Honey Bunch v. B.F. Bunch

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

July 1, 2015 Session

HONEY BUNCH v. B.F. BUNCH

Appeal from the Chancery Court for Anderson County

No. 12CH4776 William E. Lantrip, Chancellor

No. E2014-02121-COA-R3-CV-FILED-OCTOBER 15, 2015

Honey Bunch (“Plaintiff”) filed suit seeking partition by sale of a parcel of real property

located in Anderson County, Tennessee. B.F. Bunch (“Defendant”) filed a counterclaim

alleging, in pertinent part, that a quit claim deed of a portion of the property was void for

lack of capacity, undue influence, or fraud, and that the property at issue should be

partitioned in kind. After a trial, the Chancery Court for Anderson County (“the Trial

Court”) found and held, inter alia, that the quit claim deed was valid and that the

remaining property should be partitioned by sale. Defendant appeals raising issues

regarding whether the Trial Court erred in finding the quit claim deed valid, whether the

Trial Court erred in finding that the property should be partitioned by sale, and whether

the Trial Court erred in prohibiting Defendant from using a common driveway. We find

and hold that the evidence in the record on appeal does not preponderate against the Trial

Court’s findings, and we find no error by the Trial Court. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

Case Remanded

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which FRANK G.

CLEMENT, JR., P.J. M.S. and JOHN W. MCCLARTY, J., joined.

David A. Stuart, Clinton, Tennessee, for the appellant, B.F. Bunch.

Robert W. Wilkinson, Oak Ridge, Tennessee, for the appellee, Honey Bunch.

OPINION

Background

Plaintiff and Defendant are brother and sister and the adult children of Belzie

Bunch and Mary F. Bunch. During their lifetime, Belzie Bunch and Mary F. Bunch

jointly owned real property consisting of approximately 35 acres located in Anderson

County, Tennessee. Belzie Bunch died in 1993. In 1994, Mary F. Bunch (“Mother”)

conveyed a portion of her real property by quit claim deed (“Quit Claim Deed”) jointly to

herself and Plaintiff with right of survivorship. The portion of the property owned by

Mother and not conveyed in the Quit Claim Deed consists of approximately 17 acres (“17

Acre Parcel”). Defendant has lived on the 17 Acre Parcel for approximately forty-four

years. Mother died in January of 2010.

Plaintiff filed this suit in November of 2012 seeking partition by sale of the 17

Acre Parcel. Defendant filed an answer and counter-claim alleging, in pertinent part, that

the Quit Claim Deed should be held void for lack of capacity, undue influence, or fraud,

and that the entire 35 acre tract once owned by Belzie Bunch and Mary F. Bunch could

and should be partitioned in kind. The case proceeded to trial without a jury in July of

2013.

Plaintiff testified at trial that she does not believe that the 17 Acre Parcel can be

divided in kind. She stated that the property was “all trashed up, I have pictures that are

just not even possible for somebody to be interested in purchasing it.”

Plaintiff testified that Mother died in January of 2010 at the age of 84. Mother had

a high school diploma. Plaintiff testified that in 1994, the year the Quit Claim Deed was

executed, Mother scheduled her own cataract surgery and conducted her own business,

but she did not drive. Mother cooked for herself and paid her own bills. Plaintiff

testified that Mother relied on several people to drive her places including Plaintiff,

Defendant’s now ex-wife, and Plaintiff’s cousin. When people would take Mother to the

grocery store, Mother did her own shopping. Plaintiff testified that Mother would not

have followed any advice Plaintiff gave her if it went against Mother’s own will.

Plaintiff was asked what she was doing for Mother in 1994, and she stated:

Basically, just going and taking her to the grocery store. And if she had

doctors’ appointments like a physical I would take her to the doctor’s

appointment. And we would go when she wanted to go out and eat. And

also she watched my son for me for a period. She actually would come and

live with me because in the wintertime she had like . . . she didn’t have

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good heating, she just had a stove and a lot of times she just didn’t want to

get out there and round up wood or coal so she would actually stay with me

for months at a time.

