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.
8