                   IN THE SUPREME COURT OF TENNESSEE

                                AT KNOXVILLE                      FILED
                                                                    August 5, 1996

SCARLETT LAY LOVE,                     )                       Cecil Crowson, Jr.
                                                     FOR PUBLICATION
                                                                  Appellate C ourt Clerk
                                       )
       Plaintiff-Appellant,            )             Filed: August 5, 1996
                                       )
v.                                     )             SCOTT CIRCUIT
                                       )
COLLEGE LEVEL ASSESSMENT               )      Hon. Conrad Troutman, Judge
SERVICES, INC., and NURSING            )
CAREERS, INC.                          )
                                       )
                                       )
                                       )
                                       )      No. 03S01-9510-CV-00118


For Plaintiff-Appellant:                      For Defendants-Appellees:

Donald F. Paine                               Christopher Van Riper
Andrew R. Tillman                             Stuart & Van Riper
Carlyle Urello                                Clinton, Tennessee
Paine, Swiney and Tarwater
Knoxville, Tennessee




                              O P I N I O N




COURT OF APPEALS REVERSED.                                        DROWOTA, J.

       The plaintiff, Scarlett Lay Love, appeals from the denial of her motion to
dismiss, the motion being predicated upon the alleged failure of the defendants,

College Level Career Services, Inc., and Nursing Careers, Inc., to perfect an appeal

from the general sessions court to the circuit court within the ten-day period provided

for in Tenn. Code Ann. § 27-5-108. The sole issue for our determination is as

follows: whether a facsimile (fax) transmission of a notice of appeal and appeal bond,

sent by the defendants to the clerk of the general sessions court on the final day on

which an appeal could be taken, is sufficient to perfect the appeal. For the following

reasons, we conclude that the facsimile transmission was not sufficient to perfect the

appeal; therefore, we reverse the judgment of the Court of Appeals.



                      FACTS AND PROCEDURAL HISTORY



       The facts of this case are undisputed. On October 29, 1993, Scarlett Lay Love

brought suit in the Scott County General Sessions Court against Nursing Careers and

College Level Assessment Services, seeking, among other things, rescission of a

contract between her and the defendants. On June 7, 1994, the general sessions

court found for the plaintiff, rescinding the contract and awarding money damages to

her. The court’s judgment properly stated that any appeal was due to be filed no later

than June 17, 1994.



       On June 17, 1994, the Clerk of the Scott County General Sessions Court

received, via facsimile transmission, a letter from the law firm representing the

defendants. That letter provides:



       This letter is to confirm the conversation I had with you on June 16,

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       1994. I asked if Mr. Van Riper could fax a Notice of Appeal to the court
       and whether a fax would be accepted as an original, since the deadline
       for filing is today, June 17. You indicated to me that the fax would be
       treated as an original.

       Please accept this fax of the Notice of Appeal in the above-referenced
       case as an original. A duplicate original will be provided by U.S. mail
       this same date.



The following page of the facsimile contained a “Notice of Appeal,” in which the

defendants appealed to the circuit court for a trial de novo; the page also included a

“Cost Bond,” which designated the defendants as principals and the law firm as

surety for court costs not to exceed five hundred dollars.



       At some point after June 17 the clerk of the general sessions court received

the original documents in the mail. Upon receipt of the documents, the clerk stamped

“Filed June 17, 1994" thereon.



       On October 6, 1994, the plaintiff moved to dismiss the appeal, arguing that

because facsimile filing of the notice of appeal and cost bond was not allowed by rule

or statute, it was thus ineffective as a means of perfecting an appeal.           The

defendants opposed the motion, arguing that although facsimile filing was not

expressly permitted by statute or rule, neither was it expressly prohibited. The trial

court denied the motion, but granted the plaintiff permission to file an interlocutory

appeal pursuant to Tenn. R. App. P. 9. The plaintiff did so and the Rule 9 application

was granted by the Court of Appeals. That court, however, affirmed the circuit court’s

judgment, and the plaintiff filed an application to appeal pursuant to Tenn. R. App.

P. 11. We granted that application in order to address this important procedural


                                          3
issue.



                                       ANALYSIS



         We begin our discussion of this issue by noting that the legislature has clearly

indicated its approval of facsimile transmissions in the filing of court documents.

Tenn. Code Ann. § 16-1-113 provides that:



         (a) It is the intent of the general assembly, in recognition of the
         common practice and use of facsimile transmissions (fax) in business
         and government, to:
         (1) Promote a more efficient means of filing documents and overcome
         expenses and delays entailed in long distance communication; and
         (2) Enable courts in this state to implement procedures for the filing of
         documents by fax.