Plaintiff was asked if other people helped Mother during 1994, and she stated:

Yes. Well, she relied heavily on my cousin, Joan Foust. And her daughter

as her daughter got holder [sic] she would take her, Kim Foust would take

her to places. And they did quite a bit of running around because I worked

full time so I couldn’t go and just hang out and go grocery shopping and

shopping.

Plaintiff testified that making the Quit Claim Deed was Mother’s idea. Plaintiff

stated:

Well, my mother wanted me to . . . because she knew she didn’t drive, she

never drove, she wanted me to be able to live down there on the property so

that I could instead of coming all the way from Knoxville all the way down

to take her she wanted me there. And I wanted to be there because I paid

house payments my whole time and it would have been nice to have been

down there.

Plaintiff testified that Mother requested that Plaintiff contact Attorney Jean

Munroe about preparing the deed. Plaintiff took Mother to meet with Ms. Munroe.

When asked about discussions that took place when Mother met with Ms. Munroe,

Plaintiff stated that she did not “remember really anything about that day [in 1994] . . . .”

Plaintiff admitted that she had worked for Ms. Munroe, but did not believe that she was

working for Ms. Munroe at the time the Quit Claim Deed was prepared and executed.

In 1999, Mother transferred approximately one acre of her remaining property to

her grandson, Defendant’s son. Ms. Munroe prepared the deed from Mother to Mother

and this grandson jointly. Plaintiff testified that she had nothing to do with the deed from

Mother to grandson.

Plaintiff’s father died approximately a year and a half before Mother made the

Quit Claim Deed. Plaintiff was asked if her parents had expressed that they planned to

divide their property equally between Plaintiff and Defendant, and she stated:

Years ago, yes. . . . Well, that’s true but my mother changed her mind on a

lot of things because of [Defendant’s] situation, how he owed like thirty

thousand dollars back child support. . . . Also, he was married three times

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and each time was . . . the first two he beat on those women, I have a

picture, I don’t have it with me but one where she had a black eye. And she

divorced him. And the other one was married to him and has three children

by him and he beat her up. And anyway, he has been a very abusive

person, controlling and a bully pretty much his whole life. And the person

that he was married to for fifteen years; my mother did not want this person

getting this property, any of it. And he married her I think somewhere in

the ’94, ’96 something like that and they didn’t divorce until like October,

2011. And that was my mother’s concern. She didn’t want the state to take

it and she didn’t want this woman to have part of it. And she just knew he

would lose it because he is not responsible, he doesn’t pay for things. He’s

lived off her basically those 40 years. He had his water and electricity

runing from her house down to his and she would pay the bill.

Teresa Ann Hale testified that she and Plaintiff worked together beginning in

1989, and they became friends. Ms. Hale also got to know Mother. Ms. Hale stated that

she and Mother “were good friends. We talked a lot. Maybe two or three times a week.

If I didn’t call her she would call me.” Ms. Hale sometimes drove Mother to the grocery

store.

Ms. Hale was asked if Mother seemed competent, and she stated: “Yes, she was

sharp as a tack. . . . She did everything for herself, she cooked for herself. She did pretty

much around her house what she wanted to do. And she talked to me with utmost

confidence, she was very confident in her conversations.” Ms. Hale testified that Mother

paid her own bills and “walked to the mailbox and got her mail out and if she had

anything to mail she would mail it herself.” Ms. Hale stated that Mother “resented”

being told what to do and that Mother was capable of making up her own mind. Ms.

Hale stated: “nobody dictated anything to [Mother].” Ms. Hale testified that Mother had

conversations with her about making the deed to Plaintiff and the deed to her grandson,

and Ms. Hale believed that Mother understood what she was doing.

