Rule 11 Appeal by Permission from Appellate Court to Supreme Court

Advisory Commission Comments.

This rule covers discretionary review by the Supreme Court of final decisions of the intermediate appellate courts. It does not speak to those cases in which an appeal lies directly from the trial court to the Supreme Court, since all direct appeals are either appeals as of right or appeals by permission covered by other rules. Similarly, this rule does not speak to plenary review of cases pending in the intermediate appellate courts, since discretionary review by the Supreme Court is limited to final decisions of the intermediate appellate courts. The essential purpose of the rule, therefore, is to identify those cases of such extraordinary importance as to justify the burdens of time, expense and effort associated with double appeals.

The situations described in subdivision (a) are not exclusive. Instead, subdivision (a) simply sets forth those reasons that typically will be considered sufficient to secure review by the Supreme Court. However, even cases falling within the articulated reasons are subject to review only in the discretion of the Supreme Court.

The application for permission to appeal filed in the Supreme Court serves the purpose of demonstrating to that court that the case is an appropriate one for the exercise of the court's discretion in favor of permitting an appeal. One should be aware, however, that discretionary review by the Supreme Court is rarely granted solely for error-correction purposes. See State v. West, 844 S.W.2d 144, 146 (Tenn. 1992) (stating, “[w]ith the passage of the Appellate Courts Improvements Act of 1992, the jurisdiction of this Court has become almost completely discretionary. This means that as to non-capital criminal cases, we function primarily as a law-development court, rather than as an error-correction court.”). [An exception to the foregoing statement is that the Court does act as an error-correcting court in worker’s compensation cases; worker’s compensation cases, by statute, are appealed directly to the Supreme Court, and the provisions of Rule 11 therefore do not apply to such appeals. See Tenn. Code Ann. § 50-6-225(e).]

Subdivision (b). The 60-day period for filing an application for permission to appeal is jurisdictional and may not be extended. See Rules 2 and 21(b); and State v. Sims, 626 S.W.2d 3 (Tenn. 1981). By cross-reference to T.R.A.P. 21(a) the reader will observe that, should the sixtieth day fall on a weekend or holiday, the application for permission to appeal could be filed on the next business day.

Advisory Commission Comment [1984].

Subdivision (f). The Supreme Court is receptive to a full brief on all issues accompanying the application or permission to appeal, but an application without a brief will meet the requirement of the Rule.

Advisory Commission Comment [1999].

Concerning the scope of an answer under Rule 11(d), consult Rule 13(a), which permits the appellee to raise issues allegedly decided erroneously by the intermediate appellate court.

Advisory Commission Comment [2002].

Pursuant to Rule 39, Rules of the Tennessee Supreme Court, an appellant in a criminal case will be deemed to have exhausted all available state remedies respecting a claim of error following an adverse decision by the Court of Criminal Appeals without the necessity of filing a petition to rehear or an application for permission to appeal under Tenn. R. App. P. 11(a). The Tennessee Supreme Court adopted Rule 39 in response to O'Sullivan v. Boerckel, 526 U.S. 838 (1999), in which the U.S. Supreme Court held that in order to satisfy the exhaustion requirement of collateral federal review under 28 U.S.C. § 2254, a state prisoner must present his or her claims to the state supreme court for discretionary review absent a state court rule or decision to the contrary. This Advisory Commission Comment is to alert attorneys to Rule 39, Rules of the Tennessee Supreme Court, which works no change to Tenn. R. App. P. 11 itself.

Advisory Commission Comment [2010].

Rule 11 is amended to require that the application for permission to appeal include, for each question presented, a statement of the applicable standard of review. Although Tenn. R. App. P. 11 (a) lists various criteria considered by the Court in deciding whether or not to grant an application for permission to appeal, the "applicable standard of review" means the standard of review which would be applied by the Court in deciding the case on the merits, if the Court were to grant the application for permission to appeal.

Advisory Commission Comment [2012].

Paragraph (b) is amended to provide that the time period for filing an application for permission to appeal pursuant to Rule 11 is not jurisdictional in cases arising from the Court of Criminal Appeals (subject to two exceptions discussed below) and may be waived by the Supreme Court in the interest of justice. The amendment is based upon a similar provision governing notices of appeal in criminal cases. See Tenn. R. App. P. 4(a).

The discretionary waiver authority granted to the Supreme Court in the amended rule is limited to cases arising from the Court of Criminal Appeals. Thus, the amendment does not apply to cases arising from the Court of Appeals. Additionally, the amended rule provides that the waiver authority granted to the Supreme Court does not extend to cases arising from the Court of Criminal Appeals’ disposition of an interlocutory appeal filed pursuant to Rule 9 or an extraordinary appeal filed pursuant to Rule 10. Consequently, in cases arising from the Court of Appeals and in cases arising from interlocutory or extraordinary appeals filed in the Court of Criminal Appeals, the applicable time periods for filing an application for permission to appeal to the Supreme Court are jurisdictional and cannot be waived.

Advisory Commission Comment [2013].

Paragraphs (b) and (d) were amended to provide that the argument section of an application for permission to appeal cannot exceed 50 pages and that the argument section of an answer in opposition cannot exceed 25 pages, unless otherwise ordered by the Supreme Court. The third sentence of paragraph (f) was amended to replace “appellate court or a judge thereof” with “Supreme Court,” thereby making that sentence consistent with the amended language in paragraphs (b) and (d).

Advisory Commission Comment [2014].

Subdivision (c) was amended to reduce from six to five the number of copies to be filed with the original application for permission to appeal. Subdivision (c) also was amended to specify the color of the covers of applications and answers filed pursuant to Rule 11.

Advisory Commission Comment [2015].

Subdivision (f) was amended to clarify the briefing schedule in those cases in which the intermediate appellate court denies an application for an interlocutory appeal under Tenn. R. App. P.9 and in which the Supreme Court subsequently grants permission to appeal. The amendment provides that the appellant in such cases shall file his or her brief within thirty days of the filing of the record pursuant to Tenn. R. App. P.9(e).

Advisory Commission Comment [2017].

Rule 11(b) and (d) are amended to require that the statement of facts in the application, and any additional facts stated in an answer to the application, contain appropriate references to the record. These requirements are intended to facilitate the appellate court's efficient review of the application for an appeal by permission from the appellate court to the Supreme Court.

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, rather than secured under the former procedure of filing a cost bond. Subdivision of this rule, which addressed the posting of bonds under certain circumstances, is deleted as unnecessary in light of the amendment to Rule 6.

Advisory Commission Comment [2022].

Subsections (b), (d), and (f) have been revised to refer to Rule 27 through Rule 30, as appropriate. 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.