Rule 10 Extraordinary Appeal by Permission on Original Application in the Appellate Court

Advisory Commission Comments.

Interlocutory review under this rule differs from interlocutory review under Rule 9 in that this rule requires the permission of only the appellate court. The circumstances in which review is available under this rule, however, are very narrowly circumscribed to those situations in which the trial court or the intermediate appellate court has acted in an arbitrary fashion, or as may be necessary to permit complete appellate review on a later appeal.

The procedure for applying for extraordinary review under this rule is substantially the same as that set forth in Rule 9. However, an answer to an application need not be filed unless the appellate court so directs based upon its opinion that an extraordinary appeal may lie. If an extraordinary appeal is granted, subsequent proceedings are had as determined appropriate by the appellate court.

Subdivision (a) expressly empowers the appellate court to issue whatever order is necessary to implement review, and Rule 36 permits the court to grant whatever relief is appropriate.

This rule, like Rule 9, is available to both the defendant and the state in criminal actions.

Advisory Commission Comments [1994].

If the intermediate appellate court refuses to hear a Rule 10 extraordinary appeal, the Supreme Court will hear the case only under the criteria of Rule 10.

Advisory Commission Comments [2003].

T.R.A.P. 2 was amended to clarify that the thirty-day filing deadline to the Supreme Court under T.R.A.P. 10(b) is jurisdictional.

Advisory Commission Comments [2005].

Rule 10(c) 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 Comments [2012].

Generally. 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.

Subdivision (b). When the intermediate court grants an extraordinary appeal under Rule 10, 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 extraordinary appeal to file an application for permission to appeal under Rule 11. Note, however, that when the intermediate court denies an extraordinary appeal, Rule 10(b) provides that an application for extraordinary appeal must be filed in the Supreme Court within 30 days of the intermediate court's order denying the extraordinary appeal.

Advisory Commission Comments [2014].

Subdivision (f) was added to the rule to specify the color of covers of applications and answers (if any) filed pursuant to Rule 10.

Advisory Commission Comments [2015].

Subdivision (d) was amended to clarify the procedure to be followed when the appellate court orders the filing of an answer to the application for extraordinary appeal by permission. As amended, the subdivision provides that the appellate court shall either grant or deny the application after the answer is filed, which conforms the text of the rule to the actual practice followed by the appellate courts. The subdivision also was amended to provide that the record on appeal must be filed by the trial court clerk within 30 days of the order granting permission to appeal or within such other period as the appellate court may direct.

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 6 is amended to reflect that fees and taxes are to be paid at the initiation of a case, except under limited circumstances. Subdivision (b) of this rule is amended to reflect that fees are to be submitted with the application, rather than secured under the former procedure of filing a cost bond.

Rule 10(c) is amended to require that the statement of the facts in the application contain appropriate references to the documents contained in the appendix to the application. Rule 10(d) is amended to require that, in the event the appellate court orders the filing of an answer to the application, the answer be accompanied by an appendix containing any additional parts of the record the answering party desires to have considered by the appellate court; subdivision (d) also is amended to require that any statement of facts in the answer contain appropriate references to the documents contained in the appendix to the application or the appendix to the answer. These requirements are intended to facilitate the appellate court's efficient review of the application for an extraordinary appeal on original application in the appellate court.

Advisory Commission Comments [2022].

Subsection (d) refers to Rule 27 through 30 regarding the content, filing, and form of briefs and other papers. Rules 27 and 30 have been revised to reflect the length of briefs and other referenced papers is now determined by word limitations as opposed to page limitations.