From time to time, the Tennessee appellate courts will decide an issue in a case based on a statute not cited by the parties or addressed in the lower court. Can an appellate court do that?
In Welch v. Oaktree Health and Rehabilitation Center d/b/a Christian Care Centers of Memphis, No. W2020-00917-SC-R11-CV at (Tenn. Aug. 31, 2023), the Tennessee Supreme Court did not say that an appellate court could not resolve an issue based on a statute not cited or argued by the parties but indicated that it preferred that it not do so without giving the parties the opportunity to weigh-in on the issue. The Court said:
If an appellate court comes to believe after oral argument that the parties have focused on the wrong statute, it can and should take steps to apply the correct law.
But, barring unusual circumstances, those steps should normally include efforts to allow the parties to weigh in. We stop short of saying the Court of Appeals was required to ask the parties to address whether it should construe the immunity provision in the Health Care Decisions Act instead of the Durable Power of Attorney for Health Care Act. But doing so clearly would have been best practice. As in Bristol, the parties in this case had “no inkling” that another statute “was in play and therefore no reason to . . . research it[] or address it in [their] briefs.” 654 S.W.3d at 927. They were put in the position of having to address the question either “for the first time in a petition for rehearing after the court has already ruled” or in a further appeal. Id. at 928. The record here indicates no reason why the appellate court could not have at least ordered supplemental briefing on the question of which statute applies.
Id. at *8.