Defendant testified that Mother had been hospitalized for psychiatric care when

Defendant and Plaintiff were children. Plaintiff was asked if Mother had undergone

electro-convulsive therapy, and she stated: “She said she did.” The last time Mother was

hospitalized was probably in the 1960s. Defendant was asked about Mother’s mental

condition during the 1990s, and he stated:

Well, I had my sons living with them during that time. My older son lived

with them and basically they done the cooking and helping her. And then

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my second son moved in with her after they had moved out for a little while

so they were there to cook for her. And the last until my wife and me split

up my wife cooked her supper every night and took it up there to her.

Defendant testified that he picked up Mother’s prescriptions at the pharmacy for

her. Defendant testified that he brought Mother “breakfast from Hardee’s every other

morning and [saw] what she needed at night . . . .” Defendant testified that during the

winter time he would sit up at night to keep a fire going for Mother. He stated: “I had to

keep her fire because she got to where she couldn’t throw the wood in the fire.”

Defendant testified that Mother only stayed with Plaintiff during the winter when

Plaintiff’s son was young and Mother was needed to babysit. Defendant testified that

Plaintiff would not go to Mother’s home every time Mother wanted Plaintiff to do so.

After trial, the Trial Court entered its order on August 6, 2013 finding and holding,

inter alia:

3. At the time the property was conveyed by [Mother] to [Mother] and

[Plaintiff], [Mother] was capable of executing the deed. She did so

knowingly and competently. She was not operating under undue influence.

The Court finds that the only confidential relationship that existed between

[Mother] and her daughter, [Plaintiff], was a typical mother-daughter

relationship.

4. The Court, therefore, ORDERS that the Counter-Complaint filed in

behalf of the Defendant seeking to void the 1994 conveyance is overruled.

The Court finds and, therefore, ORDERS that the evidence preponderates

against any suggestion that the conveyance was effectuated as a result of

undue influence of the Plaintiff over [Mother].

5. The Court further finds that the action seeking partition is supported by

the evidence. The Court ORDERS that the 17.8 acres referred to in the

Plaintiff’s Complaint should be divided equally between the Plaintiff and

the Defendant. The Court, however, finds that evidence is lacking

regarding the issue as to whether or not this property is capable of being

divided in kind. The Court, therefore, ORDERS that commissioners be

appointed to determine if the property can be divided in kind and, if so,

how. The Court suggests that the parties agree on the designation of a

surveyor and one (1) or two (2) realtors to comprise the commissioners

necessary to make the determination with respect to the property and that

the commissioners report back to this Court with their findings.

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After further hearing the Trial Court entered its order on December 10, 2013

finding and holding, inter alia:

the Court finds that the subject property is property that can be divided in

kind, but the parties need to agree which party will receive which parcel.

The parties shall have 30 days within which to decide how to divide the two

(2) parcels. If the parties are unable to divide parcels, the Court will order

the property sold and the proceeds divided between the parties based on the

laws of the State of Tennessee.

Defendant filed a Motion for New Trial, to Alter or Amend Judgment and/or to

Make Additional Findings of Fact and Conclusions of Law. In his motion Defendant

stated, among other things:

To the extent the driveway to the defendant’s residence may be an issue,

this Court should hear evidence to determine its status. It has been in use

for a period in excess of 20 years, during which time it has been maintained

by defendant, and most of it is located on the tract where the defendant’s

residence is located. Any other portion of the roadway constitutes a

prescriptive easement and it works no injury upon the property for the

driveway to continue to be utilized in the same manner as it has for many

years in the past.

After a hearing the Trial Court entered its order on February 10, 2014 finding and

holding:

This cause came to be heard . . . upon the Motion for New Trial, to

Alter or Amend Judgment, and/or Make Additional Findings of Fact and

Conclusions of Law filed in behalf of [Defendant], the testimony of

witnesses, the argument of counsel, and the record as a whole from all of

which the Court finds that it may be appropriate to divide the subject

property into two (2) parcels rather than forcing a sale of the said property.

