                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                   July 1, 2015 Session

                          HONEY BUNCH v. B.F. BUNCH

                 Appeal from the Chancery Court for Anderson County
                  No. 12CH4776    William E. Lantrip, Chancellor


             No. E2014-02121-COA-R3-CV-FILED-OCTOBER 15, 2015


Honey Bunch (“Plaintiff”) filed suit seeking partition by sale of a parcel of real property
located in Anderson County, Tennessee. B.F. Bunch (“Defendant”) filed a counterclaim
alleging, in pertinent part, that a quit claim deed of a portion of the property was void for
lack of capacity, undue influence, or fraud, and that the property at issue should be
partitioned in kind. After a trial, the Chancery Court for Anderson County (“the Trial
Court”) found and held, inter alia, that the quit claim deed was valid and that the
remaining property should be partitioned by sale. Defendant appeals raising issues
regarding whether the Trial Court erred in finding the quit claim deed valid, whether the
Trial Court erred in finding that the property should be partitioned by sale, and whether
the Trial Court erred in prohibiting Defendant from using a common driveway. We find
and hold that the evidence in the record on appeal does not preponderate against the Trial
Court’s findings, and we find no error by the Trial Court. We affirm.

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

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J. M.S. and JOHN W. MCCLARTY, J., joined.

David A. Stuart, Clinton, Tennessee, for the appellant, B.F. Bunch.

Robert W. Wilkinson, Oak Ridge, Tennessee, for the appellee, Honey Bunch.
                                        OPINION

                                       Background

       Plaintiff and Defendant are brother and sister and the adult children of Belzie
Bunch and Mary F. Bunch. During their lifetime, Belzie Bunch and Mary F. Bunch
jointly owned real property consisting of approximately 35 acres located in Anderson
County, Tennessee. Belzie Bunch died in 1993. In 1994, Mary F. Bunch (“Mother”)
conveyed a portion of her real property by quit claim deed (“Quit Claim Deed”) jointly to
herself and Plaintiff with right of survivorship. The portion of the property owned by
Mother and not conveyed in the Quit Claim Deed consists of approximately 17 acres (“17
Acre Parcel”). Defendant has lived on the 17 Acre Parcel for approximately forty-four
years. Mother died in January of 2010.

       Plaintiff filed this suit in November of 2012 seeking partition by sale of the 17
Acre Parcel. Defendant filed an answer and counter-claim alleging, in pertinent part, that
the Quit Claim Deed should be held void for lack of capacity, undue influence, or fraud,
and that the entire 35 acre tract once owned by Belzie Bunch and Mary F. Bunch could
and should be partitioned in kind. The case proceeded to trial without a jury in July of
2013.

       Plaintiff testified at trial that she does not believe that the 17 Acre Parcel can be
divided in kind. She stated that the property was “all trashed up, I have pictures that are
just not even possible for somebody to be interested in purchasing it.”

        Plaintiff testified that Mother died in January of 2010 at the age of 84. Mother had
a high school diploma. Plaintiff testified that in 1994, the year the Quit Claim Deed was
executed, Mother scheduled her own cataract surgery and conducted her own business,
but she did not drive. Mother cooked for herself and paid her own bills. Plaintiff
testified that Mother relied on several people to drive her places including Plaintiff,
Defendant’s now ex-wife, and Plaintiff’s cousin. When people would take Mother to the
grocery store, Mother did her own shopping. Plaintiff testified that Mother would not
have followed any advice Plaintiff gave her if it went against Mother’s own will.

       Plaintiff was asked what she was doing for Mother in 1994, and she stated:

       Basically, just going and taking her to the grocery store. And if she had
       doctors’ appointments like a physical I would take her to the doctor’s
       appointment. And we would go when she wanted to go out and eat. And
       also she watched my son for me for a period. She actually would come and
       live with me because in the wintertime she had like . . . she didn’t have
                                             2
          good heating, she just had a stove and a lot of times she just didn’t want to
          get out there and round up wood or coal so she would actually stay with me
          for months at a time.

