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Nashville, TN - Real Estate lawyer represented Appellee with a dispute over a real estate contract.
This appeal stems from a dispute over a real estate contract between
Plaintiff/Appellant Donna Anderson (“Appellant”) and Defendant/Appellee Branan Whit
(“Appellee”). The parties entered into a contract in 2019 for Appellee to purchase
Appellant’s home, which was connected to an adjoining unit. The contract was contingent
on Appellee coming to a written agreement with the adjoining unit’s owner to detach the
units from each other. Appellee claims that no such agreement was reached, and thus he
did not have to buy the house. In contrast, Appellant claims that the adjoining unit’s owner
agreed multiple times to the detachment of the units.
Appellant sued Appellee for breach of contract on May 29, 2019 in the Davidson
County Chancery Court (the “trial court”). Appellee filed a motion for partial summary
judgment on May 11, 2020, seeking summary judgment only on any claims by Appellant
for “benefit of the bargain” damages and earnest money forfeiture. Appellee then filed a
second motion for summary judgment on March 24, 2021, seeking summary judgment on
all the claims raised by Appellant. On June 7, 2021, the trial court granted Appellee’s
second motion for summary judgment. The trial court concluded that its ruling on
Appellee’s second summary judgment motion rendered the damages issues raised by
Appellee in the first motion for partial summary judgment moot. Therefore, the trial court
denied the motion for partial summary judgment as moot. The trial court also awarded
Appellee $11,882.60 in attorney’s fees and expenses.
Appellant does not explicitly designate any issues on appeal. Appellee raises the
following issues, taken from his brief:
1. [Appellant] argues that the trial court erred in granting [Appellee’s]
second motion for summary judgment based on the constructionrelated contingency in the sale contract. [Appellee] contends that the
trial court’s ruling was proper.
2. [Appellee] asserts that the trial court erred in denying his first
motion for summary judgment on “benefit of the bargain” damages.
Unfortunately, our ability to conduct proper appellate review of Appellant’s
arguments is hindered because Appellant’s brief fails to sufficiently comply with Rule 27
of the Tennessee Rules of Appellate Procedure. Rule 27 states, in pertinent part:
(a) Brief of the Appellant. The brief of the appellant shall contain under
appropriate headings and in the order here indicated:
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* * *
(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;
* * *
(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
(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.
Tenn. R. App. P. 27(a).
Here, Appellant’s brief does not substantially comply with Rule 27, because it
contains none of the above requirements. While she describes the nature of the case,
including the facts and procedural history, the statement of the case and statement of facts
are not separated by “appropriate headings.” See Tenn. R. App. P. 27(a). There is no table
of authorities in her brief, which is not altogether surprising, as she does not cite any legal
authority in support of her arguments. Moreover, nowhere in her brief does she cite to the
record on appeal. “Courts have routinely held that the failure to make appropriate
references to the record and to cite relevant authority in the argument section of the brief
as required by Rule 27(a)(7) constitutes a waiver of the issue.” Bean v. Bean, 40 S.W.3d
52, 55 (Tenn. Ct. App. 2000) (citations omitted).
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Additionally, although the body of Appellant’s brief indicates that she is seeking
reversal of the trial court’s grant of summary judgment and for her to be awarded damages
for Appellee’s alleged breach of contract, her brief does not specifically designate any
issues for appellate review. “[A] properly framed issue may be the most important part of
an appellate brief.” Hodge v. Craig, 382 S.W.3d 325, 335 (Tenn. 2012) (citation omitted).
Consequently, an issue is generally waived when it is argued in the body of the brief, but
not designated as an issue on appeal. See, e.g., State v. Freeman, 402 S.W.3d 643, 653
(Tenn. Ct. App. Oct. 16, 2012) (“Generally, an issue argued in the body of the brief, but
not designated as an issue will be considered waived”); Bunch v. Bunch, 281 S.W.3d 406,
410 (Tenn. Ct. App. 2008); Childress v. Union Realty Co., 97 S.W.3d 573, 578 (Tenn. Ct.
