Tennessee appellate practice is a precision business. Absent rare exceptions, the record is settled before an appeal begins, and well-defined procedural rules restrict the claims that litigants may raise on appeal. Whether due to negligence or for some other reason, though, a huge proportion of the issues that litigants present to Tennessee’s appellate courts are rejected as waived (or forfeited¹). Thus, understanding Tennessee’s waiver rules and knowing how to defend against waiver claims are essential tools in the appellate practitioner’s toolkit.

Though largely intuitive and fairness-oriented, the rules of waiver begin earlier and extend further than many assume. As a result, trial-level litigators and appellate practitioners alike need to understand the scope of Tennessee’s waiver rules to have any chance of prevailing on appeal.

1

Waiving Claims  in
Trial-Level Proceedings.

Consider one of Tennessee’s most elementary and “well settled” waiver rules: “that matters not raised at the trial level are considered waived on appeal.”² As stated, the rule seems simple: To preserve an issue for appeal, a litigant must raise it in the trial court. But, in fact, merely raising an issue at some point during trial court proceedings is not enough. Instead, the issue must be timely raised in the trial court; as the Tennessee Supreme Court has explained, “there is little difference between an issue improperly raised before the trial court at the last minute and one that was not raised at all.”³

Based on this rule, if an issue is raised for the first time in a trial-level reply brief, it will be waived on appeal.⁴ The same is true if an issue is raised for the first time in a post-judgment motion to alter or amend; “an issue presented for the first time in a post-trial motion to alter or amend is waived as too late.”⁵ “A similar rule applies in the context of evidentiary rulings, where parties must make contemporaneous objections to the admission or exclusion of evidence to preserve their arguments.”⁶ Further, even timely presenting issues in the trial court may not preserve them for appeal if they are not renewed appropriately; after a jury trial, for instance, an issue will be deemed waived on appeal if it was not raised specifically in a timely filed motion for a new trial.⁷ A litigant who properly raises an issue in the trial court must not explicitly or implicitly abandon it, either; if he does, “he has waived it on appeal.”⁸

2

Waiving Issues Between the Trial Court and Appeal

Because an “appellate court is precluded from addressing an issue on appeal when the appellate record does not include relevant documents[,]”⁹ as a practical matter, even issues that have been preserved in the trial court may not be raised on appeal unless an adequate record supports them. Thus, it is not enough to timely raise and preserve an issue in the trial court; appellants must also ensure that there is an adequate record documenting them, as “[t]he failure of the appellant to ensure that documents necessary to consider a particular issue raised on appeal are included in the appellate record constitutes an effective waiver of the appellant’s right to appeal that issue.”¹⁰

This form of waiver may arise in several ways. For example, if a plaintiff seeks to appeal a trial court’s order denying his motion for leave to file an amended complaint, the plaintiff’s failure to ensure that the record includes a copy of his proposed amended complaint will categorically preclude appellate review of the issue.¹¹ More commonly, litigants waive issues on appeal by failing to ensure that the record includes a necessary hearing transcript or statement of the evidence. As the Tennessee Court of Appeals has explained: “In the absence of a transcript or statement of the evidence, [appellate courts] conclusively presume that the findings of fact made by the trial court are supported by the evidence and are correct.”¹²

3

Waiving Issues in the Tennessee Court of Appeals.

Once a case reaches the Tennessee Court of Appeals, issues that otherwise were preserved may become waived in many ways due to briefing deficiencies. For example, an issue will be waived on appeal if an appellant fails to include it in his opening brief’s Statement of the Issues.¹³ An issue also will be waived on appeal — even if it has been properly designated as an issue in the appellant’s Statement of the Issues — when it is not argued in the body of an appellant’s brief.¹⁴ Further, even when an issue has been designated in a Statement of the Issues and argued in an appellant’s brief, the issue will be waived if it is argued only skeletally,¹⁵ if it is “difficult to discern[,]”¹⁶ or if it is not “actually responsive to a trial court’s ruling[.]”¹⁷ “Arguments raised only in footnotes are waived[,]” too.¹⁸

