Bradford/Jacqueline Roberts v. City of Memphis

IN THE COURT OF APPEALS OF TENNESSEE,
AT JACKSON
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BRADFORD T. ROBERTS and wife, ) Shelby County Circuit Court No. 71568-8
JACQUELINE E. ROBERTS )
)
Plaintiffs/Appellants. ) App. No. 02A01-9806-CV-00155
)
VS. ) Hon. D’Army Bailey, Judge
)
THE CITY OF MEMPHIS, ) AFFIRMED AND REMANDED
)
Defendant/Appellee. )
) OPINION FILED: FILED
J. Whitten Gurkin, Memphis, Tennessee, for Plaintiffs/Appellants.
August 10, 1998
Ronald G. Wyatt, Assistant City Attorney, for Defendant/Appellee.
Cecil Crowson, Jr.
Appellate C ourt Clerk
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MEMORANDUM OPINION1
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Farmer, J.
Bradford T. Roberts sued the City of Memphis (City) and two of its police officers,
Terry W. Moore and Chris Joyner, for injuries and damages he alleged to have suffered as a result
of an accident involving a vehicle owned and operated by Mr. Roberts. The complaint alleges that
the other vehicle was owned by the City, was driven by defendant Terry W. Moore and that
defendant Chris Joyner was a passenger in that vehicle. Prior to trial, defendants Moore and Joyner
were dismissed. Jacqueline E. Roberts sued for loss of consortium.
Following a bench trial, the trial judge rendered his findings of fact, conclusions of
law and judgment wherein he concluded that “the percentage of negligence attributed to the plaintiff
is at least 50% thereby negating any recovery.”
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Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The Court, with
concurrence of all judges participating in the case, may affirm, reverse or modify the actions of
the trial court by memorandum opinion when a formal opinion would have no precedential value.
When a case is decided by memorandum opinion it shall be designated “MEMORANDUM
OPINION,” shall not be published, and shall not be cited or relied on for any reason in a
subsequent unrelated case.
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The plaintiffs appeal and present their issue as follows:
The issue before this Court is that the physical evidence does
not support a finding of at least fifty percent (50%) fault for the
automobile accident on behalf of Plaintiff Bradford T. Roberts. Since
the physical evidence does not support said finding, the Plaintiff
should be adjudged to be at no fault and allowed a recovery.
Under our system of comparative fault, a plaintiff may recover “so long as plaintiff’s
negligence remains less than the defendant’s negligence. . . .” McIntyre v. Balentine, 833 S.W.2d
52, 57 (Tenn. 1992). Our review of findings of fact by the trial court is de novo upon the record of
the trial court, accompanied by a presumption of the correctness of the finding, unless the
preponderance of the evidence is otherwise. However, the record before us contains neither a
transcript of the proceedings or a statement of evidence for us to review. The burden is upon the
appellant to show that the evidence preponderates against the judgment of the trial court. Coakley
v. Daniels, 840 S.W.2d 367, 370 (Tenn. App. 1992). In the absence of the transcript or statement
of evidence, it is a well settled rule in this State that it is conclusively presumed on appeal that the
findings of fact made by the trial court are supported by the evidence in that court and must be
accepted as true by the appellate court. J. C. Bradford & Co. v. Martin Constr. Co., 576 S.W.2d
586, 587 (Tenn. 1979); Leek v. Powell, 884 S.W.2d 118 (Tenn. App. 1994); Irvin v. City of
Clarksville, 767 S.W.2d 649 (Tenn. App. 1988).
It results that the judgment of the trial court is affirmed and the costs of this appeal
are taxed to the appellants.
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FARMER, J.
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CRAWFORD, P.J., W.S. (Concurs)
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LILLARD, J. (Concurs)
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