App. 2002). Furthermore, Appellant makes no more than cursory arguments. “In order for
an issue to be considered on appeal, a party must, in his brief, develop the theories or
contain authority to support the averred position as required by Tennessee Rules of
Appellate Procedure 27(a).” Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct. App. 2001).
“It is not the role of the courts, trial or appellate, to research or construct a litigant’s case
or arguments for him or her, and where a party fails to develop an argument in support of
his or her contention or merely constructs a skeletal argument, the issue is waived.” Sneed
v. Bd. of Pro. Resp. of Supreme Ct., 301 S.W.3d 603, 615 (Tenn. 2010).
We are mindful of the fact that Appellant is proceeding pro se. Nevertheless,
“[w]hile entitled to fair and equal treatment before the courts, a pro se litigant is still
required to comply with substantive and procedural law as do parties represented by
counsel.” Gilliam v. Gilliam, No. M2007-02507-COA-R3-CV, 2008 WL 4922512, at *3
(Tenn. Ct. App. Nov. 13, 2008) (citing Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn.
Ct. App. 2003)). As explained by this Court, “[t]he courts should take into account that
many pro se litigants have no legal training and little familiarity with the judicial system.
However, the courts must also be mindful of the boundary between fairness to a pro se
litigant and unfairness to the pro se litigant’s adversary.” Jackson v. Lanphere, No.
M2010-01401-COA-R3-CV, 2011 WL 3566978, at *3 (Tenn. Ct. App. Aug. 12, 2011)
(quoting Hessmer, 138 S.W.3d at 903 (internal citations omitted)). “[T]he courts must not
excuse pro se litigants from complying with the same substantive and procedural rules that
represented parties are expected to observe.” Hessmer, 138 S.W.3d at 903.
We have previously held that failure to substantially comply with Rule 27 is grounds
for dismissal of an appeal. See, e.g., Breeden v. Garland, No. E2020-00629-COA-R3-CV,
2020 WL 6285300, at *1 (Tenn. Ct. App. Oct. 27, 2020) (“The appellant’s brief
significantly fails to comply with Tennessee Rule of Appellate Procedure 27. Accordingly,
we find that any issues on appeal are waived and we dismiss the appeal.”); Thomas v. Bank
of Am., N.A., No. M2015-01849-COA-R3-CV, 2017 WL 2859813, at *4 (Tenn. Ct. App.
July 5, 2017) (“Although we are mindful of Thomas’s pro se status and have attempted to
give her the benefit of the doubt when possible, we cannot write her brief for her nor can
we create arguments or issues for her where her brief fails to contain any coherent
argument. Based upon Thomas’s failure to comply with Tenn. R. App. P. 27 and R. Tenn.
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Ct. App. 6, we conclude that Thomas has waived any issues raised, and the appeal should
be dismissed.”). Therefore, while we make no determination regarding the merits of
Appellant’s appeal and acknowledge her attempts to proceed pro se, we simply cannot
properly review this appeal given the state of the briefing.
In addition to Appellee’s issues asking that the trial court’s grant of summary
judgment be affirmed, or, in the alternative, that he be granted summary judgment on the
basis that Appellant has no claim for “benefit of the bargain” damages, Appellee does seek
one form of affirmative relief in his brief: attorney’s fees, costs, and expenses incurred on
appeal. Unfortunately, he did not designate this request as an issue in this appeal, despite
dedicating a section of his brief to it. “[A]n issue may be deemed waived when it is argued
in the brief but is not designated as an issue in accordance with Tenn. R. App. P. 27(a)(4).”
Hodge v. Craig, 382 S.W.3d 325, 335 (Tenn. 2012) (citations omitted). Because we are
dismissing Appellant’s appeal for failure to abide by procedural requirements, it is only
fair that we hold Appellee to the same standard. Therefore, due to Appellee’s failure to
designate his request for attorney’s fees, costs, and expenses as an issue on appeal, such
request is waived.
Outcome: This appeal is dismissed and this cause is remanded to the trial court for all further proceedings as are necessary and consistent with this Opinion. Costs of appeal are taxed to Appellant Donna Anderson, for which execution may issue if necessary.