Rule 3 Appeal as of Right: Availability; Method of Initiation

Advisory Commission Comments.

Subdivision (a). This subdivision states the general rule that in civil actions an appeal as of right may be taken only after entry of a final judgment. In addition, the rule offers a definition of finality in those circumstances in which multiple claims or multiple parties are involved. The rule does not otherwise define a final judgment because it is typically clear whether an order is final or interlocutory. Interlocutory appeals are governed by Rules 9 and 10.

Subdivision (b). This subdivision specifies those situations in which the defendant in a criminal action may appeal as of right. Interlocutory appeals by the defendant may be sought as provided in Rules 9 and 10.

Subdivision (c). The only limitation placed upon the right of appeal by the state in criminal actions is that it may not appeal upon a judgment of acquittal. In addition, notions of double jeopardy place constitutional restrictions on the availability of appeals by the state. See e.g., United States v. Martin Linen Supply Co., 430 U.S. 564 (1977). This subdivision specifies situations, within constitutional limits, in which it seems desirable to recognize the state's right of appeal. In addition, the rule provides that appeals as of right lie only in those circumstances specified in the subdivision. Interlocutory appeals by the state may be sought as provided in Rules 9 and 10.

Subdivision (d). These rules recognize two types of appeals: appeals as of right and appeals by permission. This subdivision defines an appeal as of right as one that does not require the permission of either the trial or appellate court as a prerequisite to taking an appeal. Appeals by permission, on the other hand, require that either the trial court or the appellate court expressly authorize the taking of an appeal.

Subdivision (e). The intent of this subdivision is to provide a uniform and simplified method of taking an appeal as of right. This subdivision combined with Rules 4 and 5 require that a notice of appeal be filed with the clerk of the trial court within the time prescribed for taking an appeal and that a copy of the notice of appeal be served on all parties. The form and content of the notice of appeal are set out in official form 1, and Rule 48 specifically provides that the use of this form is sufficient under these rules.

Rule 36 provides that relief need not be granted to a party who fails to take whatever action is reasonably available to prevent or nullify the harmful effect of error. Failure to present an issue to the trial court, therefore, will typically not merit appellate relief. In addition, under Rule 13(c) the appellate court is generally limited in its review to those facts set forth in the record. Thus matters that can only be made a part of the record by a new trial motion must be so included in order to gain appellate review. Jury misconduct provides one example.

Under Rule 16, two or more persons may proceed on appeal jointly. Thus it is entirely proper for parties to file a joint notice of appeal; however, a joint notice of appeal must comply with subdivision (f) of this rule.

Subdivision (f). This subdivision specifies the content of the notice of appeal. The purpose of the notice of appeal is simply to declare in a formal way an intention to appeal. As long as this purpose is met, it is irrelevant that the paper filed is deficient in some other respect. Similarly, the notice of appeal plays no part in defining the scope of appellate review. Scope of review is treated in Rule 13. This subdivision read in conjunction with Rule 13(a) permits any question of law to be brought up for review [except as otherwise provided in Rule 3(e)] as long as any party formally declares an intention to appeal in a timely fashion.

Subdivision (g). This subdivision makes clear that the term "judgment" as used in these rules is not limited to its strict common-law definition but includes equitable decrees. This subdivision is derived from Rule 54.01 of the Tennessee Rules of Civil Procedure.

Advisory Commission Comments [1980].

This amendment adds the following instances in which the state may appeal as of right from a final judgment in criminal actions: (1) habeas corpus proceedings, (2) extradition proceedings, and (3) post-conviction relief proceedings. This amendment does not represent any change in existing law.

Advisory Commission Comments [1996].

The final sentence of Rule 3(e) ensures that trial judges will know what decisions have been appealed.

Advisory Commission Comments [1998].

Because the trial clerk rather than the appellant's lawyer is now responsible for serving the appellate clerk with a copy of the notice of appeal, the words "and service" were deleted from subdivision (e).

Advisory Commission Comments [1999].

It is the policy of the appellate court clerk's office in cases involving cross appeals to consider the appellant to be the party who first files a notice of appeal; in the event that the notices are filed on the same day, the plaintiff in the proceeding below is considered to be the appellant unless the parties otherwise agree or the court otherwise directs.

Advisory Commission Comments [2000].

The third sentence of Rule 3(e) does not bar an appellee who failed to move for a new trial from raising issues on appeal under Rule 13(a). That has been the practice since adoption of the Appellate Rules, and it is the conclusion reached by Prof. John Sobieski–Reporter at the time–in 46 Tenn.L.Rev. at 732-4 (1979).

Advisory Commission Comments [2002].

