                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                   Assigned on Briefs July 30, 2009

                           ANNE S. WILSON v. SCOTT BOWMAN

                        Appeal from the Chancery Court for Davidson County
                           No. 06-1125-II   Carol L. McCoy, Chancellor


                       No. M2009-01382-COA-R10-CV - Filed August 13, 2009



FRANK G. CLEMENT , JR., J., concurring.

        I write separately to state that I believe the issue is controlled by Tenn. R. Civ. P. 24,
particularly subsections (c), (e) and (f), wherein the respective rights and responsibilities of the
appellant, the appellee and the trial court are stated.

        No court reporter was present for the trial; thus, a transcript of the evidence notarized by a
court reporter is not an option. However, the trial court has a recording device in its courtroom,
which is used to record its courtroom proceedings. Although the actual recording (CD-ROM) may
not be used as a transcript of the evidence or a statement of the evidence,1 the appellant and appellee
may prepare a statement of the evidence from the recording and present a proposed statement of the
evidence for the trial court’s approval pursuant to Tenn. R. Civ. P. 24(c).

         The statement should convey a fair, accurate and complete account of what transpired
         with respect to those issues that are the bases of appeal. The statement, certified by
         the appellant or the appellant’s counsel as an accurate account of the proceedings,
         shall be filed with the clerk of the trial court within 60 days after filing the notice of
         appeal. Upon filing the statement, the appellant shall simultaneously serve notice of
         the filing on the appellee, accompanied by a short and plain declaration of the issues
         the appellant intends to present on appeal. . . . If the appellee has objections to the
         statement as filed, the appellee shall file objections thereto with the clerk of the trial
         court within fifteen days after service of the declaration and notice of the filing of the
         statement. Any differences regarding the statement shall be settled as set forth in
         subdivision (e) of this rule.


         1
          An exception to this is in Rule 8, Local Rules of Practice, Davidson County Trial Courts. This rule authorizes
the Sixth Circuit Court of Davidson County to use audio-video recordings as the official record of court proceedings
pursuant to Supreme Court Rule 26. Supreme Court Rule 26 only pertains to a court of record “authorized” by the
Supreme Court of Tennessee to use videotape or CD-ROM recording of court proceedings. The Chancery Court, from
which this appeal arises, is not authorized to use such recordings as the official record.
Tenn. R. Civ. P. 24(c).

        Subsection (e) of Tenn. R. Civ. P. 24 provides, in pertinent part, that

        any differences regarding whether the record accurately discloses what occurred in
        the trial court shall be submitted to and settled by the trial court regardless of whether
        the record has been transmitted to the appellate court. Absent extraordinary
        circumstances, the determination of the trial court is conclusive. . . .

        Also relevant to the issue on appeal is Tenn. R. Civ. P. 24(f), which provides in pertinent part
that “[t]he trial judge shall approve . . . the statement of the evidence and shall authenticate the
exhibits as soon as practicable after the filing thereof or after the expiration of the 15-day period for
objections by appellee, as the case may be, . . .” Tenn. R. Civ. P. 24(f) (emphasis added).

        As for Rule 8 of the Local Rules of Practice, Davidson County Trial Courts, upon which the
trial court erroneously relied to reject the appellant’s statement of the evidence, I fully concur with
the majority that Rule 8 is not a basis upon which to refuse to approve the proposed statement of the
evidence. Whether the proposed statement of the evidence should be approved simply requires a
determination of whether the statement conveys “a fair, accurate and complete account of what
transpired with respect to those issues that are the bases of appeal.” Tenn. R. Civ. P. 24(c). It is the
duty of the trial judge to make that determination. As this court has stated in prior proceedings
wherein preliminary disputes have arisen concerning the approval by the trial court of a statement
of the evidence:

        Tenn. R. App. P. 24(c) provides that disputes over the statement of the evidence are
        to be resolved by the trial court in accordance with Tenn. R. App. P. 24(e). Tenn. R.
        App. P. 24(e) contemplates that, in resolving such disputes, the trial court will ensure
        the record accurately discloses what occurred in the trial court. Where a statement
        of the evidence has been filed in accordance with Tenn. R. App. P. 24(c) and a
        dispute over the accuracy of the statement has arisen, the trial court’s duty to resolve
        the dispute will generally require it to approve a statement of the evidence that
        conveys a fair, accurate and complete account of what transpired in the trial court.
        The trial court will normally approve either the statement of the evidence filed by
        the appellant or an alternate version submitted by the appellee. If neither party has
        submitted a statement of the evidence which, in the trial court’s opinion, represents
        a fair, accurate and complete account of what transpired in the trial court, then the
        trial court may give the parties an opportunity to correct the accuracy of their
        statements or the trial court may prepare its own statement of the evidence. Under
        normal circumstances, the trial court should not decline to approve any statement of
        the evidence and thereby leave the appellant with an inadequate record to pursue the
        appeal.




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         Accordingly, I submit the trial court has the affirmative duty to review the statement of the
evidence prepared by the appellant, and any objections by the appellee. If necessary, the trial court
may give the parties an opportunity to correct the accuracy of the proposed statement. If that fails,
the trial court may prepare its own statement of the evidence. In any event, the trial court should not
decline to approve any and all statements of the evidence and thereby leave the appellant with an
inadequate record to pursue the appeal.




                                                        ___________________________________
                                                        FRANK G. CLEMENT, JR., JUDGE




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