         (b) Courts in this state may implement procedures for the transmission
         of documents by fax machines in accordance with the provisions of this
         section and §16-3-408 and the Tennessee Supreme Court Rules.



Furthermore, the section referenced in that statute, § 16-3-408, provides as follows:



         The supreme court is urged to develop court rules and procedures to
         control the process of courts using fax transmissions of documents.
         The court rules and procedures are to be promulgated and submitted
         to the general assembly for approval as provided by law by February
         1, 1992, and should provide for the following:

         (1) The type of document that may be faxed;
         (2) The length of restriction, if any, of a document that may be faxed;
         (3) The type of equipment and paper which must be used by clerks’
         offices;
         (4) The amount, if any, of fees to be charged for the faxing of
         documents;
         (5) The payment of regular filing fees of the court;
         (6) The time of filing of a faxed document;
         (7) Requirements, if any, for filing of original documents or original

                                            4
       signatures;
       (8) Requirements, if any, for maintenance of transmittal reports of faxed
       documents; and
       (9) Any other rule or procedure the court deems appropriate.



       In response to § 16-3-408, this Court sanctioned a pilot program in the trial

courts of Rutherford County to study the use of facsimile filing. However, neither this

Court nor the Advisory Commission on the Rules of Civil and Appellate Procedure

has made a final evaluation of that program for purposes of determining the

desirability of adopting a statewide rule. Therefore, we have not implemented a

statewide rule governing facsimile filing.



       This lack of an enabling rule is very significant, the plaintiff argues, for without

specific guidelines the decision of whether to accept documents filed by fax will be

left to each individual clerk to make on an ad hoc basis.              Such a result is

unacceptable, she continues, for such a practice will inevitably lead to divergent

procedures among the respective clerks; and litigants utilizing the facsimile method

will be unsure as to whether their documents have been properly filed. Because the

filing of documents such as a complaint or notice of appeal is of paramount

importance -- it is, according to the plaintiff, jurisdictional and cannot be waived by the

court -- facsimile filing should not be allowed in the absence of a specific rule.



       The defendants counter by arguing that there is no requirement that a party

file an “original” notice of appeal, and that no rule exists which prohibits filing the

document by facsimile. Because the clerk specifically approved the method in this

case, they contend, the judgment of the lower courts should be affirmed.


                                             5
           We find the plaintiff’s argument to be more compelling for a number of

    reasons. First, she is correct that the timely perfecting of an appeal is no mere

    technical formality: it is in fact a mandatory requirement, and if it is not complied with

    the court has no jurisdiction over the case. Tenn. Code Ann. § 27-5-108. Second,

    while the facsimile is a common, reasonably reliable method of transmitting

    information, there are several issues that could be problematic if we were to allow

    such filing in the absence of a detailed rule. For example, since the machine is able

    to receive a transmission at any time, should a fax sent after the normal closing time

    of the clerk’s office be deemed filed that day or the next? What if the machine in the

    clerk’s office has technical difficulty or is tied up when a party attempts to file --

    should the abortive attempt be deemed a valid filing? Should the party be required

    to present a transmittal sheet in such a situation? May the court charge a transmittal

    or user fee when a party files by fax? And may a party use the machine to file a

    document that requires a filing fee? These are precisely the types of issues that the

    legislature had in mind when it asked this Court to formulate a comprehensive rule

    governing facsimile filing.1 And these potentially problematic issues are why such an

    important aspect of procedure cannot be subjected to the vagaries of individual

    clerks, however competent and well-intentioned they may be.



           In summation, we are aware that significant advances in communications

    technology have occurred since our rules of civil and appellate procedure were

    promulgated, and we acknowledge that our courts should keep abreast of these

    changes. However, until uniform court rules and procedures have been developed


1
 We note that the rule applying to the Rutherford County trial courts resolves most
of these issues.

                                                6
    to control the use of this particular type of technology, facsimile transmissions,

    counsel should refrain such use, except in the courts where pilot programs have been

    adopted. Because this Court has not yet adopted a rule of statewide applicability

    governing facsimile filing, and because we have not yet sanctioned a pilot program

    in Scott County, the judgment of the Court of Appeals and the trial court is hereby

    reversed.2




                                      ________________________________________
                                      FRANK F. DROWOTA III
                                      JUSTICE


    Concur:

    Birch, C.J.
    Reid, Anderson and White, JJ.




2
 Our recent decision in Cruse v. City of Columbia, ___ S.,W.2d ___ (Tenn. 1996),
does not conflict with this opinion because that decision was based on “the unique
circumstances presented.” Furthermore, we specifically stated that “counsel should
not rely on facsimile transmissions for the filing of documents in the future.” Cruse,
___ S.W.2d at ___.

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