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RULES OF PRACTICE OF THE CHANCERY COURT OF
SHELBY COUNTY, TENNESSEETHIRTIETH JUDICIAL DISTRICT
EFFECTIVE AS OF JULY 1997
TABLE OF CONTENTS
Introductory Statement.
RULE.
1. Sessions and Courtroom Procedure. 2. Attorneys. 3. Order of Business. 4. Forms of Pleadings. 5. Pleadings to Be Filed. 6. Thirty (30) Day Extension to Plead. 7. Assignment of Causes. 8. Process. 9. Appointment Guardian Ad Litem and Attorney Ad Litem. 10. Default Judgment and Affidavits in Certain Cases. 11. Motion Days and Motions. 12. Temporary Injunction Hearings and Motions to Modify or Dissolve
Injunctions. 13. Reference to the Master or to the Divorce Referee. 14. Setting Cases by Way of the Attorneys' Trial Docket (aka the "Ten-Day-Rule" Docket). 15. Divorce or Separate Maintenance Trials. 16. Hearing on Petitions for Adoption. 17. Arguments and Briefs. 18. Orders and Decrees. 19. Reports or Accountings of Trustees, Guardians, Conservators and Other Fiduciaries. 20. Motions for New Trial. 21. Jury Trials. 22. Record of Appeal. 23. Dismissal for Lack of Prosecution. 24. Compensation of Clerk and Master When Not Otherwise Fixed. 25. Investing Funds Per Court Order. 26. Procedure Used When Chancellor Should Consider Disqualifying Himself. 27. Continuances. 28. Interrogatories.RULES OF THE CHANCERY COURT OF SHELBY
COUNTY, TENNESSEEBy virtue of the authority vested in the Chancellors of the Chancery Court of Shelby County, the Thirtieth Judicial District, of Tennessee, and for the purpose of providing uniformity of procedure in the Court in conformity with the Tennessee Rules of Civil Procedure, the following rules are hereby adopted and promulgated. The Chancellors may deviate from these rules to what ever extent they deem appropriate in order to meet the ends of justice.
RULE 1 - SESSIONS AND COURTROOM PROCEDURE
(a) Court sessions may be held Monday through Fridays inclusive. The Court may convene at such times as may be necessary for the hearing of causes specially set.
(b) The Chancellors shall wear judicial robes at all sessions of the Court, except the requirement may be waived by the Chancellor at any informal hearing.
(c) All persons in the Courtroom shall stand at the opening and closing of Court.
(d) All papers shall be handed to the Chancellor by the Sheriff, and no attorney shall approach the bench or witness stand from the bar except when directed by the Chancellor.
(e) There shall be no smoking in the Courtroom, nor shall food or drink be brought into the Courtroom.
(f) All attorneys and Court attendants shall be appropriately dressed during court sessions; male attorneys shall wear coats and ties.
(g) All litigants and witnesses shall wear appropriate attire and make a clean and neat appearance.
(h) Upon the Chancellor entering the Courtroom preparatory to the formal opening of Court, the Sheriff shall call the Courtroom to order, directing all in attendance upon Court to stand, and upon being so instructed by the Court, shall open Court in substantially the following manner:
Hear Ye! Hear Ye! This Honorable Chancery Court of Tennessee, is now open for the transaction of business pursuant to adjournment; all persons having business with the Court draw near and you shall be heard. The Honorable ________________ Chancellor presiding. God Preserve these United States. Be seated, please."
Thereupon the Chancellor and those in the Courtroom shall be seated.
(i) Whenever anyone addresses the Court or is addressed by the Court, they shall rise and remain standing. Attorneys are not required to stand while interrogating witnesses.
(j) Whenever the Chancellor is ruling, all persons in the Courtroom shall remain seated and, if entering the Courtroom shall be seated until the Chancellor has finished ruling.
(k) While Court is in session no one may photograph any of the proceedings without prior order of the Court.
(l) Upon the Chancellor instructing the Sheriff to adjourn Court for the day, the Sheriff shall direct all in attendance upon Court to stand and shall adjourn Court in the following manner:
This Court now stands adjourned."
(m) In order to insure and maintain proper security for the protection of government property and the safety of the Courts, court personnel, attorneys and all persons in attendance thereof, whether as a plaintiff defendant, witness, or spectator, the Sheriff of Shelby County is authorized and directed to employ all lawful and constitutional means necessary to insure the security of the courtrooms and all passages, corridors, rooms, and points of ingress and egress thereto. The Sheriff may, circumstances requiring in his discretion, establish and promulgate reasonable regulations not inconsistent with this rule for purposes of carrying out its directive including, but not limited to, the search of all persons seeking to enter the various courtrooms of the Shelby County Courthouse Civil Divisions. Anyone seeking to enter said courtrooms not consenting to a search of their person when requested by one lawfully authorized to conduct said search, shall not be admitted therein. Strip body searches are not authorized. Only authorized personnel serving the Court shall wear side-arms in the courtroom while Court is in session. In the discretion of the Chancellor of each part of this Court, all persons who are legally authorized to carry a rearm because of their status as law enforcement officials may wear said firearms or must check their firearms with the Court Bailiff while they are in the courtroom, or with the nearest office of the sheriff.
RULE 2 - ATTORNEYS
(a) Attorneys desiring to be sworn in to practice in the Chancery Court shall be introduced in open Court by an Attorney of this Bar who vouches for their character and qualifications as an attorney licensed to practice in Tennessee.
(b) Non-resident attorneys shall be entitled to practice in a particular case upon compliance with Tennessee Supreme Court Rule 19 and 20.
(c) No attorney shall be allowed to withdraw from a case except for good cause shown upon written motion after notice to all parties and attorneys and by order of the Court.
RULE 3 - ORDER OF BUSINESS
At the opening of Court, orders or decrees may be presented; Then the Calendar for the day shall be called.
RULE 4 - FORMS OF PLEADINGS
(a) All pleadings shall contain a caption and designation as provided by Rule 10.01 TRCP and in addition all complaints, petitions and motions shall, in the designation thereof, contain a short statement of the relief sought, or the nature of the matter contained therein. The Chancellor or the Clerk may refuse to accept a pleading not so styled.
(b) All pleadings, addressed to the Court, shall be in the following form, to wit: "To the Chancellors of the Chancery Court for the Thirtieth Judicial District."
(c) All pleadings shall conform to the requirements of Rules 7, 8, 9, 10 and II, TRCP, and any pleading not so conforming may, upon motion of attorney, or by page the Court sua sponte, be stricken from the docket. Pleadings shall be on legal size paper (8" x 14").
(d) The Clerk shall note the filing of all pleadings and documents as required by Rule 5.06 TRCP, and all orders and decrees shall show the minute book and page in which the same have been recorded.
(e) All pleadings and documents bearing the name of a legal firm shall also be signed individually by the member of the firm to whom the case is assigned and shall contain the address, phone number and the Supreme Court Disciplinary Number of the attorney filing it.
RULE 5 - PLEADINGS TO BE FILED
(a) An original of every pleading, together with con formed service copies, including copies of any exhibits attached to complaint shall be filed in all causes. The originals of such pleadings shall be retained in the Clerk's office, except when in use in the Courtroom or by one of the Chancellors.
(b) Pleadings filed by local attorneys shall be personally delivered to the office of the Clerk, and the Clerk may refuse to file such pleadings delivered by mail.
(c) Originals of pleadings and other Court documents may not be withdrawn except upon an Order of Court, which Order shall specify the time within which the same shall be returned.
(d) Only the Clerk can put files back in to the filing cabinet.
RULE 6 - THIRTY (30) DAY EXTENSION TO PLEAD
Any party may by written stipulation signed by the opposing attorney extend the time for pleading not exceeding thirty (30) days in addition to the period provided by TRCP, and provided further, that only one such extension shall be granted. An extension not agreed to by stipulation or an additional extension must be granted by the Chancellor.
RULE 7 - ASSIGNMENT OF CAUSES
(a) As causes are filed, they shall be docketed, in manner hereinafter provided, in a Rule Docket of the Court kept for that purpose, and assigned a Rule Docket number, by which number each cause shall be identified while pending in this Court.
(b) The Clerk shall maintain a receptacle in which shall be deposited, not in sequence, a sufficient number of cards to assure an equal distribution of causes among the Parts of the Court; each card to bear the number "1, 2, or 3". Upon the filing of the initial pleading, a card shall be withdrawn from the receptacle and the cause shall be assigned to the Part of the Court corresponding to the number of the card, which number shall be affixed as the last digit of the Rule Docket number as evidence of the part of the Court to which the cause is assigned. When a cause is transferred as provided in Section (c) there shall be added, enclosed by parenthesis, the number of the Part to which the cause is transferred.
(c) The Chancellors may, however, by orders entered on the Minutes, transfer causes from one Part of the Court to another in order to equalize the work of the Parts of the Court, or for their mutual accommodation and convenience.
(d) The Chancellors may enter orders for each other by interchange, without formal transfer.
RULE 8 - PROCESS
The issuance, service and return of process shall he as required by Rules 4 and 5 TRCP.
RULE 9 - APPOINTMENT OF GUARDIAN AD LITEM AND ATTORNEY AD LITEM
Whenever it is made known to the Court, by a pleading or motion that justice requires the representation by a Guardian Ad Litem of a party, or an Attorney Ad Litem, the attorney shall submit an order of appointment leaving blank the name of the person or persons to be appointed.
RULE 10 - DEFAULT JUDGMENTS.
When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, judgment by default may be entered as follows:
The party entitled to a judgment by default shall apply to the court. All parties against whom a default judgment is sought shall be served with a written notice of the application for judgment at least thirty (30) days before the hearing on the application, regardless of whether the party has made an appearance in the action as provided for in Rule 55.01 TRCP.
RULE 11 - MOTION DAYS AND MOTIONS
(a) All motions, except those made in the course of a hearing or a trial, or for the Final Decree upon Default Judgment as provided in Rule 10, or for Final Decree of Adoption, shall be in writing and conform to the requirements of Rule 7.02 TRCP. Motions shall be heard on Friday of each week, unless otherwise noted by the Clerk on the Motion Docket.
(b) Attorneys desiring to dispose of their motion or adversary's motion shall note on the Bar Motion Docket the style and rule docket number of the cause, the attorney for and against the motion, the date of entry in the motion docket and the nature of relief sought. Notice shall be given to the adversary's attorney as required by Rule 6.04 and 6.05 TRCP.
(c) Separate Bar Motion Dockets shall be kept for each Part of the Court and entries shall be made in the motion docket of the Part of the Court to which the cause has been assigned.
(d) Notice of motions shall be in compliance with Rules 6.04, 6.05, TRCP, and entered on the Bar Motion Docket on or before Friday to be heard on the ensuing Friday unless objection is made for lack of the notice required by Rule 6.04, 6.05, TRCP. If objection on such grounds be well taken, the motion shall be passed to second call on the next Motion Day or stricken.
(e) Motions may upon consent of attorneys and approval of the Court be passed from first call to second call.
(f) First call motions shall be disposed of before second call motions.
(g) Motions for allowance of temporary alimony, or child support, or both, will be referred to the Divorce Referee as provided in Rule 13. Motions for modification of awards previously made may be referred to the Divorce Referee or heard by the Court. If heard by the court, they shall be accompanied by the sworn statement called for in Rule 15 (b); such statement shall be filed not less than three (3) days before the hearing date, and by the adversary party not less than one (1) day before the hearing date.
(h) At the discretion of the Court, all motions requiring the introduction of proof may be deferred until disposition of motions consisting only of argument of attorneys.
(i) All motions for summary judgment and to dismiss shall be filed at least thirty (30) days before hearing of same. Attorneys for the proponent of the motion shall deliver memorandum briefs to the court (with a copy of affidavits and supporting documents), and shall file with the Clerk all original affidavits and supporting documents at least thirty (30) days prior to the hearing of the motion. Attorneys for the respondent shall deliver memorandum briefs to the Court (with a copy of affidavits and supporting documents), and shall file with the Clerk all original affidavits and supporting documents at least ten (10) days prior to the hearing of the motion. No motions shall be heard unless this rule is complied with.
(j) The Court may in its discretion, hear motions submitted on briefs and not grant oral argument.
(k) The Clerk of Court shall post a brief note of the Court's Ruling on the motion docket.
RULE 12 - TEMPORARY INJUNCTION HEARINGS AND MOTIONS TO MODIFY OR DISSOLVE INJUNCTIONS
(a) Hearings for temporary injunctions shall be on sworn pleadings, affidavits, counter-affidavits, depositions and/or testimony, which shall be limited to the sole questions of whether or not the temporary injunction is justified, and to dispute material issues of fact.
(b) Motions to modify or dissolve injunctions may be heard upon one day's notice or less, if so ordered by the Chancellor.
RULE 13 - REFERENCE TO THE MASTER OR TO THE DIVORCE REFEREE
(a) At the hearing of a cause, or upon motion, a matter may be referred to the Master in accordance with the provisions of Rule 53 TRCP, or to a Divorce Referee in accordance with Section 9, Chapter 161, Private Acts, 1973.
(b) The Court may appoint a special master and refer specific issues of law or fact. A special master shall receive such compensation as may be fixed by the Court to be taxed as part of the court costs.
(c) Reports of the Master, except Reports of Sale and Resale, shall be made in conformity with Rule 53.04 TRCP, which Rule shall also be applicable to reports of the Divorce Referee. All reports of the Master, other than Reports of Sale and Resale, not excepted to within ten (10) days as required by Rule 53.04 (2) will be subject to confirmation by the Court. All exceptions or objections to the report of the Master will be heard pursuant to motion. Exceptions will be heard based upon the record of proceedings before the Master. There shall be no additional proof introduced unless directed by the Court.
(d) Appeals from a Divorce Referee's ruling shall be made by written motion within ten (10) days of the referee's oral or written ruling, and shall be placed on the Motion Docket of the Court to which the case is assigned or specially set by Fiat. The Motion shall specifically set forth what the movant seeks and where the divorce referee was m error. The referee's oral or written ruling on the pendente lite award shall be in effect and enforceable pending the appeal. Appeals shall be heard based on the record of the proceedings before the divorce referee. There will be no additional proof introduced unless directed by the Court.
(e) Report of Sale and Resale will be confirmed in accordance with Rule 53.04 TRCP subject to the right of an advance bid provided by T.C.A. 66-8-107.
RULE 14 - SETTING CASES BY WAY OF THE ATTORNEYS' TRIAL DOCKET (AKA THE "TEN-DAY-RULE" DOCKET)
(a) When a case is ready for hearing, the Attorney for either party may have it set for trial putting the case on the Attorneys' Trial Docket (AKA the "Ten-Day-Rule" Docket). After the case is placed on the Attorneys' Trial Docket, the attorney shall immediately notify the opposing attorney in writing.
(b) The procedure shall be as follows: The attorneys desiring to set the case for trial shall enter on the Attorneys' Trial Docket a note showing the style, docket number of the case, the estimated trial time, the nature of the case, the attorneys for the respective parties and the date of entering such note. Thereafter, the Clerk shall set the case for hearing except as provided herein.
The Clerk shall notify the attorneys for all parties, by postcard, of the date of the hearing; said postcard is to be mailed at least ten days before the date of hearing. The setting of hearings of uncontested adoptions is provided for in Rule 16 (a) and no cards will be sent; also in setting uncontested divorces, the Clerk may orally notify the attorneys.
When a case is set for hearing, the Clerk shall post the trial date on the Rule Docket.
(c) The Clerk shall keep a separate Attorneys' Trial Docket (AKA "Ten-Day-Rule" Docket) for each part of the Court.
(d) When a jury case is placed on the Attorneys Trial Docket for hearing, the Attorney shall place a notation "Jury Trial' on the Attorneys' Trial Docket so that the Clerk and Court may be advised of the fact that a Jury has been demanded.
RULE 15 - DIVORCE OR SEPARATE MAINTENANCE TRIALS
(a) In suits for divorce or separate maintenance where there is a property settlement or marital dissolution agreement, said agreement should be filed in the case at the time the case is entered on the Attorneys' Trial Docket or prior thereto.
(b) If there is no property settlement or marital dissolution agreement, any party seeking alimony or child support shall file a sworn statement, not less than (30) days before the hearing date, setting forth the applicants income, needs and expenses showing the purpose and amount and, if known, the income of the respondent. Not less than (20) days before the hearing date, the Respondent shall file a like sworn statement showing income, needs and obligations.
(c) In contested divorces, at least fifteen (15) days prior to the hearing, attorneys shall exchange settlement offers or inform opposing attorney why they have not done so. A copy of such offers shall not be furnished to the Court.
(d) In contested divorces, where the division, description or value of marital assets is in dispute, at least fifteen (15) days before the hearing, the attorneys shall exchange their list of marital assets with a value placed on each asset; these lists of assets shall be filed with the Court at the time of exchange.
(e) In contested divorces where there is a custody dispute, the attorneys shall file notice of this fact and if either side thinks that a psychological or other evaluation or investigation is needed, the Court should be so informed at least thirty (30) days prior to the hearing.
(f) See Rule 13 (d) regarding appeals from Divorce Referee's rulings.
RULE 16 - HEARING ON PETITIONS FOR ADOPTION
Where there is to be a hearing on a non-contested Petition for Final Decree of Adoption, the attorney shall place a notation to this effect on the Attorney's Trial Docket (AKA the "Ten-Day Rule" Docket). If said notation is entered on, or before Monday, it will automatically be set for hearing on the following Monday unless otherwise noted by the Clerk on the Attorney's Trial Docket.
