                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  April 15, 2010 Session

                WILLIAM J. REINHART v. GEICO INSURANCE

                   Appeal from the Circuit Court for Bedford County
                       No. 11,773    Franklin L. Russell, Judge


              No. M2009-01989-COA-R3-CV - Filed September 28, 2010


The plaintiff owned a 1988 Porsche that was damaged by a collision with a deer. His insurer
offered him $6,000 under his policy, after determining that the cost of repair was greater than
the cash value of the car. The plaintiff, acting pro se, sued the insurer, and attempted to
prove at trial that the auto was worth more than the insurer offered. After the plaintiff rested
his case, the insurer moved for a directed verdict because the plaintiff had not introduced the
insurance policy into evidence. The trial court granted the motion. The plaintiff argues on
appeal that he did not intend to rest his case and that in any event the trial court should have
allowed him to reopen his proof so he could introduce the insurance policy. Because there
is neither a transcript of the proceedings nor a Rule 24 Statement of the Evidence in the
appellate record, we must affirm the trial court.

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

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

William J. Reinhart, Shelbyville, Tennessee, appellant pro se.

Jeffrey D. Ridner, Manchester, Tennessee, for the appellee, Geico Insurance.

                                          OPINION

                       I. A C LAIM FOR A UTO I NSURANCE B ENEFITS

       On October 21, 2008, William J. Reinhart was driving his 1988 Porsche on Snell Road
in Bedford County, when he struck a deer and lost control of the vehicle. The automobile
ran off the shoulder of the road and hit a fence. The police filed an accident report, and the
accident was reported to Mr. Reinhart’s insurer, Geico Insurance Company, which authorized
a tow. The vehicle was towed to Quality Collision Center in Shelbyville the following day.
Robert Bushnell, the owner of Quality Collision Center, estimated the cost of repair to be
$11,293.

        Geico refused to pay to repair the vehicle, asserting that the repair cost was greater
than its actual cash value prior to the accident. Geico offered Mr. Reinhart $6,000 under his
policy, with the title to be signed over to the insurer. Mr. Reinhart refused the offer, because
he believed the car to be worth far more than Geico had estimated. On December 9, 2008,
he filed a civil warrant against Geico in the General Sessions Court of Bedford County,
seeking damages plus costs. A trial was conducted in general sessions on February 3, 2009,
resulting in a judgment of $6,422 for Mr. Reinhart, with costs taxed to Geico.

       Mr. Reinhart appealed this judgment to the Circuit Court of Bedford County by filing
a pro se complaint against the insurer on April 13, 2009. He asked for damages in the
amount of $11,293 (representing the cost of repair) plus $10 per day for storage of the
vehicle from the date of the accident to the date of trial. In the alternative, he asked for
$14,000 in damages, which he asserted was the actual cash value of the vehicle prior to the
accident.

        In its answer, Geico denied that Mr. Reinhart was entitled to the amounts requested.
Among other things, the insurer asserted that “the contractual ‘limit of liability’ contained
in the Family Automobile Insurance Policy is the actual cash value of the property at the time
of the loss,” that under the policy definition the vehicle’s “actual cash value” is the difference
between the vehicle’s value before the accident and its value after the accident, and that Mr.
Reinhart’s estimate of value was incorrect. The insurer also denied that Mr. Reinhart was
entitled to his storage costs, asserting that he failed to mitigate his damages.

       As the case moved towards trial, Mr. Reinhart submitted the names of three expert
witnesses whom he expected to call. These included Mr. Bushnell, Calvin Kincaid, who Mr.
Reinhart described in his brief as “a nationally recognized authority on appraising older and
classic cars” and Richard Onderka, described as “a German-trained master mechanic
specializing in Porsche, BMW and Mercedes autos.” Mr. Reinhart’s automobile was being
stored in Mr. Onderka’s garage in Manchester.

