APPELLATE TOOLBOX 3: MOTION TO DISMISS

“If it were done when ‘tis done, then ‘twere well

  It were done quickly.”

-      Macbeth I, 7

          Still another tool in your appellate toolbox is the dispositive motion to dismiss under Tenn.R.App.P. Rules 3 and 22. Look for opportunities to resolve your appeal before oral argument.  One such opportunity arises when the appellate court lacks jurisdiction because the trial court order being appealed is not a final order. Rule 3(a) provides that any order from the trial court that “adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before entry of a final judgment adjudicating all the claims, rights, and liabilities of all parties.”

No resolution of all claims, rights, and responsibilities equals no finality, equals no jurisdiction in the Court of Appeals. Appeal dismissed.  Time, money, and energy saved.

          A motion to dismiss should be filed as soon as you recognize the grounds for the motion. It should be filed and supported in the same way all other motions are filed and supported, per Rule 22.

          Keep in mind that the filing of a motion to dismiss will not alter the briefing schedule unless the court orders otherwise.   

          In some circumstances, it’s good to be dismissive.