Robbins v. Money

• Court: Court of Appeals of Tennessee
• Decided: July 22, 1997
• Docket: 03A01-9703-CV-00072
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE

HAROLD D. ROBBINS and wife, ) FILED C/A NO. 03A01-9703-CV-00072 JEAN A. ROBBINS, Natural Parents ) and Next of Kin of BRIAN K. ) July 22, 1997 ROBBINS, Deceased, ) ) Cecil Crowson, Jr. Plaintiffs-Appellees, ) Appellate C ourt Clerk ) ) APPEAL AS OF RIGHT FROM THE ) CAMPBELL COUNTY CIRCUIT COURT v. ) ) ) ) ) WILMA J. MONEY and ) HERMAN L. MONEY, ) ) HON. CONRAD E. TROUTMAN, JR. Defendants-Appellants. ) JUDGE

For Appellants For Appellees

ROBERT W. KNOLTON EDWARD M. GRAVES, JR. Kramer, Rayson, Leake, CARL WINKLES Rodgers & Morgan Knoxville, Tennessee Oak Ridge, Tennessee

OPINION

AFFIRMED Susano, J. REMANDED WITH INSTRUCTIONS

1 We are asked to review an arbitration award. Pursuant

to the authority found at T.C.A. §§ 29-5-312 and 29-5-315, the

trial court, acting on the application of the plaintiffs, the

parents of the late Brian K. Robbins (Estate),1 confirmed the

arbitrator’s award2 of damages to the Estate against the

defendant Wilma J. Money (Money), and entered a judgment “in

conformity therewith.” See T.C.A. § 29-5-315. Money3 appealed,

asserting two grounds for reversal:

1. Was the award of the arbitrator, his findings of fact and conclusions of law, clearly erroneous?

2. Did the trial judge err in affirming the award of the arbitrator and entering judgment thereon against the appellants?

We affirm.

I

This litigation arose out of an automobile accident

that occurred in Campbell County on November 18, 1993. At the

time of the accident, Ms. Money was attempting to make a left-

hand turn off U.S. Highway 25W when her vehicle was struck by a

vehicle driven by Brian K. Robbins (Robbins), who was proceeding

1 For ease of reference, the plaintiffs will be referred to as the Estate or in the singular; actually, Harold D. Robbins and wife, Jean A. Robbins, as natural parents and next of kin of Brian K. Robbins, are the named plaintiffs and appellees. 2 The arbitrator’s award was $548,431.80, being 70% of the plaintiff’s damages. The judgment was entered for $100,000, the maximum award authorized by the parties’ pre-arbitration “high-low” agreement. 3 Ms. Money’s husband, the defendant Herman L. Money, also appealed. For ease of reference, the appellant will be referred to as Money, Ms. Money, or in the singular.

2 in the opposite direction on 25W. Robbins and his brother,

Steven M. Robbins, were killed. Kimberly Michelle Hensley, who

was also a passenger in the Robbins vehicle, and Ms. Money were

also injured in the accident.

The Estate filed suit against Ms. Money and her husband

in the Campbell County Circuit Court. The Moneys filed a

counterclaim against the Estate. At a later date, this action

was consolidated with a suit filed by the parents of Steven M.

Robbins against the Moneys and a suit filed by Ms. Hensley

against the Estate and the Moneys. The Moneys’ counterclaim was

settled and dismissed by order entered February 26, 1996. The

record does not disclose the disposition of Ms. Hensley’s suit

against the Estate. The parties to the remaining actions entered

into a written agreement to arbitrate their respective claims

“subject to the provisions of T.C.A. § 29-5-301, et seq., and to

the compatible provisions of T.C.A. § 29-5-101, et seq.”

The parties agreed that Bruce A. Anderson, a Knoxville

attorney, would serve as arbitrator. On October 2, 1996, the

parties appeared before Mr. Anderson for a hearing. On October

10, 1996, the arbitrator submitted his written opinion, in which

he apportioned the fault for the accident, 70% to Money and 30%

to Robbins. The opinion describes the evidence heard by the

arbitrator:

. . . the parties stipulated most of the proof introduced including certain depositions, affidavits and other exhibits. Four witnesses testified at the hearing: Joyce Heatherly Walker, Wilma Money, Kimberly Hensley and Harold Robbins.

3 The arbitrator notes in his opinion that

[t]he issue of liability was contested by the parties - the plaintiffs contending that the cause of the accident was Wilma Money making a left-hand turn in front of the Robbins’ vehicle, and Ms. Money contending that the cause of the accident was the excessive speed of the Robbins’ vehicle.

The arbitrator, in finding that the major share of the blame for

the accident rested with Money, stated that there was

“considerable conflicting testimony between the eye witnesses” as

well as “conflicting testimony between the accident

reconstruction experts offered by both sides.”

Money did not appeal that part of the trial court’s

judgment pertaining to the arbitration awards to the estate of

Robbins’ brother and Ms. Hensley. Therefore, the only part of

the trial court’s judgment before us is that which confirms the

arbitrator’s award to the Estate against Money.

