Southland Realtors Inc. v. Tabor Construction Company, Inc., - Concurring

• Court: Court of Appeals of Tennessee
• Decided: March 3, 1998
• Docket: 03A01-9710-CV-00455
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE FILED March 3, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk SOUTHLAND REALTORS, INC., ) KNOX CIRCUIT ) Plaintiff/Appellee ) NO. 03A01-9710-CV-00455 ) v. ) HON. HAROLD WIMBERLY ) JUDGE TABOR CONSTRUCTION ) COMPANY, INC., ) ) Defendant/Appellant ) AFFIRMED

Thomas R. Henley, Knoxville, for Appellant.

C. Paul Harrison, Knoxville, for Appellee.

OPINION

INMAN, Senior Judge

The trial court allowed the plaintiff a recovery of a commission for the

sale of real estate. The defendant appeals, insisting that (1) the plaintiff was

not a party to the sales agency contract and thus had no standing to file this

action, (2) the agency contract expired before performance, (3) the plaintiff

“performed no useful work,” and (4) the record “cannot support a judgment

for anyone.” Each of these issues alleges that the trial court erred in failing to

grant summary judgment.

The record does not reveal whether the motion was brought to the

attention of the trial judge, but in the interest of the disposition of the case we

may assume it was overruled since the case was tried on the merits. This brings us to a critical difficulty, that being the absence of a transcript or

statement of the evidence.

A review of the propounded issues is precluded because of the absence

of a transcript of the testimony. We cannot decide the issues solely on the

basis of the technical record. Sherrod v. Wix, 849 S.W.2d 780 (Tenn. App.

1992).

In avoidance of this elementary principle, the appellant argues that his

appeal is from the refusal to grant summary judgment, as contrasted to an

appeal from an adverse judgment following a trial on the merits. Aside from

the fact that the motion was not supported as RULE 56 requires, Byrd v. Hall,

847 S.W.2d 208 (Tenn. 1993), as a general rule the overruling of the motion

was interlocutory and hence not appealable. See, Williamson County

Broadcasting Co. V. Williamson County Bd. Of Education, 549 S.W.2d 371

(Tenn. 1977).

The judgment is affirmed at the costs of the appellant.

____________________________ William H. Inman, Senior Judge

CONCUR:

_______________________________ Herschel P. Franks, Judge

_______________________________ Don T. McMurray, Judge