The property can be divided into two (2) parcels, one of which contains a

little over six (6) acres and the other of which contains a little over eleven

(11) acres. [Defendant] currently resides on the six (6) acre tract, but he

lives in a dwelling that was formerly a tool shed which he has renovated

into a residence. Apparently he at one time occupied a mobile home and

the tool shed was built as an attachment to the mobile home. The mobile

home has since been removed, yet [Defendant] continues to reside in that

portion which remains. The Court is concerned that the property

constitutes an eyesore as a result of the dilapidated condition of the

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buildings and the substantial amount of trash, debris, refuse, and litter

strewn about the said property. [Defendant] would like the Court to award

to him the six (6) acre tract, but [Plaintiff] has asked that this same property

be awarded to her. [Plaintiff] argues that the condition of the property

which is currently occupied by [Defendant] is such that it is impossible for

her to sell the property that she owns which is adjacent to his.

The Court is inclined to grant the six (6) acre tract to [Defendant],

but will do so provided certain conditions are met. First, [Defendant] will

have 90 days to remove all of the debris, trash, refuse, and litter strewn

about the property. [Defendant] shall be enjoined and permanently

restrained from bringing onto the property any additional trash, debris,

refuse, or litter. Second, [Defendant] shall not utilize any portion of the

property which currently belongs to [Plaintiff] to access his property.

[Defendant] currently gains access to the six (6) acre tract by coming across

a driveway, a portion of which is on property that belongs to [Plaintiff].

[Defendant] is enjoined and permanently restrained from coming across

[Plaintiff’s] property for any reason whatsoever effective immediately.

The parties, through counsel, have stipulated and the Court so

ORDERS that if [Defendant] fails to abide by the conditions as herein set

forth then the property shall be sold pursuant to [Plaintiff’s] request.

[Defendant] shall have 90 days within which to remove all of the trash,

debris, refuse, and litter failing which the Court will order the property

sold. [Defendant] shall not cross over or come upon [Plaintiff’s] property

which is adjacent to the six (6) acre tract for any purpose whatsoever and

should he do so the subject property shall be sold.

The parties are directed to return to Court 90 days hence and advise

the Court as to whether or not [Defendant] has met the conditions set forth

herein. If all of the conditions herein are met, the Court will consider

awarding the six (6) acre tract to [Defendant] and the eleven (11) acre tract

to [Plaintiff]. If the conditions have not been met and based on the

stipulation of the parties, the property shall be ordered sold.

All other matters are reserved.

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After further hearing the Trial Court entered its order on May 23, 2014 finding and

holding, inter alia:

This cause came to be heard . . . from the directive issued in this

Court’s previous Order which ordered the parties to return 90 days after the

last hearing and advise the Court as to whether or not [Defendant] had met

the conditions set forth in that Order requiring him to remove all of the

debris, trash, refuse, and litter strewn about the six (6) acre tract where he

currently resides. Defendant interposed an objection that Plaintiff failed to

disclose her intention to argue that Defendant had not complied with the

Court’s previous Order. The Court overruled Defendant’s objection. After

hearing the evidence and the testimony of the parties, the Court finds that

there has not been a substantial compliance with the Court’s previous

Order. The Court finds that the offensive materials remain on the six (6)

acre tract making the adjoining property virtually worthless and that the

only recourse is for the property to be sold and the proceeds divided.

IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED

that the parties’ jointly owned property comprised of approximately 17

acres be sold . . . .

Defendant appeals to this Court.

Discussion

Although not stated exactly as such, Defendant raises three issues on appeal: 1)

whether the Trial Court erred in refusing to find the Quit Claim Deed void for lack of

capacity or undue influence or fraud; 2) whether the Trial Court erred in holding that the

17 Acre Parcel be partitioned by sale rather than divided in kind; and, 3) whether the

Trial Court erred in prohibiting Defendant from using the common driveway.

Our review is de novo upon the record, accompanied by a presumption of

correctness of the findings of fact of the trial court, unless the preponderance of the

evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727

(Tenn. 2001). A trial court’s conclusions of law are subject to a de novo review with no

presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58

S.W.3d 706, 710 (Tenn. 2001).