Specific reference to Criminal Rule 37(b)(2)(i) and (iv) was added to subdivision (b)(2) to ensure awareness of the strict requirements for appealing a certified question of law. See State v. Preston, 759 S.W.2d 647 (Tenn. 1988).

Advisory Commission Comments [2004].

The language of paragraph (f) in parentheses, taken from Federal Rule of Appellate Procedure 3(c), provides a lawyer representing appellants with options other than listing each appellant by name. The lawyer should consult with clients to make sure each wants to appeal, thereby avoiding problems with court costs.

Termination of Parental Rights Proceedings. Rule 8A imposes special requirements governing the appeal of any termination of parental rights proceeding. In particular, Rule 8A(a)(2) imposes a special provision regarding the content of a notice of appeal in such a proceeding.

Advisory Commission Comments [2005].

Former subdivision (h) (pertaining to “assignments of error”) is deleted because it is obsolete.

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.

Subdivisions (b) and (c). Tenn. R. App. P. 3(b) is amended to update an obsolete cross-reference to Tenn. R. Crim. P. 37(b)(2), changing the subparagraph designations from “(i) or (iv)” to “(A) or (D).”

Rule 3(b) and (c) are amended to provide for an appeal as of right from the trial court’s filing of a corrected judgment or order pursuant to Tenn. R. Crim. P. 36.

Advisory Commission Comments [2013].

Tenn. R. Crim. P. 36.1 was adopted in 2013 to provide a mechanism for the defendant or the State to seek to correct an illegal sentence. With the adoption of that rule, this rule (Tenn. R. App. P. 3) was amended to provide for an appeal as of right, by either the defendant (see paragraph 3(b)) or the State (see paragraph 3(c)), from the trial court’s ruling on a motion filed under Tenn. R. Crim. P. 36.1 to correct an illegal sentence.

Paragraphs (b) and (c) also were amended to permit appeals as a matter of right for the defendant and the State in expunction requests. The amendments were designed to address the decision in State v. Adler, 92 S.W.3d 397 (Tenn. 2002), which held that rulings on expunction requests could only be appealed by use of the writ of certiorari, pursuant to Tenn. Code Ann. § 27-8-101 (2000). Since these matters can be appealed, they now are included under Tenn. R. App. P. 3 as a matter that can be appealed as of right.

Advisory Commission Comments [2014].

The third paragraph of “Subdivision (e)” in the original Advisory Commission was amended by substituting 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 Comment [2015].

The amendment added subdivision (h), which refers to Tenn. R. App. P. 13(a)'s statement that "[c]ross appeals...[and] separate appeals" are not required. Subdivision (h) goes on to state that, upon the filing of a single notice of appeal in a civil case, issues may be raised pursuant to these rules by any party. Thus, after the filing of a single notice of appeal by one or more parties, other parties are not required to file a separate notice of appeal in order to raise their own issues in the appellate court.

Advisory Commission Comment [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, subdivision (e) of this rule 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. Subdivision (t) is also amended to be consistent with amended Form 1 (''Notice of Appeal") in the Appendix to the rules.

This paragraph of the Comment is added to cross-reference the 2017 amendment to Tenn. R.Crim. P. 36, which provides that an appeal as of right is available following the trial court's denial of a motion filed pursuant to Tenn. R. Crim. P. 36, in addition to cases in which the court files a corrected judgment or order. That amendment makes Tenn. R. Crim. P. 36 consistent with the text of the 2012 amendment to Tenn. R. App. P. 3(b) and (c), which authorized an appeal as of right from "an order or judgment entered pursuant to Rule 36. . ., Tennessee Rules of Criminal Procedure[.]" As a result of the 2017 amendment to Tenn. R. Crim. P. 36, the second paragraph of the 2012 Advisory Commission Comment to Tenn. R. App. P. 3(b) and (c) is superceded.

Advisory Commission Comment [2018].

The 2018 amendment adds to the list in subsection (b) a motion for withdrawal of a plea of guilty. See State v. Peele, 59 S.W.3d 701 (Tenn.2001). The 2018 amendment also adds a new subsection (i) to clarify that the terms "party" and "parties" include persons who have filed motions to intervene and desire to take an appeal of right, as permitted by the 2018 amendments to Rules 24 and 54, Tennessee Rules of Civil Procedure. Effective July 1, 2018, any order granting or denying a motion to intervene shall be a final judgment, and a timely appeal of that final judgment shall be the only method to appeal the grant or denial of a motion to intervene.

Advisory Commission Comment [2021].

Rule 35(d), Tennessee Rules of Criminal Procedure provides that a defendant may appeal the denial of a motion for reduction of sentence and that the State may appeal from a modification of a sentence. The 2021 amendment adds to the list of available appeals in subsection (b) a motion for reduction of sentence and in subsection (c) from a modification of a sentence.