The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
December 15, 2011 Session
JAMES H. HARRIS, III v. EDWARD K. WHITE, III
Appeal from the Chancery Court for Davidson County
No. 071972IV Russell T. Perkins, Chancellor
No. M2011-00992-COA-R3-CV - Filed May 16, 2012
This is a dispute between two attorneys. Attorney 1 hired attorney 2 to represent him.
Attorney 2 sued attorney 1 for attorney fees, and attorney 1 counterclaimed for legal
malpractice. The trial court granted attorney 2 summary judgment on the attorney fee claim,
and a jury found in favor of attorney 2 on the legal malpractice claim. On appeal, attorney
1 challenges both decisions on multiple grounds. Finding no error, we affirm the judgment
of the trial court in all respects.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
A NDY D. B ENNETT, J., delivered the opinion of the Court, in which P ATRICIA J. C OTTRELL,
P.J., M.S., and F RANK G. C LEMENT, J R., J., joined.
Edward K. White, III, Franklin, Tennessee, Pro Se.
Darrell Gene Townsend, J. Thomas Martin, and Richard L. Wommack, II, Nashville,
Tennessee, for the appellee, James H. Harris, III.
OPINION
F ACTUAL AND P ROCEDURAL B ACKGROUND
Attorney Edward White did legal work for Frank Burnett and Dennis Joslin 2000, Inc.
(“Joslin 2000”). In January 2006, White filed a lawsuit in Williamson County, Tennessee,
against Burnett and Joslin 2000 to obtain attorney fees alleged to be owed to White. On
January 23, 2006, in response to a “joint motion for ex parte entry of agreed judgment,” the
trial court entered an agreed final judgment against the defendants in favor of White in the
amount of $450,000.1 Joslin 2000 and shareholders in Joslin 2000 (through attorneys) filed
motions for relief from the final judgment in March 2006.
In late April 2006, White engaged attorney James Harris, who had represented White
previously, to represent him in the Williamson County case and to oppose the setting aside
of the judgment White had obtained from the court. Harris represented White at a hearing
on April 24, 2006. At this hearing, the court took the matter under advisement and ordered
White to submit (within five days) “additional proof confirming that he did not represent any
of the parties at the time the Judgment was granted.” On June 2, 2006, the court in
Williamson County entered an order vacating the judgment and imposing sanctions against
White. The court subsequently denied White’s motion to alter or amend its order vacating
the judgment.
Harris and White did not enter into a written agreement concerning attorney fees until
August 30, 2006. Harris presented White with the following fee agreement letter:
This letter will reduce to writing our current fee agreement. If after reviewing
it you have no further questions about the terms of my representation, please
sign the extra copy enclosed.
I have undertaken and will continue to undertake the following work on your
behalf: to represent your interests in litigation currently pending in Williamson
County, Tennessee, Civil Action No. 06044. Unless otherwise provided, all
future work will be done in accordance with this fee letter agreement.
You acknowledge and agree that as of 18 July 2006, you owed me a total of
$11,240.00 for services rendered and expenses incurred.
...
The hourly rate for my legal services is Three Hundred Dollars ($300.00). I
will also charge for expenses incurred on your behalf. Generally, I will send
you at least monthly an itemized statement of fees and expenses associated
with my services. Payment is due upon demand or at the time you or I collect
money on your claim, whichever comes first.
You agree that any failure to pay fees or expenses or make deposits when
demanded will be cause for my termination of this agreement and shall entitle
1
The motion was signed by W hite and Burnett, and the agreed order was signed by W hite, Burnett individually,
and Burnett as director and president of Joslin 2000.
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me to cease work without further notice. It is understood that you may
terminate my services at any time for any reason orally or in writing and my
fees will end at the moment of termination of my services.
If I have to bring suit against you to collect any balance owed, you agree to pay
as attorney’s fees an additional amount of 33.33% of the balance owed or
reasonable attorneys fees and expenses, whichever is less. You also agree that
I may bring any legal action to enforce the terms of this agreement in the
courts of Nashville, Davidson County, Tennessee.
...
If the above terms are acceptable, please sign and return one of the enclosed
copies of this letter. I look forward to working with you.
White signed the letter on August 30, 2006, under the statement that “I understand and accept
the terms of this Agreement.”
White sent Harris an e-mail terminating his services in November 2006 but rehired
him the same day. In December 2006, Harris filed a motion on White’s behalf in Williamson
County asking that the order vacating the judgment be revised to apply only against Joslin
2000 and not against Burnett. The court granted this motion on January 23, 2007.
