Fred Birdsall v. Floyd Birdsall ( 2001 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
December 5, 2000 Session
FRED BIRDSALL, ET AL. v. FLOYD BIRDSALL
Appeal from the Circuit Court for Campbell County
No. 11,632 Hon. Conrad Troutman, Judge
FILED JANUARY 5, 2001
No. E2000-01544-COA-R3-CV
Plaintiffs/Appellants sought the return of several items, including a shotgun, tiller and lawn mower,
as well as $1,500 in damages to a 1980 Ford pick-up truck, from Defendant/Appellee. The Trial
Court found the matter too speculative and dismissed the case. We have no transcript and no
Statement of the Evidence. Accordingly, we must assume that the record, had it been preserved,
would have contained sufficient evidence to support the Trial Court’s factual findings. Judgment
of the Trial Court affirmed.
Tenn. R. App. R. 3; Judgment of the Trial Court Affirmed; Case Remanded.
D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HERSCHEL P . FRANKS , J. and
CHARLES D. SUSANO, JR., J., joined.
Fred Birdsall and Wanda Birdsall, Lafollette, Tennessee, Pro Se.
Floyd Birdsall, Lafollette, Tennessee, Pro Se.
MEMORANDUM OPINION1
Fred and Wanda Birdsall, Plaintiffs/Appellants, filed suit against Floyd Birdsall,
Defendant/Appellee, in Campbell County General Sessions Court in November 1999, seeking the
1
Rule 10. Affirmance Without Opinion - Mem orand um Op inion. (b) M E M O R AN D U M O P I N IO N . The Co urt,
with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court
by memora ndum op inion when a formal op inion would have no precedential value. When a case is decided by
memorandum opinion it shall be desi gn a te d “M E M ORANDUM O PINION,” shall not be published, and shall not be
cited or relied on for any rea son in a subse quent unrela ted case.
return of several items including a 12 gauge shotgun, a Troybilt tiller and a lawn mower, as well as
$1,500 in damages “for blowing motor up in 1980 Ford pick up.” The Trial Court dismissed the case
based on the Plaintiffs’ failure to carry their burden of proof. Plaintiffs appealed to the Campbell
County Circuit Court, which apparently heard witnesses, although we have no transcript of that
hearing. The Campbell County Circuit Court entered an Order on May 25, 2000, finding the
Plaintiffs’ claims too speculative and dismissing Plaintiffs’ case. Plaintiffs appeal to this Court.
Our ability to deal with the appeal is hampered by the absence of either a transcript
of the proceedings in the Trial Court or a Statement of the Evidence prepared in accordance with
Tenn. R. App. P. 24(c). This Court cannot review the facts de novo without an appellate record
containing the facts, and, therefore, we must assume that the record, had it been preserved, would
have contained sufficient evidence to support the Trial Court’s factual findings. Sherrod v. Wix, 849
S.W.2d 780, 783 (Tenn. Ct. App. 1992). This being so, we affirm the decision of the Trial Court.
Conclusion
The judgment of the Trial Court is affirmed and this cause is remanded to the Trial
Court for such further proceedings as may be required, if any, consistent with this Opinion, and for
collection of the costs below. The costs on appeal are assessed against the Appellants, Fred and
Wanda Birdsall.
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D. MICHAEL SWINEY, JUDGE
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