                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                               Assigned On Brief August 24, 2004

           ROBERT WALKER, ET AL. v. MICHAEL S. MULLINS, ET AL.

                  Direct Appeal from the Chancery Court for Fayette County
                        No. 12920   Dewey C. Whitenton, Chancellor



                   No. W2004-01174-COA-R3-CV - Filed September 14, 2004


This appeal is from the chancellor’s decision in a property line dispute. In the absence of a transcript
or statement of the evidence, we affirm.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; and
                                       Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY M. KIRBY , J., joined.

Tracy B. Walsh, Southaven, Mississippi, for the appellants, Michael S. Mullins and Stephanie J.
Mullins.

William S. Rhea, Somerville, Tennessee, for the appellees, Robert Walker, Blain Walker, Paul
Walker and Russell Walker.

                                      MEMORANDUM OPINION1

         The parties to this litigation are adjoining landowners. Following a dispute over the location
of their common boundary, Plaintiffs Robert Walker, Blain Walker, Paul Walker and Russell Walker
(Walkers) brought suit against Defendants Michael S. Mullins and wife, Stephanie J. Mullins
(Mullins) alleging that the Walkers were the rightful owners of the disputed area.

       Following a bench trial, the chancellor entered an order as follows:


       1
        Rule 10 of the Tennessee Court of Appeals provides:
                This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion would have
       no precedential value. W hen a case is decided by memorandum opinion it shall be designated
       “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any
       reason in any unrelated case.
               This cause came on to be heard on this 30th day of January, 2004, before the
       Honorable Dewey C. Whitenton, Chancellor of Fayette County, Tennessee, upon the
       Complaint, Answer, Interrogatories, Requests for Admission, Responses to
       Interrogatories, Responses to Request for Admission, Motion to Enforce Settlement
       Agreement, Order Denying Motion to Enforce Settlement Agreement, arguments of
       counsel, the testimony of witnesses in open court and the entire record herein. From
       all of which, the Court finds by a preponderance of the credible evidence as follows:

              The southern boundary line of Defendant, Michael S. Mullins, and the
       northern boundary line of Plaintiffs, Robert, Blain, and Paul Walker, is as surveyed
       by James O. Wiles.

              Further, the Court finds that Defendant or his predecessors in title have not
       been in adverse possession for the required period and that the constructive
       possession has been maintained by the Plaintiffs and their predecessors in title.

               It is, therefore, ORDERED, ADJUDGED and DECREED that the exact
       boundary line is to be marked on the ground by permanent markers or stakes and the
       cost of having the boundary marked shall be paid one-half by the Plaintiffs and one-
       half by the Defendant. Furthermore, the court costs are to be divided equally among
       the Plaintiffs and Defendant, and Plaintiffs and Defendant are to pay their own
       attorney’s fees.

             It is further, ORDERED, ADJUDGED and DECREED that upon the
       [judgment] or decree becoming final, Defendant shall either move the fence to the
       boundary, as specified, or remove the fence entirely.

              It is further ORDERED, ADJUDGED and DECREED that the real property
       encompassed by the legal description set forth in the attached survey of James O.
       Wiles (Certificate of Survey attached as Exhibit 1) is confirmed as the lawful
       property of the Plaintiffs in fee simple absolute.

              ALL OF WHICH IS SO ORDERED, ADJUDGED, AND DECREED this 1st
       day of April, 2004.

The Mullins filed a timely Notice of Appeal and the issues presented, as stated in their brief, are as
follows:

       1.      Did the trial court err when overruling MULLINS’ Motion for Summary
               Judgment to enforce a settlement agreement?

       2.      Did the trial court err in refusing to apply T.C.A. Section 28-2-110(a) as a bar
               to WALKERS’ suit?


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         Our standard of review of findings of fact by the trial court is de novo upon the record of the
trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance
of the evidence is otherwise. Tenn. R. App. P. 13(d). This presumption of correctness applies only
to findings of fact and not to conclusions of law. Campbell v. Florida Steel Corp., 919 S.W.2d 26,
35 (Tenn. 1996). This Court is presented with a problem in reviewing the trial court’s findings of
fact due to the lack of either a transcript or a statement of the evidence. The Appellants filed a notice
pursuant to rule 24(d) of the Tennessee Rules of Appellate Procedure that no transcript or statement
of the evidence would be filed.

        While Appellants contend that the trial court erred in overruling their motion for summary
judgment with respect to enforcement of a settlement agreement, the record before us does not
indicate that a motion for summary judgment was filed. However, it does reflect that the Defendants
filed a motion titled Motion To Enforce Settlement Agreement with attachments. The trial court’s
order denying the motion to enforce settlement agreement indicates that a hearing was conducted
before the chancellor on said motion. As heretofore indicated, the record before us does not contain
a transcript or statement of the evidence of that hearing.

        After hearing the evidence, the court below established the line. In the absence of a transcript
or statement of the evidence, it is presumed that the parties presented sufficient evidence to support
the trial court’s judgment, and this Court will affirm the judgment. Mfrs. Consol. Serv., Inc. v.
Rodell, 42 S.W.3d 846, 865 (Tenn. Ct. App. 2000); Coakley v. Daniels, 840 S.W.2d 367, 370 (Tenn.
Ct. App. 1992); Irvin v. City of Clarksville, 767 S.W.2d 649, 653 (Tenn. Ct. App. 1988). The
appellant bears the burden of showing that the evidence presented below preponderates against the
trial court’s judgment. Coakley, 840 S.W.2d at 370.

      The judgment of the trial court is affirmed. Costs of this appeal are taxed to the appellants,
Michael S. Mullins and Stephanie J. Mullins, and their surety.



                                                        ___________________________________
                                                        DAVID R. FARMER, JUDGE




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