White also hired Harris to file an “interpleader complaint” in Dyer County chancery
court in November 2006 against Darrell Sells. Sells had a case pending in the chancery court
of Dyer County against Burnett claiming that Burnett had promised to give Sells Burnett’s
share of distributions from an investment in Millenium Properties of the West, LLC (“the
Millenium Funds”). In this pending case, the chancery court had enjoined Burnett from
disposing of the Millenium Funds. According to White’s interpleader lawsuit, Burnett had
promised to give him the Millenium Funds as a lump-sum, non-refundable attorney fee and
had, in June 2005, wired the money to White. At the chancery court’s instruction, White had
paid these funds, in the amount of $797,397.15, into the registry of the court in November
2005. In his interpleader complaint, White asked the court to return the Millenium Funds to
him. In March 2007, White filed a motion for an order directing disbursement of the funds
held in the registry of the court.
On May 9, 2007, Harris sent White a memorandum entitled “estoppel letter.” The
memorandum states as follows:
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As we discussed on the phone, the purpose of this memorandum is to set forth
and to acknowledge of [sic] your agreement as to the amount of fees and
expenses currently that you currently [sic] owe me for legal services rendered.
As of 30 April 2007 our fee agreement was in full force and effect, I was
engaged as your lawyer in various litigation matters, and you owed me
$41,533.47 for those services. Also as of that date, you had accepted my legal
services and had found them to be a satisfactory discharge [of] all of my
professional responsibilities to you as a client.
If you agree with the statements that I have made in this Estoppel Letter, and
if you desire that I therefore continue to serve as your lawyer, please so
indicate by signing below where appropriate and returning the Estoppel Letter
to me.
White signed the memorandum.
On June 5, 2007, after a hearing the Dyer County court denied White’s motion for an
order disbursing funds and denied the defendant’s motion to dismiss. White terminated
Harris’s services as his attorney.
Current lawsuit
Harris filed this lawsuit against White on August 30, 2007, for breach of contract and
demanded judgment in the amount of $46,975.85 plus attorney fees and costs. White
counterclaimed and asserted waiver and lack of consideration as defenses. White alleged that
he and Harris “had an oral agreement providing in part that the letter dated 30 August 2006
would not be an enforceable contract” due to lack of consideration and that “no legal fees are
owed because plaintiff’s legal representation did not result in defendant receiving any money
from plaintiff’s legal representation.” White also counterclaimed for legal malpractice.
On August 7, 2008, Harris filed a motion for partial summary judgment with respect
to the issues of White’s liability to him and the amount of that liability. Harris filed
supporting documents, including his own affidavit and White’s response to Harris’s requests
for admissions. In opposing Harris’s motion for partial summary judgment, White submitted
his own affidavit, which includes the following statements:
The “fee letter agreement” does not set forth the terms of defendant’s
engagement of plaintiff. At the time of signing the parties understood that the
“fee letter agreement” was void and of no legal effect. Plaintiff represented
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to defendant that the “fee letter agreement” would have no legal effect
between the parties as it was solely for the purpose of satisfying the
requirements of his partners. Since the “fee letter agreement” was signed
without any consideration given, defendant was confident that the “fee letter
agreement” was void when executed, reasonably relied on the representation
and agreed to accommodate plaintiff.
The “fee letter agreement” does not reduce to writing the fee agreement that
existed between plaintiff and defendant. In March, 2006, plaintiff agreed that
defendant would never be personally liable for his attorneys fees, but that
plaintiff would obtain his fees from the various liable parties in the lawsuit in
which defendant had already obtained final judgments and in which there was
a contract provision for attorneys fees to be paid to defendant’s attorneys.
...
The court should note that by its terms [the estoppel letter] states that it is an
acknowledgment of an agreement (line 2) between the parties, not an estoppel
letter. It is evident from the text that there is no consideration given for the
agreement or the acknowledgment, which renders the document legally void.
More importantly, defendant does not have a record of this document and
believes the signature was computer or electronically generated by plaintiff.
Defendant demands that plaintiff produce an original signature version at trial,
if there is such a version.
The court concluded that there were no genuine issues of material fact and that Harris was
entitled to judgment as a matter of law on his breach of contract claim.2 White’s
counterclaim was not affected by the granting of partial summary judgment to Harris.
