Important Changes to the Tennessee Rules of Appellate Procedure: Six Things You Need to KnowEffective July 1, 2017, the Tennessee Rules of Appellate Procedure have changed.  Many of these changes were implemented to reflect the appellate court clerk’s implementation of electronic filing this year.  Here’s what you need to know:

1. The notice of appeal now must be filed with the Court of Appeals: Rules 3 and 4 now require parties to file a timely notice of appeal in the appellate court, replacing the long-standing rule that the notice is filed in the trial court.  As a result, the notice of appeal now must include a list of the parties upon whom notice of docketing of appeal is required by Rule 5.  Additionally, the clerk of the appellate clerk will now send a copy of all filed notices of appeal to the trial court and trial court’s clerk.

Transitional Period: Recognizing that practitioners and pro se parties will need time to adjust to this rule change, the Rules provide a one-year transitional period, to expire on June 29, 2018.  During this period, if a party attempts to file a notice of appeal with the trial court, the trial court clerk will immediately notify the party that the notice must be filed with the appellate court clerk.  If the filing would have been timely if filed correctly, the party will have 20 additional days to file the notice with the appellate court clerk.  If the notice is filed within that period, it will still be considered timely.

2. Fees for appeal are due when the notice of appeal is filed: Under the new Rule 6, when the appellant files a notice of appeal “or other initiating document,” the appellant must (1) pay the appellate court’s taxes and fees, (2) establish an exemption, or (3) apply for or prove indigency under Rule 18.  If an appellant’s appeal is dismissed and another party wishes to litigate appellate issues in the same case, that party must also comply with the rules for payment of fees and taxes.

The changes to the rule also apply to interlocutory and extraordinary appeals and appeals from administrative agencies.

All references to bonds for costs on appeal, a mainstay of the old rule, have been removed.  The rule change, however, does not relieve an appellant of its responsibility to pay fees to the trial court clerk, including statutory fees due to the clerk for preparation of the record.

3. The Rules now explicitly state the appellate court’s authority to designate the title given to the appellate action: As previously, the default title for the appellate action will be the one given in the trial court, unless that title did not include the appellant’s name (Tenn. R. App. P. 5(c)).  In that case, the name of the party, identified as appellant, is to be added to the title unless otherwise directed by the court.

4. An application for an interlocutory or extraordinary appeal now must contain an appendix: To facilitate efficient review, Rule 9(d) now requires that any application for an interlocutory appeal be accompanied by an appendix containing the order appealed from, the trial court’s statement of reasons, and other necessary portions of the record.  Rule 10(c) similarly requires that an application for an extraordinary appeal contain an appendix with copies of any order or opinion relevant to the questions presented in the application, any supporting affidavits, and other necessary parts of the record.  For either type of application, the statement of facts must include “appropriate references to the documents contained in the appendix.”

Any other party that files an answer in opposition to either type of application must file its own appendix if there are other parts of the record it desires the appellate court to consider.  The answer’s statement of facts may reference either party’s appendix.  As previously, another party may file an answer to an application for interlocutory appeal as of right within 10 days of the application being filed, but other parties must wait for the court’s invitation to file an answer to an application for an extraordinary appeal.

5. An application for permission to appeal to the Tennessee Supreme Court must have appropriate references to the record: Like the above amendments to Rules 9 and 10, the Advisory Committee intended that this would assist the appellate courts in efficiently reviewing applications.  The requirement of appropriate references extends to both the application and answer.  The provision concerning appeal bonds has been repealed.

6. The length of facsimile filings has been increased from 10 to 50 pages. See Tenn. R. App. P. 20(A)(b)(6).

Sixth Circuit Puts Brakes on Pleading RequirementsUnless you have been under a rock for the past couple of years—or just actively avoid federal court—you are well aware of the impact of Iqbal and Twombly on pleading a cause of action in federal court. Depending on which side of a case you find yourself, you may believe that those decisions ask too much from plaintiffs at the beginning of the case, just the right amount, or even possibly too little. Regardless of where you find yourself in that debate, there is no doubt that those decisions raised the bar for pleading. Thus, we all stop and take notice when an appellate court warns that a district court has demanded too much from a plaintiff. That is exactly what happened in a recent decision by the Sixth Circuit.

In Jackson v. Ford Motor Co., the plaintiff and her husband were traveling down U.S. Highway 70 when the couple lost control of their 2012 Ford Focus. The wife survived the crash, but the husband did not. The plaintiff brought suit against Ford, alleging a defect in the vehicle’s “Electronic Power Assisted Steering” (“EPAS”) system. Ford ultimately moved to dismiss, and the district court granted Ford’s motion.

The issue before the Sixth Circuit was simple: Did the plaintiff allege sufficient facts to establish proximate cause? In short, a unanimous panel found that the plaintiff did. The crux of the decision fell on two of the three factors required for establishing proximate cause in a products liability case—namely, was the alleged defect a substantial factor in causing the accident and was the accident reasonably foreseeable. What is particularly interesting is that plaintiff satisfied the substantial-factor element based on the “apparent litany of other accidents identified by [the plaintiff] where the EPAS system allegedly failed” and the alleged “dart[ing] [of the vehicle] left across the center line into oncoming traffic.” The court, likewise, found very few allegations necessary to satisfy the second foreseeability prong, relying mostly on allegations concerning potentially defective components of the EPAS system.

This decision could be dismissed as a niche matter involving causation for products liability cases in Tennessee, or part of the line of cases specific to EPAS system litigation. However, I submit that such a narrow view would be a mistake.  Indeed, the court noted early on that it had “followed the standard set forth in Iqbal and Twombly in other products liability cases.” Rather, I think that the court made its intention quite clear that “causal weaknesses will more often be fodder for a summary-judgment motion” than a motion to dismiss.

The takeaway from Jackson probably will not be clear for a while. However, I think it is a fair assumption that Jackson might start appearing in responses to motions to dismiss, especially in products liability cases. The real question is whether this decision will have broader implications in terms of pleading causation. Needless to say, Jackson is a case to watch.