The doctrine of waiver is the stuff of nightmares for appellate practitioners: You are standing before the court at oral argument. You’ve spent months pouring over the record, weeks crafting your brief and hours honing your best arguments. As the green light comes on, you begin your brilliant explanation of why the trial court erred. Suddenly, the presiding judge cuts in: “Counselor, hasn’t this issue been waived?”

There are many ways to waive issues before an appellate court. You can attempt to raise an argument that was not raised in the trial court.¹ You can fail to provide proper citations to authority.² You can even fail to notify the Tennessee Attorney General of your constitutional challenge to a state law.³ But one of the most common pitfalls resulting in waiver of an appellate issue is the failure to include it in the “statement of the issues” section of an appellate brief. As the Court of Appeals has stated time and time again: “An issue not raised in an appellant’s statement of the issues may be considered waived.”⁴

In enforcing this rule over the years, various panels of the Court of Appeals have been quite harsh.⁵ This has sometimes led to parties overwriting their issue statements seeking to avoid any possibility of waiver.⁶

Fortunately, the Tennessee Supreme Court recently brought much needed clarity to the rule with its decision in Trezevant v. Trezevant.⁷ In Trezevant, the Court of Appeals had found that the appellant’s arguments made in the argument section of his brief were not sufficiently encompassed within his statement of the issues.⁸ The appellant’s statement of the issues had alleged the trial court erred in finding him guilty on four counts of criminal contempt, but it was not until the argument section of his brief that he clarified specifically why the trial court’s decision had been erroneous.⁹ In essence, the Court of Appeals held that the appellant’s failure to specifically delineate his sub-arguments in the statement of the issues section of his brief meant that those sub-arguments had been waived.¹⁰

The Supreme Court rejected the Court of Appeals’ narrow reading of the issue statement.¹¹ Noting that the statement of the issues and argument sections of a brief were “distinct but complementary,” the court held that “when the arguments set forth in an appellate brief fall within the scope of the stated issues, and the issues and argument taken together clearly present the grounds for appellate relief, the reviewing court should review the substantive issues.”¹²

Two principles were key to the court’s ruling. First, the court highlighted the importance of “notice.”¹³ According to the court, “the statement of issues ensures that the opposing party has notice of the issues to which it must respond, and further ensures that the reviewing court is not tasked with scouring the record for reversible errors.”¹⁴ Though it did not state this explicitly, the court implied that when a party’s statement of the issues as well as its argument, read together, put the opposing party and the court on notice of the issues raised by the brief, the statement of the issues section is sufficient.¹⁵

Second, the court also considered Tennessee Rule of Appellate Procedure 1.¹⁶ That rule provides that the Rules of Appellate Procedure “shall be construed to secure the just, speedy and inexpensive determination of every proceeding on its merits.”¹⁷ The court noted its decision in Johnson v. Hardin,¹⁸ which held that “[t]he general policy of the rules, as suggested by the Advisory Commission and interpreted by the courts, emphasizes reaching a just result and disregarding technicality in form.”¹⁹ The court also quoted Johnson’s admonition: “once a timely notice of appeal is filed, the rules should not erect unjustified technical barriers which prevent consideration of the merits of the appeal.”²⁰

Drawing upon these principles, the court found that the appellant in Trezevant had sufficiently identified his statement of the issues to be presented for review.²¹

This change in the level of detail required in an issue statement should be welcome news to any appellate attorney. While each issue should still “be framed as specifically as the nature of the error will permit” to avoid any potential risk of waiver, it appears that overwritten issue statements containing every last argument contained in the brief are no longer necessary.²² Thanks to the Supreme Court, the pitfall of a deficient issue statement may still be there, but the pit is not nearly as wide.

Will this remove all worry going forward for appellate practitioners with respect to their issue statements? Not for the authors of this article; we suppose it goes with the territory! But it will, we hope, greatly diminish those worries. |||

DONALD N. CAPPARELLA and JACOB A. VANZIN are appellate practitioners with Dodson, Parker, Behm & Capparella PC of Nashville. Capparella has handled over 500 appeals in state and federal court, and for over 25 years has been the Editor in Chief of the Appellate Advocacy handbook published by the Nashville Bar Association. Vanzin has practiced in Tennessee for over a decade and has authored several winning appellate briefs. He teaches appellate practice at Nashville School of Law and is a frequent presenter of TBA CLE programs.

NOTES

1. See Black v. Blount, 938 S.W.2d 394, 403 (Tenn. 1996) (“Under Tennessee law, issues raised for the first time on appeal are waived.”)
2. See Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000) (“Courts have routinely held that the failure to make appropriate references to the record and to cite relevant authority in the argument section of the brief as required by Rule 27(a)(7) constitutes a waiver of the issue.”)
3. See Buettner v. Buettner, 183 S.W.3d 354, 358 (Tenn. Ct. App. 2005) (holding that constitutional challenge to the Tennessee child support guidelines was waived by failure to comply with state laws requiring notice to the attorney general).
4. Champion v. CLC of Dyersburg LLC, 359 S.W.3d 161, 163 (Tenn. Ct. App. 2011); In re Jude M., 619 S.W.3d 224, 241 (Tenn. Ct. App. 2020); Logan v. Estate of Cannon, 602 S.W.3d 363, 383 n.4 (Tenn. Ct. App. 2019).
5. See, e.g., Brecker v. Brecker, No. M2018-00120-COA-R3-CV, 2018 WL 5310751, at *7 (Tenn. Aug. 21, 2018), no appeal taken; Charles v. McQueen, No. M2021-00878-COA-R3-CV, 2022 WL 4490980, at *2 n.1 (Tenn. Ct. App. Sept. 28, 2022), aff’d in part, but rev’d as to whether appellate attorney fee issue was properly preserved, 693 S.W.3d 262, 283-84 (Tenn. 2024).
6. See, e.g., Jones v. Unrefined Oil Co. Inc., No. E2023-00272-COA-R3-CV, 2024 WL 2797073, at *4 n.4 (Tenn. Ct. App. May 31, 2024), no appeal taken.
7. Trezevant v. Trezevant, 696 S.W.3d 527 (Tenn. 2024)
8. Trezevant, 696 S.W.3d at 530.
9. See Trezevant, 696 S.W.3d at 528-29.
10. Trezevant, 696 S.W.3d at 528-531.
11. Trezevant, 696 S.W.3d at 530-31.
12. Trezevant, 696 S.W.3d at 531.
13. Trezevant, 696 S.W.3d at 530.
14. Trezevant, 696 S.W.3d at 530.
14. Trezevant, 696 S.W.3d at 530-31.
16. Trezevant, 696 S.W.3d at 530 (citing Tenn. R. App. P. 1).
17. Tenn. R. App. P. 1.
18. Johnson v. Hardin, 926 S.W.2d 236 (Tenn. 1996).
19. Trezevant, 696 S.W.3d at 530 (quoting Johnson, 926 S.W.2d at 238).
20. Trezevant, 696 S.W.3d at 530-31 (quoting Johnson, 926 S.W.2d at 238).
21. Trezevant, 696 S.W.3d at 531.
22. Trezevant, 696 S.W.3d at 530 (quoting Hodge v. Craig, 382 S.W.3d 325, 335 (Tenn. 2012).