Nobody’s Perfect

In case you’ve been too busy to keep up with the Appeals Board’s decisions of late, we thought this practice tip might be helpful.

Several recent appellate opinions have contained a version of the following language:

Section 50-6-217(a)(3) authorized us to reverse or modify a trial court’s decision if the rights of a party were prejudiced because the findings of the trial judge were “not supported by evidence that is both substantial and material in light of the entire record.” However, as we have previously observed, this code section was repealed effective May 9, 2017.  . . .  [T]he standard we apply in reviewing the trial court’s decision presumes that the trial judge’s factual findings are correct unless the preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6-239(c)(7). (Emphasis added.)

Everyone makes mistakes. But, to reiterate, the correct appellate review standard is that “the trial judge’s factual findings are presumed correct unless the preponderance of the evidence is otherwise.”

Repetition works (we hope). So, check that boilerplate on your appellate brief templates and make changes if necessary. Thanks.

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