RULE 17 - ARGUMENTS AND BRIEFS
(a) The Court may, in its discretion, limit or direct argument and, in non-jury cases, may choose not to hear closing argument.
(b) Briefs should be prepared in advance of the hearing and the Court encourages the submission of briefs of law in advance of the hearing of a case. In all matters of hearings of any type, if briefs are to be submitted, they must be delivered to the Court not less than three (3) working court days before the hearing. The Court may call for additional briefs.
(c) See Rule 11 (i) regarding time requirements to file briefs in motions for summary judgments and motions to dismiss.
RULE 18 - ORDERS AND DECREES
(a) Orders and decrees shall be headed by a title indicating the nature thereof. Unless otherwise permitted by the court, Orders and Decrees shall be presented to the Court within seven (7) days after the decision is rendered.
(b) The Orders and Decrees should be presented when called for immediately after the opening of the Court, or at such other times which do not interfere with the orderly transaction of business. Orders may be signed by Interchange as provided in Rule 7 (d).
(c) Orders and Decrees shall be prepared by the attorney for the prevailing parties and submitted to attorneys for other parties for approval. All Orders and Decrees shall bear the signatures of all parties or their attorneys, or a certificate of the attorney or the Clerk that copies have been served on all parties or attorneys of record as required by Rule 58.02 TRCP.
(d) In the event of a disagreement regarding the proper wording of an Order or Decree, the attorneys shall submit to the Court their version of what they think is the appropriate Order or Decree for the Court's determination. They shall also submit one extra copy with the disputed portions clearly marked.
(e) Orders or Decrees approved by all attorneys of record may be left with the Deputy Court Clerk of that part of the Court for the obtaining of the signature of the Chancellor.
(f) If Orders or Decrees, as presented, are deemed to contain unnecessary or incorrect wording, the Chancellor may revise or have the attorney re-draft the Order or Decree.
(g) Orders or Decrees shall take effect and speak as of the date of entry on the minutes; provided, that the Court may, in its discretion, (nunc pro tunc) permit Orders or Decrees to become effective and speak as of the time of the decision of the case or as of any date between that time and the date of entry on the minutes.
(h) Whenever a report of the Master or of a receiver or Commissioner or other like document is to be recorded on the minutes, the same need not be copied into the body of the decree presented to the Court, but may be incorporated by reference.
(i) The Clerk's office must be assured that all costs have been or will be paid prior to an entry being made on the rule docket that a judgment has been satisfied.
RULE 19 - REPORTS OR ACCOUNTINGS OF TRUSTEES, GUARDIANS, CONSERVATORS AND OTHER FIDUCIARIES.
(a) In all cases where a guardian, trustee or conservator is required to file an annual or periodic report or accounting, the Clerk shall keep a record reflecting the date when such is due. No later than ten (10) days before such due date, the Clerk shall notify by mail such person, or the attorney, of the obligation to file the record or accounting. it shall be filed within thirty (30) days after the due date together with a proper Order of Reference to the Master to determine its correctness.
RULE 20 - MOTIONS FOR NEW TRIAL
(a) Motions for new trial shall be filed and disposed of as provided by Rule 59 TRCP.
(b) Motions for new trial shall be in writing, shall be entered on the Motion Docket, and filed with the Clerk within thirty (30) days after rendition of a jury verdict or the entry of any decree or judgment to which exception is taken. Such motions shall be presented to the Court and disposed of on the first call of the next motion docket occurring but not less than five (5) days after the motion has been filed. Additional time may be granted by order of Court.
(c) All motions for new trial shall conform to the following requirements, viz:
1. If a new trial is sought on the ground of error in the charge of the Court, the particular language of the charge of which complaint is made shall be quoted. No general reference to the charge as erroneous as a whole shall be regarded as sufficient, but the particular part or parts of the charge complained of must be pointed out and quoted in the written motion for new trial, followed by a statement explaining why it is contended that same is erroneous.
2. it shall not be sufficient to state in general terms that the Court erred in the rejection or admission of evidence, but the party seeking a new trial shall, in the motion for new trial, point out the testimony which it is contended was erroneously admitted or excluded, either quoting same literally, giving the substance of it, or otherwise referring to it in such a manner that the exact part of the evidence so admitted or excluded can be identified specifically at the hearing of the motion for new trial.
(d) This Rule 20 shall be copied into every transcript of every case hereafter appealed from this Court in which a new trial sought because of error claimed in the charge of the Court or in the admission or exclusion of evidence.
RULE 21 - JURY TRIALS
(a) Whenever a complaint or other pleading in which a jury is demanded is presented for filing, the attorney shall endorse on the face thereof the words, "Jury Demanded", and such fact shall be called to the attention of the Clerk who shall note the same on the Rule Docket.
(b) Any party may also upon motion and showing of a right to a jury trial be granted the same.
(c) The party seeking a jury trial shall, not more than twenty (20) days after the case be at issue, file such issues of fact as deemed pertinent. Within fifteen (15) days thereafter the adversary party shall file such additional issues as deemed pertinent. A case is considered at issue when answers have been filed to the complaint and to any cross complaints, counter complaints or third-party complaints. Any party may object to any issues submitted by the opposing parties. These objections should be disposed of by motion at least three (3) days before the trial. The Court in its discretion may draft, re-draft, or re-cast any issues at any time before submitting them to a jury; and any party may, at the hearing, submit additional issues.
(d) When the Jury case is ready for trial, the case may be put on the Attorney's Trial Docket (AKA "10-Day Rule Docket") as provided by Rule 14 with the notation "Jury Trial".
(e) The Court, in its discretion, may require the attorneys in jury cases to submit to the Court Issues of law and disputed issues of fact three (3) days prior to the commencement of the trial.
The Court may require the attorneys to pre-mark the exhibits at least the day before the trial begins. The Court may allow jurors to have note pads and pencils during the trial, and if 3-ring binders are needed to hold exhibits, the Court may direct that these items be supplied by the clerk's office. The attorneys are to have enough copies of the exhibits for the Court and each juror.
(f) The failure of the party demanding a jury to comply promptly with the provisions of this Rule shall constitute the waiver of jury trial.
(g) If a party has special jury instructions which they wish the Court to consider, these jury instructions shall be submitted to the Court at least fourteen (15) days before the trial.
RULE 22 - RECORD ON APPEAL
Transcripts of evidence and all exhibits to be forwarded to the Appeal Court shall be submitted in accordance with the Tennessee Rules of Appellate Procedure.
RULE 23 - DISMISSAL FOR LACK OF PROSECUTION
Whenever a cause has remained on the Rule Docket for twelve (12) months or more without steps being taken by the Plaintiff to dispose of the cause, the Clerk and Master or opposing parties shall be entitled, on motion, to request the Court for a dismissal of the cause without prejudice at Plaintiff's costs.
RULE 24 - COMPENSATION OF THE CLERK AND MASTER WHEN NOT OTHERWISE FIXED
Pursuant to Sections 8-21-401 and 8-21-404 TCA, the Clerk and Master is authorized and empowered to collect as commission, unless otherwise fixed by order of the Court in the case, the following:
(a) For selling (real or personal) property, collecting, receiving and paying out the proceeds:
Five (5%) percent on the first $1,000.00
Three (3%) percent on the next $5,000.00
Two (2%) percent on all over $6,000.00
The total Commission not to exceed $500.00(b) For collecting, receiving and paying out the proceeds of private (real or personal) property, collecting, receiving and paying out the proceeds of private sales on one percent (1%), the total commission not to exceed $500.00.
(c) or investing funds paid into Court, the Clerk shall receive a five percent (5%) commission of the earnings from such investment as provided in 18-5-106 TCA.
RULE 25 - INVESTING FUNDS PER COURT ORDER
The Clerk and Master's Office shall invest litigant's funds paid into Court only if there is a Court Order directing it to do so. The Order shall state the name of the financial institution in which the funds are to be invested and the specific type of account to be utilized. At the time of payment or when the Order is entered, if later, it shall be the DUTY OF THE Attorney seeking investment of funds to specifically notify the Clerk receiving payment that the funds are to be invested and to provide an IRS form W-9 to the Clerk and Master's Bookkeeping Department for the Party responsible for tax liability.
RULE 26 - PROCEDURE USED WHEN CHANCELLOR SHOULD CONSIDER DISQUALIFYING HIMSELF
The Chancellors shall disqualify themselves in cases in which their impartiality might reasonably be questioned. Requests to the Court to consider disqualification may be by motion or in conference and shall be considered on a case by case basis.
RULE 27 - CONTINUANCES
(a) Cases shall not be continued by agreement, but shall be continued only by leave of Court. Cases shall not be continued except for good cause which shall be brought to the attention of the Court as soon as practicable before the date of the trial.
(b) Normally, the absence of a witness will be grounds for a continuance where the subpoena for a local witness was issued five (5) days or more before the date of trial, and seven (7) days where the witness is out of the county; however, each application for a continuance is subject to the discretion of the Court.
(c) Failure to have completed discovery, inability to take depositions, or failure to have completed any other trial preparations shall not be legal grounds for a continuance, but shall be subject to the discretion of the Court.
(d) If a case is continued, a new trial date may be assigned at the time of continuance, or the case may be placed on the Attorneys Trial Docket (AKA "10-Day Rule" Docket) for future setting.
RULE 28 - INTERROGATORIES
Answers to interrogatories shall be numbered and shall set forth, immediately preceding the answer, the question made in the same numerical sequence.
No party shall serve on any other party more than thirty (30) interrogatories without leave of Court. For purposes of this Rule a sub-part of an interrogatory shall count as an additional interrogatory. Any motion seeking permission to serve more than thirty interrogatories shall set out the additional interrogatories the party wishes to serve, together with the reasons establishing good cause for the service of additional interrogatories. If a party is served with more than thirty interrogatories, without order of the Court, he shall respond only to the first thirty.
RULES OF THE CIRCUIT COURT OF TENNESSEE
FOR THE THIRTIETH JUDICIAL DISTRICT
AT MEMPHIS, SHELBY COUNTY[fn*]REVISED AND ADOPTED EFFECTIVE JUNE 24, 1993
TABLE OF CONTENTS
RULE.
ONE. Courtroom Procedure. TWO. Sessions of Court. THREE. Filing of Pleadings. FOUR. Calendars and Assignments of Cases. FIVE. Motions Generally. SIX. Motion for Summary Judgment and to Dismiss. SEVEN. Motions for New Trial. EIGHT. Court Records. NINE. Stipulations. TEN. Orders and Decrees. ELEVEN. Consent Orders Not Required to be Submitted in Open Court. TWELVE. Interrogatories and Requests for Admissions. THIRTEEN. Domestic Relations Motions Before a Divorce Referee. FOURTEEN. Domestic Relations Cases.
A. Irreconcilable Differences Procedure.
B. Uncontested Divorces.
C. Sworn Statement Pertaining to Child Custody, Child Support or
Alimony.
D. Contested Divorces.
E. Modification of Decrees. FIFTEEN. Attorneys of Record. SIXTEEN. Notice of Trial Dates. SEVENTEEN. Keeping the Clerk Advised. EIGHTEEN. Investment of Funds. NINETEEN. Courtroom Security. TWENTY. Attorneys as Parties. TWENTY-ONE. Appearance of Counsel Pro Hac Vice. TWENTY-TWO. Voir Dire - Exercising Challenges. TWENTY-THREE. Consolidation of Cases. TWENTY-FOUR. Transfers. TWENTY-FIVE. Notice of Complex Cases. TWENTY-SIX. Private Process Servers. TWENTY-SEVEN. Requests For Production. TWENTY-EIGHT. Ex Parte Petitions. TWENTY-NINE. Americans with Disabilities. APPENDIX ONE. Guidelines for Professional Courtesy and Conduct. APPENDIX TWO. AgreementFor the purpose of coordinating and complying with the Tennessee Rules of Civil Procedure and to establish workable guidelines consistent with fairness, where not in conflict with the Rules of Civil Procedure, it is ordered that the following rules be and the same are hereby adopted by the Circuit Court of Tennessee for the Thirtieth Judicial District at Memphis, Shelby County.[fn*]
[fn*] See Tenn. Rule Civ. Proc. 10.01
RULE ONE - COURTROOM PROCEDURE
(a) All Judges will wear judicial robes, during all sessions of their courts, except when, at the discretion of a Judge, a matter before a court is of such nature as justifies an informal hearing.
(b) All persons in a courtroom will stand while the court is being opened and while the court is being adjourned or recessed.
(c) All orders, judgments and decrees will be handed to the court through the court attendants, and lawyers will not approach the Bench from the Bar except when directed by a Judge.
(d) There will be no reading of non-legal writings and there will be no smoking nor holding of cigars, cigarettes or pipes in the hand or mouth, nor eating of food, in the courtroom.
(e) All lawyers and court attendants will be appropriately attired while in attendance upon court, as upon important, solemn semi-formal occasions, and shall not be groomed or attired in a manner reasonably calculated to distract attention from the proceedings and call attention to themselves. All other persons attending court shall be fully clothed and dressed and groomed in accordance with their circumstances and abilities so as not to show disrespect to the court or distract attention from the court proceedings.
(f) Upon a Judge entering a courtroom preparatory to the formal opening of court, the Sheriff will call the courtroom to order, directing all in attendance upon court to stand, and upon being so instructed by the court, will open court in substantially the manner following:
"Hear Ye! Hear Ye! This Honorable Division
__________ of the Circuit Court of Tennessee for the
Thirtieth Judicial District at Memphis is now open for the
transaction of business pursuant to adjournment; all
persons having business with this court draw near, give
attention, and ye shall be heard. Be seated, please."(g) Only attorneys at law (or law students certified by the Supreme Court of the State of Tennessee and the Circuit Judge before whom they appear, and to the extent so certified), and litigants, where not represented by counsel shall be allowed to appear in various matters coming before the court. Whenever addressing the court, counsel or litigants shall rise and remain standing while making an objection, argument or statement to the court, including such time as the court may be interrogating counsel or making observations to him or her. Counsel are not required to stand while interrogating witnesses, but may do so at counsel's option.
(h) Upon a Judge instructing the Sheriff to adjourn court for the day, the Sheriff will direct all in attendance upon court to stand, as will the Judge, and will adjourn court in substantially the manner following:
"This court now stands adjourned until tomorrow morning at
__________ o'clock (or until a day certain.)"(i) Sheriffs in attendance upon courts will be charged with the responsibility for requiring compliance with these standards of courtroom conduct and deportment.
(j) The guidelines of Professional Courtesy adopted by the Memphis Bar Association shall be followed. (see Appendix ONE) Attorneys and persons attending court shall be treated with courtesy and shall be addressed by their courtesy title, (as "Mr.", "Ms.", "Mrs.", "Dr." etc.) and not by their first name.
RULE TWO - SESSIONS OF COURT
The court shall convene Mondays through Thursdays at 10:00 a.m. and adjourn at 4:30 p.m., provided, that the court may also specially set matters for any other time, and that the hours of court may be extended to meet the needs of a particular case. On Fridays, the court shall convene to hear legal motions at 9:00 a.m. and other matters thereafter. Uncontested divorces shall be heard at 9:00 a.m. on Wednesdays.
RULE THREE - FILING OF PLEADINGS
(a) All pleadings, orders, decrees, memoranda, and other papers submitted for consideration or action by the court shall be captioned "IN THE CIRCUIT COURT OF TENNESSEE FOR THE THIRTIETH JUDICIAL DISTRICT AT MEMPHIS, SHELBY COUNTY".[fn*]
(b) All pleadings, including orders and decrees, shall be typewritten with black ink in double space, upon legal size paper leaving a blank margin of one and one quarter (1 1/4) inches on each side of every page. Each pleading shall show the number of the case, with the proper docket suffix (R.D. or T.D.), the style of the case, the general nature of the paper filed, and the name, address and telephone of the attorney filing said pleading, and the filing attorney's Tennessee Supreme Court Registration Number. All such documents shall be in the English language (T.C.A. § 4-1-404).
[fn*] See T.R.C.P. 10.01.
RULE FOUR - CALENDARS AND ASSIGNMENTS OF CASES
(a) The Non-Jury term shall be held in the latter part of each term and shall be for such period as the business of the court requires and as fixed by the Judges from time to time, and a Non-Jury Calendar shall be published by the clerk giving the dates upon which cases are set during such term.
(b) A calendar of the jury cases to be set for trial each term shall be published for each division at least one week before the calendar is called for setting and upon the calling of the calendar the cases shall be set for trial upon a day certain.
(c) All cases filed and placed on any docket and cases appealed from the General Sessions Court, the Municipal and Juvenile Court or certified from the Probate Court shall be assigned for trial by the clerk under the supervision of the Judges. The cases shall be assigned by the clerk insofar as practicable so as to make the work in each division equal.
Whenever it is apparent from the names of the parties or the style of certain cases and from the identity of counsel in such cases that the said cases will probably be tried together, the clerk shall assign such cases to the same division.
(d) All cases set for trial will be tried or dismissed on the day upon which they are set for trial, or upon proper showing of either party may be continued.
(e) Whenever any case has been assigned to or tried before any Judge of the court, and comes on for a trial or retrial as the result of a non-suit, mistrial, reversal, setting aside of a verdict, or dismissal on some ground not going to the merits, then such case shall be assigned for any subsequent trial or trials to the division of the court presided over by the Judge before whom the case was previously pending, unless good cause be shown to the contrary.