White’s malpractice counterclaim was tried before a jury in January 2011, and the jury
returned a verdict in favor of Harris. The jury found that there was no negligence by Harris
with respect to the Williamson County case and that, although Harris was negligent with
respect to the Dyer County case, the case would not have resulted in a collectible judgment
for White even without Harris’s negligence. The trial court entered judgment on the jury’s
verdict, dismissed White’s counterclaim, and taxed all costs to White. White filed motions
2
The chancery court had previously referred the case to the NBA Fee Dispute Committee pursuant
to Rule 53 of the Tennessee Rules of Civil Procedure, but the court did not consider the panel’s decision in
ruling on Harris’s motion for partial summary judgment. The panel had concluded that the August 30, 2006
fee agreement was a valid contract and rejected all of the defenses raised by White; the panel also found
White’s allegations of gross negligence to be without merit.
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for judgment and for a new trial. On April 1, 2011, the trial court denied these motions and
awarded Harris the balance of his attorney fees and discretionary costs.
Issues on appeal
White raises five issues on appeal. The first two issues relate to the court’s grant of
partial summary judgment to Harris on his breach of contract claim against White: (1)
whether the trial court erred in granting partial summary judgment to Harris; and (2) whether
the trial court erred in the amount of attorney fees and costs awarded to Harris. The other
three issues address the jury trial and verdict: (3) whether the trial court erred by giving the
jury a verdict form with an erroneous question; (4) whether the trial court erred by failing to
submit certain special instructions to the jury; and (5) whether the trial court erred by not
granting White a judgment in his favor or granting him a new trial.
A NALYSIS
1.
The first issue concerns the propriety of the trial court’s grant of partial summary
judgment as to Harris’s breach of contract claim.
Summary judgment is appropriate when there is no genuine issue of material fact and
the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.04.
Summary judgments do not enjoy a presumption of correctness on appeal. BellSouth Adver.
& Publ’g Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn. 2003). In reviewing a summary
judgment, this court must make a fresh determination that the requirements of Tenn. R. Civ.
P. 56 have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50 (Tenn.1997). We consider
the evidence in the light most favorable to the non-moving party and resolve all inferences
in that party’s favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002). When reviewing
the evidence, we must determine whether factual disputes exist. Byrd v. Hall, 847 S.W.2d
208, 211 (Tenn. 1993). If a factual dispute exists, we must determine whether the fact is
material to the claim or defense upon which the summary judgment is predicated and whether
the disputed fact creates a genuine issue for trial. Id.; Rutherford v. Polar Tank Trailer, Inc.,
978 S.W.2d 102, 104 (Tenn. Ct. App. 1998). To shift the burden of production to the
nonmoving party who bears the burden of proof at trial, the moving party must negate an
element of the opposing party’s claim or “show that the nonmoving party cannot prove an
essential element of the claim at trial.” Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8–9
(Tenn. 2008).
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In support of his motion for summary judgment, Harris submitted the fee agreement
letter, the estoppel letter, his own affidavit, and other documents, successfully shifting the
burden of production to White to negate the breach of contract claim. In challenging the trial
court’s grant of summary judgment, White makes two arguments: that the fee agreement
lacked consideration; and that White, by his affidavit, created issues of material fact
regarding his defense of fraudulent inducement.
We cannot agree with White’s argument that the fee agreement lacked consideration.
Pursuant to Tenn. Code Ann. § 47-50-103, a written contract signed by the party to be bound
is “prima facie evidence of a consideration.” The burden of overcoming this presumption
is upon the party asserting the lack of consideration. Atkins v. Kirkpatrick, 823 S.W.2d 547,
552 (Tenn. Ct. App. 1991); Pinney v. Tarpley, 686 S.W.2d 574, 580 (Tenn. Ct. App. 1984).
In an attempt to counter the presumption, White asserts that he and Harris entered into a prior
oral agreement regarding attorney fees. The Rules of Professional Conduct, however, require
that a contingency agreement regarding attorney fees shall be in writing. Tenn. Sup. Ct. R.
8, RPC 1.5(c). Moreover, the parol evidence rule prohibits evidence of any oral statements
that contradict the terms of a written agreement. Farmers & Merch. Bank v. Petty, 664
S.W.2d 77, 81 (Tenn. Ct. App. 1983); Frumin v. May, 251 S.W.2d 314, 319 (Tenn. Ct. App.
1952). White failed to present any admissible evidence that the fee agreement lacked
consideration because of a prior agreement.
