                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                January 17, 2013 Session

THOMAS E. HOLUB, JR. v. FIRST HORIZON HOME LOAN CORP. d/b/a
           FIRST TENNESSEE HOME LOANS ET AL.

               Appeal from the Chancery Court for Rutherford County
                No. 10CV0415      Robert E. Corlew, III, Chancellor


               No. M2012-00964-COA-R3-CV - Filed February 8, 2013


The trial court found in favor of the plaintiff on claims that a mortgage company and a title
company erroneously encumbered a tract of his property. On appeal, the plaintiff asserts that
the trial court erred in declining to award more than nominal damages. Because there is no
appellate record for this court to review on the issue of damages, we affirm the decision of
the trial court.

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

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which P ATRICIA J. C OTTRELL,
M.S., P.J., and R ICHARD H. D INKINS, J., joined.

William W. Burton, Murfreesboro, Tennessee, for the appellant, Thomas E. Holub, Jr.

G. Sumner R. Bouldin, Jr., Murfreesboro, Tennessee, for the appellee, Watauga Title
Company of Rutherford County.

John A. Barney, Brentwood, Tennessee, for the appellees, First Horizon Home Loan
Corporation and Metlife Home Loans.

                                        OPINION

                        F ACTUAL AND P ROCEDURAL B ACKGROUND

      Thomas E. Holub, Jr., filed this lawsuit on March 18, 2010 against multiple
defendants, including First Horizon Home Loan Corporation d/b/a First Tennessee Home
Loans (“First Horizon”), Metlife Home Loans, and Watauga Title Company. Mr. Holub
purchased a piece of property located on Murray Kittrell Road in Rutherford County,
Tennessee from his mother in January 2002. The property included two tracts: Tract 1
consisted of approximately 5.5 acres with a single family residence; Tract 2 consisted of
approximately 7.8 unimproved acres. Mr. Holub obtained a loan from First Horizon to
finance the transaction. According to the complaint, Mr. Holub intended that the mortgage
with First Horizon encumber only Tract 1.

       As alleged in the complaint, Mr. Holub attempted to borrow money using Tract 2 in
2009 and only then learned that the 2002 First Horizon mortgage also encumbered Tract 2.
As a result of this encumbrance, Mr. Holub argues, he was unable to sell the property to a
willing buyer in 2009 and had to sell his 18-wheeler truck at a loss.

       After receiving a notice of foreclosure against his property, Mr. Holub filed the instant
lawsuit to enjoin the foreclosure and recover damages. During the pendency of the lawsuit,
the parties agreed that Tract 2 should be sold. On March 26, 2011, the clerk and master sold
Tract 2 for $14,800 and held the funds for further disposition by the court.

        The case was tried over two days in November and December 2011. The trial court
concluded that Mr. Holub “did not intend that Tract No. 2 be encumbered by that deed of
trust and the Defendants incorrectly included Tract No. 2 on the deed of trust at the direction
of the Defendant First Horizon.” The court further determined that Mr. Holub was entitled
to the funds held by the clerk and master from the judicial sale of Tract 2, “subject to the
rights of First Tennessee Bank to claim said funds as a result of its second mortgage on the
property at the time of the judicial sale.” As to damages, the trial court found that Mr. Holub
“did not present competent proof of any damages he sustained as a result of Tract No. 2
being encumbered and also failed to mitigate his damages.” The court therefore awarded Mr.
Holub only nominal damages in the amount of $100.00 against First Horizon and $100.00
against Watauga. The trial court denied Mr. Holub’s subsequent motion to alter or amend
the judgment.

       After filing his notice of appeal, Mr. Holub filed a motion to amend the court’s ruling
regarding First Tennessee’s entitlement to funds held by the clerk and master, and the trial
court entered an order that the money be held by the clerk and master pending disposition of
the appeal.

      On appeal, Mr. Holub argues that the trial court erred in awarding him only nominal
damages and that First Tennessee should not receive any money held by the clerk and master
because its attorney failed to appear in court on June 4, 2012.




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                                   S TANDARD OF R EVIEW

        In an appeal of a decision rendered after a bench trial, we review the trial court’s
findings of fact de novo with a presumption of correctness unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Union Carbide Corp. v. Huddleston, 854
S.W.2d 87, 91 (Tenn. 1993). Moreover, we “give great weight to the trial court’s assessment
of the evidence because the trial court is in a much better position to evaluate the credibility
of the witnesses.” Boyer v. Heimermann, 238 S.W.3d 249, 255 (Tenn. Ct. App. 2007). We
review questions of law de novo with no presumption of correctness. Nelson v. Wal-Mart
Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999).

