                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                       November 3, 2009 Session

     THOMAS FRAZIER ET AL. v. WALTER JERRY MITCHELL ET AL.

                      Appeal from the Chancery Court for Rutherford County
                       No. 07-0420CV Robert E. Corlew, III, Chancellor



                     No. M2009-00010-COA-R3-CV - Filed November 20, 2009


One of many heirs to certain property in Rutherford County opposed the partition by sale of the
property. The property was sold and the proceeds distributed. The heir appealed. Due to the lack
of a transcript or a statement of the evidence, we affirm the trial court.

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

ANDY D. BENNETT , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL, P.J., M.S.,
and FRANK G. CLEMENT , JR., J., joined.

Rosvay Ella Mitchell Bye, Detroit, Michigan, Pro Se.

Larry K. Tolbert, Murfreesboro, Tennessee, for the appellees, Thomas Frazier, Sidney H. Frazier,
Ida B. Frazier, Ella B. Dobey, Wanda Cassandra Roper Malone, Patricia Newman, Salma Denise
Glimps, Sharon Hester, Shelia Jones, Farrunti Newman, and Robert D. Frazier.

                                       MEMORANDUM OPINION1

         This matter concerns the partition by sale of certain real property in Rutherford County.
During the course of the proceedings, a number of hearings were held regarding whether all persons
with an ownership interest were before the court, whether the property should be sold, whether the
sale of the property should be approved, whether the proceeds of the sale should be disbursed, and




        1
           Rule 10 of the Rules of the 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‘MEMORANDUM OPINION,’ shall not be published, and shall not be cited or relied on for any reason in any unrelated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.”
whether the court’s decisions on these issues should be reconsidered. As a result of these hearings,
the trial court made findings of fact and conclusions of law.2

        After an examination of the record, we find that we must affirm the trial court. Tenn. R. App.
P. 24 explains the preparation of the record for appeal. It informs the parties about what to do when
no transcript of the proceeding is available. Rule 24(c) requires the appellant to provide a statement
of the evidence which “convey[s] a fair, and accurate and complete account of what transpired.” The
rule further allows the appellee to file objections to appellant's statement of evidence and provides
that their differences are to be resolved by the trial court in accordance with Tenn. R. App. P. 24(e).

        No transcript or statement of the evidence was filed in this case. While we are sympathetic
to the difficulty of a non-lawyer attempting to appeal her case, the lack of at least a statement of the
evidence destroys the appellate court’s ability to review the findings of the trial court. The appellate
court’s power to review can only be exercised when an adequate record of the evidence has been
preserved. “This court cannot review the facts de novo without an appellate record containing the
facts . . . .” Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App.1992). Neither allegations
contained in pleadings, recitations of the facts contained in a brief, nor arguments of counsel qualify
as evidence for purposes of a statement of the evidence. State v. Roberts, 755 S.W.2d 833, 836
(Tenn. Crim. App.1988).

       Without at least a statement of the evidence, “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. Therefore, we must affirm the trial court.

         Costs of appeal are assessed against the appellant for which execution may issue if necessary.


                                                                ___________________________________
                                                                ANDY D. BENNETT, JUDGE




         2
          The appellant appears to raise an issue regarding the application of various treaties with the Cherokee Nation
and the Homestead Act of 1862. This issue is, however, not discussed in the appellant’s brief and is, therefore, waived.
Maryville Hous. Auth. v. Ramsey, 484 S.W .2d 73, 74 (Tenn. Ct. App. 1972).

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