Appeal

Waiver – Inadequate Briefing

Except as indicated, all indented material is copied directly from the court’s opinion.

Decisions of the Tennessee Supreme Court

Opinions of the Tennessee Court of Appeals

Coen v. Horan, No. W2019-00404-COA-R3-CV, p. 4 (Tenn. Ct. App. Feb. 23, 2023). 

“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 [Tenn. R. App. P.] 27(a)(7) constitutes a waiver of the issue.” Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000) (listing cases). All filers, including pro se filers, must comply with Rule 27’s basic requirements. See Murray, 457 S.W.3d at 404. Further, a pro se filer’s failure “to comply in any significant way with Tenn. R. App. P. 27” results in waiver on appeal. Id.

Lacy v. Big Lots Stores, Inc., No. M2019-00419-COA-R3-CV, p. 4 (Tenn. Ct. App. Jan. 12, 2023). 

Generally, when a party fails to cite to relevant authority, we consider that issue waived. Bean v. Bean, 40 S.W.3d 52, 55-56 (Tenn. Ct. App. 2000). This Court stated in Newcomb v. Kohler Company, 222 S.W.3d 368, 400 (Tenn. Ct. App. 2006), that “[a] skeletal argument that is really nothing more than an assertion will not properly preserve a claim[.]” We have no duty “to verify unsupported allegations in a party’s brief or to research and construct the party’s argument.” Chiozza v. Chiozza, 315 S.W.3d 482, 489 (Tenn. Ct. App. 2009) (citing Bean, 40 S.W.3d at 56).

In re Estate of Small, No. M2021-01284-COA-R3-CV, p. 7-8 (Tenn. Ct. App. Dec. 12, 2022). 

In this case, the four short paragraphs in what the Elliotts filed as their appellant’s brief do not contain any of the elements required by Tenn. R. App. P. 27. They have made no citation to the record or to any legal authority.

This Court has dismissed appeals under similar circumstances where an appellate brief is so deficient as to preclude meaningful review. See, e.g., Breeden v. Garland, No. E2020-00629-COA-R3-CV, 2020 WL 6285300, at *1 (Tenn. Ct. App. Oct. 27, 2020) (“The appellant’s brief significantly fails to comply with Tennessee Rule of Appellate Procedure 27. Accordingly, we find that any issues on appeal are waived and we dismiss the appeal”); Lacy v. Vanderbilt Univ. Med. Ctr., No. M2018-00832-COA-R3-CV, 2019 WL 1450390, at *4 (Tenn. Ct. App. Apr. 1, 2019) (“Due to our inability to reach the substantive issues, given the deficiencies in [the appellant’s] brief after repeated warnings, [the] appeal is dismissed”); Thomas v. Bank of Am., N.A., No. M2015-01849-COA-R3- CV, 2017 WL 2859813, at *4 (Tenn. Ct. App. July 5, 2017) (“Although we are mindful of [appellant’s] pro se status and have attempted to give her the benefit of the doubt when possible, we cannot write her brief for her nor can we create arguments or issues for her where her brief fails to contain any coherent argument. Based upon [appellant’s] failure to comply with Tenn. R. App. P. 27 and R. Tenn. Ct. App. 6, we conclude that [she] has waived any issues raised, and the appeal should be dismissed.”).

 

Stark v. McLean, No. W2020-00086-COA-R3-CV, p. 7 (Tenn. Ct. App. June 1, 2022).

“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.” Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000).

 

Smith v. Walker, No. W2021-00241-COA-R3-CV, p. 5, fn. 5 (Tenn. Ct. App. Mar. 22, 2022) (memorandum opinion).

Appellee raises significant concerns about the state of Appellants’ brief, including failure to properly cite to the record. Appellants attempted to remedy this issue in their reply brief, but, generally, reply briefs are not vehicles for remedying deficiencies in initial briefs. See Augustin v. Bradley Cty. Sheriff’s Off., 598 S.W.3d 220, 227 (Tenn. Ct. App. 2019).

 

Cavaliere v. State of Tennessee, No. M2021-00038-COA-R3-CV (Tenn. Ct. App. Feb. 3, 2022).

In addition to these general considerations, we note that our review on appeal can be impacted by the adequacy of the briefing that is presented to us. An issue can be deemed waived “when it is argued in the body of the brief, but not designated as an issue on appeal.” In re Conservatorship of Osborn, No. M2020-01447-COA-R3-CV, 2021 WL 5144547, at *7 (Tenn. Ct. App. Nov. 5, 2021). Similarly, an issue can be deemed waived where it is raised without appropriate argument regarding its merits. Bean v. Bean, 40 S.W.3d 52, 56 (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) [of the Tennessee Rules of Appellate Procedure] constitutes a waiver of the issue.” Id. at 55. Parties “cannot expect this court to do its work for them,” and we are “under no duty to verify unsupported allegations in a party’s brief.” Id. at 56.

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