                      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


This application for a Tenn. R. App. P. 10 extraordinary appeal concerns how an appealing party
may use a trial court’s recording of a hearing. We grant the appellant’s Rule 10 application.1
Furthermore, we reverse the chancellor’s June 5, 2009 order and remand the matter for the chancellor
to rule on appellee’s objections and resolve the parties’ differences as to the content of the transcript
or statement of the evidence.


Tenn. R. App. P. 10 Extraordinary Appeal; Judgment of the Chancery Court Reversed and
                                      Remanded

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

Thomas F. Bloom, Nashville, Tennessee, for the appellant, Scott Bowman.

Claire M. Sawyer and Lew Conner, Nashville, Tennessee, for the appellee, Anne S. Wilson.

                                        MEMORANDUM OPINION2



        1
         The Tenn. R. App. P. 10 application and answer fully set forth parties’ positions and the material facts.
Therefore, pursuant to Tenn. R. App P. 2, we suspend the application of Tenn. R. App. P. 24, 25 and 29 and find oral
argument to be unnecessary Pursuant to Tenn. R. App. P. 35(c). See Hammock v. Sumner Co., No. 01A01-9710-CV-
00600, 1997 W L 749461 (Tenn. Ct. App. Dec. 5, 1997) (No. Tenn. R. App. P. 11 application filed.)

        2
            Tenn. Ct. App. R. 10 provides:

          The 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is decided by memorandum opinion, it shall be designated “MEMORANDUM OPINION,” shall not be published, and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.
         The appellant, Scott Bowman, has filed an application for a Tenn. R. App. P. 10
extraordinary appeal from a ruling of the Davidson County Chancery Court regarding the transcript
of the underlying case being prepared for a Tenn. R. App. P. 3 appeal as of right. This court has
already addressed the transcript of this case three times, twice granting extensions for the filing of
the transcript and once addressing a motion to dismiss for the filing of an incomplete transcript. In
the last order, filed April 2, 2009, this court stated:

       The appellant, just prior to the March 4, 2009 deadline, filed a transcript prepared
       from the CD recordings made by the trial court. However, the transcript was
       incomplete because the recording provided to the court reporter by the trial court
       consisted of only two disks when it should have consisted of three disks. The court
       reporter has now obtained the missing disk and stands ready to complete the
       transcript.

       . . . We decline to dismiss the appeal based on the mistake concerning the CD
       recordings of the proceedings. In order to allow the case to be decided on its merits,
       the appellant should be allowed an opportunity to correct the transcript.

               It is therefore ordered that the motion to dismiss be denied. The appellant
       shall have fifteen (15) days from the date this order is entered within which to file
       with the trial court clerk a supplemental or amended transcript that will convey a fair,
       accurate and complete account of what transpired in the trial court with respect to the
       issues that are the basis of the appeal. Any questions concerning whether the
       transcript conveys such a fair, accurate and complete account shall be addressed to
       the trial court. If a transcript of any necessary portion of the proceedings is
       unavailable, the trial court may approve a statement of the evidence regarding that
       portion.

On April 14, 2009, the appellant filed a Corrected Transcript and a Statement of the Evidence for
Minor Omissions in Transcript and a Notice of Issues to Which They Pertain. Appellee filed a
Motion to Strike the proposed corrected transcript and statement of the evidence.

        The trial court granted the motion to strike and relied on Tennessee Supreme Court Rule 26,
Davidson County Local Rule 8, and an order of the Chancery Courts for the Twentieth Judicial
District, dated April 10, 2007, prohibiting the clerk and master from filing and certifying the
recordings as part of the record on appeal. The chancellor further found, “that the JAVS recordings
of the trial court proceedings do not constitute a transcript or statement of the evidence or
proceeding, nor shall they be used on appeal as a transcript or statement of the evidence or
proceeding.”

         The appellant filed an application for a Tenn. R. App. P. 10 appeal, which the appellee has
vigorously opposed. A Rule 10 appeal is discretionary with the appellate court and may be granted
“(1) if the lower court has so far departed from the accepted and usual course of judicial proceedings


                                                 -2-
as to require immediate review, or (2) if necessary for complete determination of the action on appeal
as otherwise provided in these rules.” Tenn. R. App. P. 10(a). The Advisory Commission
Comments to Rule 10 states that “[t]he circumstances in which review is available under this rule,
however, are very narrowly circumscribed to those situations in which the trial court or the
intermediate appellate court has acted in an arbitrary fashion, or as may be necessary to permit
complete appellate review on a later appeal.” Rule 10 appeals lie where the ruling of the trial court
represents a fundamental illegality, where the ruling constitutes a failure to proceed according to
essential requirements of the law, where the action of trial judge was without legal authority, where
the action of the trial judge constituted a plain and palpable abuse of discretion, or where either party
has lost a right or interest that may never be recaptured. State v. Willoughby, 594 S.W.2d 388, 392
(Tenn. 1980).

