We have written several times about the consequences of inadequate briefing in the appellate courts. But now the Tennessee Court of Appeals has totally dismissed a case, and ordered sanctions for frivolous appeal, because of the appellant’s failure to comply with Rule 27(a) of the Tennessee Rules of Appellate Procedure.
Subsection (a) of the rule states as follows:
Brief of the Appellant. The brief of the appellant shall contain under appropriate headings and in the order here indicated:
(1) A table of contents, with reference to the pages in the brief;
(2) A table of authorities, including cases (alphabetically arranged), statutes and other authorities cited, with references to the pages in the brief where they are cited;
(3) A jurisdictional statement in cases appealed to the Supreme Court directly from the trial court indicating briefly the jurisdictional grounds for appeal to the Supreme Court;
(4) A statement of the issues presented for review;
(5) A statement of the case, indicating briefly the nature of the case, the course of proceedings, and its disposition in the court below;
(6) A statement of facts, setting forth the facts relevant to the issues presented for review with appropriate references to the record;
(7) An argument, which may be preceded by a summary of argument, setting
forth:
(A) the contentions of the appellant with respect to the issues presented, and the reasons therefor, including the reasons why the contentions require appellate relief, with citations to the authorities and appropriate references to the record (which may be quoted verbatim) relied on; and
(B) for each issue, a concise statement of the applicable standard of review (which may appear in the discussion of the issue or under a separate heading placed before the discussion of the issues);
(8) A short conclusion, stating the precise relief sought.
“When a party fails to comply with Tenn. R. App. P. 27, this [C]ourt has the authority to dismiss the appeal.” Riebsame v. Schemel, No. E2018-01798-COA-R3-CV, 2019 WL 4667586, at *4 (Tenn. Ct. App. Sept. 24, 2019) (citing Bean v. Bean, 40 S.W.3d 52, 54–55 (Tenn. Ct. App. 2000); Watt v. Watt, No. M2014-02565-COA-R3-CV, 2016 WL 1730659, at *4 (Tenn. Ct. App. Apr. 27, 2016)).
The appellant in 21st Century Mortgage Corporation v. Ford, No. W2022-00168-COA-R3-CV (Tenn. Ct. App. Apr. 25, 2023) did not follow the rule. Her brief was “woefully deficient.” There were no citations to the record or appropriate authorities. Many of her contentions were “nonsensical.”
So, the appeal was dismissed and case remanded to the trial court to determine the damages that should be awarded for a frivolous appeal under Tenn. Code Ann. § 27-1-122. A frivolous appeal is one that is “so devoid of merit that it has no reasonable chance of succeeding.” Glanton v. Lord, 183 S.W.3d 391, 401 (Tenn. Ct. App. 2005) (citing Combustion Eng’g, Inc. v. Kennedy, 562 S.W.2d 202, 205 (Tenn. 1978)). The Court of Appeals has discretion in determining whether to order damages for a frivolous appeal. Banks v. St. Francis Hosp., 697 S.W.2d 340, 343 (Tenn. 1985).
Now, this was a pro se appeal, but Rule 27(a) applies to lawyer-drafted briefs as well. And if the Court will order such a result against a pro se litigant (who normally are given some flexibility in compliance with the rules), it will not hesitate to make such an order against a lawyer who fails to follow the rules.
The bottom line: If you are a non-lawyer and you are attempting to handle your own appeal, you are almost certainly making a mistake. If you do not have the money for a lawyer and you cannot find a lawyer who will represent you for free or at a reduced cost, study this decision carefully. Ms. Ford likely will end up paying the same amount in sanctions as she would have paid a lawyer to help her. If you try to do this on your own, you are unlikely to win and face the same risk of sanctions if you fail to follow the rules of procedure.
And, if you are a lawyer: it is my judgment that the appellate courts are expecting more out of trial judges and lawyers than they did 20 years ago. There are lawyers who specialize in appeals. If you are not comfortable with the rules of appellate procedure, perhaps you should consult with a lawyer who routinely handles appeals or who specializes in appellate work.