Any attorney who files or is counsel in any cause designated herein shall inform the clerk of the Circuit Court of such filing and the clerk shall assign the cause to the court in which the prior cause was filed.
(f) All new cases filed, including proposed settlements and requests for writs, shall be assigned immediately by the clerk by a random method (calculated to distribute cases evenly) to a division of this court. Provided, that in the case of divorces, the Circuit Court Clerk shall assign them in the same manner to both Circuit and Chancery Courts, according to the agreement with that court.
Where a divorce has already been filed, any petition or motion for a protective order or an injunction involving the same parties shall be assigned to and heard by the division of court to which the divorce is assigned.
(g) Settlements may be presented to the court for approval at the opening of court on any day of the week.
RULE FIVE - MOTIONS GENERALLY
(a) The clerk shall keep in his office a well bound book for each division of the court which will be entitled "Motion Docket". Attorneys shall enter motions upon such docket setting forth the case number, style of the case, attorney(s) for the motion, attorney(s) against the motion, the date of entry of the motion and the nature of the motion.
(b) All motions except those during the actual trial of the case shall be entered on the motion docket. Only those motions placed on the motion docket by the close of business on the preceding Friday shall be heard.
Every motion shall be disposed of on the first call unless by consent of counsel in open court, or for good cause shown, it may be passed to the next motion day.
(c) A written motion, (other than one which may be heard ex parte), and notice of the hearing thereof shall be served not later than five (5) days before the time specified for the hearing, unless a specific period is fixed by these rules or by order of the court. Such notice shall be mailed to the appropriate attorney of record or an unrepresented party's last known address. This rule shall apply in cases of judgments by default.
(d) The motion docket shall be called in each division on each Friday at 9:00 a.m.
(e) Counsel shall see that a copy of all briefs and memoranda are delivered to the Judge in chambers or to that judge's courtroom clerk, who will deliver the same to the judge, before they are argued, so that the judge will have an opportunity to read them before the hearing. Filing of papers with the clerk, only, may result in the court not seeing them.
RULE SIX - MOTIONS FOR SUMMARY JUDGMENT AND TO DISMISS
(a) All motions for summary judgment and to dismiss shall be filed at least thirty (30) days before hearing of same. Counsel for the proponent of the motion shall deliver memorandum briefs to the Judge (with a copy of affidavits and supporting documents), and shall file with the clerk all original affidavits and supporting documents at least thirty (30) days prior to the hearing of the motion. Counsel for the respondent shall deliver memorandum briefs to the Judge (with a copy of affidavits and supporting documents), and shall file with the clerk all original affidavits and supporting documents at least ten (10) days prior to the hearing of the motion.
(b) No motions will be heard unless this rule is complied with by all parties. Provided, however, that the court, to prevent a miscarriage of justice, may extend these time limits and assess any expenses connected therewith to the party causing the delay, or may rule upon the motion without awaiting further the filing of the required documents.
RULE SEVEN - MOTIONS FOR NEW TRIAL
(a) All motions for a new trial, to alter or to amend judgments, or to reconsider rulings disposing of a case, shall be in writing and shall be entered upon the motion docket, and shall be disposed of within thirty (30) days after filing.
(b) All such motions, unless otherwise specially set by the court shall be entered on the motion docket no later than the Friday before the day upon which the motion is to be heard.
However, any Judge in his discretion, and upon notice to all attorneys of record, may take up a motion at any time, notwithstanding said motion may not have been entered on the motion docket in accordance with this rule.
(c) The written motion for a new trial shall conform to the following requisites:
(d) Whenever a new trial is sought on the ground of error in the charge of the court, the specific error must be pointed out by quoting the particular language of the charge of which complaint is made. No general reference to the charge as erroneous as a whole shall be regarded as sufficient but the particular part of the charge complained of must be pointed out and quoted in the written motion for a new trial.
In said written motion for a new trial it shall not be sufficient to merely state in general terms that the court erred in the rejection or admission of evidence. The party seeking a new trial is required in his written motion for a new trial to point out the particular testimony admitted or rejected either by quoting the same literally or giving the substance of it or referring to it in such a manner that the exact part of the evidence complained of can be identified.
This rule shall be copied in every transcript of every case hereafter appealed from this court in which a new trial was sought on the grounds of error in the charge of the court or in the admission or rejection of evidence.
RULE EIGHT - COURT RECORDS
No court records, including exhibits, shall be taken from the clerk's office except by a Judge, or for use in the courtroom, or by written court order.
RULE NINE - STIPULATIONS
(a) No agreement, understanding or stipulation of parties or of their attorneys in any pending cause will be recognized or enforced by the court unless made in open court or in writing and filed in said cause.
(b) If, prior to the expiration of the initial time allowed for responsive pleadings under T.R.C.P. Rule 12.01, counsel for any party desires an extension of time to move or plead, one extension not to exceed the number of days originally allowed under said Rule may be obtained without court order by filing with the clerk, within the initial time period, a stipulation specifying the period of extension and signed by counsel of record. Where the time for filing a reply or responsive pleading has been fixed by court order, any extension must be obtained by order of court.
RULE TEN - ORDERS AND DECREES
(a) Unless otherwise ordered or permitted by the court, orders and decrees shall be presented for entry on the minutes within SEVEN DAYS after decision rendered. Orders and decrees shall be prepared by counsel for the prevailing party and submitted to counsel of other parties for approval of the form of the order, which shall be evidenced by the signature of counsel. In event of disagreement about same, the party disagreeing shall note objections in writing, and he may also prepare such order or decree as he considers appropriate, adhering as nearly as practicable to the wording adopted by his adversary, and both of these, together with such briefs as either counsel may desire to present therewith, shall be submitted to the court; whereupon the court will make such disposition of the matter as may be deemed proper. Consent orders shall contain the word, "consent" in the caption or the body of the order, or both. When an order is presented to opposing counsel, if it correctly states the court's ruling, it is counsel's duty to approve it "as to form" and return it.
(b) All orders and decrees shall be presented in open court when called for by the court immediately after the opening of court each morning. The court in its discretion may call for the presentation of orders and decrees in open court at other times while court is in session.
(c) If the opposing party has no counsel of record, the attorney or party preparing the order shall send a copy of the order to the opposing party along with a notice of the time and place when the order will be presented to the court so that the opposing party may have an opportunity to appear and object to the wording of the order, or present his own order, as described above.
RULE ELEVEN - CONSENT ORDERS NOT REQUIRED TO BE
SUBMITTED IN OPEN COURTThe following consent orders (and only these) may be submitted without presentation in open court if:
1. The lawyers physically file the orders with the Circuit Court Clerk or mail them to the clerk personally.
2. The lawyers themselves are responsible to see that their orders are placed upon the minutes of the court.
3. Self-addressed return envelopes are forwarded with orders, so that attested copies of all consent orders entered may be mailed back to the submitting lawyers.
4. All consent orders filed are actually signed by the attorneys of record so as to foreclose any question of real consent. Such consent orders shall have the word "consent" in the caption and body of the order.
Consent orders that may be submitted under the foregoing four rules are as follows:
(a) Orders relating to alimony or support pendente lite.
(b) Orders relating to the settlement of cases where adults only are involved.
(c) Orders relating to dismissal of causes with or without prejudice.
(d) Orders relating to bills of particulars in divorce cases.
(e) Orders extending the time to answer.
Consent orders that may not be submitted under the foregoing four rules include, as examples:
(a) Orders relating to continuances of cases for trial.
(b) Orders relating to child support, or custody either pendente lite or permanently.
(c) Orders relating to the settlement of minors' cases.
(d) Orders relating to the settlement of Worker's Compensation cases.
(e) Orders that involve the court's discretion.
RULE TWELVE - INTERROGATORIES AND REQUESTS FOR
ADMISSIONS(a) When answering interrogatories and requests for admissions they shall be numbered and the replying party shall, as a part of his answer, set forth immediately preceding the answer, the question or the request made, in the same numerical sequence.
(b) No party shall serve on any other party more than thirty (30) interrogatories without leave of court. For purposes of this Rule a sub-part of an interrogatory shall count as an additional interrogatory. Any motion seeking permission to serve more then thirty interrogatories shall set out the additional interrogatories the party wishes to serve, together with the reasons establishing good cause for the service of additional interrogatories. If a party is served with more than thirty interrogatories, without order of the court, he shall respond only to the first thirty.
RULE THIRTEEN - DOMESTIC RELATIONS MOTIONS BEFORE
A DIVORCE REFEREE(a) All domestic relations motions before or after divorce except those excluded by this Rule, shall first be heard by the Divorce Referee. To accomplish this, an order of reference shall be entered by the court.
A Divorce Referee's motion docket for such motions will be maintained in the Circuit Court Clerk's office separate and apart from the motion dockets of the several divisions of the Circuit Court. Motions will be on a form provided by the clerk and kept in a loose leaf binder.
(b) Motions will be heard eight (8) days after notice in accordance with T.R.C.P., Rules 6.04, 6.05, and 6.01 and will be heard each week on Tuesday, Wednesday, and Thursday, at 2:00 p.m. as set by the clerk. When a motion is stricken it must be refiled; however, upon application, motions can be reset for a date no later than the Thursday of the succeeding week.
(c) Motions shall not be placed on the docket until the defendant has been served with original process. Such motions shall not be mailed to the clerk.
(d) All domestic relations motions, except matters affecting child custody, visitation rights, contempt matters, possession of property and injunctions, will be heard and decided by the Referee or Deputy Referee, and the ruling will be noted on the blotter to be maintained by the Referee. At all hearings before the Referee, an affidavit of income and expenses shall be furnished by each party, showing deductions from income for taxes and social security.
(e) Orders confirming the ruling of the Referee shall be submitted to the court to which the case is assigned within seven (7) days of the Referee's ruling as provided by Rule TEN.
(f) Either party may have the motion heard by the judge on appeal.[fn*] Appeals for a rehearing must be made by written motion within ten (10) days of the Referee's ruling, regardless of the date of the court's order affirming that ruling, provided, however, that no appeal shall be heard until the court's order has been entered. The appeal shall be heard at a time designated by the court to which the case is assigned. However, the court's order on the Referee's ruling will be in effect and enforceable pending appeal.
(g) In the event application is made to the court for modification of an order or final decree of alimony and child support and a hearing is granted upon same, it shall be referred to the Referee for a finding. If no appeal from said finding is made within ten (10) days as provided herein above, the finding of the Referee shall become final.
[fn*] Private Acts, 1973, Ch. 161, § 9.
RULE FOURTEEN - DOMESTIC RELATIONS CASES
A. IRRECONCILABLE DIFFERENCES PROCEDURE
(1) At the hearing of the irreconcilable differences cases, the plaintiff shall be required to satisfy jurisdictional requirements by sworn testimony. Sworn testimony shall be required also to establish that the written agreement provides "adequate and sufficient provision for the custody and maintenance of any children of the marriage and for the equitable settlement of the property rights between the parties." The above language of the statute should be used in the decree. Child support should be expressed in dollars and cents and not in percentages.
(2) The written agreement may be incorporated in the final decree verbatim or by reference in the discretion of the court.
B. UNCONTESTED DIVORCES
(1) All suits for divorce in which the parties are agreed that the case is ready and will be tried uncontested or in which the time for answer has expired and the defendant has not appeared or answered shall be set and heard in accordance with this rule.
(2) In divorce cases in which no responsive pleading has been filed, motion for judgment by default under T.R.C.P. 55 shall be made. Such order must also contain a certificate of service on the defendant or cross-defendant as required by T.R.C.P. 58.02. Unless there is no last known address, this certificate shall show that the copy was sent to that last known address, setting forth the address. If there is no known last address, the certificate shall specifically so state. Such order when left for the court's action will be signed as "approved" by the attorney making such application. Provided, however, that it shall remain the responsibility of counsel to see that the order has actually been signed by the Judge and filed by the clerk when signed.
(3) Divorces based on irreconcilable differences cannot be heard until sixty (60) days or ninety (90) days have elapsed since filing of the complaint in accordance with T.C.A. § 36-4-103.
(4) Unless otherwise required by law, default judgment in advance of trial is not required in irreconcilable differences divorces, but notice of the divorce hearing shall be given to the opposing party. Divorces on other grounds will not be heard until thirty (30) days after default judgment has been taken or thirty (30) days after an answer has been filed. Settings on uncontested cases may be obtained by plaintiff or cross-plaintiff's attorney from the office of the Circuit Court Clerk. Such cases will be set at 9:00 a.m. on Wednesday mornings. Whenever an attorney has represented the defendant or cross-defendant at any stage of the proceeding, attorney for plaintiff or cross-plaintiff shall give him five (5) days written notice of the date and time of the hearing.
C. SWORN STATEMENT PERTAINING TO CHILD
CUSTODY, CHILD SUPPORT OR ALIMONY(1) In all contested divorces or suits for separate maintenance, where no marital dissolution agreement or property settlement is mutually agreed upon, each party shall file with the clerk within 90 days after an answer is filed, or 120 days after suit is filed, (whichever is sooner), a sworn statement setting forth his or her income, a list of expenses, and a description and valuation of real or personal property possessed in any form, the state of its title, and his or her claimed interest in such property. Said sworn statement shall also include, if known, or if the information is reasonably procurable, the income and property interest of the opposing party, both real and personal, and the valuation thereof. Any changes in said statement shall be made as soon as possible, and not later than ten (10) days before the trial, unless circumstances beyond a party's control are shown.
(2) The statement shall set forth separately the amount deducted from salary for social security and income tax. Self-employed persons shall estimate these sums, using governmental guidelines and such other reliable sources as are available.
At all hearings before the Divorce Referee under Rule THIRTEEN, the same statement of monthly income and expenses shall be furnished by each party.
Counsel for both parties shall furnish opposing counsel a copy of the aforesaid required statements at the time of filing.
(3) In all custody proceedings the sworn statements required by T.C.A. § 36-6-210 must also be contained in the pleadings or in an affidavit attached to the pleading.[fn*]
D. CONTESTED DIVORCES
Before trial of any contested divorce begins, counsel shall hand to the court a memorandum including the following:
(1) Certification that the party's Rule FOURTEEN (C) affidavit of income and expenses is in the file.
(2) Whether the client wishes a divorce, legal separation, to remain married, or to allow the other spouse to obtain one of the foregoing.
(3) Whether grounds can be stipulated to avoid proof. (T.C.A. § 36-4-129).
(4) The names and ages of any children of the parties.
(5) The names of the children whose custody is sought.
(6) The nature of the visitation sought: (e.g. "reasonable" or specific). If specific, the details thereof.
(7) The amount of child support sought.
(8) Proposed disposition of the home.
(9) Fair market value of home and amount of mortgage.
(10) Proposed disposition of any other real property and their values.
(11) Proposed division of debts.
(12) Specific items of personalty sought, and their values.
(13) The amount and type of alimony sought (in solido, etc.).
(14) The amount of attorney's fee sought.
(15) Certification that the above written proposals were submitted to opposing counsel at least 24 hours before the trial.
E. MODIFICATION OF DECREES
Counsel seeking a modification of any divorce decree shall present to the Judge in whose court said cause is pending a sworn petition setting forth the circumstances and conditions of the parties relied upon, and the Judge thereupon shall set a day certain for hearing of such petition. Those matters regarding modification of decrees regarding support in domestic relations matters shall be heard as provided in Rule THIRTEEN.
[fn*] Private Acts, 1973, Ch. 161, § 9.
[fn*] See Appendix II for joint agreement with Juvenile Court on child support enforcement.
RULE FIFTEEN - ATTORNEYS OF RECORD
Attorneys shall place or have the clerks place their names on the docket immediately upon being employed in any case. Such attorneys shall remain counsel of record until excused by the court or until the judgment becomes final. Counsel shall keep the clerk advised at all times of their correct mailing addresses.
RULE SIXTEEN - NOTICE OF TRIAL DATES
The official notification of the setting of cases for trial shall be publication of court calendars in the "Daily News" of Memphis (or any other daily newspaper of general circulation in Shelby County which prints the entire docket of the court) or the posting of court calendars on the bulletin board of the offices of the clerk. Failure to receive a courtesy notice from the office of the clerk shall not be recognized as a ground for continuance.
RULE SEVENTEEN - KEEPING THE CLERK ADVISED
Attorneys and unrepresented parties are responsible for keeping the clerk advised of their correct mailing addresses and telephone numbers at all times. Failure to do so may result in lack of notice to a party or attorney of important court proceedings. It is not the responsibility of the court or the clerk to investigate the whereabouts of a party or attorney.
RULE EIGHTEEN - INVESTMENT OF FUNDS
(a) Any order, judgment or decree that provides for the investment of funds by the clerk must be brought to the attention of the clerk, Deputy Administrator or his Office Manager.
(b) It is incumbent on the attorney for the party involved in the investment of said funds to obtain from the clerk proof of such investment within seven (7) days from entry of the order, judgment or decree.
(c) Proof shall be a copy of the receipt from the financial institution where said funds are invested, and shall reflect the date and account number.