Appellants also must comply with briefing rules that require citations to supporting authority; failing to do so “may result in the dismissal of an appeal and/or the waiver of all issues.”¹⁹ That means providing appropriate (and accurate) citations to both the appellate record and supporting legal authority — “[c]ourts 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.”²⁰ Meagre citations to supporting authority are similarly insufficient; an “[a]ppellant’s ‘paltry and inapplicable citations’ [will] not save his brief” from waiver rules.²¹

An appellant also must make sure to appeal all dispositive grounds for a trial court’s adverse ruling to preserve an issue for review; failing to do so will waive an appellant’s claim of error on appeal and result in automatic affirmance on the unchallenged ground.²² Nor may litigants raise appellate issues for the first time in a reply brief²³ or during oral argument;²⁴ doing so waives them. An appellant cannot change its theory of relief about an issue, either, even if the issue has been preserved below; doing so will waive the issue on appeal.²⁵ An appellant can waive an issue — either deliberately or by giving issue-dispositive responses to panel questions — at oral argument, too.²⁶

In some cases, litigants may even incur the burden of responding to arguments raised on appeal or have their opposition deemed waived. For example, “where a well-developed argument asserting a matter is non-justiciable has been properly advanced on appeal and is not addressed by the opposing party, [the Tennessee Court of Appeals] has found waiver to be applicable.”²⁷ Thus, meticulous compliance with briefing rules, attention to detail, and complete briefing are necessary components of every appeal, especially when representing an appellant.

4

Waiving Issues in the Tennessee Supreme Court.

Issues also be may waived in the Tennessee Supreme Court specifically. Some of the waiver doctrines that apply in the Tennessee Supreme Court are merely extensions of waiver doctrines already discussed above; for example, to be available for review by the Tennessee Supreme Court, an issue must have been both raised in the trial court and preserved in the Tennessee Court of Appeals — failing to raise an issue in both courts will waive it.²⁸ In theory, “[a] party who fails to adequately raise an issue in a Rule 11 application waives the issue” in the Tennessee Supreme Court,²⁹ too — though the Tennessee Supreme Court has not uniformly adhered to this rule, and recently, it has begun specifying its own issues for review in its Rule 11 grant orders.³⁰ Thus, the current status of Rule 11-based waiver rules is uncertain.

5

Defending Against
Waiver Claims

The best way to avoid waiver is by scrupulously adhering to preservation rules. Appellate practitioners often did not serve as trial counsel, though, and they are stuck with the record as it comes to them. Thus, it helps to have counterarguments available to defend against waiver claims, especially in close cases.

Several such arguments are available. For example, the Tennessee Court of Appeals recently explained that it “place[s] substance over form when it comes to deciding whether a party has raised an issue for the first time on appeal” and will overlook even “unfortunate” failures of specificity below because it “prefer[s] to resolve appeals on their merits.”³¹ Separately, evidentiary objections need not have been repeated to avoid waiver.³² Parties that failed to preserve arguments below may avoid waiver when they did not bear the burden on an issue, too.³³ The burden of proving waiver also “falls on the party asserting [it].”³⁴

When it comes to waiver claims related to an appellant’s Statement of the Issues, the Tennessee Supreme Court recently relaxed the rules that govern the specificity of issue statements, emphasizing that the focus should be whether “the issues and argument taken together clearly present the grounds for appellate relief[.]”³⁵ Similarly, as to briefing deficiencies, the Tennessee Supreme Court recently cautioned that “Tennessee courts must reasonably exercise their discretion to excuse technical deficiencies that do not significantly impede the appellate process[.]”³⁶

Other waiver defenses may be available in case-specific circumstances. For example, even when a litigant has failed to raise an issue below, if a trial court nevertheless ruled on it, persuasive authority instructs that “the losing party can challenge it.”³⁷ And some issues — like lack of subject-matter jurisdiction — “cannot be waived” at all.³⁸