Plaintiff was asked if other people helped Mother during 1994, and she stated:

          Yes. Well, she relied heavily on my cousin, Joan Foust. And her daughter
          as her daughter got holder [sic] she would take her, Kim Foust would take
          her to places. And they did quite a bit of running around because I worked
          full time so I couldn’t go and just hang out and go grocery shopping and
          shopping.

          Plaintiff testified that making the Quit Claim Deed was Mother’s idea. Plaintiff
stated:

          Well, my mother wanted me to . . . because she knew she didn’t drive, she
          never drove, she wanted me to be able to live down there on the property so
          that I could instead of coming all the way from Knoxville all the way down
          to take her she wanted me there. And I wanted to be there because I paid
          house payments my whole time and it would have been nice to have been
          down there.

       Plaintiff testified that Mother requested that Plaintiff contact Attorney Jean
Munroe about preparing the deed. Plaintiff took Mother to meet with Ms. Munroe.
When asked about discussions that took place when Mother met with Ms. Munroe,
Plaintiff stated that she did not “remember really anything about that day [in 1994] . . . .”
Plaintiff admitted that she had worked for Ms. Munroe, but did not believe that she was
working for Ms. Munroe at the time the Quit Claim Deed was prepared and executed.

       In 1999, Mother transferred approximately one acre of her remaining property to
her grandson, Defendant’s son. Ms. Munroe prepared the deed from Mother to Mother
and this grandson jointly. Plaintiff testified that she had nothing to do with the deed from
Mother to grandson.

       Plaintiff’s father died approximately a year and a half before Mother made the
Quit Claim Deed. Plaintiff was asked if her parents had expressed that they planned to
divide their property equally between Plaintiff and Defendant, and she stated:

          Years ago, yes. . . . Well, that’s true but my mother changed her mind on a
          lot of things because of [Defendant’s] situation, how he owed like thirty
          thousand dollars back child support. . . . Also, he was married three times
                                               3
       and each time was . . . the first two he beat on those women, I have a
       picture, I don’t have it with me but one where she had a black eye. And she
       divorced him. And the other one was married to him and has three children
       by him and he beat her up. And anyway, he has been a very abusive
       person, controlling and a bully pretty much his whole life. And the person
       that he was married to for fifteen years; my mother did not want this person
       getting this property, any of it. And he married her I think somewhere in
       the ’94, ’96 something like that and they didn’t divorce until like October,
       2011. And that was my mother’s concern. She didn’t want the state to take
       it and she didn’t want this woman to have part of it. And she just knew he
       would lose it because he is not responsible, he doesn’t pay for things. He’s
       lived off her basically those 40 years. He had his water and electricity
       runing from her house down to his and she would pay the bill.


        Teresa Ann Hale testified that she and Plaintiff worked together beginning in
1989, and they became friends. Ms. Hale also got to know Mother. Ms. Hale stated that
she and Mother “were good friends. We talked a lot. Maybe two or three times a week.
If I didn’t call her she would call me.” Ms. Hale sometimes drove Mother to the grocery
store.

       Ms. Hale was asked if Mother seemed competent, and she stated: “Yes, she was
sharp as a tack. . . . She did everything for herself, she cooked for herself. She did pretty
much around her house what she wanted to do. And she talked to me with utmost
confidence, she was very confident in her conversations.” Ms. Hale testified that Mother
paid her own bills and “walked to the mailbox and got her mail out and if she had
anything to mail she would mail it herself.” Ms. Hale stated that Mother “resented”
being told what to do and that Mother was capable of making up her own mind. Ms.
Hale stated: “nobody dictated anything to [Mother].” Ms. Hale testified that Mother had
conversations with her about making the deed to Plaintiff and the deed to her grandson,
and Ms. Hale believed that Mother understood what she was doing.

       Defendant testified that Mother had been hospitalized for psychiatric care when
Defendant and Plaintiff were children. Plaintiff was asked if Mother had undergone
electro-convulsive therapy, and she stated: “She said she did.” The last time Mother was
hospitalized was probably in the 1960s. Defendant was asked about Mother’s mental
condition during the 1990s, and he stated:

       Well, I had my sons living with them during that time. My older son lived
       with them and basically they done the cooking and helping her. And then


                                             4
       my second son moved in with her after they had moved out for a little while
       so they were there to cook for her. And the last until my wife and me split
       up my wife cooked her supper every night and took it up there to her.

