Waiver, Failure of Appellate to Include Issue in Statement of Issues

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

Mathes v. N.J. Ford and Sons Funeral Home, Inc., No. W2021-00368-COA-R3-CV, p. 6 (Tenn. Ct. App. Jan. 6, 2023).

As for whether Ms. Mathes has waived the issues regarding the various claims above, she provided arguments for each but did not present them as issues in her statement of the issues for appellate review. She has only presented issues concerning whether the Funeral Home had a duty and whether the Funeral Home breached its Statement of Funeral Goods and Services Selected. “Appellate review is generally limited to the issues that have been presented for review.” Hodge v. Craig, 382 S.W.3d 325, 334 (Tenn. 2012) (citing Tenn. R. App. P. 13(b); State v. Bledsoe, 226 S.W.3d 349, 353 (Tenn. 2007)). As such, we conclude that Ms. Mathes has waived any review of her claim of negligent infliction of emotional distress because the trial court granted summary judgment as to that specific claim finding it was time-barred. Our review as to all other claims is limited to the issues she has specifically presented for review in her statement of the issues, which focuses on the question of whether the Funeral Home had a duty.

Stark v. McLean, No. W2020-00086-COA-R3-CV, p. 9-10 (Tenn. Ct. App. June 1, 2022) (memorandum opinion).

Given  that the Plaintiffs’ raised issue does not challenge the trial court’s conclusion that their undue influence claim lacks merit notwithstanding the court’s confidential relationship analysis, we hold that any issues pertaining to the trial court’s conclusion in that regard have been waived and therefore we do not disturb the court’s rejection of the Plaintiffs’ claim. See Champion v. CLC of Dyersburg, LLC, 359 S.W.3d 161, 163 (Tenn. Ct. App. 2011) (“An issue not raised in an appellant’s statement of the issues may be considered waived.”); Lovelace v. Baptist Mem’l Hosp.-Memphis, No. W2019-00453-COA-R3-CV, 2020 WL 260295, at *5 (Tenn. Ct. App. Jan. 16, 2020) (noting that the failure to challenge one of two independent bases for judgment resulted in the waiver of argument that judgment was inappropriate)


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