White’s other argument is that there are issues of material fact related to his fraudulent
inducement claim. He asserts the following key material factual disputes: “Harris
misrepresented that the written agreement would not be enforced; the letter agreement does
not set forth the agreement between the parties; the fee agreement was non-recourse with
White responsible only for out of pocket expenses; Harris was to obtain his fees from the
defendants in the cases; White does not owe Harris anything under the agreement.” The only
support for these alleged material disputes is Harris’s affidavit. As discussed above, the parol
evidence rule would not allow evidence of oral statements to contradict the terms of the
written agreement. Furthermore, Harris’s affidavit is insufficient to establish fraudulent
inducement. To show fraudulent inducement to contract, a party is required to prove: “(1)
a false statement concerning a fact material to the transaction; (2) knowledge of the
statement’s falsity or utter disregard for its truth; (3) intent to induce reliance on the
statement; (4) reliance under circumstances manifesting a reasonable right to rely on the
statement; (5) an injury resulting from the reliance.” Lamb v. MegaFlight, Inc., 26 S.W.3d
627, 630 (Tenn. Ct. App. 2000). White’s affidavit cannot establish Harris’s knowledge or
intent at the time when the alleged statement was made.
In the case of Farmers & Merchants Bank v. Petty, 664 S.W.2d at 80-82, this court
rejected an argument similar to that being made by White in the present case. The bank in
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Farmers sued Mr. Petty to collect on a promissory note, and Mr. Petty alleged that he had
been fraudulently induced to sign the note because the bank president told him that he would
never have to pay the note. Id. at 78. The court’s opinion includes a discussion of
promissory fraud; the court concluded that the Tennessee Supreme Court had expressed a
willingness to consider adopting promissory fraud in “those cases where the statement of
intention is shown to be false when made . . . by evidence other than subsequent failure to
keep the promise or subjective surmise or impression of the promisee.” Id. at 80-81.
Because of ambiguity in the statement at issue, the court determined that this was not a case
when the rule of promissory fraud might apply. Id. at 81. The court also relied upon the
principle that parol evidence could not be “offered to contradict the sole obligation of a
written contract.” Id. In its discussion, the court made the following observations:
Granting the necessity and justice of allowing defenses based upon
misrepresentations which do not contradict or change the plain terms of a
written instrument, the allowance of defenses based on oral statements clearly
inconsistent with the written instrument sued upon would appear to be a
radical departure from long established and accepted rules of law and would
defeat the very purpose of committing agreements to writing.
. . . [I]t must be recognized that one of the reasons for the parol evidence rule
is to prevent fraud in presenting oral defenses to written agreements. That is,
the parol evidence rule assumes that the parties deliberately chose to put their
agreement in writing to avoid the uncertainties of oral evidence, including the
possibility of false testimony as to oral conversations. Thus, the parol
evidence rule is a “quasi-statute of frauds” which rejects evidence of any oral
statement in contradiction of the terms of a written agreement.
Id. at 81-82. The same reasoning leads us to reject White’s fraudulent inducement argument
in the present case. See also Rankin v. Smith, No. W2003-00992-COA-R3-CV, 2004 WL
1908793, at *3 (Tenn. Ct. App. Aug. 23, 2004).
2.
White next argues that the trial court erred in awarding Harris more than the contract
maximum for attorney fees and costs.
The award of attorney fees is within the trial court’s discretion and will not be
overturned absent an abuse of discretion. Wright ex rel. Wright v. Wright, 337 S.W.3d 166,
176 (Tenn. 2011). Rule 1.5(a) of the Rules of Professional Conduct sets out the factors to
be considered in determining the reasonableness of an attorney’s fee. Tenn. Sup. Ct. R. 8,
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RPC 1.5(a). Under the abuse of discretion standard, we look at the evidence in the light most
favorable to the trial court’s decision. Id. Thus, we are required to uphold the trial court’s
ruling “as long as reasonable minds could disagree about its correctness,” and “we are not
permitted to substitute our judgment for that of the trial court.” Caldwell v. Hill, 250 S.W.3d
865, 869 (Tenn. Ct. App. 2007).
White does not dispute that the trial court had the authority to award attorney fees
under the terms of the fee agreement. He argues that the trial court awarded more attorney
fees than are authorized under the contract: “The court should have enforced the contract
language limiting the maximum award to $18,991.93 and not allowed the additional
$12,286.77 in expenses.”