       Defendant testified that he picked up Mother’s prescriptions at the pharmacy for
her. Defendant testified that he brought Mother “breakfast from Hardee’s every other
morning and [saw] what she needed at night . . . .” Defendant testified that during the
winter time he would sit up at night to keep a fire going for Mother. He stated: “I had to
keep her fire because she got to where she couldn’t throw the wood in the fire.”
Defendant testified that Mother only stayed with Plaintiff during the winter when
Plaintiff’s son was young and Mother was needed to babysit. Defendant testified that
Plaintiff would not go to Mother’s home every time Mother wanted Plaintiff to do so.

        After trial, the Trial Court entered its order on August 6, 2013 finding and holding,
inter alia:

       3. At the time the property was conveyed by [Mother] to [Mother] and
       [Plaintiff], [Mother] was capable of executing the deed. She did so
       knowingly and competently. She was not operating under undue influence.
       The Court finds that the only confidential relationship that existed between
       [Mother] and her daughter, [Plaintiff], was a typical mother-daughter
       relationship.

       4. The Court, therefore, ORDERS that the Counter-Complaint filed in
       behalf of the Defendant seeking to void the 1994 conveyance is overruled.
       The Court finds and, therefore, ORDERS that the evidence preponderates
       against any suggestion that the conveyance was effectuated as a result of
       undue influence of the Plaintiff over [Mother].

       5. The Court further finds that the action seeking partition is supported by
       the evidence. The Court ORDERS that the 17.8 acres referred to in the
       Plaintiff’s Complaint should be divided equally between the Plaintiff and
       the Defendant. The Court, however, finds that evidence is lacking
       regarding the issue as to whether or not this property is capable of being
       divided in kind. The Court, therefore, ORDERS that commissioners be
       appointed to determine if the property can be divided in kind and, if so,
       how. The Court suggests that the parties agree on the designation of a
       surveyor and one (1) or two (2) realtors to comprise the commissioners
       necessary to make the determination with respect to the property and that
       the commissioners report back to this Court with their findings.


                                             5
       After further hearing the Trial Court entered its order on December 10, 2013
finding and holding, inter alia:

      the Court finds that the subject property is property that can be divided in
      kind, but the parties need to agree which party will receive which parcel.
      The parties shall have 30 days within which to decide how to divide the two
      (2) parcels. If the parties are unable to divide parcels, the Court will order
      the property sold and the proceeds divided between the parties based on the
      laws of the State of Tennessee.

        Defendant filed a Motion for New Trial, to Alter or Amend Judgment and/or to
Make Additional Findings of Fact and Conclusions of Law. In his motion Defendant
stated, among other things:

      To the extent the driveway to the defendant’s residence may be an issue,
      this Court should hear evidence to determine its status. It has been in use
      for a period in excess of 20 years, during which time it has been maintained
      by defendant, and most of it is located on the tract where the defendant’s
      residence is located. Any other portion of the roadway constitutes a
      prescriptive easement and it works no injury upon the property for the
      driveway to continue to be utilized in the same manner as it has for many
      years in the past.

      After a hearing the Trial Court entered its order on February 10, 2014 finding and
holding:

