                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                             April 5, 2005 Session

                      KATHY McPEAK v. VIRGINIA THOMAS

                  Direct Appeal from the Circuit Court for Hawkins County
                  No. CV-000392     Hon. Kindall T. Lawson, Circuit Judge



                    No. E2004-00400-COA-R3-CV - FILED MAY 11, 2005


Defendant appealed from the Trial Court’s Judgment in favor of plaintiff. On appeal, appellant
argues the Trial Court erred in ruling for appellee and appellee should be estopped from gaining
possession of the property in dispute. We affirm.


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


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO ,
JR., J., and SHARON G. LEE, J., joined.

John S. Anderson, Rogersville, Tennessee, for appellant.

Mark A. Skelton, Rogersville, Tennessee, for appellee.



                                             OPINION


                  This action originated in Sessions Court wherein a Judgment was awarded to the
plaintiff for the disputed property. The defendant appealed to the Circuit Court and the Circuit Judge
entered Judgment on August 11, 2003, which states in pertinent part:

               “This cause came to be heard on the 4th day of August, 2003. . . upon the appeal by
               the Defendant from the General Sessions Court Case #27515 relating to the Judgment
               awarded to the Plaintiff for the possession of the real property. . . the Court finding
               that Kathy Ann McPeak is the owner of the property and is entitled to immediate
               possession of the property. IT IS, THEREFORE, ORDERED ADJUDGED AND
               DECREED THAT: 1. Judgment is awarded to the Plaintiff, Kathy Ann McPeak.
                Kathy McPeak is the owner of the real property. . . and is entitled to immediate
                possession of said property.

Defendant has appealed from the Circuit Court Judgment and has raised these issues:

                1.      Whether the trial court erred in dismissing the appellant’s appeal of the
                        Hawkins County Sessions County Judgment on the Detainer Warrant.

                2.      Whether the appellee is collaterally estopped on pursuing possession of the
                        real property with the will contest lawsuit pending which would change
                        ownership of the subject property.

                3.      Additionally, the appellee seeks damages for frivolous appeal pursuant to
                        Tenn. Code Ann. § 27-1-122.

                Appellant states as her first issue that the Circuit Court erred in dismissing her appeal.
As an initial matter, the Order disposing of this case is not a dismissal. Rather, the Judgment states
the Trial Court heard the matter and awarded Judgment in favor of the appellee, finding her to be the
owner of the property and entitled to possession. A trial court speaks only through its written
judgments, duly entered upon the minutes. Environmental Abatement, Inc. v. Astrum R.E. Corp.,
27 S.W.3d 530, 536 (Tenn. Ct. App. 2000).

                The appellate record contains no transcript of the evidence, and the briefs before us
are deficient. See Rule 27(6), Tenn. R. App. P. The appellee asserts in her brief that the case was
tried upon a stipulation of facts. The Judgment Order does not indicate the decision was based upon
stipulations and arguments of counsel. Recitation of the facts in an appellate brief are not evidence
and may not be considered by the Court in lieu of an evidentiary transcript. Price v. Mercury Supply
Co., Inc., 682 S.W.2d 924, 929 (Tenn. Ct. App. 1984); State v. Roberts, 755 S.W.2d 833, 836
(Tenn. Crim. App. 1988); State v. Bennett, 798 S.W.2d 783, 789 (Tenn. Crim. App. 1990). Also see
Reed v. Reed, 1997 WL 791471 (Tenn. Ct. App. Dec. 29, 1997).

                 Without a transcript or statement of the evidence, this Court conclusively presumes
that the trial court’s factual determinations are correct. In re Adoption of D.P.M., 90 S.W.3d 263,
267 (Tenn. Ct. App. 2002), quoting, Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App. 1992).

                Appellant’s second issue raises the doctrine of collateral estoppel, and she asserts,
without citation to authority, that a pending will contest should have somehow “collaterally
estopped” the circuit court from granting judgment and that appellee should be prevented or
“collaterally estopped” from taking possession of the property.

                The record contains no evidence to merit discussion of this issue.

                Finally, appellee asks for sanctions for a frivolous appeal. Both parties bear some


                                                   -2-
complicity for the state of this record and the prolonged nature of this litigation. In our discretion
we decline to award damages pursuant to Tenn. Code Ann. § 27-1-122.

               The Judgment of the Trial Court is affirmed and the cause remanded, with the cost
of the appeal assessed to Virginia Lynn Murphy Thomas.




                                                       ______________________________
                                                       HERSCHEL PICKENS FRANKS, P.J.




                                                 -3-
