Facts: Husband and Wife were divorced 10 years ago. They’ve been engaged in continuous postdivorce litigation since then.

Wife alleged that Husband was in criminal contempt for violating court orders regarding various financial transactions. The trial court found Husband in criminal contempt on four counts and sentenced him to serve 40 days in jail.

Husband appealed.

In Husband’s brief before the Court of Appeals, he listed four issues in his statement of issues, namely whether the trial court erred in finding him guilty of criminal contempt for the specific actions alleged to support each of the four counts. The Court of Appeals interpreted this to question “whether there was sufficient evidence to support the trial court’s finding of criminal contempt,” which is a fact question.

However, the argument section of Husband’s brief addressed more specific and detailed questions of law, e.g., whether the trial court erred in finding an amended petition related back to the date an earlier petition was filed, whether the statute of limitations applied or was tolled or waived, whether the petition provided proper notice, etc.

Wife’s responsive brief addressed each of Husband’s arguments from the argument section of his brief.

Husband’s reply brief conceded “there is no issue pertaining to the sufficiency of the evidence in this criminal contempt matter.”

In a memorandum opinion, the Court of Appeals dismissed Husband’s appeal because of the “deficiencies in Husband’s brief,” namely his failure to identify the subject matter of his arguments in the statement of issues part of his brief. Thus, the issues raised in the argument section were considered to have been waived because they were not identified in the statement of issues as the Rules require.

Husband sought permission to appeal to the Tennessee Supreme Court.

On Appeal: In an unsigned, per curiam opinion, the Tennessee Supreme Court reversed the Court of Appeals.

The Tennessee Rules of Appellate Procedure require an appellant’s brief to contain both “a statement of the issues presented for review” and an argument setting forth “the contentions of the appellate with respect to the issues presented, and the reasons therefore, including the reasons why the contentions require appellate relief.”

The Rules consider the statement of the issues and the argument as distinct but complementary parts of an appellant’s brief. Thus, an issue may be considered waived, even when it has been specifically raised as an issue, when the brief fails to include an argument satisfying the requirements of Rule 27. Conversely, an issue may be considered waived when it is argued in the brief but not designated as an issue per Rule 27.

Here, the Supreme Court found the Court of Appeals erred in dismissing Husband’s appeal:

Appellate review is generally limited to the issues that have been presented for review. This is because the statement of issues ensures that the opposing party has notice of the issues to which it must respond, and further ensures that the reviewing court is not tasked with scouring the record for reversible errors. We have explained that an effectively crafted issue indicates the conclusion the litigant wants the reviewing court to reach, and we have cautioned appellants that issues should be framed as specifically as the nature of the error will permit in order to avoid any potential risk of waiver.

We must also consider that the Tennessee Rules of Appellate Procedure are to be construed to secure the just, speedy, and inexpensive determination of every proceeding on its merits…. It is the policy of the rules to disregard technicality in form in order to determine every appellate proceeding on its merits…. Once a timely notice of appeal is filed, the rules should not erect unjustified technical barriers which prevent consideration of the merits of the appeal.

*     *     *     *     *

Taking all of these principles into consideration, we conclude that, when the arguments set forth in an appellate brief fall within the scope of the stated issues, and the issues and argument taken together clearly present the grounds for appellate relief, the reviewing court should review the substantive issues. Our appellate courts should not decline to address a clearly presented argument that falls within the scope of the stated issues simply because the stated issues were not crafted as precisely as they could have been. At the same time, an appellant that broadly asserts error in the statement of issues and presents an argument that leaves the opposing party guessing at the issues to which it must respond, or leaves the reviewing court scouring the record for reversible errors, risks having its issues waived….

Here, [Husband’s] four stated issues asserted that the trial court erred in finding him guilty on each of the four separate counts of criminal contempt. The argument section of the brief then explained, for each issue corresponding to each count, why [Husband] asserted the trial court erred. Thus, [Husband’s] arguments regarding the statute of limitations and the sufficiency of notice of the charges fell within the scope of his stated issues…. [Wife] clearly understood the issues and arguments that [Husband] raised, responding to each in her appellate brief. The Court of Appeals likewise understood the grounds for reversal [Husband] asserted with respect to the statute of limitations and the sufficiency of notice. It simply declined to consider them because it incorrectly viewed the stated issues as inadequate to encompass them.

The Supreme Court reversed the Court of Appeals’ dismissal and remanded the case back to the Court of Appeals for consideration of the parties’ substantive arguments.