              This cause came to be heard . . . upon the Motion for New Trial, to
      Alter or Amend Judgment, and/or Make Additional Findings of Fact and
      Conclusions of Law filed in behalf of [Defendant], the testimony of
      witnesses, the argument of counsel, and the record as a whole from all of
      which the Court finds that it may be appropriate to divide the subject
      property into two (2) parcels rather than forcing a sale of the said property.
      The property can be divided into two (2) parcels, one of which contains a
      little over six (6) acres and the other of which contains a little over eleven
      (11) acres. [Defendant] currently resides on the six (6) acre tract, but he
      lives in a dwelling that was formerly a tool shed which he has renovated
      into a residence. Apparently he at one time occupied a mobile home and
      the tool shed was built as an attachment to the mobile home. The mobile
      home has since been removed, yet [Defendant] continues to reside in that
      portion which remains. The Court is concerned that the property
      constitutes an eyesore as a result of the dilapidated condition of the
                                            6
buildings and the substantial amount of trash, debris, refuse, and litter
strewn about the said property. [Defendant] would like the Court to award
to him the six (6) acre tract, but [Plaintiff] has asked that this same property
be awarded to her. [Plaintiff] argues that the condition of the property
which is currently occupied by [Defendant] is such that it is impossible for
her to sell the property that she owns which is adjacent to his.

        The Court is inclined to grant the six (6) acre tract to [Defendant],
but will do so provided certain conditions are met. First, [Defendant] will
have 90 days to remove all of the debris, trash, refuse, and litter strewn
about the property. [Defendant] shall be enjoined and permanently
restrained from bringing onto the property any additional trash, debris,
refuse, or litter. Second, [Defendant] shall not utilize any portion of the
property which currently belongs to [Plaintiff] to access his property.
[Defendant] currently gains access to the six (6) acre tract by coming across
a driveway, a portion of which is on property that belongs to [Plaintiff].
[Defendant] is enjoined and permanently restrained from coming across
[Plaintiff’s] property for any reason whatsoever effective immediately.

       The parties, through counsel, have stipulated and the Court so
ORDERS that if [Defendant] fails to abide by the conditions as herein set
forth then the property shall be sold pursuant to [Plaintiff’s] request.
[Defendant] shall have 90 days within which to remove all of the trash,
debris, refuse, and litter failing which the Court will order the property
sold. [Defendant] shall not cross over or come upon [Plaintiff’s] property
which is adjacent to the six (6) acre tract for any purpose whatsoever and
should he do so the subject property shall be sold.

       The parties are directed to return to Court 90 days hence and advise
the Court as to whether or not [Defendant] has met the conditions set forth
herein. If all of the conditions herein are met, the Court will consider
awarding the six (6) acre tract to [Defendant] and the eleven (11) acre tract
to [Plaintiff]. If the conditions have not been met and based on the
stipulation of the parties, the property shall be ordered sold.

       All other matters are reserved.




                                         7
      After further hearing the Trial Court entered its order on May 23, 2014 finding and
holding, inter alia:

             This cause came to be heard . . . from the directive issued in this
      Court’s previous Order which ordered the parties to return 90 days after the
      last hearing and advise the Court as to whether or not [Defendant] had met
      the conditions set forth in that Order requiring him to remove all of the
      debris, trash, refuse, and litter strewn about the six (6) acre tract where he
      currently resides. Defendant interposed an objection that Plaintiff failed to
      disclose her intention to argue that Defendant had not complied with the
      Court’s previous Order. The Court overruled Defendant’s objection. After
      hearing the evidence and the testimony of the parties, the Court finds that
      there has not been a substantial compliance with the Court’s previous
      Order. The Court finds that the offensive materials remain on the six (6)
      acre tract making the adjoining property virtually worthless and that the
      only recourse is for the property to be sold and the proceeds divided.

             IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED
      that the parties’ jointly owned property comprised of approximately 17
      acres be sold . . . .

Defendant appeals to this Court.

                                       Discussion

       Although not stated exactly as such, Defendant raises three issues on appeal: 1)
whether the Trial Court erred in refusing to find the Quit Claim Deed void for lack of
capacity or undue influence or fraud; 2) whether the Trial Court erred in holding that the
17 Acre Parcel be partitioned by sale rather than divided in kind; and, 3) whether the
Trial Court erred in prohibiting Defendant from using the common driveway.

       Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727
(Tenn. 2001). A trial court’s conclusions of law are subject to a de novo review with no
presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001).




