Waiver, Failure to Raise Issue in Court Below

Unless otherwise indicated, all intended matters were copied directly from the court’s opinion.

Opinions of the Tennessee Supreme Court


Jackson v. Burrell,  No. W2018-00057-SC-R11-CV (Tenn. June 12, 2020)

The issues[ ] of [an alleged] waiver [for failure to raise an issue in the trial court]… present[s] us with questions of law which we review de novo, with no presumption of correctness or deference to the decisions of the lower courts. Bryant v. Bryant, 522 S.W.3d 392, 399 (Tenn. 2017) (citing Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015); Parker v. Holiday Hospitality Franchising, 446 S.W.3d 341, 346 (Tenn. 2014)).

We first address the matter of waiver because a party may not raise an issue on appeal that was not raised in the trial court.5 The party invoking waiver has the burden of showing that the other party did not raise the issue in the trial court.6 Gould’s neither carried this burden nor argued that Ms. Jackson had waived the common knowledge exception. Instead, Gould’s argued the merits of the issue—that the common knowledge exception did not apply and that Ms. Jackson had to file a certificate of good faith.

FN5:  Powell v. Cmty. Health Sys., Inc., 312 S.W.3d 496, 511 (Tenn. 2010) (citing Barnes v. Barnes, 193 S.W.3d 495, 501 (Tenn. 2006); City of Cookeville ex rel. Cookeville Reg’l Med. Ctr. v. Humphrey, 126 S.W.3d 897, 905–06 (Tenn. 2004); Tenn. R. App. P. 3, adv. comm’n cmt., subdiv. (e)).

FN6:  Fayne v. Vincent, 301 S.W.3d 162, 171 (Tenn. 2009) (citing Waste Conversion Sys., Inc. v. Greenstone Indus., Inc., 33 S.W.3d 779, 783 (Tenn. 2000); Smith v. Smith, 989 S.W.2d 346, 348 (Tenn. Ct. App. 1998)).


Harmon v. Hickman Cmty. Healthcare Servs., Inc., 594 S.W.3d 297, 301 (Tenn. 2020) (quoting Hodge v. Craig, 382 S.W.3d 325, 334 n.3 (Tenn. 2012)).

Issues not raised in the trial court . . . may be deemed waived when presented to this Court.

Hodge v. Craig, 382 S.W.3d 325, 334-35 (Tenn. 2012)

The scope of our review[2] in this case depends, in large part, on the issues that the parties have presented to this Court. Subject to the exceptions in Tenn. R. App. P. 13(b), issues are properly raised on appeal to this Court when they have been raised and preserved at trial and, when appropriate, in the intermediate appellate courts[3] and when they have been presented in the manner prescribed by Tenn. R. App. P. 27.

The outcome of a case is influenced, at least in part, by how the court approaches the issues presented. See Bryan A. Garner, The Deep Issue: A New Approach to Framing Legal Questions, 5 Scribes J. Legal Writing 1, 9 (1994-1995); Martineau, supra note 2, at 821. Almost seventy years ago, Justice Felix Frankfurter observed that “[i]n law … the right answer usually depends on putting the right question.” Rogers’ Estate v. Helvering, 320 U.S. 410, 413, 64 S.Ct. 172, 88 L.Ed. 134 (1943). Thus, a properly framed issue may be the most important part of an appellate brief. Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 83 (2008); David E. Sorkin, Make Issue Statements Work for You, 83 Ill. B.J. 39, 39 (Jan. 1995).

Rather than searching for hidden questions, appellate courts prefer to know immediately what questions they are supposed to answer. Bryan A. Garner, Garner on Language and Writing 115 (2009); Robert L. Stern, Appellate Practice in the United States § 10.9, at 263 (2d ed.1989). Accordingly, “[a]n effectively crafted issue statement will define the question to be considered and begin disposing the court to decide in the client’s favor.” Judith D. Fischer, Got Issues? An Empirical Study About Framing Them, 6 J. Ass’n Legal Writing Directors 1, 25 (2009); see also State v. Williams, 914 S.W.2d 940, 948 (Tenn.Crim.App.1995) (stating that “[e]ach issue should … relate the conclusion that the party wants the appellate court to reach”); Karl N. Llewellyn, A Lecture on Appellate Advocacy, 29 U. Chi. L.Rev. 627, 630 (1962) (stating that “the first thing that comes up is the issue and the first art is the framing of the issue so that if your framing is accepted the case comes out your way”).

