                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  December 2, 2003 Session



    WALTER E. GRANTHAM, II, ADMINISTRATOR C.T.A. OF THE
  ESTATE OF MARY FRANCES MCGILL v. ROBERT LARRY MCGILL

                    Appeal from the Chancery Court for Hamilton County
                       No. 01-1260    Howell N. Peoples, Chancellor

                                 FIELD DECEMBER 11, 2003

                                 No. E2003-02005-COA-R3-CV



Mary Frances McGill sued Robert Larry McGill (“Defendant”) seeking return of personal property
and claiming fraudulent execution of a deed to real property. Ms. McGill died and Walter E.
Grantham, II, Administrator C.T.A. of the Estate of Mary Frances McGill (“Plaintiff”) was
substituted as plaintiff in this case. The case was tried and the Trial Court entered a final decree
dismissing the complaint. Plaintiff appeals. The record contains neither a transcript nor a statement
of the evidence. 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 HERSCHEL P. FRANKS , J., and
CHARLES D. SUSANO, JR., J., joined.


R. Dee Hobbs, Chattanooga, Tennessee, for the Appellant, Walter E. Grantham, II, Administrator
C.T.A. of the Estate of Mary Frances McGill.

Marvin Berke, Chattanooga, Tennessee, for the Appellee, Robert Larry McGill.
                                       MEMORANDUM OPINION1

                                                   Background

                Mary Frances McGill sued Defendant, her attorney-in-fact, claiming that Defendant
fraudulently executed a quit claim deed to Ms. McGill’s real property and that Defendant also
converted some of Ms. McGill’s personal property to his own use. Ms. McGill died during the
pendency of the suit and the Trial Court entered an order substituting Walter E. Grantham, II,
Administrator C.T.A. of the Estate of Mary Frances McGill, as the plaintiff in this case. The case
was tried in March of 2003. The Trial Court heard testimony, reviewed documentary evidence, and
delivered an opinion from the bench at the conclusion of the testimony. A Final Decree dismissing
the Complaint and the Intervening Complaint was entered March 21, 2003, finding “that any
presumption of undue influence was rebutted by clear and convincing evidence, and that the original
Complaint and the Intervening Petition and Complaint are not sustained by the proof.” Plaintiff
appeals to this Court.

                                                    Discussion

               Plaintiff raises two issues on appeal: 1) whether the Trial Court erred in finding that
clear and convincing evidence existed to overcome the presumption of undue influence arising from
the conveyance of real property to an attorney-in-fact from his mother; and 2) whether the fiduciary
duty of the attorney-in-fact required him to convey real property back to his principal when the
alleged purpose for the conveyance was defeated. Defendant raises an additional issue regarding
whether this Court may consider factual issues raised on appeal when the appellant files no transcript
or statement of the evidence.

                Our ability to address the issues raised by Plaintiff is hampered by the absence of
either a transcript of the proceedings in the Trial Court or a statement of the evidence prepared in
accordance with Tenn. R. App. P. 24. Tennessee Rule of Appellate Procedure, Rule 24(a) requires
that the record on appeal shall consist of, among other things, the trial transcript or a statement of
the evidence of the Trial Court if they exist. Tenn. R. App. P. 24(a). Plaintiff, however, relies solely
on the pleadings. Plaintiff 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).

         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 a ffirm, reverse or modify the actions of the trial court by memorand um 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 re ason in any unrelated
case.

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                 The Trial Court in its Final Decree noted that its decision was rendered after hearing
testimony of witnesses and after considering all the documentary evidence submitted to the Trial
Court. After considering all the evidence presented to it, the Trial Court specifically found “that any
presumption of undue influence was rebutted by clear and convincing evidence, and that the original
Complaint and the Intervening Petition and Complaint are not sustained by the proof.” Plaintiff’s
issues are fact dependent, and we have not been furnished the facts. As we must assume the record,
had it been preserved, would have contained sufficient evidence to support the Trial Court’s factual
findings, and no error of law being shown, we affirm the decision of the Trial Court.

                                             Conclusion

                The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial
Court for such further proceedings as may be required, if any, consistent with this Opinion and for
collection of the costs below. The costs on appeal are assessed against the Appellant, Walter E.
Grantham, II, Administrator C.T.A. of the Estate of Mary Frances McGill, and his surety.




                                                       ___________________________________
                                                       D. MICHAEL SWINEY, JUDGE




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