                                            8
      We first consider whether the Trial Court erred in refusing to find the Quit Claim
Deed void for lack of capacity or undue influence or fraud. As this Court has explained:

             To be valid, a deed must be the result of the conscious, voluntary act
      of a grantor who has the capacity to transact business. Cason v. Cason, 116
      Tenn. 173, 193–94, 93 S.W. 89, 94 (1905); Fell v. Rambo, 36 S.W.3d 837,
      846 (Tenn. Ct. App. 2000). To have the capacity to transact business, a
      person need only be able to reasonably know and understand the nature,
      extent, character, and effect of the transaction. Mays v. Prewett, 98 Tenn.
      474, 478, 40 S.W. 483, 484–85 (1897). However, a deed to a grantee who
      is in a confidential relationship with the grantor can be set aside if the
      grantee has exerted undue influence on the grantor to procure the deed.
      Brown v. Weik, 725 S.W.2d at 945.

In re: Conservatorship of Groves, 109 S.W.3d 317, 351 (Tenn. Ct. App. 2003).

      With regard to confidential relationships, our Supreme Court has explained:

      In Tennessee, for example, where there is a “confidential relationship,
      followed by a transaction wherein the dominant party receives a benefit
      from the other party, a presumption of undue influence arises, that may be
      rebutted only by clear and convincing evidence of the fairness of the
      transaction.” Matlock v. Simpson, 902 S.W.2d 384, 386 (Tenn. 1995)
      (citations omitted). A confidential relationship is any relationship which
      gives one person dominion and control over another. See Mitchell v. Smith,
      779 S.W.2d 384, 389 (Tenn. Ct. App. 1989).

              The burden of proof regarding a confidential relationship rests upon
      the party claiming the existence of such a relationship. See Brown v. Weik,
      725 S.W.2d 938, 945 (Tenn. Ct. App. 1983). Once a confidential
      relationship has been shown and a presumption of undue influence arises,
      the burden shifts to the dominant party to rebut the presumption by proving
      the fairness of the transaction by clear and convincing evidence. Matlock v.
      Simpson, 902 S.W.2d at 386; see Gordon v. Thornton, 584 S.W.2d 655, 658
      (Tenn. Ct. App. 1979). To prove the fairness of the transaction, the
      dominant party may show that the weaker party received independent
      advice before engaging in the transaction that benefitted the dominant
      party. See Hogan v. Cooper, 619 S.W.2d 516, 519 (Tenn. 1981); see also
      Richmond v. Christian, 555 S.W.2d 105, 107–08 (Tenn. 1977) (proof that
      the donor received independent advice respecting the consequences and
      advisability of the gift) (citations omitted).
                                           9
Childress v. Currie, 74 S.W.3d 324, 328 (Tenn. 2002). Our Supreme Court in Childress
cited to Mitchell v. Smith wherein this Court explained:

             Confidential relationships can assume a variety of forms, and thus
      the courts have been hesitant to define precisely what a confidential
      relationship is. Robinson v. Robinson, 517 S.W.2d 202, 206 (Tenn. Ct.
      App. 1974). In general terms, it is any relationship which gives one person
      dominion and control over another. Kelly v. Allen, 558 S.W.2d 845, 848
      (Tenn. 1977); Turner v. Leathers, 191 Tenn. 292, 298, 232 S.W.2d 269,
      271 (1950); Roberts v. Chase, 25 Tenn. App. 636, 650, 166 S.W.2d 641,
      650 (1942). It is not merely a relationship of mutual trust and confidence,
      but rather it is one

             where confidence is placed by one in the other and the
             recipient of that confidence is the dominant personality, with
             ability, because of that confidence, to influence and exercise
             dominion and control over the weaker or dominated party.

Mitchell v. Smith, 779 S.W.2d 384, 389 (Tenn. Ct. App. 1989) (quoting Iacometti v.
Frassinelli, 494 S.W.2d 496, 499 (Tenn. Ct. App. 1973)). “A normal relationship
between a mentally competent parent and an adult child is not per se a confidential
relationship and it raises no presumption of invalidity of the transaction.” Bills v.
Lindsay, 909 S.W.2d 434, 440 (Tenn. Ct. App. 1993).

