IN THE COURT OF APPEALS OF TENNESSEE
FILED
June 25, 1999
AT KNOXVILLE
Cecil Crowson, Jr.
Appellate C ourt
Clerk
NATIONSBANK OF TENNESSEE, ) HAMILTON CHANCERY
) (No. 73919)
Plaintiff/Appellant )
)
v. ) NO. 03A01-9808-CH-00279
)
FORMPAK, INC. and ) HON. HOWELL N. PEOPLES
RON CAMPBELL, ) CHANCELLOR
)
Defendants/Appellees ) AFFIRMED
Ron Cunningham, Knoxville, for Appellant.
C. Mark Warren, Chattanooga, for Appellees.
OPINION
INMAN, Senior Judge
This is an action to recover on a promissory note for borrowed funds, the
payment of which was secured by a lien on a vehicle. Beyond this point the facts
become obscured; there is no transcript, and no statement of the evidence.
The appellant, in its brief, incorporates a “Statement of Undisputed Facts,”
which the appellee does not contest. We are able to glean from this statement, and
the exhibits, that on August 7, 1990, the defendants borrowed a sum of money to
purchase a 1991 GMC Jimmy in which was taken a security interest. This was
followed by the renewal, on September 10, 1990, of a note initially executed in
1983, the payment of which was secured by the defendant Formpak’s accounts
receivable, inventory, fixtures and equipment. The defendants defaulted in the
payment of the September 10, 1990 note, and were sued “under the theory of
breach of commercial note 2 and the security agreement of commercial note 1.”
We deduce that the suit alleged default on the promissory note used to purchase the
GMC truck. The Chancellor dismissed the case, holding that the plaintiff had
released the “defendant from the obligation of the promissory note.”
This ruling was based upon an agreed order of dismissal which provides that
“Nationsbank of Tennessee does hereby release all Formpak’s . . . and equipment.”
According to the briefs, a number of witnesses testified. We are unable to
deduce from the “Statement of Undisputed Facts” the precise testimony offered;
unlike this court, the Chancellor had the benefit of the disputed facts.
Rule 24 of T. R. A. P. provides that the record on appeal shall consist of (3)
the transcript or statement of the evidence. If no transcript of the evidence is
available, it is the duty of the appellant to prepare a statement of the evidence for
approval by the trial judge. This was not done, and we are thus bound to assume
that the record, had it been preserved, would have contained sufficient evidence to
support the findings of the trial court. Sherrod v. Wix, 849 S.W.2d 780 (Tenn.
App. 1992).
The judgment is affirmed at the costs of the appellant.
_______________________________
William H. Inman, Senior Judge
CONCUR:
_______________________________
Herschel P. Franks, Judge
_______________________________
Charles D. Susano, Jr., Judge
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