RULE NINETEEN - COURTROOM SECURITY
In order to ensure and maintain proper security for the protection of government property and the safety of the court, court personnel, attorneys and all persons in attendance thereupon, whether as a defendant, witness, or spectator, the Sheriff of Shelby County is authorized and directed to employ all lawful and constitutional means necessary to insure the security of the courtrooms and all passages, corridors, rooms, and points of ingress and egress thereto. The Sheriff may, circumstances requiring in his discretion, establish and promulgate reasonable regulations not inconsistent with this rule for purposes of carrying out its directive including, but not limited to, the search of all persons seeking to enter the various courtrooms of the Shelby County Courthouse Civil Divisions. Anyone seeking to enter said courtrooms not consenting to a search of their person when requested by one lawfully authorized to conduct said search, will not be admitted. Strip body searches are not authorized. Only authorized personnel serving the court shall wear sidearms in the courtroom while court is in session. In the discretion of the Judge of each division of this court, all persons who are legally authorized to carry a firearm because of their status as law enforcement officials may wear said firearms in the courtroom if they are present only as disinterested witnesses. All other persons legally authorized to carry firearms must check their firearms with the court bailiff while they are in the courtroom, or with the nearest office of the Sheriff.
RULE TWENTY - ATTORNEYS AS PARTIES
In any action in which a Shelby County attorney is a real, rather than a nominal party, that fact shall be brought to the attention of the Judge by written notice, a copy of which shall be filed and delivered within thirty (30) days after the first responsive pleading in Circuit Court, or the docketing of the case in Circuit Court (whichever is sooner), and shall describe the nature of the case, state whether a jury has been demanded, and indicate whether or not the attorney-party intends to testify. The court will then forthwith decide whether or not to request that a judge from outside Shelby County be designated to hear the case, and will notify counsel for the parties of the decision. Nothing herein shall prevent counsel for either party from requesting that the court obtain designation of an extra-county Judge.
RULE TWENTY-ONE - APPEARANCE OF COUNSEL
PRO HAC VICEA lawyer residing in a state with a rule similar to this one, who is licensed, in good standing and admitted to practice before the court in that state shall be permitted to file complaints, petitions, and any other cause in Circuit Court only upon certifying in writing on the instrument filed, before or at the filing, that such lawyer has not filed five or more such instruments, nor made five or more appearances in the courts of Tennessee within the past 12 months. Additionally, a lawyer licensed to practice and in good standing in the State of Tennessee must be named as associate counsel on the certification and said Tennessee associate counsel must be an active participant in all court proceedings.
RULE TWENTY-TWO - VOIR DIRE - EXERCISING CHALLENGES
If any party to a suit requests to challenge in writing during voir dire, challenges shall be exercised as follows:
Counsel for each plaintiff shall interrogate the prospective jury. Then, counsel for each defendant shall interrogate the prospective jury. Next, counsel for the parties will write the name of those persons challenged upon a piece of paper, indicating which party is exercising the challenge. All duplicate challenges shall be charged alternately against the number of challenges allowed a party, beginning with the plaintiff and alternating with the parties making the duplicate challenges. The court will excuse the challenged persons and not reveal to the veniremen by whom the challenge was exercised.
Jurors not challenged at the time of submission of challenges to the court shall be deemed accepted. After challenges are exercised, the new persons called to the jury box may be examined and challenged in the same manner, until a jury is selected.
RULE TWENTY-THREE - CONSOLIDATION OF CASES
In instances in which consolidation of cases for trial is desirable, and the cases have been assigned to different divisions of the court by the clerk, in the absence of important reasons to the contrary, such cases shall be transferred to the division in which the case first filed has fallen.
RULE TWENTY-FOUR - TRANSFERS
Cases set for trial in any division of Circuit Court may be transferred on the trial date to any other division that will accept the transfer. Attorneys waiting for trial shall not leave the immediate area of the courtroom without express permission of the court. At the time of transfer, no motion should be pending before the transferring judge. When transferred, the case will remain in that division for all subsequent proceedings.
RULE TWENTY-FIVE - NOTICE OF COMPLEX CASES
Counsel has an affirmative duty to inform the court, well in advance of trial, of any case that is expected to be over five (5) days in length, or involves over four (4) separately represented parties, or involves complex questions of fact or law, or in which there can be anticipated a number of questions which should be resolved before selection of a jury, or which, for any other reason, reasonably requires advance notice to the court to avoid delay, confusion and error at the trial.
All reasonably anticipatable motions in limine should be filed well before the day of the trial.
Failure to abide by this rule may result in continuance of the trial, or such other action as the court deems proper.
Any party may request a pre-trial conference with the court.
RULE TWENTY-SIX - PRIVATE PROCESS SERVERS
If process is to be served by persons other than the Sheriff or his deputies, the return shall state clearly and legibly the name and residence address and telephone number of the process server, his or her place of business or employment and its address; his connection with the business, his or her age, the date and place where process was served, and the manner of service. It shall be signed by the server and that signature shall constitute a solemn representation to the court that the process was served as stated.
All returns shall be made upon the process paper itself, if there is room therefor. If not, the return shall be made upon a separate paper, referring specifically to the process served, and shall be physically attached to said process.
RULE TWENTY-SEVEN - REQUESTS FOR PRODUCTION
Where documents or things are produced for inspection, pursuant to T.R.C.P. 34, they need not be filed with the clerk. If the originals or copies of said documents or things are filed with the clerk by the responding party, the presence or absence of a document or thing among those filed with the clerk shall be determinative of the question of whether or not it was produced. If not to be filed with the clerk, the parties may agree in writing upon a repository of the documents or things produced, and the presence or absence of the document or thing in the repository shall be determinative of the question of whether or not it was produced. The burden of establishing that matter agreed to be produced was not in fact produced shall be on the person asserting lack of production, and failure of that person to require deposit, as above, shall resolve the issue against him.
RULE TWENTY-EIGHT-EX PARTE PETITIONS
Before a petition for an ex parte temporary restraining order or (in domestic relations cases) a temporary injunction, may be presented to a Judge, the petitioner must give the opposing party such notice of the petition and the time and place it will be presented to the court as the circumstances permit. The petition must contain facts (not "fears") showing an emergency, the reason notice is not possible, and that the damage cannot be repaired by later, ordinary proceedings. (T.R.C.P. 65; Gibson's Suits in Equity, 7th Ed., Sec. 575).
RULE TWENTY-NINE - AMERICANS WITH DISABILITIES
All attorneys with knowledge of a participant in the trial process with a disability requiring special accommodation are to notify in writing the clerk of the Division of Court in which the matter is to be heard, with a copy of said notice to the judges, at least ten (10) days prior to the hearing, and in no event, less than five (5) days before the hearing, in order to allow the court to comply with the letter and spirit of the Americans with Disabilities Act or the case will be continued.
APPENDIX I GUIDELINES FOR PROFESSIONAL COURTESY
AND CONDUCT PUBLISHED BY THE MEMPHIS BAR ASSOCIATIONCONTENTS
PREAMBLE I. COURTESY, CIVILITY AND PROFESSIONALISM II. PROFESSIONAL CONDUCT IN LITIGATION III. PROFESSIONAL CONDUCT IN BUSINESS AND COMMERCIAL PRACTICE
MEMPHIS BAR ASSOCIATION
GUIDELINES FOR PROFESSIONAL COURTESY AND CONDUCTPREAMBLE
A lawyer's duty to each client is to represent that client zealously within the bounds of the law. In striving to fulfill that duty, a lawyer must ever be conscious of the broader duty owed to the legal system which is designed to resolve human and societal problems in a rational and logical manner.
A lawyer owes to the judiciary a duty of candor, honesty, diligence and utmost respect.
A lawyer owes to opposing counsel a duty of courtesy, fairness, and cooperation.
A lawyer should strive to achieve higher standards of conduct than those called for by the Code of Professional Responsibility.
A lawyer owes to the administration of justice a duty of personal dignity and professional integrity.
In furtherance of these fundamental concepts, the following Guidelines for Professional Courtesy and Conduct are hereby adopted. These Guidelines are not intended nor should they be construed as establishing any minimum standards of professional care or competence. The sole purpose of adopting these Guidelines is to promote and foster the ideals of professional courtesy, conduct and cooperation set out above.
I. COURTESY, CIVILITY AND PROFESSIONALISM
1. A lawyer should treat the opponent, the opposing party, the court and the members of the court staff with courtesy and civility, conducting business in a professional manner at all times.
2. A lawyer has no right, even when called upon by a client to do so, to abuse or to indulge in offensive conduct towards the opposite party. A lawyer should always treat adverse witnesses and parties with fairness and due consideration.
3. While in adversary proceedings, clients are litigants, and while ill feelings may exist between them, such ill feeling(s) should not influence a lawyer's conduct, attitude, or demeanor towards opposing lawyers.
4. A lawyer should do all that is necessary to ensure that clients, the public, and other lawyers respect the judicial system. To this end, a lawyer should:
(a) Never knowingly misstate fact or law, regardless of any pressure to do so.
(b) Not engage in tactics that complicate or delay matters unnecessarily.
(c) Avoid creating unrealistic expectations of a client or the public.
(d) Avoid denigrating the legal profession, the court system or adversary counsel.
5. A lawyer should encourage methods and practices which simplify and make less expensive the rendering of legal services.
6. A lawyer should never institute or pursue a legal procedure solely for the lawyer's own profit where there is no reasonable expectation that it will advance or contribute to the best interest of the client.
7. A lawyer should preserve and respect the law by observing all duties to the community and to the Profession. To this end, a lawyer should:
(a) Contribute time and expertise to those unable to otherwise afford representation of their interests.
(b) Participate in public service and public education activities through personal involvement and financial contributions, and encourage fellow lawyers to do the same.
(c) Work to develop among lawyers a strong commitment to the ideals of integrity, honesty, competence, fairness, independence, courage, and dedication to the public interest.
8. A lawyer should recognize the importance of communication with both clients and adversaries. A lawyer should return all telephone calls and respond to all correspondence promptly.
9. A lawyer should never deceive the court or another lawyer.
10. A lawyer should honor promises or commitments made to another lawyer.
11. A lawyer should make every reasonable effort to cooperate with opposing counsel.
12. A lawyer should maintain a cordial and respectful relationship with opposing counsel.
13. A lawyer should seek sanctions against opposing counsel only where required for the protection of the client or of the legal system and not for mere tactical advantage.
14. A lawyer should not make unfounded accusations of unethical conduct about opposing counsel.
15. A lawyer should never intentionally embarrass another lawyer and should avoid personal criticism of another lawyer.
16. A lawyer should always be punctual.
II. PROFESSIONAL CONDUCT IN LITIGATION
1. A lawyer should respect the schedule and commitments of opposing counsel, clients, and the courts, thereby promoting the efficient administration of justice and public confidence in our profession. To this end, a lawyer should:
(a) Consult opposing counsel, when practical, before scheduling hearings and depositions.
(b) Avoid unnecessary continuances of trials, hearings or depositions.
(c) Immediately notify opposing counsel and the court of scheduling conflicts.
2. A lawyer should consult opposing counsel in an effort to resolve matters by agreement before filing motions or requesting hearings.
3. A lawyer should refrain from engaging in unnecessary, excessive or abusive discovery. Requests for production of documents should not be excessive or designed solely to place a burden on the opposing party.
4. A lawyer should comply fully with reasonable discovery requests and should not countenance obstructive or evasive tactics. To this end, a lawyer should:
(a) Exchange information voluntarily, when practical, without formal discovery requests;
(b) Upon request produce all responsive documents, and produce them as they are kept in the ordinary course of business or organize and label them to correspond with the categories in the request.
5. A lawyer should stipulate to matters where they are undisputed or where no genuine basis for objection exists.
6. A lawyer should always contact opposing counsel in an effort to resolve litigation. Since most cases are ultimately settled, initiating such discussions at the outset is recognition of reality, not a sign of weakness.
7. A lawyer should make reasonable efforts to conduct all discovery by agreement.
8. A lawyer should not use any form of discovery, or the scheduling of discovery, as a means of harassing opposing counsel or an opposing party.
9. A lawyer should, when practical, consult with opposing counsel before scheduling hearings and depositions in a good faith attempt to avoid scheduling conflicts.
10. A lawyer should avoid unnecessary delays. To this end, a lawyer should:
(a) Give notice of cancellation of depositions and hearings to the court and opposing counsel at the earliest possible time.
(b) Submit any proposed order promptly to opposing counsel and attempt to reconcile any differences before presenting it to the court.
(c) Respond promptly to any proposed order submitted by opposing counsel.
11. A lawyer drafting a proposed order should reflect in it clearly and accurately the ruling of the court and nothing more.
12. A lawyer should serve copies of all briefs upon opposing counsel at the time that they are filed with the court.
13. A lawyer should not take a default judgment without first giving reasonable notice to opposing counsel or to the opposing party if not represented by counsel, of his intention to do so, and should agree to set aside such a default judgment when reasonable cause exists and his client upon his recommendation consents.
14. A lawyer should grant reasonable extensions of time to opposing counsel where such extensions will not have a material adverse effect on the rights of the client.
15. A lawyer should not attempt to obtain an advantage by informal communication with the court.
III. PROFESSIONAL CONDUCT IN
BUSINESS AND COMMERCIAL PRACTICE1. A lawyer should determine the sophistication, goals and demands of the client before representing the client in a transaction.
2. A lawyer should ascertain and respect the scope of the negotiating authority granted by the client.
3. A lawyer should be guided by the client's goal in completing a transaction. To this end, a lawyer should:
(a) Utilize terms which are clear, concise and practical in drafting documents.
(b) Not make an issue of matters of form when revising documents. Pride of authorship, when matters of substance are not involved, only contributes to delay and cost in a transaction.
4. A lawyer should not seek tactical advantage by delaying negotiations until the last minute. To promote efficiency and fairness a lawyer should, whenever possible, treat the negotiation of a transaction and the closing thereof as mutually exclusive activities.
5. A lawyer should not use the threat of legal proceedings or of the possible effect thereof as a means of obtaining an unjustified advantage for a client.
6. When a lawyer requires as part of a transaction an opinion letter from another lawyer, it should deal only with the matters requested, any reservations being clearly stated.
APPENDIX II AGREEMENT
Relative to Child Support Enforcement Between the Judges and
Chancellors of the 30th Judicial District and Tenth Chancery
Division of Tennessee and the Judge of the Juvenile
Court of Memphis and Shelby County, TennesseeA. It appearing to the Judges and Chancellors of the Circuit and Chancery Courts of the 30th Judicial District and Tenth Chancery Division of the State of Tennessee, and the Judge of the Juvenile Court of Memphis and Shelby County that:
1. Tennessee Code Annotated Section 36-5-402 (a) provides that all child support cases must be heard within thirty (30) days of the service of process.
2. Tennessee Code Annotated Section 36-5-402 (b) (1) (A) provides that the presiding judge of each judicial district of this State shall appoint a referee or referees to hear all child support cases brought pursuant to Title IV-D of the Social Security Act within a prescribed, expedited time schedule.
3. The presiding judge may enter into an agreement with juvenile court to set, enforce, and modify child support orders and that, as contemplated in Tennessee Code Annotated Section 37-1-104 (d), the Juvenile Court of Memphis and Shelby County has been designated to provide child support enforcement in the entire 30th Judicial District, consisting of Shelby County, Tennessee, pursuant to Title IV-D of the Social Security Act.
4. Referees of the Circuit and Chancery Courts in Shelby County have the authority to conduct hearings pursuant to the setting of support as prescribed in Tennessee Code Annotated Section 36-5-405, subject to review by a judge. Referees of the juvenile court have, subject to confirmation by the judge, all of the powers of trial judges in conducting child support and other proceedings.
5. Pursuant to Tennessee Code Annotated Section 36-5-402 (b) (1) (B) the 30th judicial district had in effect before October 1, 1985 a system for the appointment of referees to hear child support cases which satisfied the requirements of law and is, therefore, not required to comply with the provisions of Tennessee Code Annotated Section 36-5-402 (b) (1) (A) relative to the appointment of referees.
6. To fully satisfy the requirements of State and Federal law relative to child support enforcement, there should be an agreement, as prescribed in Tennessee Code Annotated Sections 36-5-402 (b) (2) and 37-1-104 (d), between judges having child support jurisdiction in Shelby County, Tennessee whereby the juvenile court shall have jurisdiction in said county over all child support actions pursuant to Title IV-D of the Social Security Act.
B. WHEREFORE, it is hereby agreed that the judges of the circuit and chancery courts and the judge of the juvenile court of the 30th judicial district, which consists entirely of Shelby County, Tennessee, having concurrent jurisdiction in child support matters as provided by law, shall exercise such jurisdiction in their respective courts in furtherance of the purpose and intent of the Child Support Enforcement Act of 1985 in accordance with the terms and conditions agreed upon, which are as follows:
1. The Juvenile Court shall exercise child support jurisdiction in all cases in which an applicant or recipient receives or authorizes payment of public assistance pursuant to Title IV-A or IV-E of the Social Security Act, and is deemed thereby, as set forth in Tennessee Code Annotated Section 14-8-124 (a), to have assigned his or her support rights to the State.
2. The Juvenile Court shall also exercise child support jurisdiction in any non-public assistance case in which a person having custody of a child makes application to that Court's Child Support Bureau for assistance in obtaining child support as provided in Tennessee Code Annotated Section 14-8-124 (c). In those non-public assistance cases in which the Circuit or Chancery Court had prior jurisdiction, and where it appears the most appropriate assistance would be an income assignment, the applicant will be referred to the clerk of the appropriate court for such assistance; however, this procedure will not be followed if the clerk of the court having prior jurisdiction requests in writing that the Juvenile Court handle those matters.