Appellate review is generally limited to the issues that have been presented for review. Tenn. R.App. P. 13(b); State v. Bledsoe, 226 S.W.3d 349, 353 (Tenn.2007). Accordingly, the Advisory Commission on the Rules of Practice and Procedure has emphasized that briefs should “be oriented toward a statement of the issues presented in a case and the arguments in support thereof.” Tenn. R.App. P. 27, advisory comm’n cmt. Appellants and parties seeking relief under Tenn. R.App. P. 11 must include in their  application for permission to appeal[4] and in their brief[5] a statement of the issues they desire to present to the court and an argument with respect to each of the issues presented.[6] The issues should be framed as specifically as the nature of the error will permit in order to avoid any potential risk of waiver. Fahey v. Eldridge, 46 S.W.3d 138, 143-44 (Tenn.2001)State v. Williams, 914 S.W.2d at 948.

Appellees who have not filed a notice of appeal and parties who have not filed a Tenn. R.App. P. 11 application of their own have three options with regard to framing the issues on appeal. First, they may simply accept the issues as framed by the appellant.[7] Second, they may reframe the issues presented by the appellant if they find the appellant’s formulation of the issues unsatisfactory.[8] Third, they may present additional issues of their own seeking relief on grounds different than the grounds relied on by the appellant or the party filing the Tenn. R.App. P. 11 application.[9]

Parties who have not filed their own application for permission to appeal may present issues other than those presented by the appellant or party seeking Tenn. R. App. P. 11 relief.[10] To do so, however, Tenn. R. App. P. 27(b) requires a party to include in its brief “the issues and arguments involved in [its] request for relief as well as the answer to the brief of the appellant [or party seeking Tenn. R. App. P. 11 relief].” See also Eller Bros., Inc. v. Home Fed. Sav. & Loan Ass’n of Nashville, 623 S.W.2d 624, 625 (Tenn.Ct. App.1981), overruled on other grounds by Guiliano v. Cleo, Inc., 995 S.W.2d 88, 100 (Tenn.1999). 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). See Baugh v. Novak, 340 S.W.3d 372, 381 (Tenn.2011)Sneed v. Board of Prof’l Responsibility, 301 S.W.3d 603, 615 (Tenn. 2010). By the same token, an 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). See ABN AMRO Mortg. Grp., Inc. v. Southern Sec. Fed. Credit Union, 372 S.W.3d 121, 132 (Tenn.Ct.App.2011)Childress v. Union Realty Co., 97 S.W.3d 573, 578 (Tenn.Ct.App.2002).

[2] “Scope of review” defines the issues that may be reviewed by an appellate court when an order or judgment has been properly appealed. See Holt v. 2011 Legislative Reapportionment Comm’n, 38 A.3d 711, 738 (Pa. 2012); Kelly Kunsch, Standard of Review (State and Federal): A Primer, 18 Seattle U.L.Rev. 11, 13 (1994). It “refers to the matters (or `what’) the appellate court is permitted to examine.” Summers v. Certainteed Corp., 606 Pa. 294, 997 A.2d 1152, 1160 n. 11 (2010). In contrast, the related, yet distinct, concept of “standard of review” reflects the relationship and the allocation of power between reviewing courts and lower tribunals. It defines how a reviewing court “must look at” the lower tribunal’s decision. Jeffrey P. Bauman, Standards of Review and Scopes of Review in Pennsylvania — Primer and Proposal, 39 Duq. L.Rev. 513, 515 (2001). The standard of review “defines the level of examination the court may apply, including the degree of deference it will accord to the [lower] court’s findings of fact and conclusions of law.” 19 James Wm. Moore et al., Moore’s Federal Practice ¶ 206.1 (3d ed.2009); see also Booth v. State, 251 P.3d 369, 372 (Alaska Ct.App. 2011)Fields v. Saunders, 2012 OK 17, ¶ 6 n. 5, 278 P.3d 577, 580 n. 5Turner v. Jackson, 14 Va.App. 423, 417 S.E.2d 881, 887 n. 5 (1992)Peplinski v. Fobe’s Roofing, Inc., 193 Wis.2d 6, 531 N.W.2d 597, 599 n. 1 (1995); Robert J. Martineau, Appellate Practice and Procedure 779 (2d ed.1987) (“Martineau”).

