Cobb v. Beier

944 S.W.2d 343, 1997 Tenn. LEXIS 231
CourtTennessee Supreme Court
DecidedApril 28, 1997
StatusPublished
Cited by18 cases

This text of 944 S.W.2d 343 (Cobb v. Beier) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cobb v. Beier, 944 S.W.2d 343, 1997 Tenn. LEXIS 231 (Tenn. 1997).

Opinion

OPINION

DROWOTA, Justice.

The sole issue on appeal is whether the Court of Appeals erred by dismissing this appeal because of plaintiff-appellant’s failure to serve the clerk of the appellate court with a copy of the notice of appeal in compliance with Rule 5(a) of the Tennessee Rules of Appellate Procedure. Several cases with similar issues are currently pending before this Court and the Court of Appeals. Because service of the notice of appeal upon the clerk of the appellate court serves no significant substantive purpose in the appellate [344]*344process, failure to effect such service is not a basis for dismissal of an appeal. Therefore, the judgment of the Court of Appeals is reversed and this cause remanded to that court for consideration of the merits of the appeal.

PROCEDURAL HISTORY

Plaintiff-Appellant, Robert Dale Cobb, instituted a suit for malicious prosecution against the defendant-appellee, Douglas R. Beier. Beier filed a motion for summary judgment which the trial court granted on December 4, 1995. Cobb filed a notice of appeal in the trial court on December 22, 1995. A copy of the notice of appeal was timely served on Beier’s attorney. However, a copy of the notice of appeal was not timely served on the clerk of the Court of Appeals. On February 22, 1996, Beier filed with the Court of Appeals a motion to dismiss Cobb’s appeal based on his failure to timely serve a copy of the notice of appeal on the clerk of the Court of Appeals.

The Court of Appeals, in a split decision, relying on G.F. Plunk Construction, Inc. v. Barrett Properties, Inc., 640 S.W.2d 215 (Tenn.1982), dismissed the appeal, holding that there was no “good cause” for Cobb’s failure to timely serve a copy of his notice of appeal on the clerk of the Court of Appeals. Judge Goddard dissented from the dismissal, stating, “[gjiven the fact that those promulgating the Rules of Appellate Procedure have vacillated on this requirement, and such a filing serves little purpose in the vast majority of cases appealed, I would suspend that provision of Rule 5 unless prejudice to the appellee has been shown.” Thereafter, we granted Cobb’s application for permission to appeal and now reverse.

HISTORY OF RULE 5

Resolution of this issue is aided by considering the history and purpose of the requirement of service on the clerk of the appellate court. The purpose of the “notice of appeal” is simply to declare in a formal way a party’s intention to appeal.1 “An appeal as of right,” Rule 3, T.R.A.P., shall be taken by timely filing a notice of appeal with the clerk of the trial court, as provided in Rule 4, T.R.AP. Rule 4 requires that the notice of appeal “be filed with and received by the clerk of the trial court within 30 days after the date of entry of the judgment appealed from... .”2

Within seven days after filing, Rule 5 requires the appellant or appellant’s counsel to serve a copy of the notice of appeal (1) on counsel of record for each party, or if not represented by counsel, on the party, and on (2) the clerk of the appellate court. Rule 5 has always required service on counsel or the party, however service on the clerk of the appellate court, the issue we address on this appeal, has been in a state of flux since 1979.

When the appellate rules were established effective July 1,1979, service of a copy of the notice of appeal was required by appellant or appellant’s counsel on (1) counsel and on (2) the clerk of the appellate court.3 Upon receiving service of the notice of appeal, the clerk of the appellate court immediately entered the appeal on the docket and it was assigned a docket number. In 1984, however, the requirement of service on the clerk of the appellate court was deleted from Rule 5(a) and (b), because “[tjhe experience of the appellate clerks has been that the requirement of serving a notice of appeal at the appellate level accomplished no vital purpose, but instead resulted in a surplus of notices where the appeal was abandoned because of [345]*345settlement or otherwise.”4 Therefore, beginning in 1984, the clerk of the appellate court was required to enter the appeal on the docket upon receipt of the “record on appeal,” not upon the receipt of the “notice of appeal,” and the clerk was required to serve notice on all parties of the receipt of the record and docketing of the appeal. T.RA.P. Rule 5(c).

In 1991, T.R.A.P. 5(a) was again amended, restoring subsection (a) to its original tenor, requiring appellant or appellant’s counsel to serve the appellate court clerk with a copy of the notice of appeal.5 However the docketing requirements set out in subsection (c) of Rule 5 remained the same; therefore, the appeal was not entered on the docket until the appellate clerk received the record. In 1995 subsection (b) of Rule 5 was amended requiring service by appellant on the appellate court clerk to conform criminal practice to the civil practice of subsection (a) which had been amended in 1991.

In 1997, based on the recommendation of the Advisory Commission, we again amended Rule 5(a) and (b) to place upon the trial court clerk, rather than the appellant or appellant’s counsel, the responsibility of serving a copy of the notice of appeal upon the clerk of the appellate court.6 Subsection (c) of Rule 5 delineating the docketing requirements remains the same.

ANALYSIS AND CONCLUSION

As did the Court of Appeals, appellee Beier relies primarily upon G.F. Plunk Construction Company, Inc. v. Barrett Properties, Inc., 640 S.W.2d 215 (Tenn.1982), which was decided when T.R.A.P. 5 required service of a copy of the notice of appeal upon the clerk of the Court of Appeals and when the clerk utilized the notice of appeal to docket the case. In Plunk, the appellant had not timely filed a copy of the notice of appeal on either the clerk of the Court of Appeals or on opposing counsel. We held the requirement of T.R.A.P. 5 was not jurisdictional and that it could be waived in accordance with the “good cause” standard of T.R.A.P. 2.7 However, we found that the excuse offered in Plunk for failing to serve a copy of the notice of appeal on either opposing counsel or the clerk of the Court of Appeals did not constitute good cause. After Plunk was decided, Rule 5(c) was amended to provide that the clerk enter the appeal on the docket upon receipt of the “record on appeal,” not upon the receipt of the notice of appeal. As explained earlier, serving the clerk with a copy of the notice of appeal accomplished no vital purpose, and the requirement was deleted in 1984, because the clerk was merely maintaining the notices in alphabetical order until the record was received from the trial court, when the appeal was then docketed.

In Plunk there was no service on counsel or on the appellate court clerk. In the case at bar, the notice of appeal was timely filed with the clerk of the trial court, complying with Rule 4, and a copy was served on opposing counsel. Service on opposing counsel meets the need of procedural fairness by informing adversary counsel that an appeal is intended.

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Cite This Page — Counsel Stack

Bluebook (online)
944 S.W.2d 343, 1997 Tenn. LEXIS 231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cobb-v-beier-tenn-1997.