K.O.’s Comment: (1) It’s rare for an appellant to present an argument that leaves the opposing party guessing as to the issues to which it must respond, so I expect to see fewer appeals dismissed on grounds of waiver related to the statement of issues.

(2) That didn’t take long. On July 24, a divided Court of Appeals split on whether a failure to cite the record in the argument section of a brief justified dismissal of the appeal on procedural grounds. In DiNovo v. Binkley [insert de novo joke here], the majority dismissed an appeal for violating TRAP 27(a)(7), which requires references to the record in the argument section. Citing this Trezevant opinion from the Supreme Court, Judge Usman dissented, writing:

There are certainly circumstances in which this court cannot or should not exercise [our] discretion to consider a matter in light of a violation of Rule 27. Notably, there are circumstances in which consideration would be prejudicial to the other party or to the administration of justice, and also circumstances in which consideration of the matter would shift the court from the role of serving as a neutral reviewer to essentially lawyering for one of the parties of the case.

In the present case, every fact that Mr. DiNovo failed to cite in the argument section was cited in the fact section of his brief. The Appellee did not seek dismissal based on a violation of Rule 27 or even note a violation of Rule 27 by the Appellant. The Appellee did not assert that any prejudice was suffered nor does there appear to be any prejudice to the Appellee. The record location for the facts referenced in the argument section of the Appellant’s Brief can be found in the facts section of his brief. Additionally, the fact section of Mr. DiNovo’s brief is not especially cumbersome. While there is some degree of inconvenience in needing to look to the fact section of Mr. Lenovo’s brief to see where in [the] record he identifies particular facts as being shown, the briefing in this case is such that it does not place the court in the position of lawyering for Mr. DiNovo. It also does not impose significant burdens upon the court, and thereby the administration of justice, by necessitating scouring the record. Under such circumstances, I would consider Mr. DiNovo’s appeal on the merits.

The request for permission to appeal almost writes itself.

(3) The Supreme Court provides this guidance on drafting the statement of issues in an appellate brief:

We have explained that an effectively crafted issue indicates the conclusion the litigant wants the reviewing court to reach, and we have cautioned appellants that issues should be framed as specifically as the nature of the error will permit in order to avoid any potential risk of waiver.

It is common to see issues presented like they were in this appeal, e.g., “Whether the trial court erred in finding Husband guilty of criminal contempt for his alleged failure to add Wife’s name to” a specific bank account.

But is there a better, more persuasive way to frame the issue?

Brian Garner, law professor, editor of Black’s Law Dictionary, and all-around legal writing expert, thinks so. In his popular book, The Winning Brief, he recommends lawyers

• draft issues in separate sentences following a major premise-minor premise-question form, and
• use no more than 75 words for each issue.

He also instructs lawyers to avoid one-sentence variations of issue statements and to avoid beginning with “whether” or any other interrogative word.

For example, this famous categorical syllogism follows the major premise-minor premise-conclusion format:

• All men are mortal. [Major premise]
• Socrates is a man. [Minor premise]
• Therefore, Socrates is mortal. [Conclusion]

To state the conclusion as a question, one needs only to do this:

• All men are mortal.
• Socrates is a man.
• Is Socrates mortal?

If the major and minor premises are true, logic supplies the only true answer.

Here are examples from appellate briefs where I tried to approximate this structure when summarizing my argument:

• Tennessee trial courts have wide discretion in resolving disputes regarding spousal support. Here, the trial court’s findings are based on its assessment of the evidence, the trial court considered the applicable law, and its decision was within the range of acceptable alternative dispositions. Did the trial court abuse its discretion?
• There is a significant economic disparity between the parties and Wife is the economically disadvantaged spouse. The trial court awarded Wife her attorney’s fees as alimony in solido because she could not afford them, Husband could pay them, and other alimony factors, such as marital fault, supported the award. Should Wife be awarded attorney’s fees on appeal?
• A Tennessee court’s decision to reform a contract is a discretionary one requiring clear and convincing evidence of a mutual mistake. The trial court found that Husband failed to meet that high burden with the mediated agreement. Did the trial court abuse its discretion?

Do you think that’s better than the typical “Whether the trial court abused its discretion in doing X,” “Whether Husband should be awarded attorney’s fees on appeal,” etc.?

Source: Trezevant v. Trezevant (Tennessee Supreme Court, July 8, 2024).

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