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RULE 6. TIME

July 25, 2011

RULE 6.01: COMPUTATION.

In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the date of the act, event or default after which the designated period of time begins to run is not to be included.The last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a legal holiday as defined in Tenn. Code Ann. § 15-1-101, or, when the act to be done is the filing of a paper in court, a day on which the office of the court clerk is closed or on which weather or other conditions have made the office of the court clerk inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than eleven (11) days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.

[As amended by order entered January 21, 1988, effective August 1, 1988; and by order entered January 26, 1999, effective July 1, 1999, and by order entered December 10, 2003; effective July 1, 2004; and by order entered December 21, 2010, effective July 1, 2011.]

Advisory Commission Comments [2011]. Rule 6.01 is amended to define “legal holiday” by reference to statute, Tenn. Code Ann. § 15-1-101. The status of a day as a legal holiday is statutory; thus, for the purpose of filing papers in court, it does not depend on whether the clerk’s office is open for business. For example, state offices might be open on Columbus Day, pursuant to the governor’s authority under Tenn. Code Ann. § 4-4-1 05(a)(3) to substitute the day after Thanksgiving for the Columbus Day holiday; in such circumstances, however, Columbus Day is still a “legal holiday” for purposes of computing time periods under the rule.

Rule 6.01 also is amended to add a reference to days on which the office of the court clerk is closed.

RULE 6.02: ENLARGEMENT.

When by statute or by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion, (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done, where the failure to act was the result of excusable neglect, but it may not extend the time for taking any action under Rules 50.02, 59.01, 59.03 or 59.04, except to the extent and under the conditions stated in those rules. This subsection shall not apply to the time provided in Tennessee Rule of Appellate Procedure 4(a) for filing a notice of appeal, nor to the time provided in Tennessee Rule of Appellate Procedure 24(b) & (c) for filing a transcript or statement of evidence. [Effective July 1, 2001]

RULE 6.03: UNAFFECTED BY EXPIRATION OF TERM — CHAMBERS ORDERS.

(1) The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the continued existence or expiration of a term of court. The continued existence or expiration of a term of court in no way affects the power of a court to do any act or take any proceeding in any civil action which has been pending before it.

(2) The judge or chancellor may make or direct in chambers any order, rule, judgment or decree in any civil action, except the conducting of a trial when a jury is required and of the hearing and determination by final decree of any contested divorce case unless consented to by the parties. [As amended July 1, 1979.]

RULE 6.04: FOR MOTIONS — AFFIDAVITS.

(1) 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 an order may for cause shown be made on ex parte application.

(2) When a motion is supported by affidavit the affidavit shall be served with the motion; except as otherwise provided in Rule 56.04 and Rule 59.03, opposing affidavits may be served not later than one (1) day before the hearing, unless the court permits them to be served at some other time. [As amended by order entered January 26, 1999, effective July 1, 1999 and by order entered January 28, 2000, effective July 1, 2000.]

RULE 6.05: ADDITIONAL TIME AFTER SERVICE BY MAIL.

Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon such party and the notice or paper is served upon such party by mail three (3) days shall be added to the prescribed period.

Advisory Commission Comments. If a clerk’s office is closed all day on a date other than a Saturday, Sunday, or legal holiday, a lawyer would be unable to gain entrance to file a document on the “deadline.” Consequently the [1988] amendment extends the deadline to the next business day that the courthouse is open. [1988.]

6.01: By statute, “The time within which any act provided by law is to be done, shall be computed by excluding the first day and including the last, unless the last day is a Saturday, a Sunday, or a legal holiday, and then it shall also be excluded.”Tenn. Code Ann. § 1-3-102.

Rule 6.01 adopts the same formula as that provided by the foregoing statute, with two additions: (1) If the last day of a period falls on a Saturday, Sunday, or legal holiday, the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday. Thus, if the period would normally expire, for example, on November 9, but November 9 fell on a Saturday, November 10 was a Sunday, and November 11 was a legal holiday, the Rule makes it clear that the period would run until the end of the day, Tuesday, November 12.

(2) When the prescribed period is less than eleven days, intermediate Saturdays, Sundays and holidays are excluded. When the time allowed is so short, the party limited by the time should not be further handicapped by losing one or more days because normal business operations are suspended by Saturday, Sunday, or legal holiday observances.

6.02: Rule 6.02 establishes a single standard for the courts to follow in granting enlargement of the time periods within which various acts must be done. Extension is to be allowed liberally when request is made before the original period or any previous extension thereof has expired. Extension is to be allowed, even after expiration of the original period or any previous extension thereof, where the failure to take timely action was due to excusable neglect. The power to enlarge the time under this Rule does not apply to time periods fixed by Rule 50.02 (Party whose motion for directed verdict made at close of all the evidence was not granted, may, within 30 days after entry of judgment or discharge of jury without a verdict, move for judgment in accordance with the party’s motion for directed verdict); Rule 59.01 (Motion for new trial must be filed and served within 30 days after entry of judgment); Rule 59.03 (Motion to alter or amend a judgment must be filed within 30 days after entry of judgment); or Rule 59.04 (Court on its own initiative may alter or amend judgment or order a new trial within 30 days after judgment).

6.03: The time within which an act is required to be done or a proceeding taken is fixed to allow the parties a reasonable time in which to act. To allow this reasonable time to be affected or limited by the continuance or expiration of a term of court is to introduce a variable which may make the time allowed in a particular case unreasonable and thus work a hardship upon a party. Accordingly, this Rule eliminates court terms as a factor in computing allowable time periods.

6.04: Rule 6.04 fixes five days for all motions requiring notice, unless a different time is fixed for a particular motion by these Rules or by the court. The exception referred to in paragraph (2) of Rule 6.04 allows a party 10 days to file opposing affidavits in response to affidavits supporting a motion for a new trial.

6.05: Rule 6.05 is included to guard against injustice caused by loss of time required for notice to be delivered through the mails.

Advisory Commission Comments [1999]. 6.01. The expansion of seven to eleven days in the final sentence of Rule 6.01 is to eliminate confusion over whether the mailing of a five-day notice creates an eight-day period because of Rule 6.05. No longer will that be an issue, as any period less than eleven days requires exclusion of weekends and holidays.

6.04. Rule 6.04(2) is amended to make clear that summary judgment affidavits are governed by Rule 56.04, which contains a different service deadline.

Advisory Commission Comments [2000]. The amendment to Rule 6.04(2) is needed to conform to the renumbering of paragraphs in Rule 59.

Advisory Commission Comments [2001]. This technical amendment to Rule 6.02 deletes references to repealed statutes and substitutes references to the Rules of Appellate Procedure.

 Advisory Commission Comments [2004]. The second sentence of Rule 6.01 is altered to adopt federal language covering snow days and the like which make a clerk’s office “inaccessible” for filing. Earlier language required that the office be “closed.”

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