       Geico submitted the name of one expert witness, Bill Cassady of Cassady Auto Repair
in Shelbyville. Prior to the scheduled trial date, Geico moved the court to continue the trial
because neither Mr. Cassidy nor Mr. Kincaid had the opportunity to inspect the vehicle, and
Mr. Onderka was out of town, so the witnesses had no way to gain access to his garage. The




                                               -2-
trial court denied the motion.1

        A pre-trial conference was conducted on June 11, 2009. According to Mr. Reinhart’s
brief on appeal, the trial court told the parties at that conference that the controlling case at
trial would be Hendry v. United Services Auto Association, 633 S.W.2d 466 (Tenn. Ct. App.
1981). In that case, this court ruled among other things that because a claim for benefits
under an automobile insurance policy is based on contract, the policy itself has to be
introduced into evidence in order to establish such a claim.

         According to the trial court’s order dismissing this case, Mr. Reinhart was also
advised at the pre-trial conference that Geico “would not stipulate the terms of the parties’
contract of insurance and that the plaintiff would have to introduce a copy of the contract at
trial or face a motion for a directed verdict on those grounds.” In his later pleadings and in
his brief on appeal, Mr. Reinhart denied that any such discussion occurred. As we shall see,
Mr. Reinhart’s failure to introduce the policy into evidence during the trial was the decisive
factor in the trial court’s dismissal of his claim.

                                       II. T RIAL P ROCEEDINGS

       On June 15, 2009, a jury of twelve was empaneled to hear the case. Because there
was no court reporter present, there is no transcript of the trial. The following account is,
therefore, primarily based on Mr. Reinhart’s two briefs on appeal and on his presentation at
oral argument, but we have no way to judge its accuracy. Mr. Reinhart, who was still acting
pro se, testified first as to the circumstances of the accident and the estimate of the repair
cost. He then called his three expert witnesses, whose cumulative testimony suggested that
his Porsche was worth more than the $6,000 offered by Geico.

        Mr. Reinhart’s final witness concluded his testimony at about 12:20 p.m. The court
then announced that it was time for the lunch break, and according to Mr. Reinhart he asked
if that was all from these witnesses. Mr. Reinhart answered yes. As the jurors were leaving
the courtroom, Mr. Reinhart approached the judge, who was still seated at the bench, with
the Geico policy in hand, intending to ask the judge a question about the policy and to
introduce the policy into evidence.



        1
         Mr. Cassidy’s affidavit, which was submitted by Mr. Reinhart as an attachment to his motion for
directed verdict, states that the witness was unable to appear in court on the day of trial because he was in
Ohio on that day. Mr. Reinhart argues that if the trial court had not dismissed his case during trial he would
have prevailed, because Geico would not have been able to mount a defense in the absence of its sole expert
witness.

                                                     -3-
        A somewhat different account of this event is found in Geico’s response to Mr.
Reinhart’s motion for new trial. According to Geico, the court asked Mr. Reinhart just
before the lunch break if he had any further proof to present. Mr. Reinhart indicated that he
had no further proof. The court then asked if Mr. Reinhart was closing his proof. Mr.
Reinhart indicated that he was. At that point, Geico’s attorney moved the court to dismiss
his suit on the ground that Mr. Reinhart had not proved his case because the insurance policy
had not been introduced.

        Returning now to Mr. Reinhart’s account, he allegedly objected to Geico’s motion,
asserting that he was offering the policy in evidence. The judge stated that the policy had to
be introduced before the jury. Mr. Reinhart then argued that he had the right to introduce the
policy to the jury after lunch, and that he had not closed his case-in-chief but had merely
agreed that his expert witnesses could be released from subpoena so they would not have to
return after lunch. Mr. Reinhart then formally requested that he be allowed to introduce the
policy after the lunch break. The trial court denied this request and granted Geico’s motion
to dismiss. An order filed later that day which memorialized the court’s decision stated that,

       The Court found that the Plaintiff, pro se, was advised at the parties pretrial
       conference on June 11, 2009, by Defendant’s counsel that the Defendant
       would not stipulate to the parties’ contract of insurance and that the Plaintiff
       would have to introduce a copy of the contract at trial or face a motion for a
       directed verdict on those grounds; that the Plaintiff did not agree with the
       ceiling on coverage included in the contract of insurance and closed his proof
       without introducing the contract into evidence; that the Defendant moved to
       dismiss at the conclusion of the Plaintiff’s proof; and that Defendant is entitled
       to that relief because the Plaintiff did not establish any contractual basis for a
       claim of damages against the Defendant insurance carrier; and therefore IT IS
       ORDERED that the Complaint is dismissed.

