Paschke v. Paschke, No. E2023-00239-COA-R3-CV (Tenn. Ct. App. Feb. 7, 2024) (memorandum opinion) reminds us that if the case is important enough to try it is important enough to have a transcript of the testimony.
The case involved a family squabble over personal and real property. The case was tried non-jury, and the Chancellor ruled that a writing offered to prove that plaintiff was entitled to certainty property was not enforceable. Plaintiff appealed.
But what plaintiff did not do was provide a transcript of the evidence or a summary of the evidence as required under Rule 24 of the Tennessee Rules of Appellate Procedure.
Now, if you know anything about appellate law you know that a trial judges factual findings at trial are reviewed upon the record de novo, with a presumption of correctness. ” Marla H. v. Knox Cnty., 361 S.W.3d 518, 527 (Tenn. Ct. App. 2011) (citing Tenn. R. App. P. 13(d)). The key word in the foregoing sentence is record – the appellate courts look at the record. When there is a trial and factual findings are made the record includes (ideally) a transcript of the evidence or, at worst, a summary of the evidence prepared in accordance with the appellate rules.
The appellant did neither.
So, once again, the Court of Appeals reminded the appellant (and therefore us) of the law.
The failure to present this Court with a transcript or statement of the evidence has significant consequences. Specifically, when the appellant fails to provide a transcript or statement of the evidence detailing the proof presented at trial, “this Court presumes that sufficient evidence existed to support the trial court’s decision.” Irvin v. City of Clarksville, 767 S.W.2d 649, 653 (Tenn. Ct. App. 1988); see also Ramsay v. Custer, 387 S.W.3d 566, 568 (Tenn. Ct. App. 2012) (“In the absence of a transcript or statement of the evidence, a conclusive presumption arises that the parties presented sufficient evidence to support the trial court’s judgment, and this court will affirm the judgment.”). “This conclusive presumption applies, however, to the trial court’s factual findings concerning proof presented at trial and not to the trial court’s conclusions regarding issues of law.” In re Est. of Kysor, No. E2014-02143-COA-R3-CV, 2015 WL 9465332, at *4 (Tenn. Ct. App. Dec. 28, 2015) (citing In re M.L.D., 182 S.W.3d 890, 894 (Tenn. Ct. App. 2005)); see also State ex rel. Weeks v. Kirkland, No. E2007-01735-COA-R3-JV, 2008 WL 1765126, at *1 (Tenn. Ct. App. Apr. 17, 2008) (“No transcript of the evidentiary hearing has been filed in the record, but the issue before us is a question of law, and the Trial Court’s decision does not enjoy a presumption of correctness.”).
Id. at *5.
Thus, because one of the two reasons for the trial judge’s ruling was based on a finding of fact, the failure to follow the rules deprived the Court of Appeals the opportunity to review the facts de novo and determine whether they were correct. Id. at *5-6.
And, when one of two alternative reasons support the trial judge’s ultimate decision, an an appellate court’s affirming one of those reasons means the appellate court need not consider the alternative basis for the trial judge’s ruling (in this case, the trial court’s decision that the statute of frauds barred the claim). Id. at *7.
C0urt reporters are expensive. I get it. But if your case may turn on an issue of fact it is a mistake not to have some way to have a transcript of the trial available for appellate court review.
By the way, did you know you can tape record court proceedings? Tenn. Code Ann. Sec. 20-9-104.