C. APPEAL BY PERMISSION

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Rule 9: Interlocutory Appeal by Permission from the Trial Court.

(a) Application for Permission to Appeal; Grounds.  Except as provided in Rule 10, an appeal by permission may be taken from an interlocutory order of a trial court from which an appeal lies to the Supreme Court, Court of Appeals or Court of Criminal Appeals only upon application and in the discretion of the trial and appellate court. In determining whether to grant permission to appeal, the following, while neither controlling nor fully measuring the courts' discretion, indicate the character of the reasons that will be considered:  (1) the need to prevent irreparable injury, giving consideration to the severity of the potential injury, the probability of its occurrence, and the probability that review upon entry of final judgment will be ineffective;  (2) the need to prevent needless, expensive, and protracted litigation, giving consideration to whether the challenged order would be a basis for reversal upon entry of a final judgment, the probability of reversal, and whether an interlocutory appeal will result in a net reduction in the duration and expense of the litigation if the challenged order is reversed; and (3) the need to develop a uniform body of law, giving consideration to the existence of inconsistent orders of other courts and whether the question presented by the challenged order will not otherwise be reviewable upon entry of final judgment. Failure to seek or obtain interlocutory review shall not limit the scope of review upon an appeal as of right from entry of the final judgment.

(b) Procedure in the Trial Court.  The party seeking an appeal must file and serve a motion requesting such relief within 30 days after the date of entry of the order appealed from. When the trial court is of the opinion that an order, not appealable as of right, is nonetheless appealable, the trial court shall state in writing the reasons for its opinion. The trial court's statement of reasons shall specify:  (1) the legal criteria making the order appealable, as provided in subdivision (a) of this rule;  (2) the factors leading the trial court to the opinion those criteria are satisfied; and (3) any other factors leading the trial court to exercise its discretion in favor of permitting an appeal. The appellate court may thereupon in its discretion allow an appeal from the order.

(c) How Sought in Appellate Court; Cost Bond.  The appeal is sought by filing an application for permission to appeal with the clerk of the appellate court within 10 days after the date of entry of the order in the trial court or the making of the prescribed statement by the trial court, whichever is later. A sufficient number of copies shall be filed to provide the clerk and each judge of the appellate court with one copy. The application shall be served on all other parties in the manner provided in Rule 20 for the service of papers.

A bond for costs as required by Rule 6 shall be filed with the application. An appeal from the denial of an application for interlocutory appeal by an intermediate appellate court is sought by filing an application in the Supreme Court as provided for in Rule 11, with the exception that the application shall be filed within 30 days of the filing date of the intermediate appellate court's order; the application shall be entitled “Application for Permission to Appeal from Denial of Rule 9 Application.”

(d) Content of Application; Answer.  The application shall contain: (1) a statement of the questions presented for review;  (2) a statement of the facts necessary to an understanding of why an appeal by permission lies; and (3) a statement of the reasons supporting an immediate appeal. A statement of reasons is sufficient if it simply incorporates by reference the trial court's reasons for its opinion that an appeal lies. The application shall be accompanied by copies of: (1) the order appealed from, (2) the trial court's statement of reasons, and (3) the other parts of the record necessary for determination of the application for permission to appeal. Within 10 days after filing of the application, any other party may file an answer in opposition, with copies in the number required for the application, together with any additional parts of the record such party desires to have considered by the appellate court. The answer 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, and the cover of the answer shall be red. The color of the cover of an answer filed by an amicus curiae shall be green. The application and answer shall be submitted without oral argument unless otherwise ordered.

(e) Filing the Record.  The trial court clerk must file the record on appeal within 30 days from the date of entry of the order granting permission to appeal.

(f) Effect on Trial Court Proceedings.  The application for permission to appeal or the grant thereof shall not stay proceedings in the trial court unless the trial court or the appellate court or a judge thereof shall so order.

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

[As amended by order entered January 24, 1992, effective July 1, 1992, and by order entered January 26, 1999, effective July 1, 1999, and by order filed January 31, 2002; effective July 1, 2002, and by order filed December 10, 2003; effective July 1, 2004, and by order filed January 6, 2005, effective July 1, 2005.]

Advisory Commission Comment [2002].

Refer to Rule 24 for details about the content and preparation of the record on appeal.

Advisory Commission Comment [2003].

Tenn.R.App.P. 2 was amended to clarify that the thirty-day filing deadline to the Supreme Court under Rule 9(c) is jurisdictional.

Advisory Commission Comment [2004].

The amendment deleted the second sentence in Rule 9(e) (relating to the docketing of an interlocutory appeal) because that sentence was rendered obsolete by an amendment to Rule 5(c), effective July 1, 2002. 

Advisory Commission Comment [2005].

Rule 9(d) is amended to add a statement of the questions presented for review to the list of items that must be included in the application.

Advisory Commission Comment [2007].

When the intermediate court grants an interlocutory appeal under Rule 9, an appeal of the final decision of the intermediate court to the Supreme Court is governed by Rule 11. Accordingly, a party has 60 days from the date of the intermediate court’s judgment in the interlocutory appeal to file an application for permission to appeal under Rule 11. Note, however, that when the intermediate court denies an interlocutory appeal, Rule 9(c) provides that an application for permission to appeal to the Supreme Court must be filed within 30 days of the intermediate court’s order denying the interlocutory appeal.

Advisory Commission Comment [2012].

Effective July 1, 2012, the Supreme Court adopted Tenn. Sup. Ct. R. 10B, governing motions seeking disqualification or recusal of a judge. Section 2 of Rule 10B provides the procedural framework for appealing the denial of a disqualification or recusal motion by a judge of a court of record. Section 2.01 of the rule provides that such appeals may be effected either by filing an interlocutory appeal as of right authorized by the rule or by raising the disqualification or recusal issue in an appeal as of right at the conclusion of the case. Under Section 2.01, those two methods of appeal are “the exclusive methods for seeking appellate review of any issue concerning the trial court’s ruling on a motion filed pursuant to this Rule.” (Emphasis added.) As a result, “neither Tenn. R. App. P. 9 nor Tenn. R. App. P. 10 may be used to seek an interlocutory or extraordinary appeal by permission concerning the judge’s ruling on such a motion.” Tenn. Sup. Ct. R. 10B, Explanatory Comment to Section 2. Attorneys or  self-represented litigants therefore should consult Tenn. Sup. Ct. R. 10B concerning the procedure for appealing from the denial of a disqualification or recusal motion.

Advisory Commission Comment [2014].

Subdivision (d) was amended to specify the color of the covers of applications and answers filed pursuant to Rule 9.

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