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We first consider whether the Trial Court erred in refusing to find the Quit Claim

Deed void for lack of capacity or undue influence or fraud. As this Court has explained:

To be valid, a deed must be the result of the conscious, voluntary act

of a grantor who has the capacity to transact business. Cason v. Cason, 116

Tenn. 173, 193–94, 93 S.W. 89, 94 (1905); Fell v. Rambo, 36 S.W.3d 837,

846 (Tenn. Ct. App. 2000). To have the capacity to transact business, a

person need only be able to reasonably know and understand the nature,

extent, character, and effect of the transaction. Mays v. Prewett, 98 Tenn.

474, 478, 40 S.W. 483, 484–85 (1897). However, a deed to a grantee who

is in a confidential relationship with the grantor can be set aside if the

grantee has exerted undue influence on the grantor to procure the deed.

Brown v. Weik, 725 S.W.2d at 945.

In re: Conservatorship of Groves, 109 S.W.3d 317, 351 (Tenn. Ct. App. 2003).

With regard to confidential relationships, our Supreme Court has explained:

In Tennessee, for example, where there is a “confidential relationship,

followed by a transaction wherein the dominant party receives a benefit

from the other party, a presumption of undue influence arises, that may be

rebutted only by clear and convincing evidence of the fairness of the

transaction.” Matlock v. Simpson, 902 S.W.2d 384, 386 (Tenn. 1995)

(citations omitted). A confidential relationship is any relationship which

gives one person dominion and control over another. See Mitchell v. Smith,

779 S.W.2d 384, 389 (Tenn. Ct. App. 1989).

The burden of proof regarding a confidential relationship rests upon

the party claiming the existence of such a relationship. See Brown v. Weik,

725 S.W.2d 938, 945 (Tenn. Ct. App. 1983). Once a confidential

relationship has been shown and a presumption of undue influence arises,

the burden shifts to the dominant party to rebut the presumption by proving

the fairness of the transaction by clear and convincing evidence. Matlock v.

Simpson, 902 S.W.2d at 386; see Gordon v. Thornton, 584 S.W.2d 655, 658

(Tenn. Ct. App. 1979). To prove the fairness of the transaction, the

dominant party may show that the weaker party received independent

advice before engaging in the transaction that benefitted the dominant

party. See Hogan v. Cooper, 619 S.W.2d 516, 519 (Tenn. 1981); see also

Richmond v. Christian, 555 S.W.2d 105, 107–08 (Tenn. 1977) (proof that

the donor received independent advice respecting the consequences and

advisability of the gift) (citations omitted).

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Childress v. Currie, 74 S.W.3d 324, 328 (Tenn. 2002). Our Supreme Court in Childress

cited to Mitchell v. Smith wherein this Court explained:

Confidential relationships can assume a variety of forms, and thus

the courts have been hesitant to define precisely what a confidential

relationship is. Robinson v. Robinson, 517 S.W.2d 202, 206 (Tenn. Ct.

App. 1974). In general terms, it is any relationship which gives one person

dominion and control over another. Kelly v. Allen, 558 S.W.2d 845, 848

(Tenn. 1977); Turner v. Leathers, 191 Tenn. 292, 298, 232 S.W.2d 269,

271 (1950); Roberts v. Chase, 25 Tenn. App. 636, 650, 166 S.W.2d 641,

650 (1942). It is not merely a relationship of mutual trust and confidence,

but rather it is one

where confidence is placed by one in the other and the

recipient of that confidence is the dominant personality, with

ability, because of that confidence, to influence and exercise

dominion and control over the weaker or dominated party.

Mitchell v. Smith, 779 S.W.2d 384, 389 (Tenn. Ct. App. 1989) (quoting Iacometti v.

Frassinelli, 494 S.W.2d 496, 499 (Tenn. Ct. App. 1973)). “A normal relationship

between a mentally competent parent and an adult child is not per se a confidential

relationship and it raises no presumption of invalidity of the transaction.” Bills v.