        Tennessee Supreme Court Rule 26 applies to courts of record “authorized by the Supreme
Court of Tennessee to use videotape or CD-ROM equipment to record court proceedings.” The rule
allows a CD-ROM recording to be a “transcript” within the meaning of Tenn. R. App. P. 24 if the
recording is recorded and maintained in accordance with the procedures outlined in the rule.3
Neither party argues that the recording of the chancery court hearing complied with the procedures
of Rule 26. So the recordings themselves cannot be the transcripts required by Tenn. R. App. P. 24.4


         Tenn. R. App. P. 24(b) states that if a “contemporaneously recorded, substantially verbatim
recital of the evidence or proceedings is available, the appellant shall have prepared a transcript .
. . .” (emphasis added). Tenn. Sup. Ct. R. 26 does not say that recordings that do not meet the Rule
26 requirements cannot be used to prepare a transcript or a statement of the evidence. Even though
the chancery court is not required to make the recordings, it did. The recordings became public
records,5 and the appellant had a right of access to them and to use them to the extent he could to
create a transcript or statement of the evidence.6

       Similarly, Davidson County Local Rule 8 does not provide justification for the chancellor’s
order. Rule 8(a) states:




         3
         Tenn. Sup. Ct. Rule 26 is an exception to the general rule that “the circuit and chancery courts do not, as a
general matter, make a record of all the proceedings while court is in session.” Trusty v. Robinson, No. M2000-01590-
COA-R3-CV, 2001 W L 96043, *2 (Tenn. Ct. App. Feb. 6, 2001).

         4
          W e note that neither party has suggested that this court’s April 2, 2009 order implicitly approves of a transcript
prepared from the trial court’s recording.

         5
          The term “public record” includes sound recordings made in connection with the transaction of official
business by any governmental agency. Tenn. Code Ann. § 10-7-503(a)(1).

         6
          Under Tenn. R. App. 24(c), the appellant is to prepare a statement of the evidence if no stenographic report,
substantially verbatim recital or transcript of the evidence or proceedings is available.

                                                            -3-
         The Sixth Circuit Court has been authorized by the Supreme Court to use audio-
         visual recordings as the official record of court proceedings pursuant to Supreme
         Court Rule 26. Unless ordered by the affected court, no other court will record or
         utilize such audio-visual recordings as the official record on appeal, nor shall any
         court be required to maintain an exhibit list and trial log with respect to an audio-
         visual recording. The Clerks of Court and Clerk & Master shall not file or certify
         such recordings, except from the Sixth Circuit Court, as part of the record on appeal
         unless directed to do so by the court from which the appeal is taken.

No one argues that these recordings are the official records of the court, and no one is trying to have
the recordings certified or filed. Just like Supreme Court Rule 26, Local Rule 8 does not say that the
recordings cannot be used to prepare a transcript or a statement of the evidence.

         Finally, we must examine the April 10, 2007 order of the Chancery Courts for the Twentieth
Judicial District, prohibiting the clerk and master from filing and certifying the recordings as part
of the record on appeal. This order, like Supreme Court Rule 26 and Local Rule 8, does not prohibit
the use of the recordings to prepare a transcript or statement of the evidence. It merely says the
recordings themselves cannot constitute or be used as transcripts and that the clerk and master cannot
file or certify the recordings as part of the record on appeal.

         The appellant’s Application for Extraordinary Appeal is granted because it is “necessary to
permit complete appellate review on a later appeal.” Tenn. R. App. P. 10, Advisory Comm’n
Comments. We reverse the chancellor’s June 5, 2009 order and remand the matter for the chancellor
to rule on appellee’s objections and resolve the parties’ differences as to the content of the transcript
or statement of the evidence. Tenn. R. App. P. 24 (b), (c), & (e). 7

         Costs of this appeal are taxed to the appellee, for which execution may issue.


                                                                 ___________________________________
                                                                 ANDY D. BENNETT, JUDGE




         7
            Tenn. R. App. P. 24(e) contemplates that, in resolving such disputes, the trial court will eventually approve
a transcript or statement of the evidence that conveys a fair, accurate and complete account of what occurred in the trial
court. 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. If neither party submits an accurate transcript or statement of the evidence,
the trial court may prepare its own statement of the evidence.

                                                           -4-