Conclusion

Given their breadth and depth, mastering waiver rules — which begin applying early and carry through every stage of Tennessee’s appellate process — is a critical ingredient of appellate success. For appellees, waiver rules may be (and often are) invoked offensively to take significant appellate issues off the table or foreclose an appeal entirely. For appellants, overcoming waiver rules — and preventing them from coming into play at all — may be necessary to have any chance of prevailing on appeal. Litigants who start an appeal in the posture of an appellee also do not always stay that way, and appellees often need to cross-appeal issues in the posture of an appellant in any event. Thus, all litigators — especially those handling appeals — need to be familiar with waiver rules from the trial level through the Tennessee Supreme Court, and they need to be comfortable dealing with them from any direction. |||

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DANIEL A. HORWITZ is a Tennessee appellate lawyer at Horwitz Law PLLC, and the editor of Intermediate Scrutiny, a weekly Tennessee Court of Appeals newsletter. Horwitz has won dozens of appeals in the Tennessee Court of Appeals, the Tennessee Supreme Court, and other Tennessee appellate courts.

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NOTES

1. Both the Tennessee Supreme Court and the Tennessee Court of Appeals have recently noted a “distinction” between waiver and forfeiture. See Houghton v. Malibu Boats LLC, No. E2023-00324-SC-R11-CV, 2025 WL 2971436, at *6 n.13 (Tenn. Oct. 22, 2025); Bryce v. Partin, No. E2024-01404-COA-R3-CV, 2025 WL 3023736, at *3 n.5 (Tenn. Ct. App. Oct. 29, 2025). Controlling Tennessee authority spanning decades uses “waiver” to describe both failures, though. Thus, this article imprecisely uses the term “waiver” to describe both waived issues and forfeited ones.
2. See Eagles Landing Dev. LLC v. Eagles Landing Apartments LP, 386 S.W.3d 246, 254 (Tenn. Ct. App. 2012) (“It is well settled that matters not raised at the trial level are considered waived on appeal.”) (citing Waters v. Farr, 291 S.W.3d 873, 918 (Tenn. 2009)); Tenn. R. App. P. 36(a); see also Justice v. Bd. of Pro. Resp., 693 S.W.3d 225, 253 (Tenn. 2024) (“[A] party may not raise an issue on appeal that it did not raise in the trial court.”).
3. In re Adoption of E.N.R., 42 S.W.3d 26, 32 (Tenn. 2001).
4. See, e.g., Douglas v. Strada, No. W2024-00753-COA-R3-CV, 2024 WL 5115870, at *3 (Tenn. Ct. App. Dec. 16, 2024) (citing Gentry v. Former Speaker of House Glen Casada, No. M2019-02230-COA-R3-CV, 2020 WL 5587720, at *6 (Tenn. Ct. App. Sept. 17, 2020), perm. app. denied Jan. 13, 2021.)); Gentry, 2020 WL 5587720, at *6 (citing Tenn. R. Civ. P. 7.02(1)).
5. Induction Techs. Inc. v. Justus, 295 S.W.3d 264, 268–69 (Tenn. Ct. App. 2008).
6. Knapp v. Boykins, No. W2019-02154-COA-R3-CV, 2020 WL 4783680, at *4 (Tenn. Ct. App. Aug. 18, 2020).
7. Waters v. Coker, 229 S.W.3d 682, 689 (Tenn. 2007) (citing Boyd v. Hicks, 774 S.W.2d 622, 625 (Tenn. Ct. App. 1989)); State v. Gauldin, 737 S.W.2d 795, 798 (Tenn. Crim. App. 1987).