        On July 21, 2009, Mr. Reinhart filed both a motion for new trial and a motion for
directed verdict. Geico responded by asserting that Mr. Reinhart’s motions mischaracterized
the events at the pre-trial conference on June 11, 2009, and misrepresented the facts as to the
trial of June 15, 2009. On September 2, 2009, the trial court filed an order dismissing the
motion for new trial. The order stated that the motion contained “several factual errors.”
The court also declared that “the apparent reason for refusal to submit the insurance contract
into evidence was the fact that the Plaintiff did not agree with the measure of recovery set
out in the insurance contract.” This appeal followed.




                                              -4-
                                              III. A NALYSIS

       Mr. Reinhart states two issues in his appellate briefs: first, “Whether the Court
exceeded its authority and or abused its discretion in granting a motion for dismissal by
defendant because the Geico policy had not been introduced at this point in the trial,” and
second “Whether the Court abused its discretion in overruling Plaintiff’s Motion for New
Trial.” Unfortunately, our ability to squarely address the merits of those arguments is
severely limited by the absence in the record of a transcript of the proceedings or a statement
of the evidence.

       The Tennessee Rules of Appellate Procedure govern procedure in all of Tennessee’s
appellate courts. The scope of the review to be conducted by those courts is set out in Tenn.
R. App. P. 13. The most important section of that rule for the purposes of this appeal is
section (c), which states that, “[t]he Supreme Court, Court of Appeals and Court of Criminal
Appeals may consider those facts established by the evidence in the trial court and set forth
in the record and any additional facts that may be judicially noticed or are considered
pursuant to Rule 14.” 2

        Our courts have uniformly held Rule 13(c) to signify that allegations of fact which fall
outside the bounds of that rule may not be considered by the appeals court. Pendleton v.
Mills, 73 S.W.3d 115, 119 fn. 7 (Tenn. Ct. App. 2001)(memorandum of law accompanying
motion for summary judgment was not part of the appellate record); In re B.N.W., No.
M2004-2710-COA-R3-JV, 2005 WL 3487792 at *1 (Tenn. Ct. App. Dec. 20, 2005)(citing
State v. Thompson, 832 S.W.2d 577, 579 (Tenn. Crim. App. 1991))(mere statements of
counsel cannot establish what occurred in the trial court unless supported by evidence in the
record).

       The content and preparation of the appellate record are therefore of the utmost
importance to a litigant who wishes to succeed on appeal. Tenn. R. App. P. 24 states that the
record on appeal shall include certified copies of all papers filed in the trial court (with
certain specified exceptions) and the original of any exhibits filed in the trial court. Section
24(a). Also, “[i]f a stenographic report or other contemporaneously recorded, substantially
verbatim recital of the evidence or proceedings is available,” it is the duty of the appellant

        2
          Rule 14 applies to post-judgment facts, consideration of which is declared to lie within the
discretion of the appellate court. As the rule states, however, “[w]hile neither controlling nor fully measuring
the court’s discretion, consideration generally will extend only to those facts, capable of ready demonstration,
affecting the positions of the parties or the subject matter of the action such as mootness, bankruptcy,
divorce, death, other judgments or proceedings, relief from the judgment requested or granted in the trial
court, and other similar matters.” None of Mr. Reinhart’s allegations meet the definition of post-judgment
facts.

