The Tennessee Supreme Court has (and the intermediate appellate court) have made many statements over the recent years that they expected the parties to appeals to follow the rules of appellate procedure.
But this new court order (not an opinion, but an order reversing the Court of Appeals that came before the Supreme Court on a Rule 11 application) is in my judgment the strongest statement yet on this issue. In City of Memphis v. George Edwards by and through Elizabeth W. Edwards, No. W2022-00087-SC-R11-CV (Tenn. July 11, 2023), the Court first reminded readers of its view of the proper way to raise issues on appeal:
This Court previously has made clear that, to be properly raised on appeal, an issue must be presented in the manner prescribed by Rule 27 of the Tennessee Rules of Appellate Procedure. Hodge v. Craig, 382 S.W.3d 325, 334 (Tenn. 2012). As this Court explained in Hodge, “[r]ather than searching for hidden questions, appellate courts prefer to know immediately what questions they are supposed to answer” and, consequently, “[a]ppellate review is generally limited to the issues that have been presented for review.” Id. This Court further explained in Hodge that an issue may be deemed waived when it is argued in the brief but is not designated as an issue in accordance with Rule 27(a)(4). It also may be deemed waived when it has been expressly raised as an issue, but the brief fails to include an argument satisfying the requirements of Rule 27(a)(7). Id. at 335. The City failed in both respects in its brief in the Court of Appeals. These requirements are not matters of mere formality. “Enforcing these requirements enables appellate courts to be ‘more confident in the results of their deliberations’ because ‘they have heard the issues argued by attorneys [who] are duty-bound to fully develop their opposing positions.’” State v. Bishop, 431 S.W.3d 22, 43 (Tenn. 2014) (alteration in original) (quoting State v. Northern, 262 S.W.3d 741, 766 (Tenn. 2008) (Holder, J., concurring in part and dissenting in part)). In addition, enforcing these requirements helps preserve fairness and integrity in the court system. As Judge Stafford remarked in his dissent, “while the law remains flexible, it is important that our decisions be viewed as consistent and predictable, as this ‘contributes to the actual and perceived integrity of the judicial process.’” Edwards, 2023 WL 2159244, at *10 (Stafford, J., dissenting) (quoting Payne v. Tennessee, 501 U.S. 808, 827–28 (1991)). Declining to address questions not properly raised is a “way that we achieve fairness and ensure the perceived integrity of the courts.” Id.
Id. at *2-3.
The Supreme Court found that a majority of the intermediate court in George Edwards ignored the City of Memphis’ failure to follow the rule and considered an issue that the appellant never raised or briefed. To make their point, the Court set forth Judge Stafford’s dissent from the intermediate court opinion, which dissent they “agree[d with] wholeheartedly:”
In sum, this case involves an institutional party well-represented by counsel that chose on appeal to avoid significant discussion of a dispositive issue. But my colleagues are not content for the City to be felled by the consequences of its own actions. Instead, they choose to address the threshold issue that they admit was inadequately briefed, citing cases both employed by the trial court in its ruling and newly uncovered. Cf. generally State v. Bristol, 654 S.W.3d 917, 927 (Tenn. 2022) (discussing the requirement that a party be given notice and an opportunity to respond when the appellate court considered an unpreserved and unpresented issue). However, decades of caselaw and the very foundations of our adversarial justice system dictate that courts cannot and should not shoulder the burden of fashioning the arguments of the parties who have chosen not to do so for themselves. In the absence of good cause to excuse the City’s failures, either demonstrated by the City directly or otherwise evident from the record, I believe that these precedents demand that we treat the City as we have done countless other parties and waive consideration of whether the trial court properly dismissed the City’s petition for judicial review.
Edwards, 2023 WL 2159244, at *12 (Stafford, J., dissenting) (footnote omitted).
Id. at *5.
Thus, the Supreme Court found that “the majority’s decision to address the dispositive issue in this appeal is irreconcilable with this Court’s precedent and constitutes a clear abuse of the intermediate appellate court’s discretion” and reversed the decision. Id. In a footnote, the Court noted the following:
We recognize that in this appeal, Mrs. Edwards, the appellee, correctly stated the issue and presented an argument addressing it in her response brief. However, she also argued that the City had waived the issue, and the City failed to file a reply brief to address either the issue or the waiver argument. In addition, the majority of the Court of Appeals based its decision largely on case law the court itself unearthed in its own research, affording Mrs. Edwards no opportunity to respond to or address that case law or the argument crafted by the majority. In this regard, the majority acted contrary to the clear instruction of our recent decision in State v. Bristol, 654 S.W.3d 917, 927 (Tenn. 2022).
Id. at *5, fn. 3.
Thus, the Court has sent a clear signal that it expects the appellant to properly raise issues on appeal. I note that this result has happened many times in our appellate courts, but this order is both a strong statement of the rule and reflects a result against a government entity (not, as is often the case, a pro se litigant).