       Although Defendant relies heavily upon the fact that Mother was hospitalized for
psychiatric care in the 1960s to argue that Mother lacked capacity to execute the Quit
Claim Deed, the evidence in the record on appeal shows that in 1994, when Mother
executed the Quit Claim Deed, Mother lived alone, managed her own finances and paid
her own bills, cooked and cleaned for herself, scheduled her own doctor’s appointments,
shopped for herself, and babysat her grandson. Additionally, Ms. Hale, who testified that
she knew Mother well and that she spoke to Mother several times a week, described
Mother as “sharp as a tack.” Ms. Hale also testified that Mother had spoken with her
about the deed to Plaintiff and the deed to Mother’s grandson, and Ms. Hale believed that
Mother understood what she was doing in executing those deeds.

      As this Court explained in In re: Conservatorship of Groves:

             Capacity is not an abstract, all-or-nothing proposition. . . . Capacity
      is also situational and contextual, and it may even have a motivational
      component. It may be affected by many variables that constantly change
                                           10
      over time. These variables include external factors such as the time of day,
      place, social setting, and support from relatives, friends, and supportive
      agencies. It may also be affected by neurologic, psychiatric, or other
      medical conditions, such as poly-pharmacy, many of which are reversible
      with proper treatment. Finally, capacity is not necessarily static. It is fluid
      and can fluctuate from moment to moment. A change in surroundings may
      affect capacity, and a person’s capacity may improve with treatment,
      training, greater exposure to a particular type of situation, or simply the
      passage of time.

In re: Conservatorship of Groves, 109 S.W.3d at 333-34 (footnotes omitted).

        Defendant testified that Mother was hospitalized for psychiatric care when he and
Plaintiff were children and that the last time this happened was in the 1960s. Plaintiff
testified that Mother had stated that she had undergone electro-convulsive therapy. These
facts, however, do not prove that Mother lacked capacity during that time period, and
they certainly do not prove that Mother lacked the capacity to execute the Quit Claim
Deed in 1994. The evidence in the record on appeal, as discussed above, does not
preponderate against the Trial Court’s finding that Mother was competent to execute the
Quit Claim Deed.

       With regard to Defendant’s allegations of undue influence or fraud, the Trial Court
found that there was no confidential relationship between Mother and Plaintiff that would
give rise to a presumption of undue influence. The evidence in the record on appeal
shows that while Plaintiff assisted Mother with some things, including transportation,
Mother managed her own life. The evidence shows that Mother lived alone, managed her
own finances and paid her own bills, cooked and cleaned for herself, scheduled her own
doctor’s appointments, shopped for herself, and babysat her grandson.

        Furthermore, Plaintiff is not the only person who assisted Mother. Defendant
testified that he also assisted Mother, and the evidence shows that there were other people
who assisted Mother, specifically with regard to transportion because Mother did not
drive. The evidence does not show that Mother relied on Plaintiff any more heavily than
Mother relied upon others to assist her. Defendant himself testified that he picked up
Mother’s prescriptions for her, brought her breakfast “every other morning and [saw]
what she needed at night . . . ,” and sat up during the winter time to keep Mother’s fire
going.

       The evidence in the record on appeal shows that the relationship between Mother
and Plaintiff was a normal relationship between a mentally competent parent and an adult
child. The evidence does not preponderate against the Trial Court’s findings that no
                                            11
confidential relationship existed between Mother and Plaintiff and that there was no
undue influence as to Mother’s execution of the Quit Claim Deed.

       As for Defendant’s allegation of fraud, Defendant argues in his brief on appeal
that “[f]raud was directed against [Mother], e.g., she was told that if [Defendant] got
divorced his wife would get the property, and was encouraged to believe that [Defendant]
was financially irresponsible and would lose the property.” The record on appeal,
however, contains no evidence that even hints, let alone tends to prove, that the Quit
Claim Deed was procured by fraud.

       We next consider whether the Trial Court erred in holding that the 17 Acre Parcel
be partitioned by sale rather than divided in kind. Pursuant to Tenn. Code Ann. § 29-27-
201:

      29-27-201. Sale for division authorized.

