision" for the word "subparagraph." The text of the rule and the text of the other Advisory Commission Comments were not changed.

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 4 is amended to change the location for filing the notice of appeal from the office of the trial court clerk to the office of the appellate court clerk. Subdivisions (a) and (c) of this rule are amended to reflect that fees and taxes are to be paid at the initiation of a case, except under limited circumstances. Subdivision (b) is deleted due to subdivision (a) being amended to address the payment of litigation taxes, which was previously addressed in subdivision (b). The amendment to Rule 6 requiring the payment of all applicable appellate fees to the clerk of the appellate court is not meant to address any additional statutory fees that might be due to the trial court clerk for preparation of the record on appeal or that are otherwise due to the trial court clerk.

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