                                                      -5-
to prepare “[a] transcript of such part of the evidence or proceedings as is necessary to
convey a fair, accurate and complete account of what transpired with respect to those issues
that are the bases of appeal.” Tenn. R. App. P. 24(b).

        There was no court reporter present at the trial of this case, so no transcript could be
prepared. In such circumstances, however, Tenn. R. App. P. 24 (c) gives the appellant the
option of preparing a statement of the evidence, “from the best available means, including
the appellant’s recollection.” Such a statement must be filed with the trial court and served
on the appellee, who then has the opportunity to file any objections to the statement as filed.
Any differences between the parties regarding the statement is submitted to and settled by
the trial court, whose determination is conclusive. Tenn. R. App. P. 24(e).

        Mr. Reinhart did not avail himself of the opportunity afforded by Tenn. R. App. P. 24
(c) to submit a statement of the evidence to the trial court. Instead, he attached to his reply
brief copies of the affidavits of his three witnesses, summarizing the testimony of each
witness, together with unauthenticated exhibits related to their testimony. He also attached
the affidavit of Geico’s witness, testifying that he was out of town on the day of trial, July
15, 2009. Geico filed a motion to strike the affidavits and exhibits on the ground that they
were not included in the record on appeal. We granted the motion, reasoning that we may
not act as a fact finding court or consider evidence not presented to the trial court, and that
we may not consider assertions of fact not supported by the record. Regardless, those
affidavits do not illuminate the determinative issue in this appeal, which involves the trial
court’s determination that Mr. Reinhart closed his proof without introducing the insurance
policy.

        It is incumbent upon the appellant to provide this court with an adequate appellate
record for review. Chiozza v. Chiozza, 315 S.W.3d 482, 489 (Tenn. Ct. App. 2009)(citing
Jennings v. Sewell-Allen Piggly Wiggly, 173 S.W.3d 710, 713 (Tenn. 2005)); Svacha v.
Waldens Creek Saddle Club, 60 S.W.3d 851,855 (Tenn. Ct. App. 2001).3 The briefs of the
parties and their statements during oral argument may be of value for the purpose of
illuminating or explaining the record for the benefit of the appeals court, but they are not part
of the record itself. State v. Thompson, 832 S.W.2d at 579. To the extent they allege facts

        3
           The appellate courts held that under the circumstances of both the Jennings and Svacha cases, the
appellee shared the responsibility for ensuring the completeness of the appellate record. In both those cases,
the trial court found that the defendant was entitled to summary judgment, but the trial court’s order failed
to explain on what basis it reached that determination, so the appellate courts had no way to evaluate the
correctness of its decision. In the present case, it is undisputed that the basis of the trial court’s dismissal
of the complaint was the plaintiff’s failure to introduce a copy of the insurance policy in the record. Thus,
we believe that in this case Mr. Reinhart bears the sole responsibility for ensuring the completeness of the
record.

                                                      -6-
which are not contained in the record, or which contradict the record, we may not even
consider them.

        Mr. Reinhart asserts on appeal that there is no dispute as to the existence of an
automobile insurance policy in force at the time of the accident. He therefore argues that the
trial court abused its discretion by denying him permission to submit the policy into evidence.
While he does not retreat from his insistence that he did not close his case-in-chief when he
dismissed his witnesses, he cites the case of Taylor v. Dyer, 88 S.W.3d 924, 926 (Tenn. Ct.
App. 2002) for the proposition that the trial court retained the discretion to allow him to
submit the insurance policy into evidence even if he had closed his case-in-chief.

        Taylor v. Dyer was a personal injury case in which the trial court allowed the plaintiff
to supplement the proof after trial had begun, by taking and filing a second deposition of a
treating physician who had not been asked in his earlier deposition whether his charges were
“reasonable and necessary.” The defendants argued that this was an error on the part of the
trial court, but we affirmed the court, declaring that its “act of benevolence” was “a matter
well within the sound discretion of the trial judge.” Taylor v. Dyer, 88 S.W.3d at 926. In
that opinion, we also cited a number of cases to demonstrate that trial courts have at times
allowed parties to reopen the proof at virtually every stage of trial.