3. Upon evidence being presented to the Circuit or Chancery Court that an order of support has been entered in Juvenile Court, or that an application for child support assistance has been made to Juvenile Court, such Circuit or Chancery Judge will leave such cause for purposes of support in the Juvenile Court. The Circuit and Chancery Courts shall not act upon any original petition for support in a matter in which Juvenile Court has assumed jurisdiction pursuant to this agreement.
4. Cases in which the State Department of Human Services certifies to Circuit or Chancery Court in Shelby County that an assignment of support rights has been made to the State by a public assistance recipient, as provided in Tennessee Code Annotated Section 14-8-124 (b), shall be transferred to Juvenile Court.
5. In any child support case in which chancery or circuit court has exercised prior jurisdiction and juvenile court accepts jurisdiction pursuant either to an application for assistance in obtaining child support pursuant to Title IV-D of the Social Security Act or to a case having otherwise been transferred to the Juvenile Court in accordance with Tennessee Code Annotated Section 37-1-104 (d), to promptly notify the clerk of the appropriate court by forwarding to such clerk a written notice of that fact. Such notice shall contain, if known, the docket number, the names of the parties and other helpful identifying information.
6. It is the intent and purpose of this agreement that all child support matters in which the custodian of a child makes application for assistance in obtaining child support pursuant to Title IV-D of the Social Security Act, and those cases in which support rights have been assigned to the State by recipients of public assistance be dealt with in Juvenile Court, and that as to all other matters pertaining to child support, jurisdiction shall continue to be exercised by the circuit or chancery court which had original jurisdiction.
7. The chancery and circuit courts and juvenile court shall adopt such rules of court as they deem necessary to assure compliance with the terms of this agreement.
This agreement may be modified in writing at any time.
This agreement is entered into this 1st day of October, 1985.
IN THE CRIMINAL COURT OF TENNESSEE FOR THE 30TH
JUDICIAL DISTRICT AT MEMPHISRULES OF PRACTICE AND PROCEDURE
EFFECTIVE JANUARY 17, 1996
TABLE OF CONTENTS
RULE.
1. Code of Professional Responsibility. 2. Abrogation of Former Rules. 3. Pleadings, Papers, Cases, Counsel. 4. Assignment of Criminal Cases. 5. Attorneys. 6. Rules of Criminal Procedure. 7. Bail Bond Companies. 8. Courtroom Decorum. 9. Waiver of Rules.
IT IS ORDERED by the judge of each Division of this Court that the following Rules of Practice and Procedure shall be observed in the conduct of the business of the Court, the same being adopted and ordered spread upon the Minutes of each Division of the Court pursuant to § 16-3-407 of the Tennessee Code Annotated.
RULE 1 CODE OF PROFESSIONAL RESPONSIBILITY
1.01. The ethical standards relating to the practice and the administration of law in this Court shall be as set forth by Rule 8 of the Rules of the Tennessee Supreme Court, and shall be cited as: "Code of Professional Responsibility."
RULE 2 ABROGATION OF FORMER RULES
2.01. All former rules of local practice in this Court are hereby abrogated.
RULE 3 PLEADINGS, PAPERS, CASES, COUNSEL
3.01. All pleadings, including written motions, orders, briefs and other papers submitted to the Court shall be typewritten, double-spaced upon legal size 8 1/2 x 14 inches, having a blank margin of 1 1/4 inches on each side of every page. The front page shall be captioned: "IN THE CRIMINAL COURT OF TENNESSEE FOR THE 30TH JUDICIAL DISTRICT AT MEMPHIS" and shall show the case number, the style, the crime charged, the nature of the paper filed, and the attorney's name, address, and registration number of the Tennessee Board of Professional Responsibility.
3.02. All cases shall be set chronologically unless otherwise ordered by the court. Precedence shall be given to the disposal of jail cases. Attorneys for each defendant shall sign their name, firm address, telephone number and registration number of the Tennessee Board of Professional Responsibility, upon the case jacket on becoming counsel. That attorney shall remain counsel of record for the defendant until final disposition of the case, unless excused by the Court for good cause. Final disposition shall not extend to post conviction relief petitions, revocation of suspended sentences, parole matters or matters unrelated to the case.
RULE 4 ASSIGNMENT OF CRIMINAL CASES
4.01. The following method will be employed by the Criminal Court Clerk's Office for the initial assignment of cases to the ten divisions of Court. The following types of cases will be assigned to the ten divisions of court in numerical order beginning with Division I through X as the indictments are filed in the Criminal Court Clerk's Office. This procedure shall be used in the following types of cases: Murder in the First Degree, Attempt Murder in the First Degree, Conspiracy to Commit First Degree Murder, Second Degree Murder, Aggravated Kidnapping, Especially Aggravated Robbery, Aggravated Rape, Aggravated Arson, Aggravated Robbery, Rape, Aggravated Sexual Battery, Voluntary Manslaughter, Vehicular Homicide, Kidnapping, Robbery, Spousal Rape and Incest. All other cases will be divided equally among the ten divisions of the Court. All salary petitions filed by the Criminal Court Clerk and the Sheriff will be heard by the Administrative Judge.
4.02. Once a case has been assigned, all matters in the case shall be heard in that division.
4.03. Any motions or petitions requesting hearings in matters that have not been previously assigned to a division of court shall be filed with the Clerk's Office and assigned in a manner prescribed by the judges of this Court. In the event the Clerk's Office is closed, and there is an emergency hearing, the petition will be presented to the Administrative Judge of the Criminal Court. If the Administrative Judge is unavailable then the matter will be presented to any available Judge of this Court.
Petitions for Writ of Habeas Corpus will filed in the Clerk's Office between the hours of 8:00 a.m. through 4:30 p.m., Monday through Friday, and immediately assigned to the next Judge in numerical rotation beginning with Division I through X. In the event the Judge, to whom the writ has been assigned is not available, the next available Judge in rotation shall be assigned the writ. If there is a conflict of interest involving the Judge to whom the Writ of Habeas Corpus is assigned, the writ shall be assigned to the next Judge in rotation. If there is a request for a Writ of Habeas Corpus after hours on weekends or holidays, the writ is to be handled by the Administrative Judge unless there is a conflict of interest or the Administrative Judge is not available. Then, the writ is to be taken to any available Judge of this Court.
The procedure for assigning cases will be strictly adhered to by the Criminal Court Clerk unless a written order is entered by a Judge or Judges of this Court changing the method or assignment of a case due to an emergency or a conflict of interest.
4.04. When necessary for the efficient administration of justice, a judge may hear and determine any matter by interchange for another judge without the necessity of transferring the cases from one division to another.
4.05. The judges may transfer cases among themselves by mutual consent. It is not necessary that the parties or their counsel consent to such transfer. A party requesting a transfer of a case from one division to another division shall obtain an order from the Court to which the case is assigned, transferring the case to another division.
RULE 5 ATTORNEYS
5.01. In order to practice law in this Court, an attorney who is a resident of Tennessee must be licensed to practice law in this State, in accordance with Rule 7 of the Tennessee Supreme Court Rules, and must be duly qualified and registered with the State Board of Professional Responsibility, pursuant to Rule 9 of the Rules of the Tennessee Supreme Court.
5.02. Non-resident attorneys. Non-resident attorneys shall be entitled to practice in a particular case upon compliance with Tennessee Supreme Court Rules 19 and 20.
RULE 6 RULES OF CRIMINAL PROCEDURE
6.01. The Rules of Criminal Procedure of Tennessee are hereby adopted as the Rules of this Court and shall apply in all criminal proceedings.
6.02. The Rules of Sentencing Practice and Procedure set forth in Title 40, Chapter 35, Tennessee Code Annotated, are hereby adopted as the Rules of this Court and shall apply, as applicable, in all criminal proceedings.
6.03. All preliminary motions, including motions to dismiss, and motions to suppress evidence, and notice to adversary counsel, required by Rule 12 of the Rules of Criminal Procedure, must be filed in writing not more than twenty (20) days after formal arraignment of the defendant, unless an extension is allowed by the Court for good cause. Upon the filing of a motion to suppress evidence, the defendant shall appear in Court within seventy-two (72) hours and receive an evidentiary hearing date. These evidentiary hearings are to be heard prior to the report date, unless good cause is shown for a continuance. A violation of this requirement and this rule will authorize the Court to enter a summary dismissal of said motion.
6.04. Notice to adversary counsel required by the Criminal Sentencing Reform Act of 1989 shall be filed with the Court not less than fourteen (14) days before trial. The filing party shall certify that a copy has been furnished to adversary counsel. Hearings on motions will be set by the Court upon request of either party made in open court, or as otherwise directed by the judge of a particular division.
6.05. Where there is more than one defendant in a case, defense counsel may agree on the order they shall follow. If unable to agree, the order in which the defendants are named in the indictment shall be followed. If each defendant be named by separate indictment, the order shall be followed chronologically. Such order shall be followed in the voir dire, pleas, cross-examination, testimony of defendants and arguments of counsel.
6.06. The ten divisions of Criminal Court shall convene at 9:30 o'clock a.m. daily, except holidays, Saturdays and Sundays.
6.07. All divisions will accept transfer of cases that are ready for immediate commencement of trial.
6.08. Witnesses - Subpoenas for witnesses for the State and defendant shall be issued not less than ten (10) days prior to the date of the trial. No continuance shall be granted based upon an absent witness, unless subpoenaed in conformity with this section.
6.09. Court Files - All papers and records of the Court shall be under the custody and control of the Clerk. No files shall be withdrawn from the Clerk's Office except by the judges or clerks, and attorneys with the permission of the Judge or Clerk. No files shall be withdrawn from the Clerk's custody without the Clerk first obtaining a written receipt therefor.
6.10. Record on Appeal - Transcripts of the evidence will be prepared and filed in accordance with Rule 24 of the Rules of Appellate Procedure of Tennessee.
6.11. Upon arraigning a defendant, the Court shall set a report date not more than thirty-five (35) days from the arraignment date. Upon the defendant reporting for a jury trial, the Court shall set a trial date and may notify the defense and State attorneys that it will not accept a negotiated plea of guilty henceforth, except upon written Order of the Court, and for good cause shown.
6.12. Court Recordings - No attorney or person may listen to, record, or type all or any portion of the record of court proceedings without a written order from the Court. Any person seeking access to court recordings shall file a motion in the division in which the requested record was made setting forth the date or dates requested, the subject matter, and the identity of any witness or witnesses whose testimony is sought. The judge of the division in which the court recording was made shall review the audiotapes and issue an order within 30 days granting, denying or limiting the motion for access. In the event an order is issued denying or limiting access to the requested information, the movant may file a motion with the administrative judge to have the decision and the audiotapes reviewed by a three judge panel, composed of two other criminal court judges, appointed by the administrative judge, plus the administrative judge, who will preside. The panel will issue an order affirming, overruling or modifying the initial judge's order within 60 days of the request for review. In the event the judge initially denying the request is the sitting administrative judge, review will be afforded by the administrative judge whose term immediately preceded that of the sitting administrative judge. Appeal of any order of the panel shall be in accordance with the Tennessee Rules of Criminal Procedure.
RULE 7 BAIL BOND COMPANIES
7.01. From the effective date of these rules, any person filing an application to open a professional bail bond company in Shelby County is required to post a minimum of Seventy-five Thousand Dollars ($75,000) in cash with the Criminal Court Clerk, as security for bonds written. There must be prior approval by the Court before a bonding company will be allowed to post any security in addition to the minimum cash deposit.
7.02. Any company approved by this Court subsequent to January 4, 1996, and operating on posted security may write bonds five (5) times the amount of the security. Any company in existence between the period of February 4, 1991, through January 3, 1996 may write bonds eight (8) times the amount of the security. Any company in existence prior to February 4, 1991, may still write bonds on a ten (10) to one (1) ratio.
If a company is suspended pursuant to Rule 7.03 for any other reason deemed appropriate by a majority of judges of this court, upon reinstatement, the company may write bonds at a five (5) to one (1) ratio.
7.03. If a company writes bail bonds and/or has forfeitures in an amount exceeding the ratios as set out in Rule 7.02, the Criminal Court Clerk is ordered to obtain forthwith an order from any Judge of this Court suspending the company from the approved list of bondsmen, and to notify the suspended company and all inferior courts of said suspension. The suspension shall remain in effect until the company posts the required amount of additional security, or until the amount of penal sums written falls within the ratios set out in Rule 7.02, pending further orders of the Court. There shall be a $100 reinstatement fee for the suspended bail bond company.
7.04. The Criminal Court Clerk's Office shall issue a written notice to a bail bond company when said company's liability reaches 90% of their ratio as set out in Rule 7.02. If there is a discrepancy between the records of the bail bond company and the Criminal Court Clerk's Office, the records of the Criminal Court Clerk's Office will be presumed correct.
7.05. These same Court Rules shall pertain to the General Sessions Criminal Court of Shelby County for the administration of the professional bail bond companies in their court.
7.06. Pursuant to a hearing, the General Sessions Criminal Court of Shelby County may make recommendations to Criminal Courts of the 30th Judicial District of Tennessee regarding the approval of professional bail bonding companies wishing to operate in the Shelby County General Sessions Criminal Division of Court.
7.07. It shall be the responsibility of the company writing the bond that all bail bonds shall have the name, address, including any apartment number, and zip code number of the defendant legibly printed thereon.
7.08. Effective January, 1993, the Criminal Court Judges, exercising jurisdiction over bail bond companies shall sit en banc on the last Thursday of each month at 2:00 p.m. in the courtroom of the respective Administrative Judge. When a bail bond company desires to change, alter, or modify its authority to write bail bonds on cash or surety, it will be the responsibility of the companies to file sworn petitions setting out the reasons and necessity for such a hearing. The hearing will be in open Court upon the record.
7.09. Any bail bond company authorized by the Criminal Court of Shelby County, Tennessee, to execute bail or bonds, or bonds securing fines and cost shall file with the Criminal Court Clerk a semi-annual financial report pursuant to Tennessee Code Annotated § 40-11-303. The semi-annual financial report shall be prepared by a licensed certified public accountant, after audit, and certified according to general accounting principles. Failure to comply with the rule will result in the termination of a bail bond company's authority to execute bonds in Shelby County, Tennessee.
7.10 In order to facilitate the determination of the owner of any funds remitted to a bail bond company after having been granted relief pursuant to T.C.A. § 40-11-204 on forfeitures paid in, any monies paid into the office of the Criminal Court Clerk due on forfeitures taken shall be paid only by cash or by a single check written on the account of the surety or its owner. The Criminal Court Clerk shall not accept payment for a forfeiture by personal check written on the account of any other party, not shall it take payment by multiple checks drawn on different accounts.
[Amended effective October 29, 1998]
RULE 8 COURTROOM DECORUM
8.01. It is essential to an orderly administration of criminal justice and to assure the accused of receiving a fair, impartial and constitutional trial, that the decorum of all persons in the courtroom be maintained in a manner that will promote and protect the highest standards of the judicial process. It is ultimately the authority and responsibility of the Trial Judge which must be exercised to maintain the atmosphere appropriate for a fair, rational and civilized determination of the issues and the governance of the conduct of all persons in the courtroom, including the attorneys. To effectuate this purpose, the following rules regulating the decorum of the courtroom are hereby adopted.
8.02. FLAG - Flags of the United States and the State of Tennessee shall be displayed on the bench of the Court. The United States flag shall be to the Judge's right side, and the flag of Tennessee shall be displayed to the left side.
8.03. Opening and Closing of Court - The Court shall be formally opened each day upon which the Court's business is transacted as follows:
As the Judge enters the Courtroom, the bailiff shall require all present to rise and remain standing. The bailiff shall say:
"Hear ye, hear ye, this Honorable Division __________, of the Criminal Court of Tennessee, 30th Judicial District, at Memphis, is now open for transaction of business pursuant to adjournment. All persons having business with this Court draw near, give attention, and ye shall be heard. Be seated, please. No talking in the courtroom."
8.04. The space within the rail of the courtroom is reserved for litigants actually engaged in trial and for attorneys of the local Bar.
8.05. Where space is available and with permission of the Court, the defendant may sit at counsel table with his or her attorney.
8.06. Counsel will stand when examining or cross-examining witnesses or when addressing the Court, or the Jury, unless excused by the Court.
8.07. Counsel shall not place or leave upon the tables of the courtroom any hats, newspapers, magazines or any other object nor shall they engage in any conversation, consultation or other activity that may disturb the orderly procedure while Court is in session.
8.08. Counsel shall not engage in repartee or colloquy and shall address their remarks to the Court instead of each other.
8.09. In making an objection to the testimony, counsel shall state only the legal grounds therefor and shall not attempt to argue said objections in the presence of the Jury, except with permission of the Court.
8.10. The argument of counsel to the Jury shall be confined to the issues in the case and supported by the evidence. Counsel may suggest such facts and circumstances as have been established by evidence or by knowledge and the reasonable inferences to be drawn therefrom. Argument must be addressed to the entire Jury instead of to one or more individual jurors, as contemplated by the Canon of Professional Responsibility that forbids counsel to curry favor with jurors.
RULE 9 WAIVER OF RULES
Whenever in a particular instance, in the opinion of the trial judge, for good cause shown, and justice requiring, these rules may be waived.
WHEREOF, IT IS CONSIDERED, ORDERED, AND ADJUDGED, the foregoing Rules are hereby adopted and shall be forthwith entered upon the Minutes of each Division of said Court.