8. Fuller v. Allianz Life Ins. Co. of N. Am., No. E2018-02267-COA-R3-CV, 2020 WL 830067, at *6 (Tenn. Ct. App. Feb. 19, 2020); see also State v. Sanders, 452 S.W.3d 300, 305 n.3 (Tenn. 2014).
9. Wells v. Illinois Cent. R. Co., No. W2010-01223-COA-R3CV, 2011 WL 6777921, at *6 (Tenn. Ct. App. Dec. 22, 2011).
10. Id.; see also, e.g., Hidden Lake Resorts Homeowners Ass’n Inc. v. Moore, No. M2022-01323-COA-R3-CV, 2024 WL 2844447, at *13 (Tenn. Ct. App. June 5, 2024) (citing In re M.L.D., 182 S.W.3d 890, 894 (Tenn. Ct. App. 2005); Tenn. R. App. P. 24(b), (c).
11. Taylor v. Nash. Banner Pub. Co., 573 S.W.2d 476, 484 (Tenn. Ct. App. 1978)
12. Burris v. Burris, 512 S.W.3d 239, 247 (Tenn. Ct. App. 2016) (citing J.C. Bradford & Co. v. Martin Constr. Co., 576 S.W.2d 586, 587 (Tenn. 1979)).
13. See, e.g., Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct. App. 2001) (“Courts have consistently held that issues must be included in the Statement of Issues Presented for Review required by Tennessee Rules of Appellate Procedure 27(a)(4). An issue not included is not properly before the Court of Appeals.”); Childress v. Union Realty Co., 97 S.W.3d 573, 578 (Tenn. Ct. App. 2002) (“We consider an issue waived where it is argued in the brief but not designated as an issue.”); Hodge v. Craig, 382 S.W.3d 325, 335 (Tenn. 2012) (“[A]n issue may be deemed waived when it is argued in the brief but is not designated as an issue in accordance with Tenn. R. App. P. 27(a)(4).”).
14. See, e.g., Forbess v. Forbess, 370 S.W.3d 347, 355 (Tenn. Ct. App. 2011) (“This court has repeatedly held that a party’s failure … to argue the issues in the body of its brief constitute a waiver on appeal.”) (collecting authority); Hodge, 382 S.W.3d at 335 (“An issue may be deemed waived, even when it has been specifically raised as an issue, when the brief fails to include an argument satisfying the requirements of Tenn. R. App. P. 27(a)(7).”).}
15. See, e.g., Sneed v. Bd. of Pro. Resp. of Supreme Ct., 301 S.W.3d 603, 615 (Tenn. 2010) (“It is not the role of the courts, trial or appellate, to research or construct a litigant’s case or arguments for him or her, and where a party fails to develop an argument in support of his or her contention or merely constructs a skeletal argument, the issue is waived.”); Sixx v. Hensley, No. E2024-01019-COA-R3-CV, 2025 WL 1368897, at *3 (Tenn. Ct. App. May 12, 2025) (“Ms. Clark’s argument, which spans slightly more than three pages of her brief, is skeletal and insufficient to preserve any claims.”).
16. Griffin v. Smith, No. W2015-00334-COA-R3-CV, 2016 WL 721045, at *5 (Tenn. Ct. App. Feb. 23, 2016) (collecting authority).
17. McGuire v. Lewis, No. M2024-01242-COA-R3-JV, 2025 WL 1392217, at *8 (Tenn. Ct. App. May 14, 2025) (citing McNeill v. Blount Mem’l Hosp. Inc., No. E2022-00209-COA-R3-CV, 2022 WL 16955177, at *7 (Tenn. Ct. App. Nov. 16, 2022)); Payne v. Bradley, No. M2019-01453-COA-R3-CV, 2021 WL 754860, at *7–8 (Tenn. Ct. App. Feb. 26, 2021); Augustin v. Bradley Cnty. Sheriff’s Off., 598 S.W.3d 220, 226 (Tenn. Ct. App. 2019).
18. Charles v. McQueen, 693 S.W.3d 262, 273 (Tenn. 2024) (collecting authority).