        It is undeniable, therefore, that the trial court in this case could have chosen to reopen
the proof even after the plaintiff closed his case-in-chief. The question remains, however,
whether it abused its discretion by allegedly refusing to do so. Trial courts have the inherent
authority to control their dockets and the proceedings before them, and reviewing courts will
not second-guess a trial court’s exercise of that authority unless it has acted unreasonably,
arbitrarily, or unconscionably. Hessmer v. Hessmer, 138 S.W.3d 901, 904 (Tenn. Ct. App.
2003); Hodges v. Attorney General, 43 S.W.3d 918, 921 (Tenn. Ct. App. 2000); Kotil v.
Hydra-Sports, Inc., No. 01A01-9305-CV-00200, 1994 WL 535542, at *3 (Tenn. Ct. App.
Oct. 5, 1994) (No Tenn. R. App. P. 11 application filed).

        We may not accept as true Mr. Reinhart’s assertions that he did not close his proof
before lunch because those assertions are not reflected in the record on appeal and are
directly contradicted by findings in the court’s own order. Neither may we consider Mr.
Reinhart’s claim that he moved the court to re-open the proof, and was rebuffed. In the
absence of any evidence in the record to support those assertions, we have no basis to
examine the exercise of the court’s discretion.

       We are precluded from addressing an issue on appeal when the record fails to include
the documents relevant to that issue. State v. Zirkle, 910 S.W.2d 874, 884 (Tenn. Crim. App.
1995)(denial of motion for continuance affirmed because defendant failed to include the

                                               -7-
motion in the appellate record). In cases where no transcript or statement of the evidence is
filed, the appellate court is required to presume that the record, had it been properly
preserved, would have supported the action of the trial court. Reinhardt v. Neal, 241 S.W.2d
472, 477 (Tenn. Ct. App. 2007); Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App.
1992).4 Thus, we must presume that the trial court acted properly when it dismissed Mr.
Reinhart’s complaint because of his failure to introduce the insurance policy into evidence
before he closed his proof, and thus that it did not exceed its authority or abuse its discretion.

        Mr. Reinhart’s motion for new trial contained the same allegations that he advanced
in objecting to the trial court’s decision to dismiss his complaint: that there was no discussion
about stipulating the terms of the Geico contract at the pre-trial conference of June 11, 2009,
that his witnesses testified to a far higher value than $6,000 for his automobile, and that he
did not close his proof before lunch on June 15, 2009, but merely indicated to the trial court
that his expert witnesses could be released from subpoena and would not have to return after
lunch.

        Post-trial motions, such as a motion for new trial, are governed by Tenn. R. Civ. P.
59. The grant or dismissal of such a motion rests largely within the discretion of the trial
judge. Robinson v. Currey, 153 S.W.3d 32, 38 (Tenn. Ct. App. 2004). The moving party
must bear the burden of proving abuse of that discretion. Esstman v. Boyd, 605 S.W.2d 237,
240 (Tenn. Ct. App. 1980). Since the lack of evidence in the record as to what occurred in
the trial court precluded us from finding that the court abused its discretion in dismissing Mr.
Reinhart’s complaint, the same lack of evidence also precludes us from finding that the court
abused its discretion in dismissing his motion for new trial.

                                                   IV.

       The judgment of the trial court is affirmed. We remand this case to the Circuit Court
of Bedford County for any further proceedings necessary. Tax the costs on appeal to the
appellant, William J. Reinhart.




                                                         _________________________________
                                                         PATRICIA J. COTTRELL, JUDGE


        4
         To put it another way, without an adequate transcript or a statement of the evidence, “this Court
must presume that every fact admissible under the pleadings was found or should have been found in the
appellee's favor.” McDonald v. Onoh, 772 S.W.2d 913, 914 (Tenn. Ct. App. 1989); Gotten v. Gotten, 748
S.W.2d 430, 432 (Tenn. Ct. App. 1987).

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