To address White’s argument, we begin by reviewing the language of the fee
agreement and the pertinent orders of the trial court. The fee agreement provides: “If I have
to bring suit against you to collect any balance owed, you agree to pay as attorney’s fees an
additional amount of 33.33% of the balance owed or reasonable attorneys fees and expenses,
whichever is less.” Based upon this provision, Harris filed a motion in February 2011 for the
court to award him $18,991.93 for the attorney fees incurred in collecting a judgment against
White.3 White agrees that the provision authorized the court to award Harris $18,991.93 in
attorney fees.
Harris subsequently filed a motion for discretionary costs pursuant to Rule 54.04(2)
of the Tennessee Rules of Civil Procedure. Along with the motion, Harris submitted an
itemized and verified bill of costs in the amount of $13,957.27 for court reporter charges,
expert witnesses, and trial notebooks. After a hearing in March 2011, the trial court entered
an order on April 1, 2011, in which it disallowed two of the costs claimed by Harris and
entered judgment against White for $12,286.77 in discretionary costs.
As Harris points out in his brief, the discretionary costs awarded relate to the trial
regarding White’s counterclaim for negligence. They did not arise from Harris’s suit to
enforce the attorney fee agreement but from a separate tort action brought by White. See J
& B Inv., LLC v. Surti, 258 S.W.3d 127, 138-39 (Tenn. Ct. App. 2007). Moreover,
discretionary costs are distinct from attorney fees. Cracker Barrel Old Country Store, Inc.
v. Epperson, 284 S.W.3d 303, 309-10 (Tenn. 2009). Rule 54.04 allows a trial court to award
discretionary costs to a prevailing party. Tenn. R. Civ. P. 54.04; Fannon v. City of
LaFollette, 329 S.W.3d 418, 433-34 (Tenn. 2010).
3
This figure represents the lesser amount of the two figures described in the agreement–“33.33% of
the balance owed or reasonable attorneys fees and expenses.”
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Thus, White’s argument regarding the trial court’s award of attorney fees is based
upon a misapprehension of the court’s orders. We find no abuse of discretion in the trial
court’s actions.
3.
We now address the remaining three issues, which relate to the jury trial regarding
White’s counterclaim against Harris for legal malpractice.
White’s first argument is that the trial court submitted an erroneous question to the
jury in the jury verdict form. The decision to use a special verdict form and the questions
included on the form are within the discretion of the trial court. Tenn. R. Civ. P. 49; Smith
v. Parker, 373 S.W.2d 205, 211 (Tenn. 1963); Ingram v. Earthman, 993 S.W.2d 611, 640
(Tenn. Ct. App. 1998). A reviewing court should reverse the verdict “only when the special
verdict form is confusing or inconsistent with the trial court’s instructions.” Ingram, 993
S.W.2d at 641.
The first two questions on the jury verdict form in this case are as follows:4
1. In “Edward K. White, III v. Dennis Joslin 2000, Inc., and Frank Burnett;
No. 06044; Circuit Court for the 21st Judicial District, Williamson County,
Franklin, Tennessee” (the “Williamson County case”), do you find that James
H. Harris, III was negligent in his representation of Edward K. White, III?
Yes____ No____
If your answer to Question #1 is “No,” skip Question #2 and Question #3 and
go on to Question #4.
2. Do you find that, except for James Harris, III’s negligence, the Williamson
County case would have resulted in a collectible judgment in Edward K.
White’s favor?
Yes____ No____
White’s argument is that Question #2 was the wrong question to ask because it was
undisputed that the Williamson County judgment against Burnett was preserved. What the
4
The jury verdict form includes a total of eight questions/instructions. White assigns error only to
the second question.
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jury needed to determine, he argues, was whether Harris’s negligence caused the loss of one
(or more) collectible judgment(s) out of four (the two Williamson County judgments and two
related Oklahoma judgments). White asserts that the jury was not presented with the proper
issue and that the jury verdict was therefore confusing.
Even if we accept White’s reasoning, we cannot agree with his conclusion that the
jury verdict should be vacated or reversed. The jury answered Question #1 in the negative,
finding that Harris did not act negligently in his representation of White in the Williamson
County case. Therefore, the jury never reached Question #2. We find no abuse of discretion
in the trial court’s jury verdict question.
4.
White’s next contention is that the trial court erred in failing to submit special
instructions to the jury. In support of this argument, White points to a motion in limine he
made five days prior to trial. This motion did not, however, request special instructions to
the jury. Rather, White moved the trial court “to enter judgment for him on the two issues
that the two cases within the case [the Williamson County and Dyer County cases] would
have been won but for Plaintiff and Counter-Defendant Harris’ (“defendant”) negligence.”