             Any person entitled to a partition of premises, under part 1 of this
      chapter, is equally entitled to have such premises sold for division, in the
      following cases:

      (1) If the premises are so situated that partition thereof cannot be made; or
      (2) Where the premises are of such description that it would be manifestly
      for the advantage of the parties that the same should be sold instead of
      partitioned.

Tenn. Code Ann. § 29-27-201 (2012).

        Our ability to address this issue raised by Defendant is severely hampered if not
completely eliminated by the absence of either a transcript of the hearing with regard to
this issue or a Tenn. R. App. P. 24(c) statement of the evidence. The Trial Court stated in
its February 10, 2014 order that it had heard and considered “the testimony of witnesses,”
among other things when deciding this issue. Defendant, as the appellant in this case,
had the duty “to prepare a record which conveys a fair, accurate and complete account of
what transpired in the trial court with respect to the issues which form the basis of the
appeal.” Nickas v. Capadalis, 954 S.W.2d 735, 742 (Tenn. Ct. App. 1997) (quoting State
v. Boling, 840 S.W.2d 944, 951 (Tenn. Crim. App. 1992)). “This court cannot review the
facts de novo without an appellate record containing the facts, and therefore, we must
assume that the record, had it been preserved, would have contained sufficient evidence
to support the trial court’s factual findings.” Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn.
Ct. App. 1992).

                                            12
       The Trial Court found that it would be manifestly for the advantage of the parties
if the 17 Acre Parcel were sold unless specific conditions were met to address the fact
that “the property constitutes an eyesore as a result of the dilapidated condition of the
buildings and the substantial amount of trash, debris, refuse, and litter strewn about the
said property.” We must assume that the record, had it been preserved, would have
contained evidence to support the Trial Court’s finding. The Trial Court then found that
there had not been substantial compliance with the stated conditions and “that offensive
materials remain on the six (6) acre tract making the adjoining property virtually
worthless . . . .” Again, we must assume that the record, had it been preserved, would
have contained evidence to support the Trial Court’s finding.

       Furthermore, we note from the Trial Court’s February 10, 2014 order that the
parties stipulated “that if [Defendant] fails to abide by the conditions as herein set forth
then the property shall be sold pursuant to [Plaintiff’s] request.” To enter into a
stipulation in the trial court and then raise an issue on appeal alleging that the trial court
erred in relying upon that stipulation, as Defendant is attempting to do here, is
inappropriate and unacceptable, at best. Given all of the above, we find no error in the
Trial Court’s order holding that the 17 Acre Parcel be partitioned by sale rather than in
kind.

        Turning to Defendant’s third issue regarding whether the Trial Court erred in
prohibiting Defendant from using the common driveway, we note that just as was the
situation with the previous issue discussed, the record on appeal contains no transcript or
statement of the evidence with regard to this issue. Furthermore, we note that although
Defendant argues in his brief on appeal that the Trial Court decided this issue without it
being presented or litigated by the parties, Defendant himself raised an issue with regard
to the driveway in his motion seeking a new trial and specifically asked the Trial Court to
hear evidence with regard to the driveway. Thus, Defendant presented the issue to the
Trial Court. Furthermore, as the record was not preserved, we are unable to determine
whether the issue was or was not tried by consent of the parties. This Court can rely only
upon the record on appeal properly before us. As we explained above, “we must assume
that the record, had it been preserved, would have contained sufficient evidence to
support the trial court’s factual findings.” Sherrod, 849 S.W.2d at 783. We, therefore,
find no error in the Trial Court’s order prohibiting Defendant from using the common
driveway.1




1
 Additionally, as we have affirmed the Trial Court’s order holding that the 17 Acre Parcel be partitioned
by sale rather than in kind, any question as to Defendant’s right to utilize the common driveway of the
property is moot.
                                                     13
                                      Conclusion

        The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for further proceedings consistent with our opinion and for collection of the
costs below. The costs on appeal are assessed against the appellant, B.F. Bunch, and his
surety.



                                                _________________________________
                                                D. MICHAEL SWINEY, JUDGE




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