Lindsay, 909 S.W.2d 434, 440 (Tenn. Ct. App. 1993).

Although Defendant relies heavily upon the fact that Mother was hospitalized for

psychiatric care in the 1960s to argue that Mother lacked capacity to execute the Quit

Claim Deed, the evidence in the record on appeal shows that in 1994, when Mother

executed the Quit Claim Deed, Mother lived alone, managed her own finances and paid

her own bills, cooked and cleaned for herself, scheduled her own doctor’s appointments,

shopped for herself, and babysat her grandson. Additionally, Ms. Hale, who testified that

she knew Mother well and that she spoke to Mother several times a week, described

Mother as “sharp as a tack.” Ms. Hale also testified that Mother had spoken with her

about the deed to Plaintiff and the deed to Mother’s grandson, and Ms. Hale believed that

Mother understood what she was doing in executing those deeds.

As this Court explained in In re: Conservatorship of Groves:

Capacity is not an abstract, all-or-nothing proposition. . . . Capacity

is also situational and contextual, and it may even have a motivational

component. It may be affected by many variables that constantly change

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over time. These variables include external factors such as the time of day,

place, social setting, and support from relatives, friends, and supportive

agencies. It may also be affected by neurologic, psychiatric, or other

medical conditions, such as poly-pharmacy, many of which are reversible

with proper treatment. Finally, capacity is not necessarily static. It is fluid

and can fluctuate from moment to moment. A change in surroundings may

affect capacity, and a person’s capacity may improve with treatment,

training, greater exposure to a particular type of situation, or simply the

passage of time.

In re: Conservatorship of Groves, 109 S.W.3d at 333-34 (footnotes omitted).

Defendant testified that Mother was hospitalized for psychiatric care when he and

Plaintiff were children and that the last time this happened was in the 1960s. Plaintiff

testified that Mother had stated that she had undergone electro-convulsive therapy. These

facts, however, do not prove that Mother lacked capacity during that time period, and

they certainly do not prove that Mother lacked the capacity to execute the Quit Claim

Deed in 1994. The evidence in the record on appeal, as discussed above, does not

preponderate against the Trial Court’s finding that Mother was competent to execute the

Quit Claim Deed.

With regard to Defendant’s allegations of undue influence or fraud, the Trial Court

found that there was no confidential relationship between Mother and Plaintiff that would

give rise to a presumption of undue influence. The evidence in the record on appeal

shows that while Plaintiff assisted Mother with some things, including transportation,

Mother managed her own life. The evidence shows that Mother lived alone, managed her

own finances and paid her own bills, cooked and cleaned for herself, scheduled her own

doctor’s appointments, shopped for herself, and babysat her grandson.

Furthermore, Plaintiff is not the only person who assisted Mother. Defendant

testified that he also assisted Mother, and the evidence shows that there were other people

who assisted Mother, specifically with regard to transportion because Mother did not

drive. The evidence does not show that Mother relied on Plaintiff any more heavily than

Mother relied upon others to assist her. Defendant himself testified that he picked up

Mother’s prescriptions for her, brought her breakfast “every other morning and [saw]

what she needed at night . . . ,” and sat up during the winter time to keep Mother’s fire

going.

The evidence in the record on appeal shows that the relationship between Mother

and Plaintiff was a normal relationship between a mentally competent parent and an adult

child. The evidence does not preponderate against the Trial Court’s findings that no

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confidential relationship existed between Mother and Plaintiff and that there was no

undue influence as to Mother’s execution of the Quit Claim Deed.

As for Defendant’s allegation of fraud, Defendant argues in his brief on appeal

that “[f]raud was directed against [Mother], e.g., she was told that if [Defendant] got

divorced his wife would get the property, and was encouraged to believe that [Defendant]

was financially irresponsible and would lose the property.” The record on appeal,

however, contains no evidence that even hints, let alone tends to prove, that the Quit

Claim Deed was procured by fraud.