He asserted that the relevant facts were not in dispute. White denies that this motion in
limine amounted to a request for partial summary judgment since it involved only one
element of his malpractice claim.
A motion in limine is a vehicle for pre-trial evidentiary questions. Duran v. Hyundai
Motor Am., Inc., 271 S.W.3d 178, 192 (Tenn. Ct. App. 2008). Rule 56.01 of the Tennessee
Rules of Civil Procedure allows a party seeking to recover on a claim to move for summary
judgment “upon all or any part thereof.” Such motions must be made at least thirty days
before the hearing date. Tenn. R. Civ. P. 56.04. Regardless of the appropriate legal
designation, White’s motion requested a dispositive, substantive ruling, not an evidentiary
ruling. See id. at 192-93.
We find no error in the trial court’s denial of White’s “motion in limine for
judgment,” a motion which did not request special jury instructions as argued on appeal.
5.
White’s final argument is that the trial court erred in denying his post-trial motion for
judgment in accordance with his motion for a directed verdict, and motion for a new trial.
We find no merit in this argument.
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In reviewing the denial of a motion under Tennessee Rule of Civil Procedure 50.02
for judgment in accordance with the party’s motion for a directed verdict, appellate courts
apply the same standard of review used for the denial of a motion for a directed verdict.
Holmes v. Wilson, 551 S.W.2d 682, 685 (Tenn. 1977); Plunk v. Nat’l Health Investors, Inc.,
92 S.W.3d 409, 412 (Tenn. Ct. App. 2002). Thus, a reviewing court does not weigh the
evidence or evaluate witness credibility; instead, the court must “review the evidence most
favorably to the party against whom the motion is made, give that party the benefit of all
reasonable inferences from the evidence, and disregard all evidence contrary to that party’s
position.” Plunk, 92 S.W.3d at 412-13. The jury’s verdict should not be overturned “when
reasonable persons could draw conflicting conclusions from the facts.” Id. at 413.
In ruling on a motion for new trial, the trial court acts as thirteenth juror; therefore,
it “must independently weigh the evidence, determine the issues presented, and decide
whether the jury’s verdict is supported by the evidence.” Dickey v. McCord, 63 S.W.3d 714,
718 (Tenn. Ct. App. 2001). A reviewing court must presume that the trial court properly
performed its role as thirteenth juror when the trial court approves the verdict without
comment. Id. The judgment should be reversed and a new trial ordered only if the record
includes “statements that the trial court was dissatisfied with or disapproved of the jury’s
verdict or when the trial court absolved itself of or misconstrued its function as the thirteenth
juror.” Id. at 719.
Applying these standards to the present case, we can only affirm the trial court’s
judgment. The record on appeal does not include a complete transcript of the trial. Rather,
the record contains two portions of the transcript–namely, the testimony of Layne Holley,
expert witness for Harris, and the testimony of Harris himself—as well as all of the trial
exhibits.5 Pursuant to Tenn. R. App. P. 24, the appellant bears responsibility for preparing
the record and providing the court with an adequate record to review the issues on appeal.
See Jennings v. Sewell-Allen Piggly Wiggly, 173 S.W.3d 710, 713 (Tenn. 2005). Since White
challenges the jury verdict, this court cannot perform any meaningful review without a
complete transcript. Without an adequate transcript, a reviewing court “must conclusively
presume there was sufficient evidence to support the verdict . . . .” McDonald v. Onoh, 772
S.W.2d 913, 914 (Tenn. Ct. App. 1989). Moreover, with respect to the motion for new trial,
the trial court’s order specifically states that “upon a review of the evidence heard and the
verdict returned in this matter, the Court is of the opinion that [White] is entitled to no relief
on any of the grounds raised in the motion.” Thus, the court expressed no dissatisfaction
5
We note that White relies upon the affidavit of Larry Vaughan, his expert witness, but failed to
include a transcript of Vaughan’s testimony on appeal. Rather, he cites to Vaughan’s affidavits, which were
not admitted into evidence but appear as trial exhibits for identification only.
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with or disapproval of the jury verdict, and there is no indication that the court misconstrued
its function as thirteenth juror.
C ONCLUSION
We affirm the judgment of the trial court in all respects. Costs of appeal are assessed
against the appellant, and execution may issue if necessary.
______________________________
ANDY D. BENNETT, JUDGE
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