IT IS FURTHER ORDERED, that copies of these Rules be made available for distribution, without charge, through the Criminal Court Clerk's Office, to all practicing attorneys and the public at large.
IT IS FURTHER ORDERED, that a copy of these Rules adopted by this Court shall be furnished to the Administrative Office of the Courts of Tennessee, and a copy of all amendments thereafter made shall, upon their promulgation, be filed in said office.
IT IS FURTHER ORDERED AND ADJUDGED, that these Rules shall become effective on the 17th day of January, 1996.
RULES OF COURT FOR DIVISIONS I THROUGH VI
OF THE SHELBY COUNTY COURT OF
GENERAL SESSIONSUPDATED OCTOBER 31, 1996
RULE.
1. Copies of the Rules 2. Pleadings 3. Filing Summons 4. Motions to Set Payments 5. Consent Judgments 6. Consent Judgments 7. Out of State Counsel 8. Bailiff and Clerk in Attendance 9. Court Schedule 10. Daily Calendar Posted 11. Courtroom Decorum 12. Transfer of Contested Cases 13. Immediate Writs of Possession 14. Dropped Cases and Notice of Case Setting 15. Pauper's Oath and Affidavit of Indigency
For the purpose of establishing uniform rules to govern Divisions I through VI of the Shelby County Court of General Sessions, it is ordered that the following rules be and the same are hereby adopted, superseding all prior rules.
RULE 1 COPIES OF THE RULES.
Copies of these rules shall be made available in the office of the Clerk of General Sessions Court, Room 106, Shelby County Courthouse. All amendments to these rules shall be filed with the clerk.
RULE 2 PLEADINGS.
All written pleadings, orders and judgments shall be on legal-size paper and backed with the style of the cause. Each attorney, whether for the plaintiff or defendant, shall place his/her name, telephone number and Tennessee Board of Professional Responsibility registration number on the jacket and on all pleadings of each case in which he/she is an attorney.
RULE 3 FILING SUMMONS.
All summons filed with the Clerk shall be in duplicate and the deputy sheriff serving the summons shall fix the date and hour the case will be set for trial and deliver a copy of the summons to the defendant when personal service of process is required.
RULE 4 MOTIONS TO SET PAYMENTS.
All motions to set installment payments and to stay execution by garnishment will be heard no less than five (5) days following their filing. All such motions must be completed in duplicate by the defendant or defendant's attorney, signed by the defendant and notarized before filing with the clerk. The clerk will mail a copy of the motion to the other party, advising of the date of hearing.
RULE 5 CONSENT JUDGMENTS.
All consent judgments must be in writing, bear the date of execution and be signed by the parties to be bound, unless:
(a) the party against whom the judgment is to be entered, or the party's attorney, if represented, is present in court, or
(b) the announcement is made in open court by the attorney for the plaintiff or defendant where both parties are represented by counsel.
RULE 6 CONSENT JUDGMENTS.
At the first setting of a case, a continuance shall be granted as a matter of right to any party appearing and requesting same. After the first setting of a case, no case shall be continued except for legal cause shown or by consent of all parties. When a case is dismissed without a trial for want of prosecution, said dismissal shall be without prejudice to either party's right to bring it again.
RULE 7 OUT OF STATE COUNSEL.
A litigant, unless representing himself, must be represented by an attorney-at-law who holds a Tennessee law license. Out-of-state attorneys who are not licensed in this state, must associate local counsel in order to practice in this court. The name, address and Board of Professional Responsibility registration number of the local associated counsel must be shown on all pleadings filed in this court. Local associated counsel must actively participate in any litigation in which he is so associated.
RULE 8 BAILIFF AND CLERK IN ATTENDANCE.
Each division of this court shall have a deputy sheriff and a deputy clerk in attendance at all times while it is in session unless excused by the court.
RULE 9 COURT SCHEDULE.
Divisions I through VI of the Shelby County Court of General Sessions shall convene at 10:00 A.M., adjourn for lunch at 12:30 P.M., reconvene at 1:30 P.M. and adjourn at 4:30 P.M.
RULE 10 DAILY CALENDAR POSTED.
The clerk of this court shall post the entire daily calendar for all divisions in prominent place in the clerk's office or adjacent thereto; and shall also post each division's daily calendar adjacent to the courtroom in which the cases are to be heard.
RULE 11 COURTROOM DECORUM.
The following standards of courtroom decorum and procedure shall be maintained:
(a) All judges shall wear judicial robes during sessions of their courts, except when, in the discretion of a judge, a matter before a court is of such a nature as justifies an informal hearing.
(b) All persons in a courtroom shall stand while the court is being opened and while the court is being adjourned.
(c) All persons shall rise at all times when addressing the court.
(d) All persons shall remove top coats, hats or raincoats upon entering a courtroom.
(e) All orders, judgments and decrees shall be passed to the court through court attendants, and lawyers may not approach the bench from the bar except when directed by the judges.
(f) Smoking will not be permitted in any courtroom.
(g) All lawyers and court attendants must be appropriately dressed.
(h) Upon a judge entering a courtroom preparatory to formal opening of court, the sheriff shall call the courtroom to order, directing all in attendance upon the court to stand, and, upon being so instructed by the court, will open court in substantially the manner following.
"Hear Ye! Hear Ye! This honorable court is now open for the transaction of business pursuant to adjournment; all persons having business before this court draw near, give attention, and ye shall be heard. Be seated, please."
Thereupon, the judge will take his/her seat upon the bench and those in the courtroom will be seated.
(i) Upon a judge instructing the sheriff to adjourn court for the day, the sheriff will direct all in attendance upon court to stand, as will the judge, and will adjourn court in substantially the manner following:
"This court will now stand adjourned until tomorrow morning at _____ o'clock (or until a day certain)."
(j) Sheriffs in attendance upon courts will be charged with the responsibility of requiring compliance with these standards of courtroom decorum.
RULE 12 TRANSFER OF CONTESTED CASES.
In an effort to facilitate the trial of contested matters in the General Sessions Civil Divisions, contested cases shall be referred to the General Sessions Civil Division Court Coordinator for trial in the next available division of court. The oldest cases, based on the filing date, shall be assigned for trial in the first available division of court.
RULE 13 IMMEDIATE WRITS OF POSSESSION.
Litigants seeking immediate possession of personal property under Tenn. Code Ann. Section 29-30-106(1)(B) in actions to recover property must include an affidavit setting out the specific facts justifying extraordinary relief.
RULE 14 DROPPED CASES AND NOTICE OF CASE SETTING.
(a) Cases that have been dropped from the court's calendar may be placed back on the calendar at any time by
(1) consent of all the parties (evidenced in writing by any unrepresented parties) and approval by a judge
OR
(2) by filing with the General Sessions Clerk a "Notice of Case Setting". Said notice shall give the party(s) being notified of the setting a minimum of two (2) weeks notice. Said notice shall be signed by the party requesting the setting or by that party's attorney.
(b) The "Notice of Case Setting" shall be in the form as set out in Appendix.
RULE 15 PAUPER'S OATH AND AFFIDAVIT OF INDIGENCY.
(a) Actions filed pursuant to Tenn. Code Ann. Section 20-12-127(a) and 20-12-130(a) must be filed with an accompanying "Affidavit of Indigence".
(b) The "Affidavit of Indigence" shall be in the form as set out in Appendix.
APPENDIX - FORMS
NOTICE OF CASE SETTINGCourt of General Sessions 140 Adams, Room 106 Memphis, Tennessee 38103
RE: __________ VS __________ DOCKET NO.: __________ Plaintiff Defendant
Please reset the above case which was previously dropped from the calendar to the __________ day of __________, 19__ at __________ o'clock __________ M.
I have given the plaintiff/defendant(s) a minimum of two (2) weeks notice by sending a copy of this letter to the following address:
_______________________________________________ _______________________________________________ _______________________________________________
_______________________________
Attorney for _______________CERTIFICATE OF MAILING
As the __________'s attorney I hereby certify that a true and exact copy of the foregoing notice has been served upon the opposing party or upon the opposing party's attorney by this date placing the same in a properly addressed, stamped envelope and depositing for delivery with the United States Postal Service.
This __________ day of __________, 19__.
_______________________________
Attorney for ______________IN THE SHELBY COUNTY COURT OF GENERAL SESSIONS
____________________ PLAINTIFF
vs. CASE NO. ______________________
____________________ DEFENDANT
_______________________________________________________________
UNIFORM CIVIL AFFIDAVIT OF INDIGENCE
I, __________, having been duly sworn according to law, make oath that because of my poverty, I am unable to bear the expense of this cause and that I am justly entitled to the relief sought to the best of my belief. The following facts support my poverty.
1. Full Name: ________________________________________________ 2. Address: __________________________________________________ 3. Telephone Number: ( ) _____________________________________ 4. Date of Birth: ____________________________________________ 5. Names and Ages of All Dependents:
_______________________ Relationship ______________________
_______________________ Relationship ______________________
_______________________ Relationship ______________________
_______________________ Relationship ______________________ 6. I am employed by: _________________________________________
My employer's address is: _________________________________
My employer's telephone number is: ________________________ 7. My present weekly income after federal income and social
security taxes are deducted is:
$ __________ per week or $ __________ per month. 8. I am not employed, but receive or expect to receive money
from the following sources:
AFDC $ ______ per month beginning __________
SSI $ ______ per month beginning __________
Retirement $ ______ per month beginning __________
Disability $ ______ per month beginning __________
Unemployment $ ______ per month beginning __________
Worker's compensation $ ______ per month beginning ________ 9. My expenses are:
Rent/House Payment $ __________ per month
Groceries $ __________ per month
Electricity $ __________ per month
Water $ __________ per month
Gas $ __________ per month
Transportation $ __________ per month
Medical $ __________ per month
Telephone $ __________ per month
School supplies $ __________ per month
Clothing $ __________ per month
Child care $ __________ per month
or Court-Ordered Child Support
Other $ __________ per month 10. Assets:
Automobile $ _________ fair market rule
Checking/Savings Acct. $ _________
House $ _________ (fair market value)
Other $ _________ 11. My debts are:
Amount Owed & To Whom
___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________I hereby declare under the penalty of Perjury that the foregoing answers are true, correct and complete and that I am financially unable to pay the costs of this action.
x _____________________________
PLAINTIFFORDER ALLOWING FILING ON PAUPER'S OATH
It appears upon the Affidavit of Indigence filed in this cause and after due inquiry made that the Plaintiff is an indigent person and is qualified to file this case on a pauper's oath.
It is so ordered this the _____ day of __________, 19__
____________________________________
JUDGEDETERMINATION OF NONINDIGENCE
It appears upon the Affidavit of Indigence filed in this cause and after due inquiry made that the Plaintiff is not an indigent person because _______________________________________________________________ _______________________________________________________________
IT IS SO ORDERED AND ADJUDGED that the Plaintiff does not qualify for filing this case on a pauper's oath.
This the ______ day of __________, 19__
________________________________________
JUDGE_______________________________________________________________
NOTICE: If the judge determines that based upon your
affidavit you are not eligible to proceed under a
pauper's oath, you have the right to a hearing before the
judge or, in those cases that can be appealed to Circuit
Court, a hearing before the circuit court judge. _______________________________________________________________RULES OF PRACTICE OF THE GENERAL SESSIONS
COURT OF SHELBY COUNTY, TENNESSEE CRIMINAL DIVISIONIN THE GENERAL SESSIONS CRIMINAL COURTS OF
SHELBY COUNTYRULES OF PRACTICE AND PROCEDURE
EFFECTIVE OCTOBER 1, 1990
For the purpose of providing uniformity of procedure in all the Divisions of the General Sessions Criminal Courts, it is ordered by the Judge of each Division of said Court that the following Rules of Practice and Procedure shall be observed in the conduct of business of the Court, the same being adopted by each Division of the Court, by virtue of the power vested in said Judges by Section 16-3-407, Tennessee Code Annotated.
RULE I
The six Divisions of General Sessions Criminal Courts shall convene at 9:00 a.m. daily, except holidays and Saturdays and Sundays. There may also be a 1:30 p.m. session as needed.
RULE II
The dockets for all Divisions of Court shall be posted daily in a prominent place outside the General Sessions Criminal Court Clerk's Office.
RULE III
Upon a Judge entering a courtroom preparatory to the formal opening of Court, the Sheriff will call the courtroom to order, directing all in attendance to stand, and upon being so instructed by the Court, will open Court by saying the following:
"Hear Ye, hear ye, this Honorable Division __________ of the General Sessions Criminal Courts, is now open for the transaction of business pursuant to adjournment. All persons having business with the Court, draw near, give attention, and ye shall be heard. The Honorable __________ presiding. Be seated, please. No talking in the courtroom."
RULE IV
Upon the Judge instructing the Sheriff to call a recess or adjourn court for the day, the Sheriff shall direct all in attendance to stand, as will the Judge, and will say one of the following:
"This Honorable Court stands in recess until ____________."
"This Honorable Court now stands adjourned until tomorrow morning at __________ o'clock (or until a day certain.)"
RULE V
All Judges will wear judicial robes during all sessions of their courts.
RULE VI
All lawyers and court attendants will be appropriately attired while in attendance upon the court. Top coats, hats, and raincoats shall be removed before addressing the Court.
RULE VII
Defendants must appear in Court each setting unless their presence is specifically waived by the Court. Defendants should be appropriately attired.
RULE VIII
(a) In order to practice law in this Court, an attorney who is a resident of Tennessee must be licensed to practice law in this State, in accordance with Rule 7 of the Tennessee Supreme Court Rules, and must be duly qualified and registered with the State Board of Professional Responsibility, pursuant to Rule 9 of the Tennessee Supreme Court.
(b) A non-resident attorney, who is not otherwise in compliance with Rule VIII (a) above, must associate an attorney of this State who is in compliance with said rule in any case pending before the court, and will be allowed as a matter of courtesy to appear in such cases in which he may be thus employed without procuring a license, when introduced to the Court by an attorney in good standing. Such non-resident attorney must be admitted to practice and be in good standing in the jurisdiction of his residence.
(c) New attorneys must be introduced to each of the six divisions by a licensed attorney. Once the new attorney has been introduced to all six divisions, then the name and disciplinary number of the new attorney shall be enrolled in a well-bound book kept in the General Sessions Court Clerk's Office.
RULE IX
Attorneys for each defendant shall print their name, firm address, telephone number, registration number of the Board of Professional Responsibility, and the date upon the case jacket on becoming counsel. Such attorney shall remain counsel of record for that defendant until disposition of the case, unless excused by the Court for good cause. Any attorney requesting permission to withdraw from a case shall make such application in open court and shall furnish written notice to the defendant. If for good cause shown the court grants the motion to withdraw, Counsel shall forthwith submit a written order to the Court.
RULE X
Attorneys and defendants, where not represented by counsel, shall address the Court only after having been granted permission to approach the Bench.
RULE XI
Attorneys shall announce the docket number of a given case to the Court when addressing the Court about a case, as well as have any necessary waiver or forms fully prepared and executed prior to addressing the Court.
RULE XII
Attorneys must have in Court the jacket of a given case when making any motion to the Court about a forfeiture, continuance, recall of a warrant, issuance of a restricted driver's license, change in mittimus, or any other matter concerning a case not currently on the court's docket.
RULE XIII
All papers and records of the court shall be under the custody and control of the Clerk. Jackets may be used by the attorney in the courtroom but shall not be taken beyond the rail.
RULE XIV
Counselors shall not place or leave upon the tables of the courtroom any hats, newspapers, or magazines, nor shall they engage in any conversation, consultation or other activity that may disturb the orderly procedure while Court is in session.
RULE XV
Attorneys shall not confer with their clients in the courtroom while the court is in session.
RULE XVI
There will be no smoking nor holding of cigars, pipes, or cigarettes in the hand or mouth while the court is in session. No food or drink shall be brought into the courtroom.
RULE XVII
The space within the rail of the courtroom is reserved for lawyers and law enforcement personnel unless otherwise authorized by the Court.
RULE XVIII
Attorneys and all litigants shall observe the "Quiet Court In Session" signs in the areas outside each courtroom and shall conduct their conversation in a manner so as not to disturb the proceedings in the courtrooms.
RULE XIX
Sheriffs in attendance upon Courts will be charged with the responsibility of requiring compliance with these rules which relate to standards of courtroom conduct and decorum.
RULE XX
Cases shall be transferred for good cause from one division to another only upon written order signed by the Judges of both the transferring Court and the accepting Court.
RULE XXI
(a) If the Judge of any division of such court fails to attend, cannot preside at any pending case or for any reason hold court, a majority of the lawyers present in such court may elect one of their number who has the qualifications of such a Judge and when elected shall take the same oath and have the same authority to hold the court for the occasion as a regular Judge.
(b) Where the Judge finds it necessary to be absent from holding court, he may designate in writing, to be filed with clerk of the court, the name of a special Judge to hold court in his place and stead. Such special Judge shall be a person who has the qualifications of a regular Judge and shall take the same oath and have the same authority to hold court for the occasion as a regular Judge. If the Judge fails to make such a designation, subsection (a) of this section shall become operative.
(c) When a trial is set in a division of court on a day when a special Judge is presiding, the prosecutor in that division shall attempt to find an elected or appointed Judge to hear the trial. If no Judge can accept transfer of the trial, the cases shall be rescheduled to the earliest date convenient to both prosecutor and defense. Special Judges are authorized to hear cases set for preliminary hearing.
