Previous posts on this blog has addressed the failure of a party (usually an appellant) to follow the briefing requirements of Tenn. R. App. Pro. 27 and Rule 6 of the Rules of the Court of Appeals of Tennessee. The failure to follow the requirements of the rules often results in waiver of the ability to assert the issue(s) on appeal.
But an appellee can waive appellant’s failure to comply with the rules by not pointing out the deficient briefing and asking the appellate court to find waiver.
A recent example of this is can be found in Adams v. Conner, No. W2023-00151-COA-R3-CV (Tenn. Ct. App. Dec. 28, 2023) (memorandum opinion). Appellant, a pro se litigant, did not follow the briefing rules but the Court of Appeals addressed the issue anyway, saying
We note that Appellant’s brief on this issue is fairly deficient and incorrectly focuses on the dismissal in the general sessions court, rather than the dismissal in the trial court. See Tenn. R. App. R. 27(a) (providing the mandatory requirements for appellate briefs). Still, Appellee has not asserted that Appellant’s arguments on appeal are subject to waiver. Appellee has also fully briefed the issue of subject matter jurisdiction. See Shaw v. Gross, No. W2017-00441-COA-R3-CV, 2018 WL 801536, at *4 n.5 (Tenn. Ct. App. Feb. 9, 2018) (holding that an issue would be considered despite deficient briefing when the “[a]ppellees were not deprived of the opportunity to address this issue on appeal because it was fully addressed in their brief”). We have previously found good cause to excuse deficient briefing “when ‘the appellant is self-represented, [the court’s] ability to address the sole issue appealed is not hindered by the deficiencies, or the gravity of the issues is such that resolution is necessary.’” City of Memphis v. Edwards by & Through Edwards, No. W2022-00087-SC-R11-CV, 2023 WL 4414598, at *1 (Tenn. July 5, 2023) (per curium order) (quoting City of Memphis v. Edwards by & Through Edwards, No. W2022-00087- COA-R3-CV, 2023 WL 2159244, at *11 (Tenn. Ct. App. Feb. 22, 2023) (Stafford, J., dissenting), vacated, 2023 WL 4414598) citing Tenn. R. App. P. 2)). All three considerations are present in this case. Given these considerations, Appellee’s decision not to assert waiver on appeal, and the fact that Appellee was not deprived of an opportunity to address this issue on appeal, we will consider this issue notwithstanding Appellant’s deficient brief.
Id. at *4 – 5, fn. 5.
So what are the takeaways from this opinion?
First, if the case is important enough to be appealed it is important enough to take the time necessary to understand the appellate rules of appellate procedure and follow them.
Second, an appellee should always determine whether an appellant has lost or waived the right to assert error on appeal. Initially, that involves an analysis of whether the appeal was timely filed from a final judgment. If not, the appellate court does not have jurisdiction to consider the appeal and the appeal will be tossed out. Assuming the appeal survives, then each issue raised by the appellant must be examined to determine whether it has been waived.
For example, if the alleged error is the trial court’s decision to admit certain evidence at trial, the appellant must be able to point to the record as to where a timely objection was made to the evidence. If a timely objection was not made the issue can be waived. If the issue is not properly briefed by the appellant, the issue can be waived. Good appellate lawyers always seek to find a way to through out an issue (or the entire case) before addressing the substance of the opponent’s arguments.
This is not “sharp” lawyering – it is asking the courts to apply the rules as written. Courts are increasingly willing to do so, especially against parties represented by lawyers.