19. See Hwang v. Arita, No. W2023-01703-COA-R3-CV, 2025 WL 1540652, at *4 (Tenn. Ct. App. May 30, 2025); see also Lazaroff v. Lazaroff, No. M2022-01004-COA-R3-CV, 2023 WL 7039521, at *4 (Tenn. Ct. App. Oct. 26, 2023) (“Ordinarily, ‘failure to comply with the Rules of Appellate Procedure and the Rules of this Court’ constitutes a waiver of the issues raised by the appellant.”) (citing Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000)); see also Waggoner v. Bd. of Pro. Resp., 673 S.W.3d 227, 234 (Tenn. 2023) (“Unpreserved issues raised by parties that are unsupported by authority or citation to the record are waived.”).
20. Bean, 40 S.W.3d at 55.
21. Bruce v. Jackson, No. E2023-00443-COA-R3-CV, 2024 WL 1234945, at *4 (Tenn. Ct. App. Mar. 22, 2024).
22. Buckley v. Elephant Sanctuary in Tenn. Inc., 639 S.W.3d 38, 55 (Tenn. Ct. App. 2021); see also Black v. Baldwin, No. M2024-00151-COA-R3-CV, 2025 WL 1566392, at *5 (Tenn. Ct. App. June 3, 2025), appeal denied (Oct. 8, 2025).
23. Purifoy v. Mafa, 556 S.W.3d 170, 193 (Tenn. Ct. App. 2017) (“[I]ssues cannot be raised for the first time in a reply brief.” (citing Owens v. Owens, 241 S.W.3d 478, 499 (Tenn. Ct. App. 2007) (“A reply brief is a response to the arguments of the appellee. It is not a vehicle for raising new issues.”)); see also Duckworth Pathology Grp. Inc. v. Reg’l Med. Ctr. at Memphis, No. W2012-02607-COA-R3-CV, 2014 WL 1514602, at *11 (Tenn. Ct. App. Apr. 17, 2014) (“It would be fundamentally unfair to permit an appellant to advance new arguments in the reply brief, as the appellee may not respond to a reply brief.”).
24. Christie v. Christie, No. M2012-02622-COA-R3CV, 2014 WL 4293966, at *6 (Tenn. Ct. App. Aug. 28, 2014).
25. Lowe v. Smith, No. M2015-02472-COA-R3-CV, 2016 WL 5210874, at *13 (Tenn. Ct. App. Sept. 19, 2016) (“Tennessee law is well-settled that it is inappropriate to allow a party to take one position regarding an issue in the trial court, and then ‘change its strategy or theory in midstream, and advocate a different ground or reason in this Court.’”).
26. See, e.g., Norman v. Hoyt, 667 S.W.2d 88, 89 (Tenn. Ct. App. 1983); Com. Bank Inc. v. Lacy, 371 S.W.3d 121, 125 (Tenn. Ct. App. 2012); In re D.A.H., No. W2002-00733-COA-R3JV, 2003 WL 21756696, at *4 (Tenn. Ct. App. July 28, 2003), aff’d, 142 S.W.3d 267 (Tenn. 2004).
27. Dominy v. Davidson Cnty. Election Comm’n, No. M2022-00427-COA-R3-CV, 2023 WL 3729863, at *4 (Tenn. Ct. App. May 31, 2023) (collecting authority).
28. Charles, 693 S.W.3d at 273 n.4 (Tenn. 2024) (“Any evidentiary objections that were not raised in the trial court and preserved in the Court of Appeals are waived.”) (emphasis added) (citing State v. Bristol, 654 S.W.3d 917, 925 (Tenn. 2022)); see also Harmon v. Hickman Cmty. Healthcare Servs., 594 S.W.3d 297, 301 (Tenn. 2020) (quoting Hodge v. Craig, 382 S.W.3d 325, 334 n.3 (Tenn. 2012)) (citing Brown v. Roland, 357 S.W.3d 614, 620 (Tenn. 2012)); In re Adoption of E.N.R., 42 S.W.3d at 32; Alexander v. Armentrout, 24 S.W.3d 267, 273 (Tenn. 2000).