RULE XXII
All felony bonds will be set in open Court by the Judge hearing felony cases. During the day following the adjournment of the Felony Court and on weekends and holidays the felony Judge will set bonds by telephone for all defendants charged with felonies, whether the defendants are represented by attorneys or not. Attorneys need not call the felony Judge, or any other Judge, inasmuch as background information as to defendants will be furnished by the Shelby County Pre-trial Services. If an attorney wishes to provide information concerning the setting of bond for the attorney's client, the attorney should provide such information to the Pre-trial Services personnel.
RULE XXIII
Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. Motions may be written or oral at the discretion of the Judge. A copy of the written motion shall be filed with the General Sessions Judges' Secretary no later than seven (7) days before the hearing.
RULE XXIV
Subpoenas for witnesses for the state and defendant shall be issued not less than seven (7) days prior to the date of the trial. No continuance shall be granted based upon an absent witness, unless subpoenaed in conformity with this order.
Whenever in a particular instance, in the opinion of the Judge, for good cause shown, and justice requiring, these rules may be waived.
IT IS THEREFORE, ORDERED, ADJUDGED, AND DECREED, the foregoing Rules are hereby adopted by each Division of said Court.
IT IS FURTHER ORDERED, that copies of these Rules be made available for distribution, without charge, through the General Sessions Criminal Court Clerk's Office, to all practicing attorneys and the public at large.
IT IS FURTHER ORDERED, that a copy of these Rules adopted by this Court shall be furnished to the Executive Secretary of the Supreme Court of Tennessee, and a copy of all Amendments thereafter made shall, upon their promulgation, be filed in said office.
IT IS FURTHER ORDERED, that these Rules shall become effective on the 1st day of October 1990.
RULES REGULATING PRACTICE AND PROCEDURE
IN THE JUVENILE COURT OF MEMPHIS AND
SHELBY COUNTY, TENNESSEEADOPTED AND EFFECTIVE JANUARY 7, 1993
TABLE OF CONTENTS
RULE.
1. Scope and Purpose. 2. Courtroom Decorum. 3. Opening and Adjournment of Court. 4. Sessions. 5. Office Hours. 6. Pleadings. 7. Service of Process. 8. Attorneys. 9. Conduct of Trials. 10. Discovery. 11. Error and Exceptions. 12. Petitions for Rehearing. 13. Rehearings of Matters Heard by Referee. 14. Orders and Decrees. 15. Appeals.
Rule 1 SCOPE AND PURPOSE
These rules and the Tennessee Rules of Juvenile Procedure shall govern the practice and procedure in the Juvenile Court of Memphis and Shelby County, Tennessee. They are intended to provide for the speedy and just determination of every proceeding, and in juvenile proceedings they shall at all times be enforced and construed beneficially for the remedial purposes embraced in Title 37 of the Tennessee Code Annotated. In the event of any apparent conflict, the Tennessee Rules of Juvenile Procedure shall prevail.
Rule 2 COURTROOM DECORUM
All persons in the courtroom will stand while the Court is being opened and also while the Court is being adjourned. All orders, judgments, and decrees will be handed to the Court through the Court attendants, and lawyers will not approach the bench from the bar except when directed by the Judge. There will be no smoking or chewing of gum in the courtroom, and all lawyers and Court attendants will be appropriately dressed while in Court attendance. The Bailiff in attendance upon Court will be charged with the responsibility of requiring compliance with these standards of courtroom conduct and deportment.
Rule 3 OPENING AND ADJOURNMENT OF COURT
Upon the Judge or Referee entering the courtroom preparatory to the formal opening of Court, the Bailiff will call the courtroom to order, directing all in attendance upon the Court to stand and will open Court in substantially the manner following:
"This Honorable Juvenile Court of Memphis and Shelby County is now open for the transaction of business pursuant to adjournment, the Honorable __________ presiding."
Thereupon the Judge or Referee will take his seat upon the bench and those in the courtroom will be seated. Upon the Court instructing the Bailiff to adjourn Court for the day, the Bailiff will direct all in attendance upon the Court to stand, as will the Judge, and will adjourn Court in substantially the manner following:
"This Court now stands adjourned until tomorrow morning at __________ o'clock." (or until a day certain.)
Rule 4 SESSIONS
There shall be a session of Court daily, except on nonjudicial days, which are Saturdays, Sundays, and holidays. Court hours are 8:30 a.m. to 4:30 p.m. Exceptions to this schedule may be authorized only by the presiding Judge. Unless the Judge directs otherwise, any case in which the Court has jurisdiction may be heard in the first instance by a Referee.
Rule 5 OFFICE HOURS
The office of the Clerk of Court shall be open for the regular transaction of business from 8:00 a.m. until 4:30 p.m. except on nonjudicial days.
Rule 6 PLEADINGS
All petitions, answers, orders, briefs, or other legal document(s), filed or presented to this Court shall be typewritten on forms provided by the Court or typewritten on letter-sized (8 1/2" x 11") paper, opaque and unglazed. Two copies of every pleading shall be filed in all causes, one of same to be marked "duplicate." Such pleadings must be filed at the Legal Records Section of the Court Clerk's Office, and it shall be the duty of the Clerk of Court to indicate on each copy the date and time of filing. Form petitions which meet the requirements of law are provided by the Court for every type of proceeding within the jurisdiction of the Court, and Court personnel shall appropriately assist as necessary in the preparation of petitions.
Rule 7 SERVICE OF PROCESS
All subpoenas shall be typed or printed on forms provided by the Court and submitted to the court officer assigned to the case, or to the Clerk of Court, as diligently as possible, but not later than five (5) days, excluding nonjudicial days, before the scheduled date of trial. A party to a proceeding who is not represented by an attorney may simply furnish to the assigned court officer a list of the names and addresses of the witnesses to be subpoenaed, and it shall be the responsibility of that officer to cause subpoenas to be issued in accordance with this rule.
Rule 8 ATTORNEYS
All attorneys licensed to practice law in Tennessee shall be allowed to appear in any matter coming before the Court. Every party to a proceeding who wishes to employ an attorney shall be given an opportunity to do so. The Court will appoint an attorney to represent any defendant who has a constitutional right to counsel and who is determined by the Court to be indigent. It is not mandatory that attorneys write their names upon the jacket containing the legal records in any case, but if an attorney is not present in Court when the case is called, and has not written his or her name on the jacket, the person shall be presumed to be without counsel. In accordance with Rule 19 of the Tennessee Rules of Juvenile Procedure, attorneys of record who wish to terminate their representation may do so only with permission of the Court.
Rule 9 CONDUCT OF TRIALS
Proceedings in this Court, except dependent and neglected cases, shall be open to the general public. In the discretion of the Court, the general public may be excluded from any juvenile or paternity proceeding and only those persons having a direct interest in the case may be admitted. And no person within, without, or in the vicinity of the Juvenile Court Building shall accost, solicit, or interfere in any way with any person on or about the premises of the Court or otherwise engage in any conduct which may tend to interrupt, disturb, or hinder the orderly conduct of the Court's business. In juvenile proceedings a parent or guardian must be present at every adjudicatory hearing unless excused by the Court in writing or on the record. The Court will appoint a guardian ad litem to act in behalf of a child in determining the interests of a child at any stage of the proceedings when the child is without parent or guardian, or when it appears to the Court that the interests of the child so require.
Rule 10 DISCOVERY
Neither the Rules of Civil Procedure nor the Rules of Criminal Procedure pertaining to discovery are applicable in juvenile court proceedings. The Court shall, however, allow discovery upon motion by either party, being timely filed, and upon good cause shown. Any party may object to discovery by filing a response promptly after the filing of such motion. Failure to respond to a motion for discovery shall be considered consent to such motion. Discovery may then be allowed under such terms and conditions as the Court may prescribe. Officers of the Court shall make available for inspection by counsel to a party to any proceeding all Court files, records, and written reports in the case, except confidential reports of harm made pursuant to child abuse laws and other information which may not lawfully be disclosed. Court Appointed Special Advocate (CASA) and child welfare agency reports shall be confidential and, unless the Court directs otherwise, shall be submitted to the Court in original form only, in camera, and may be reviewed exclusively by counsel for the parties. The confidential CASA or child welfare agency report shall not be made a part of the record except under seal. Thereafter, upon written motion of a party, and good cause being shown, the Court may allow the seal to be removed under such circumstances as the Court may prescribe.
Rule 11 ERROR AND EXCEPTIONS
Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. Exceptions to rulings of the Court are unnecessary. If a party makes no objection to a ruling or order, absence of an objection does not in itself prejudice him thereafter.
Rule 12 PETITIONS FOR REHEARING
If a rehearing of any decision is sought, a petition for rehearing must be filed with the Clerk of Court within ten (10) days after the entry of the decree or judgment. Upon good cause shown, the Court may extend time limits specified in these rules except those time limits that are statutory. Before being presented to the Court, copies of petitions for rehearing, with any brief in support thereof, must be furnished to adversary counsel, who will be accorded five (5) days within which to answer. Such petitions for rehearing and answers shall be filed and delivered by respective counsel promptly thereafter to the Court without argument. If the Court desires to hear oral argument, counsel will be so notified.
Rule 13 REHEARINGS OF MATTERS HEARD BY REFEREE
The Judge may, on his own motion, order a rehearing of any matter heard by a Referee. Any party may, within five (5) days after the date of the hearing before the Referee, excluding nonjudicial days, file a request for and be allowed a hearing before the presiding Judge. Provided, however, that a rehearing will not be allowed in any delinquency or unruly case in which the Referee recommends dismissal after a hearing on the merits. The recommendation of the Referee, in all matters before the Court, shall be the decree of the Court pending a rehearing.
Rule 14 ORDERS AND DECREES
Unless specifically directed to do so by the Court, attorneys are not required to prepare and submit orders and decrees. Such orders and decrees are prepared by a clerk who records the order at the time given in Court. Any party wishing to prepare and submit an order for approval may simply inform the Court of that intention. Such orders must be submitted to the Court for approval and entry not later than the third day following the decision.
Rule 15 APPEALS
An appeal of the Court's disposition of a child in any case, whether the allegations of the petition are admitted or denied, may be perfected by filing a notice of appeal on a form provided by the Court within ten (10) days, excluding nonjudicial days, of the final order of disposition. The appeal period shall commence the day after the order of disposition is entered. Provided, however, that if a rehearing of a matter heard by a Referee is not requested or provided on the Court's own motion, the parties shall be allowed fifteen (15) days, excluding nonjudicial days, from the date of the recommendation of the Referee in which to perfect an appeal. All appeals from any disposition of a child except transfer of a juvenile to criminal court to be dealt with as an adult shall be to the circuit court. An appeal shall not operate as a stay, and the order of this Court shall remain in effect until or unless the circuit court enters an order to the contrary. Appeal of any final judgment entered in Juvenile Court except the disposition of a child shall be as provided in the Tennessee Rules of Appellate Procedure.
RULES OF THE PROBATE COURT OF SHELBY COUNTY,
TENNESSEEEffective July 1, 1998
TABLE OF CONTENTS
RULE.
I. Sessions and Courtroom Procedure. II. Attorneys. III. Rules of Civil Procedure and Evidence. IV. Pleadings. V. Petitions to Open Estates. VI. Assignment of Cases VII. Appointment of Guardians Ad Litem. VIII. Special Settings. IX. Witnesses. X. Inventory in Decedent's Estates. XI. Accountings. XII. Opening of Accounts. XIII. Fees for Personal Representatives and Attorneys in Decedents'
Estates. XIV. Elective Share. XV. Year's Support. XVI. Closing of Decedent's Estates. XVII. Investing Funds Per Court Order. XVIII. Litigants or Witnesses with Disabilities.The Probate Court of Shelby County, Tennessee, hereby adopts the following as its Local Rules of Court:
RULE I
SESSIONS AND COURTROOM PROCEDURE
1. Monday through Friday the Court will be in regular session from 9:00 A.M. until noon and from 2:00 P.M. until 3:00 PM. Additionally, mental health matters will be heard at the courtroom located in the Memphis Mental Health Institute commencing at 1:00 P.M. on Thursday afternoons. The judges will alternate months in hearing mental health matters. During a portion of the summer months the Court may adopt a flexible vacation schedule. Attorneys who desire to have matters heard in the afternoon during summer months should consult with the Judges secretary concerning availability.
2. The Judge shall wear a Judicial robe during all sessions of the Court except when, in the discretion of the Judge, the circumstances are such or the matter before the Court is of such a nature as justifies a less formal hearing.
3. When the Judge first enters the Courtroom each day, the Sheriff shall call the Court to order directing all in attendance to stand, and upon being so instructed by the Court, will open Court in the manner following:
"Hear Ye! Hear Ye! This Honorable Probate Court of Shelby County is now open for the transaction of business pursuant to adjournment. The Honorable Judge [Judges Name] presiding. All persons having business with this Court draw near, give attention, and ye shall be heard. Be seated, please."
4. There will be no eating, drinking or smoking in the Courtroom and no food or drink containers shall be brought into the Courtroom.
5. The front row of seats at the counsel table in the Courtroom is reserved for members of the Bar.
6. All attorneys and court attendants will wear appropriate business attire while in Courtroom.
7. Attorneys are encouraged to state their name, the docket number of the case, and the nature of the matter being presented. For example: "Your Honor, for the record my name is [attorneys name] and I have a petition to open an intestate estate and appoint an administrator. The docket number is [docket number]."
8. When addressing the Court, unless excused by the Judge, counsel should rise and remain standing while making any objection, argument, or statement to the Court, including such time as the Court may address or interrogate counsel. Counsel are not required to stand while interrogating witnesses but may do so at counsels option.
9. All items that are presented to the Court such as petitions, exhibits, and orders shall be handed to the Judge through the Court attendants. Attorneys must seek and obtain permission from the Judge before approaching the Bench.
10. Upon the Judge instructing the Sheriff to adjourn Court for the day, the Sheriff will direct all persons in the Courtroom to stand and will adjourn Court in the manner following:
"This Court now stands adjourned until tomorrow morning at 9:00 o'clock, (or such other day and time as the Court may indicate.)"
11. The Sheriff in attendance upon the Court will be charged with the responsibility of requiring compliance with these standards of Courtroom conduct.
[Adopted by order effective July 1, 1998.]
RULE II
ATTORNEYS
1. Only attorneys licensed to practice law in Tennessee may appear in matters coming before the Court except that attorneys who are not licensed to practice in Tennessee may appear pro hac vice under the terms and conditions set forth in Tennessee Supreme Court Rule 19.
2. An attorney who opens an estate becomes the attorney of record and is obligated to comply with all applicable law, these Local Rules, and orders of the Court. It is the responsibility of the attorney of record to see to the full extent of his or her professional responsibility that the estate is properly managed, administered, distributed, and closed without undue delay. The attorney of record is not relieved of this responsibility unless and until the attorney obtains an order of withdrawal from the Court.
3. In all cases where joint-control of accounts is ordered by the Court, or required by the surety on a bond, it is the responsibility of the attorney of record to see that all fiduciary accounts are properly opened and that all disbursements are properly made.
4. It is the responsibility of the attorney of record to advise the Court whenever a bond appears to be either insufficient or excessive by requesting an order increasing or decreasing the bond as appropriate. However, the amount of a bond is not normally decreased except upon the filing of an accounting.
5. When a matter is one that must be specially set for a hearing pursuant to RULE VIII, it is the responsibility of the attorney of record to obtain a special setting from the Judges secretary. Upon requesting a special setting, if counsel reasonably anticipates that the time required will likely exceed forty-five (45) minutes, this fact shall be brought to the attention of the Judges secretary for scheduling purposes.
6. Orders or decrees shall be prepared by counsel for the prevailing party and submitted to adversary counsel for approval. Orders or decrees shall be presented to the Court by counsel within one week after the matter is decided, unless additional time is granted by the Court. In the event of a disagreement between the counsel for the prevailing party and adversary counsel regarding the contents of the order or decree, counsel for each party shall prepare such order or decree as is considered appropriate, adhering as nearly as practicable to the wording adopted by adversary counsel, and both shall be submitted to the Court at the same time whenever possible.
7. All Briefs, Memoranda of Points and Authorities or similar matters pertaining to a contested or specially set matter must be submitted to the Court (and opposing counsel where applicable) at least three (3) days prior to the hearing date. It is suggested that photocopies of the relevant portions of cited authorities be attached to Briefs or Memoranda of Points and Authorities.
8. Counsel appearing in Probate Court shall follow the Guidelines for Professional Courtesy and Conduct adopted by the Memphis Bar Association. Counsel are expected to deal with opposing counsel, the parties, and the Court in a professional, courteous, and ethical manner. Counsel will be open and fair in their handling of probate matters, consistent with their adversarial responsibilities.
[Adopted by order effective July 1, 1998.]
RULE III
RULES OF CIVIL PROCEDURE AND EVIDENCE
The Tennessee Rules of Civil Procedure and Tennessee Rules of Evidence are expressly adopted by the Shelby County Probate Court.
[Adopted by order effective July 1, 1999.]
RULE IV
PLEADINGS
1. All petitions and complaints filed in Court shall be sworn to by the petitioner and shall be addressed in the following form:
"TO THE HONORABLE JUDGES OF THE PROBATE
COURT OF SHELBY COUNTY, TENNESSEE."2. All petitions, motions, and other pleadings shall be filed with the Clerk and noted on the docket before being presented to the Court.