                                          A NALYSIS

      The primary issue raised by Mr. Holub is the trial court’s failure to award anything
more than nominal damages for the defendants’ actions. We find, however, that the record
on appeal does not provide any basis for review of the trial court’s decision regarding
damages.

       As stated in its order, the trial court found that Mr. Holub “did not present competent
proof of any damages sustained . . . and also failed to mitigate his damages.” In ruling from
the bench, the trial court addressed damages more specifically:

       Now we, I guess, have to look at the damages issue. And Mr. Holub,
       respectfully to him, blames all his problems on these two defendants, he
       blames all the mental pain and suffering and anguish and so forth. And if he
       ever went to a doctor about it, we didn’t hear about it. He’s lost work, he says,
       and he may have, but we don’t have anything showing any causal connection
       between the loss of work and the issues which are alleged herein.

       Mr. Holub claims great harm by the listing of this second tract, and then we
       have a situation that apparently he willingly allowed the second tract to be
       utilized in this second loan two or three years later.
       ...

       As to the loss of credit, respectfully, I can’t find that the proof preponderates
       in favor of the plaintiff on that, and that count is dismissed. As to the issue of
       the pain and mental anguish, I suppose under the circumstances, . . . Mr.
       Holub’s entitled to nominal damages. I respectfully think that I have to find,
       given all the circumstances—and respectfully, too, as far as the issues
       concerning this sale—and, again, with all due respect, the testimony of the sale

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       to the gentleman who came in and testified, not a lot of proof there,
       respectfully.

       I think the gentleman who was alleged to have been the buyer either has
       forgotten a whole lot or didn’t agree to buy under the terms Mr. Holub says he
       did. Albeit, it has been addressed by defense counsel, with some help from
       counsel or otherwise Mr. Holub, even given the existence of the description
       of the second tract, Mr. Holub didn’t mitigate damages. I’ll just leave it at
       that, as far as his efforts concerning the sale and otherwise of that tract if such
       a sales opportunity had been there before.

       So I think, respectfully, the plaintiff’s entitled to nominal damages. . . . So
       we’re going to assess nominal damages but nominal damages only, and those
       will be in the sum of $100 each, plus the cost of the cause.

        Tennessee Rule of Appellate Procedure 24 explains the preparation of the record for
appeal. In the absence of a transcript, Rule 24(c) requires the appellant to provide a
statement of the evidence which “convey[s] a fair, 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). In this case, Mr. Holub filed a transcript of the
trial court’s ruling, but did not file a transcript of the evidentiary proceedings themselves.
The record does include the trial exhibits, but none of these exhibits relate to the issue of
damages.1 Mr. Holub also filed a three-paragraph document entitled “Statement of the Case”
summarizing the dispute below and the trial court’s ruling. There is nothing in this filing
concerning any evidence presented on damages.

        As to damages, therefore, there is no transcript or statement of the evidence. The lack
of at least a statement of the evidence destroys the appellate court’s ability to review the
findings of the trial court:

       Ordinarily, “[a]n appellant who elects not to file either a transcript or a
       statement of the evidence will be faced with the practically insurmountable
       presumption that the record contained sufficient evidence to support the trial
       court’s decision.” In the absence of a transcript or a statement of the evidence,
       we ordinarily presume that the record, had it been preserved, would have
       contained sufficient evidence to support the trial court’s decision.


       1
        Although Mr. Holub submitted a list of alleged damages in conjunction with his deposition
testimony, this deposition was not introduced into evidence at the trial.

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Riddle v. Riddle, No. M2006-00472-COA-R3-CV, 2007 WL 1094133, at *3-4 (Tenn. Ct.
App. Apr. 11, 2007) (citations omitted). Furthermore, “it has long been the law of this State
that where the trial court heard proof and the proof is not brought before the appellate court,
it is conclusively presumed that there was evidence presented to support the trial court’s
findings and decree.” Harbour v. Brown, No. 577, 1986 WL 6848, at *1 (Tenn. Ct. App.
June 20, 1986). An appellate court’s power to review can only be exercised when an
adequate record of the evidence has been preserved.

       In light of the incomplete appellate record in this case, we cannot engage in an
analysis of the trial court’s determination regarding damages. Mr. Holub’s second issue,
regarding First Tennessee’s entitlement to funds held by the clerk and master, is likewise
unreviewable.

                                        C ONCLUSION

       The decision of the trial court is affirmed. Costs of appeal are assessed against the
appellant, and execution may issue if necessary.




                                                       ______________________________
                                                            ANDY D. BENNETT, JUDGE




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