II

The appellant Money argues that arbitration awards, in

general, are subject to judicial review; that this should be

particularly true when the matter arbitrated involves an action

for negligence growing out of an automobile accident; that the

arbitrator’s findings of fact are “clearly erroneous”; and that

the arbitrator’s award is based upon an erroneous conclusion of

law. The appellee, relying upon the recent Supreme Court

4 decision of Arnold v. Morgan Keegan and Co., Inc., 914 S.W.2d 445

(Tenn. 1996), strenuously argues that an appellate court is

without authority to “vacat[e] [an arbitration award] for a mere

mistake of fact or law.”

In this case, the appellant asks us to reverse the

trial court’s judgment, vacate the arbitrator’s award “and enter

a Judgment in this Court in Money’s favor.” It is clear from the

appellant’s brief that the fundamental basis for this request is

the appellant’s assertion that the arbitrator’s findings of fact

are “clearly erroneous” and that his conclusions of law involve a

misinterpretation of law, particularly the case of Tennessee

Trailways, Inc. v. Ervin, 438 S.W.2d 733 (Tenn. 1969) and its

progeny.

Assuming, solely for the purpose of argument, that the

appellant is correct when she argues that our standard of review

permits us to engage in the inquiry suggested by her issues--a

position that is subject to serious question under the holding in

the Arnold case--we do not have the necessary record before us to

make this inquiry. The appellant did not furnish us with a

transcript or statement of the evidence considered by the

arbitrator. While the record certified by the clerk of the trial

court contains a number of unauthenticated, photostatic copies of

numbered exhibits, which the appellant claims are the exhibits

introduced before the arbitrator, it does not contain the “live”

testimony heard by the arbitrator. As previously indicated, the

arbitrator heard the oral testimony of four witnesses, all of

whom apparently testified, at least in part, on matters

5 pertaining to the issue of liability.4 Thus, while the appellant

invites us to engage in a review of the evidence, she does not

present us with a transcript or statement of the evidence to

enable us to make such an inquiry. As to the unauthenticated

exhibits in the record, their lack of authentication from the

arbitrator or the trial judge, see Rule 24(f), T.R.A.P.,

precludes us from considering them. See Bishop v. Bishop, 939

S.W.2d 109, 110 (Tenn.App. 1996); but even if we could consider

them, it is clear that we do not have all of the relevant

evidence on the issue of liability that was considered by the

arbitrator.

The appellant filed with the trial court a document

entitled “Designation of Appellate Record and Notice of No

Transcript.” In that document, she states that “there will be no

transcript prepared and filed as a part of the record on appeal

in this cause.” Under Rule 24, T.R.A.P., an appellant who

intends to challenge factual findings is required to file a

transcript or statement of the evidence that “convey[s] a fair,

accurate and complete account of what transpired with respect to

those issues that are the bases of appeal.” See Rule 24(b) and

(c), T.R.A.P. “The appellant has the primary burden to see that

a proper record is prepared on appeal and filed in this Court.”

McDonald v. Onoh, 772 S.W.2d 913, 914 (Tenn.App. 1989).

This is not a case where the filing of a partial

transcript may trigger an obligation on the part of the appellee

4 This conclusion is based upon the written opinion of the arbitrator and statements in the briefs.

6 to supplement the appellant’s filing. See Rule 24(b). In this

case, no transcript was filed. The failure to file a transcript

or statement of the evidence in this appeal, involving as it does

challenges to the correctness of findings of fact, brings into

play a well-established principle of law:

Where the issues raised go to the evidence, there must be a transcript. In the absence of a transcript of the evidence, there is a conclusive presumption that there was sufficient evidence before the trial court to support its judgment, and this Court must therefore affirm the judgment.

Coakley v. Daniels, 840 S.W.2d 367, 370 (Tenn.App. 1992).

(Emphasis added). See also McDonald, 772 S.W.2d at 914; Bishop,

939 S.W.2d at 110; Word v. Word, 937 S.W.2d 931, 932 (Tenn.App.

1996); Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn.App. 1992);

Irvin v. City of Clarksville, 767 S.W.2d 649, 653 (Tenn.App.

1988).

Thus, while we have serious reservations as to whether

we could reach the appellant’s issues even if we had a transcript

or statement of the evidence, it is clear that we cannot decide

factually-based issues without the relevant facts that were

presented to the arbitrator. We are an appellate court. We

evaluate, under prescribed standards of review, what other

tribunals or fact finders have done to determine if there are

reversible errors in their rulings. We are prevented from doing

so unless the totality of the evidence that led to those

factually-driven determinations is laid before us.

7 The Estate contends that this is a frivolous appeal.

It seeks damages under T.C.A. § 27-1-122. We agree. The

appellee should not have to incur the cost of defending an appeal

that was doomed from the start by the lack of a transcript or

statement of the evidence. See McDonald, 772 S.W.2d at 914.

The judgment of the trial court is affirmed. Costs on

appeal are taxed to the appellant and her surety. On remand, the

trial court will determine appellee’s expenses incident to this

appeal, including reasonable attorney’s fees.

__________________________ Charles D. Susano, Jr., J.

CONCUR:

________________________ Houston M. Goddard, P.J.

________________________ Herschel P. Franks, J.