You must be able to point to that portion of the record that contains the evidence that supports your position. If the evidence is not in the record, it will not be considered.
Here is a recent example applying this basic law. In Unifirst Corp. v. Indus. Fabrication & Repair, Inc., No. M2022-00625-COA-R3-CV (Tenn. Ct. App. Jan. 4, 2024) the appellant argued that his appeal from an adverse arbitration award was timely lodged in the trial court. The appellee said that the operative deadline was controlled by the Commercial Arbitration Rules of the American Arbitration Association, which the contract between the parties said applied to the arbitration. If those rules were applied the appeal was not timely lodged because it was filed more than
The Court of Appeals found that argument “appealing,” but the Commercial Arbitration Rules were never made a part of the record but were only attached to the Appellee’s brief on appeal. The Court said:
But here UniFirst’s date-of-mailing argument fails as a matter of proof. The
arbitration rule that UniFirst cites is not a part of the appellate record. See In re Dakota C.R., 404 S.W.3d 484, 502 (Tenn. Ct. App. 2012) (“[A]ttaching a document to a party’s appellate brief does not make the document part of the appellate record.”). So we may not consider it. UT Med. Group, Inc. v. Vogt, 235 S.W.3d 110, 122 (Tenn. 2007); TENN. R. APP. P. 13(c).
Id. at *4.
But there is more. The Court went on the hold that even if the Commercial Arbitration Rules applied, “the date the award was placed in the mail or otherwise served is not in the record. The arbitration award does not include a certificate of service. And UniFirst did not submit any other evidence that supplied this missing information.” Id. Without that evidence, the Court believed it was permitted to look only at the undisputed date that the award was actually received by the Appellant for purposes in determining whether the appeal was timely filed.
Lesson? Make sure your evidence is in the record. The commercial arbitration rules can be readily entered into the record via stipulation or a request for judicial notice under Tenn. R. Evid. 201. You can avoid any hearsay objection by pointing to Rule 803(17).
And what about proof of mailing? A “certificate of service” on the award would have met supplied the required information, as would an affidavit from the person mailing the document. It seems here the appellee assumed that the appellate court would assume that the award was mailed on the day it was “filed.” But under the AAA Commercial Arbitration Rules the operative date was the date it was “delivered,” which was defined as the date it was placed in the mail. There needed to be evidence of that date, and it was not in the record.