[3] Issues not raised in the trial court or in the intermediate appellate courts may be deemed waived when presented to this Court. Brown v. Roland, 357 S.W.3d 614, 620 (Tenn.2012)see also In re Adoption of E.N.R., 42 S.W.3d 26, 32 (Tenn.2001)Alexander v. Armentrout, 24 S.W.3d 267, 273 (Tenn.2000).

[4] Tenn. R. App. P. 11(b) requires that an application for permission to appeal contain a statement of “the questions presented for review and, for each question presented, a concise statement of the applicable standard of review….”

[5] Tenn. R. App. P. 27(a)(4); see also Bunch v. Bunch, 281 S.W.3d 406, 410 (Tenn.Ct.App. 2008).

[6] Tenn. R. App. P. 27(a)(7)(A).

[7] Tenn. R. App. P. 27(b).

[8] Tenn. R. App. P. 27(b).

[9] Tenn. R. App. P. 27(b).

[10] The Advisory Commission on the Rules of Practice and Procedure has pointed out that Tenn. R. App. P. 13(a) “permits the appellee to raise issues allegedly decided erroneously by the intermediate appellate court.” Tenn. R. App. P. 11, 1999 advisory comm’n cmt. The Commission has also pointed out that Tenn. R. App. P. 13(a) “rejects use of the notice of appeal as a review-limiting device” and, therefore, that “[a] separate application for permission to appeal is not necessary to bring up a question of law … upon Supreme Court review of the final decision of an intermediate appellate court.” Tenn. R. App. P. 13(a), advisory comm’n cmt.


Decisions of the Tennessee Court of Appeals

State v. The Witherspoon Law Group PLLC, No. E2021-01343-COA-R3-CV, p. 15-`6 (Tenn. Ct. App. Dec. 21, 2022).

In a case tried by a jury, it is well-settled in Tennessee that “in order to preserve errors for appeal, the appellant must first bring the alleged error to the attention of the trial court in a motion for a new trial.” Fahey v. Eldridge, 46 S.W.3d 138, 141 (Tenn. 2001); see Memphis St. Ry. Co. v. Johnson, 88 S.W. 169, 170 (1905). Pursuant to Tennessee Rule of Appellate Procedure 3(e), a motion for a new trial must be filed in a case tried by a jury in order to properly preserve certain errors for appeal:

[I]n all cases tried by a jury, no issue presented for review [on appeal] shall be predicated upon error in the admission or exclusion of evidence, jury instruction granted or refused, misconduct of jurors, parties or counsel, or other action committed or occurring during the trial of the case, or other ground upon which a new trial is sought, unless the same was specifically stated in a motion for a new trial; otherwise such issues will be treated as waived.

Tenn. R. App. P. 3(e) (emphasis added).6 We note that “the ‘catch-all’ language of the rule (‘or other ground upon which a new trial is sought’) encompasses other alleged errors in connection with a trial.” In re Mitchell v. Davis, No. 03A019409CH-00317, 1995 WL 546928, at *1 (Tenn. Ct. App. Sept. 15, 1995). Furthermore, the Advisory Commission Comment for subdivision (e) provides that “matters that can only be made a part of the record by a new trial motion must be so included in order to gain appellate review.” Tenn. R. App. P. 3, Advisory Comm’n Comment, Subdivision (e). In addition to filing a motion for a new trial, the grounds upon which a motion for new trial is sought must be “specifically stated” in the motion. Fahey, 46 S.W.3d at 142; see Tenn. R. App. R. 3(e). The motion for a new trial “should contain a concise factual statement of the error ‘sufficient to direct the attention of the court and the prevailing party to it.’” Id. (quoting Memphis St. Ry. Co., 88 S.W. at 170-71).


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