29. See TWB Architects Inc. v. Braxton, LLC, 578 S.W.3d 879, 887 (Tenn. 2019) (“A party who fails to adequately raise an issue in a Rule 11 application waives the issue.”) (citing Hodge v. Craig, 382 S.W.3d 325, 335 (Tenn. 2012)); State v. Bishop, 431 S.W.3d 22, 43 (Tenn. 2014) (To preserve an issue for review in the Tennessee Supreme Court, “the issue must be … properly raised in the Tenn. R. App. P. 11 application for permission to appeal or in the answer to the Tenn. R. App. P. 11 application.”).
30. See, e.g., Renel v. Drexel Chem. Co., No. W2023-01693-SC-R11-CV, 2025 WL 3442830, at *1 (Tenn. Nov. 25, 2025); Thompson v. Graham, No. E2024-00568-SC-R11-CV, 2025 WL 2902334, at *1 (Tenn. Oct. 9, 2025).
31. Kelly v. Stewart, No. M2024-01939-COA-R3-CV, 2025 WL 3652804, at *5 (Tenn. Ct. App. Dec. 17, 2025); see also Bryce, 2025 WL 3023736, at *4.
32. In re Est. of Lang, No. E2006-00279-COA-R3CV, 2007 WL 2198449, at *6 (Tenn. Ct. App. July 31, 2007) (“One timely objection to a line of questioning pertaining to inadmissible testimony is sufficient; repetitious objections are not required.”); Burke v. Arnold, 836 S.W.2d 99, 101 (Tenn. Ct. App. 1991) (“One objection to a line of testimony is sufficient.”).
33. Cartwright v. Thomason Hendrix, P.C., No. W2022-01627-SC-R11-CV, 2025 WL 3523045, at *4 (Tenn. Dec. 9, 2025) (“The Mitchells argue that Cartwright waived this argument by failing to designate it as an issue in his briefing here or in the Court of Appeals. The Mitchells’ argument is a non-starter. It is the Mitchells who bear the burden under the TPPA to establish that Cartwright’s suit was filed in response to their exercise of the right to petition.”).
34. Bryce, 2025 WL 3023736, at *4; see also Save Our Fairgrounds v. Metro. Gov’t of Nashville, No. M2019-00724-COA-R3-CV, 2019 WL 3231381, at *5 (Tenn. Ct. App. July 18, 2019) (“Metro bears the burden of showing that these claims were waived or abandoned.”) (citing Fayne v. Vincent, 301 S.W.3d 162, 171 (Tenn. 2009) (the party invoking waiver has the burden of demonstrating that the issue was “in fact” waived)); Jenkins Subway Inc. v. Jones, 990 S.W.2d 713, 722 (Tenn. Ct. App. 1998) (“The law will not presume a waiver, and the party claiming the waiver has the burden of proving it by a preponderance of the evidence.”); Durand v. Miller, No. E2024-01285-COA-R3-CV, 2025 WL 343546, at *2 (Tenn. Ct. App. Jan. 30, 2025), appeal denied (May 22, 2025) (“As to Appellant’s argument that Appellee waived his claim for attorney’s fees, the party invoking such claim has the burden of demonstrating that the claims were actually waived or abandoned.”).
35. Trezevant v. Trezevant, 696 S.W.3d 527, 531 (Tenn. 2024).
36. DiNovo v. Binkley, 706 S.W.3d 334, 336 (Tenn. 2025).
37. See United States v. Clariot, 655 F.3d 550, 556 (6th Cir. 2011) (“When a district court resolves an issue, the losing party can challenge it.”); see also Heyward v. Cooper, 88 F.4th 648, 655 (6th Cir. 2023).
38. State ex rel. Iverson v. Halbert, No. W2025-00097-COA-R3-CV, 2025 WL 3002824, at *3 (Tenn. Ct. App. Oct. 27, 2025) (“The lack of subject matter jurisdiction cannot be waived.”) (citing Meighan v. U.S. Sprint Commc’ns Co., 924 S.W.2d 632, 639 (Tenn. 1996)).