3. All pleadings shall be on legal size paper and shall set forth the docket number, style of the cause, the nature of same, and the name and signature of counsel. The original pleading filed by an attorney in a matter shall also contain the address, telephone number, and disciplinary number of counsel. The title of an order should contain a brief description of the action taken.
4. No original pleading shall be withdrawn from the Courthouse without a Court order.
[Adopted by order effective July 1, 1998.]
RULE V
PETITIONS TO OPEN ESTATES
Pursuant to Tenn. Code Ann. § 30-1-117, the following information shall be included in petitions to admit a will to probate and petitions for the administration of estates:
a. The identity of the petitioner.
b. The decedents name, age (if known), date and place of death and residence at time of death.
c. In case of intestacy, the name, age (if known), mailing address, and relationship of each of the decedents heirs at law.
d. A statement that the decedent died intestate or the date of execution (if known), and the names of all attesting witnesses of the document or documents offered for probate.
e. The document or documents offered for probate, or a copy thereof, as an exhibit to the petition.
f. The names and relationships of the devisees and legatees and the city of residence of each (if known), and, if the decedent died intestate, similar information for those who are entitled to the decedents property under the statutes of intestate succession, and the names of any minors or other persons under disability.
g. An estimate of the fair market value of the estate to be administered, unless bond is waived by the document offered for probate or is waived as authorized by statute.
h. If there is a document, whether the document offered for probate waives the filing of any inventory and accounting or whether such is not otherwise required by law.
i. If there is a document, a statement that the petitioner is not aware of any instrument revoking the document being offered for probate, if such be the case, and that the petitioner believes that the document being offered for probate is the decedents last will.
[Adopted by order effective July 1, 1998]
RULE VI
ASSIGNMENT OF CASES
1. Except as otherwise provided, the Clerk will assign matters with odd docket numbers to Division One and will assign matters with even docket numbers to Division Two. When filing a matter that is a companion case or that relates to a pending matter, the attorney should call this fact to the attention of the Clerk. Under such circumstances, the Clerk will assign the new case to the Division of Court in which the companion or related case is pending.
2. After a case has been assigned to a particular Division, the Judge of that Division shall have complete control over the matter. In the interest of justice and for good cause, the Judges, by mutual consent, may transfer a case from one Division of Court to the other.
3. When any matter requires immediate attention and the Judge to whom same has been assigned is not available, (or is involved in a protracted hearing) the matter may be submitted to the Judge who is available and consents thereto who shall hear the matter by interchange.
[Adopted by order effective July 1, 1998.]
RULE VII
APPOINTMENT OF GUARDIANS AD LITEM
1. In any case in which a petition is filed for the sale or improvement of any real property belonging to a minor or other person under disability, the Court will appoint a guardian ad litem to investigate all matters embraced in the petition, attend the hearing, and file a written report with the Court at least three (3) days prior to the scheduled hearing on the matter. Appointment of a guardian ad litem may be waived by the Court for good cause.
2. In all petitions filed for Court approval of unauthorized encroachments of funds in a guardianship or conservatorship, sales of personalty, and in all other matters, the Court may, in its discretion, appoint a guardian ad litem to make an investigation and file a written report with the Court at least three (3) days prior to the scheduled hearing on the matter.
[Adopted by order effective July 1, 1998.]
RULE VIII
SPECIAL SETTINGS
1. The following matters shall be specially set for hearing at a date and time certain after the pleadings are at issue:
a. Petitions to sell or encumber real property.
b. Petitions to ratify substantial or unusual unauthorized encroachments.
c. Exceptions to reports of the Clerk.
d. Petitions to admit wills to probate in solemn form.
e. Petitions for substantial encroachments for support of wards or to pay debts.
f. Petitions to set a years support, to set aside exempt property or to determine a surviving spouses elective share.
g. Petitions to contest a will.
h. Petitions to establish lost or spohated wills.
i. Petitions to construe provisions of wills.
j. Applications for fees that exceed $15,000.00.
k. Applications for a fee that is in excess of the guidelines set forth in Rule XIII.
l. All contested matters.
m. Other matters such as those involving complex legal or factual issues or those that are expected to take more than forty-five (45) minutes to be heard.
2. It shall be the responsibility of the attorney who requests the special setting to give written notice to all interested parties. Interested parties entitled to notice shall include the creditors of a decedents estate if the estate is expected to become insolvent and shall also include the State of Tennessee if some or all of the estate may escheat or be payable to the State of Tennessee. Service of process may also be required as provided by law.
The Court, in its discretion, may hear the above matters without a special setting upon good cause shown provided that the Court finds that notice has been given or that notice is not required.
[Adopted by order effective July 1, 1998.]
RULE IX
WITNESSES
Witnesses shall be sworn separately and immediately before taking the witness stand, unless otherwise ordered by the Court.
[Adopted by order effective July 1, 1998.]
RULE X
INVENTORY IN DECEDENTS ESTATES
1. As provided by Tenn. Code Ann. § 30-2-301, an inventory must be filed by the personal representative within sixty (60) days after commencement of the administration of a testate or intestate estate.
2. In intestate estates, and in testate estates when the will does not waive inventory, the inventory may be waived if all heirs or beneficiaries consent thereto, provided all named heirs are sui juris and provided the estate is solvent. If any heir is a minor, or of unsound mind, or declines to consent to waiver of the inventory, then an inventory shall be filed. In testate estates, no inventory is required if the will waives it. However, if an interested party requests an inventory in writing, the Court in its discretion may require an inventory.
3. The inventory should list all probate assets but exact dollar values need not be given nor must an appraisal be obtained. The Court does not require item by item listing of furniture and personal effects unless such an itemization is requested by an interested party.
[Adopted by order effective July 1, 1998.]
RULE XI
ACCOUNTINGS
1. As provided by Tenn. Code Ann. § 30-2-601, the personal representative of a decedents estate is required to make an accounting with the Clerk of the Court within fifteen months from the date of qualification and annually thereafter until the estate is fully administered. For good cause shown, the Court may extend the time for filing annual or final accountings. Tennessee law provides that accountings may be waived by the Court if the decedents will waives the requirement or if all residuary beneficiaries are sui juris and have, in writing, excused the personal representative from filing an accounting. However, this Courts policy is not to waive accountings or extend time for filing accountings unless all interested parties are sui juris and agree, in writing, to waive or extend time for filing accountings. It should also be emphasized that, regardless of whether a waiver of accounting is allowed, the personal representative and his or her counsel are obligated under these Rules to see that the estate is properly managed, administered, distributed, and closed without undue delay.
2. Attorneys are urged to close estates within fifteen months after opening the estate whenever possible. The Clerk of the Probate Court is authorized to approve one extension of time for up to sixty additional days. An accounting should always be filed within fifteen months of opening an estate if a minor or incompetent person is a residuary beneficiary, or if a residuary beneficiary is a competent adult but declines to waive the accounting.
3. The personal representative of an estate should always furnish either an informal or a formal detailed accounting to residuary distributees of an estate. It is only the formal Court approved accounting that may be waived by the Court. In no event should a personal representative or an attorney use pressure or undue influence to make a beneficiary or heir feel that he or she must sign a waiver. It is therefore unacceptable to suggest that unless the person waives an accounting, he or she will have to pay greater fees or that there will be a lengthy delay in receiving a gift or inheritance.
4. Copies of all accountings, annual or final, are to be furnished to all interested parties by the attorney of record or by the personal representative of the estate.
5. Pursuant to Tenn. Code Ann. § 34-11-111, Guardians and Conservators of minors and disabled persons are required to file annual accountings of assets handled by them, unless the accountings are expressly waived by court order.
[Adopted by order effective July 1, 1999.]
RULE XII
OPENING OF ACCOUNTS
1. All fiduciary accounts will be opened at institutions located within the State of Tennessee unless otherwise provided by Court order.
2. As provided for in Tenn. Code Ann. § 30-2-601(e), the personal representative, unless the representative is a bank, shall furnish the original of all canceled checks written on the estate account in support of the financial information entered in the accounting. If the financial institution does not return checks, the original printed statement can be substituted for the original canceled checks. This original statement must clearly delineate the date, payee and amount of the check for each disbursement.
[Adopted by order effective July 1, 1998]
RULE XIII
FEES FOR PERSONAL REPRESENTATIVES AND ATTORNEYS IN
DECEDENTS ESTATES1. The Court will set the fees of personal representatives and attorneys of a decedents estate upon written sworn petition filed by the personal representative. The petition may be filed by the attorney requesting the fee if the personal representative fails or refuses to file the petition.
2. The personal representative may be allowed all necessary expenses in the care, management, and preservation of the estate and may be allowed compensation, as hereinafter provided, for services rendered, unless the decedent provided for the amount of compensation for the personal representative in the decedents will.
3. In determining the amount of the attorneys compensation, the Court will consider the amount and character of the services rendered, the complexity of the estate, the time and effort involved, the character and importance of the litigation, the amount of money or value of property involved, the professional skill and experience required, and the expertise and standing of the attorney.
4. In setting fees, the Court may consider any extraordinary services, including but not limited to sales or mortgages of real or personal property, lengthy or contested litigation involving claims against the estate, complex tax returns or audits by any federal or state agencies, the managing, or selling of the decedents business, will contests, or such other litigation or special services that may be necessary for the personal representative to prosecute, defend, or perform.
5. When fixing fees of personal representatives and attorneys when no compensation is provided by the decedents will, the Court shall consider the guidelines hereinafter set forth. If the value of the decedents gross estate (including the real estate to the extent that services were rendered in connection with the real estate) plus any income earned during the administration of the estate is under $30,000.00, a fee of $1,000.00 shall be considered reasonable. For estates totaling over $30,000.00, the fee may be graduated as determined by the following guidelines:
Value of Estate Percentage as Fee
First $100,000.00 3% to 5%
Next $900,000.00 2% to 4%
Over $1,000,000.00 1% to 3%6. These guidelines reflect what may be considered to be reasonable but are not binding on the Court, the parties, or the attorneys. Fees should be reasonable and otherwise in accordance with the Code of Professional Responsibility as set forth in Tennessee Supreme Court Rule 8.
7. If there are two or more personal representatives, the Court shall apportion such compensation pursuant to any agreement between them. If there is no such agreement, the Court shall apportion such compensation according to the services actually rendered by each.
8. When the attorney also serves as personal representative, only one fee shall be allowed but the Court in fixing same shall take into consideration all of the services rendered.
9. The Court may, in its discretion, set an attorneys fee using an hourly rate rather than setting the fee as a percentage of the decedents estate.
10. The Court will not allow fees or compensation in excess of $3,000.00 to be paid to accountants, appraisers, or other professionals unless a petition setting forth the facts and requesting approval is filed with and approved by the Court. Court approval shall not be required if all interested parties consent to the payment.
11. A copy of any petition that requests compensation pursuant to this Rule shall be given to all interested parties. Additionally, the interested parties shall be given not less than ten days written notice of the date and time on which the petition is scheduled to be heard. This notice shall be given to creditors of the estate if the estate is insolvent.
12. The petition requesting such fees shall include the following:
a. A description of the assets of the estate.
b. The value of the gross estate.
c. The value of the probate estate.
d. The amount of income earned by the estate.
e. The amount of compensation requested.
f. A statement that all interested parties have been properly notified of the proceedings and have been furnished with a copy of the petition.
13. If the amount of the compensation requested by an attorney exceeds $15,000.00, the petition shall be supported by affidavits of two disinterested attorneys who have practiced in the Probate Court more than five years, stating the amount that they consider to be a reasonable fee for the attorney. The Court will consider but is not bound by the affidavits.
14. If the amount of the compensation requested by the attorney or personal representative exceeds $15,000.00 or if the compensation requested is in excess of the percentage guidelines set forth in paragraph five of this Rule, the matter will be heard on a special setting.
15. The attorney or personal representative shall provide the Court with copies of the Federal Estate Tax return and the Tennessee Inheritance Tax return.
16. Normally, fees for personal representatives of estates and their attorneys will not be heard until the estate is substantially completed and an early closing of the estate is contemplated.
17. If the interested parties are all sui juris and agree to the fees, the Court will not require a petition for fees to be filed in the cause. Any such fee agreement should be reduced to a writing and should otherwise comply with the attorneys ethical responsibilities under DR 2-106 of the Code of Professional Responsibility as set forth in Tennessee Supreme Court Rule 8.
[Adopted by order effective July 1, 1998.]
RULE XIV
ELECTIVE SHARE
1. If the surviving spouse applies for an elective share of the decedents estate, not less than ten days written notice shall be given to the personal representative of the estate, the attorney of record, and all interested parties, stating that the spouse or the spouses counsel will appear at a certain time in open Court to signify that the spouse elects to take an elective share of the decedents estate and, if desired, to have same set aside.
2. The personal representative or the attorney for the personal representative shall be present at the hearing, unless the personal representative and all interested parties consent, in writing, for the elective share election to be entered of record.
[Adopted by order effective July 1, 1998.]
RULE XV
YEAR'S SUPPORT
1. Not less than ten days written notice shall be give to the personal representative, the attorney of record, and all interested parties stating the day and time that a petition to set aside a years support will be presented, and the personal representative or the attorney for the estate shall be present at such hearing. Creditors are to be considered interested parties entitled to notice of the application and hearing if the estate is or could reasonably be expected to be insolvent.
2. In the Courts discretion, a years support allowance may be set aside even if no estate has been opened, provided that all interested parties are given notice of the proceeding and that it can reasonably be expected that the entire personal estate should be set aside as a years support.
[Adopted by order effective July 1, 1998.]
RULE XVI
CLOSING OF DECEDENTS ESTATES
1. In order to close an estate. Whether or not a final accounting is waived, the personal representative, after the period for creditors to file claims against the estate has expired, shall file a petition or sworn statement with the Clerk of the Court stating substantially the following facts together with a qualification or explanation if any statement is not accurate:
a. That the personal representative has properly administered the estate.
b. That the personal representative has paid or settled all claims that were lawfully presented and that written satisfaction of all claims is attached or filed in the cause (or if the estate has been declared insolvent that the estate has been distributed in accordance with the Plan of Distribution).
c. That the personal representative has paid or has set aside funds to pay all expenses of administration, including bond premiums and Court costs.
d. That, consistent with all of the requirements of Tenn. Code Ann. § 30-2-306, the personal representative has mailed or delivered a copy of the published notice of the requirement to file claims to the creditors of the decedent who were known to or reasonably ascertainable by the personal representative.
e. That the personal representative has filed in the cause the final receipt and release from the Tennessee Department of Revenue evidencing payment of all Tennessee inheritance and/or estate tax due from the estate, or, in alternative, a non-taxable certificate.
f. That the personal representative has distributed the estate according to the will and has obtained and filed receipts for specific bequests or if the decedent did not leave a will, has distributed the estate according to the laws of intestate succession.
g. That the personal representative has compiled with Tenn. Code Ann. § 30-2-301, requiring a copy of the will or appropriate portion thereof to be furnished to legatees or devisees under the will or, in case of an intestate estate, that a copy of the Letters of Administration has been sent to the distributees.
h. Whether any residuary beneficiary is under a disability.
i. That a receipt and waiver from each residuary beneficiary is attached in which the residuary beneficiary acknowledges that the estate has been properly distributed to him or her and that the residuary beneficiary files the statement in lieu of a more detailed accounting.
2. It should be noted that annual and final accountings should be filed whenever any residuary beneficiary is a minor, is under a disability, or for any reason has declined to sign a waiver. A guardian, conservator, or custodial parent may waive notice of an accounting but may not waive the accounting itself.
3. When a trust is a residuary beneficiary, the trustee of the trust may waive an accounting but the receipt and waiver must set forth the assets received from the personal representative. Additionally, whenever the trustee and personal representative are the same person, this fact shall be brought to the attention of the Court and the Court shall determine whether, under the totality of the circumstances, waiver is appropriate. Normally, the Court in such situations will require that the adult beneficiaries of the trust also agree to the waiver of accounting.
4. Final accountings of solvent estates may be waived and the estate may be closed on receipt and waiver provided that all residuary beneficiaries are sui juris and that they acknowledge, in writing, that the estate has been properly distributed to them and that they file the statement in lieu of a more detailed accounting.
[Adopted by order effective July 1, 1998.]
RULE XVII
INVESTING FUNDS PER COURT ORDER
1. The Probate Court Clerk will invest litigants funds paid into the Court only if there is a Court order directing it to do so. Unless the order provides otherwise, the Clerk shall determine in which institution the funds are to be invested and the nature of the investment. The order should state the type of investment desired. At the time of payment or when the order is entered, if later, it will be the duty of the attorney seeking investment of the funds to specifically call to the attention of the Clerk that the funds are to be invested. The Clerk, upon distribution of the funds held by it, shall be paid a commission equal to 10% of the income realized from the account. If funds are to be held for less than thirty days, the Clerk will deposit them in its "funds not invested account."
2. All orders directing the Probate Court Clerk to invest funds must include the applicable social security number or employment identification number of the person or entity responsible for the payment of taxes on the income produced by the investment.
[Adopted by order effective July 1, 1998.]
RULE XVIII
LITIGANTS OR WITNESSES WITH DISABILITIES
Whenever a participant in the trial process may have a disability requiring special accommodation, the Clerk of the Court should be notified in order to allow the Court to comply with the letter and spirit of the Americans with Disabilities Act.
[Adopted by order effective July 1, 1998.]