We next consider whether the Trial Court erred in holding that the 17 Acre Parcel

be partitioned by sale rather than divided in kind. Pursuant to Tenn. Code Ann. § 29-27-

201:

29-27-201. Sale for division authorized.

Any person entitled to a partition of premises, under part 1 of this

chapter, is equally entitled to have such premises sold for division, in the

following cases:

(1) If the premises are so situated that partition thereof cannot be made; or

(2) Where the premises are of such description that it would be manifestly

for the advantage of the parties that the same should be sold instead of

partitioned.

Tenn. Code Ann. § 29-27-201 (2012).

Our ability to address this issue raised by Defendant is severely hampered if not

completely eliminated by the absence of either a transcript of the hearing with regard to

this issue or a Tenn. R. App. P. 24(c) statement of the evidence. The Trial Court stated in

its February 10, 2014 order that it had heard and considered “the testimony of witnesses,”

among other things when deciding this issue. Defendant, as the appellant in this case,

had the duty “to prepare a record which conveys a fair, accurate and complete account of

what transpired in the trial court with respect to the issues which form the basis of the

appeal.” Nickas v. Capadalis, 954 S.W.2d 735, 742 (Tenn. Ct. App. 1997) (quoting State

v. Boling, 840 S.W.2d 944, 951 (Tenn. Crim. App. 1992)). “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).

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The Trial Court found that it would be manifestly for the advantage of the parties

if the 17 Acre Parcel were sold unless specific conditions were met to address the fact

that “the property constitutes an eyesore as a result of the dilapidated condition of the

buildings and the substantial amount of trash, debris, refuse, and litter strewn about the

said property.” We must assume that the record, had it been preserved, would have

contained evidence to support the Trial Court’s finding. The Trial Court then found that

there had not been substantial compliance with the stated conditions and “that offensive

materials remain on the six (6) acre tract making the adjoining property virtually

worthless . . . .” Again, we must assume that the record, had it been preserved, would

have contained evidence to support the Trial Court’s finding.

Furthermore, we note from the Trial Court’s February 10, 2014 order that the

parties stipulated “that if [Defendant] fails to abide by the conditions as herein set forth

then the property shall be sold pursuant to [Plaintiff’s] request.” To enter into a

stipulation in the trial court and then raise an issue on appeal alleging that the trial court

erred in relying upon that stipulation, as Defendant is attempting to do here, is

inappropriate and unacceptable, at best. Given all of the above, we find no error in the

Trial Court’s order holding that the 17 Acre Parcel be partitioned by sale rather than in

kind.

Turning to Defendant’s third issue regarding whether the Trial Court erred in

prohibiting Defendant from using the common driveway, we note that just as was the

situation with the previous issue discussed, the record on appeal contains no transcript or

statement of the evidence with regard to this issue. Furthermore, we note that although

Defendant argues in his brief on appeal that the Trial Court decided this issue without it

being presented or litigated by the parties, Defendant himself raised an issue with regard

to the driveway in his motion seeking a new trial and specifically asked the Trial Court to

hear evidence with regard to the driveway. Thus, Defendant presented the issue to the

Trial Court. Furthermore, as the record was not preserved, we are unable to determine

whether the issue was or was not tried by consent of the parties. This Court can rely only

upon the record on appeal properly before us. As we explained above, “we must assume

that the record, had it been preserved, would have contained sufficient evidence to

support the trial court’s factual findings.” Sherrod, 849 S.W.2d at 783. We, therefore,

find no error in the Trial Court’s order prohibiting Defendant from using the common

driveway.1

1

Additionally, as we have affirmed the Trial Court’s order holding that the 17 Acre Parcel be partitioned

by sale rather than in kind, any question as to Defendant’s right to utilize the common driveway of the

property is moot.

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Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the

Trial Court for further proceedings consistent with our opinion and for collection of the

costs below. The costs on appeal are assessed against the appellant, B.F. Bunch, and his

surety.

_________________________________

D. MICHAEL SWINEY, JUDGE

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