                  IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON
                  ________________________________________

G. E. CAPIITAL MORTGAGE                           FROM THE CIRCUIT COURT
SERVICES, INC.,                                   OF SHELBY COUNTY,
                                                  No. 95201 T.D.; THE HON.
       Plaintiff-Appellee                         JOHN R. MCCARROLL, JUDGE
                                                  AFFIRMED AND REMANDED
Vs.

BELINDA J. LESTER YOUNG,
                                  FILED           C.A. No. W1998-00729-COA-R3-CV

                                          Clifton E. Darnell of Memphis
                                          For Appellant,
     Defendant-Appellant,    February 9, 2000
                                          Belinda J. Lester Young, Pro Se
_____________________________________________________________________
                            Cecil Crowson, Jr.
                           Appellate Court Clerk 1
                          MEMORANDUM OPINION
____________________________________________________________________

CRAWFORD, J.
       This appeal involves an action for possession of real property. Defendant,

Belinda J. Lester Young, appeals from the trial court’s judgment granting possession

of the subject property to plaintiff, G. E. Capital Mortgage Services, Inc.
       The Court is somewhat handicapped in dealing with this case by the inadequate

state of the record on appeal. However, we can ascertain from the entire record and

the briefs of the parties that the subject property was encumbered by a deed of trust

and, upon foreclosure of the deed of trust, plaintiff, the secured party, purchased the

property. Subsequently, plaintiff filed a forcible entry and detainer action in general

sessions court, and on June 10, 1998, general sessions court entered judgment in

favor of plaintiff for possession of the property. On June 10, 1998, plaintiff appealed the

general sessions judgment for a trial de novo in the circuit court. Plaintiff executed a
pauper’s oath in lieu of an appeal bond.

       On June 22, 1998, plaintiff filed a motion to dismiss the action pursuant to T.C.A.

§ 20-12-132 (1994). On June 26, 1998, defendant filed a “Demand for Common Trial
By Jury” along with a request for production of documents and request for admissions.

In July, 1998, defendant filed “Response and Objection to Motion to Dismiss Pauper

Action.”
       Although the record contains no order denying a demand for a jury trial, the

parties in their brief concede that the trial court did deny a jury trial demand, and the

case was set for trial for August 13, 1998. On August 14, 1998, the trial court entered

an order which states:

   1
    Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) 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. When 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 a subsequent unrelated case.

                                            1
           ORDER ON TRIAL PROCEEDINGS AND RESETTING CASE

                     This cause came on to be heard for trial whereupon
              the Plaintiff presented its proof through witness Cliff
              Darnell, Substitute Trustee and agent for G. E. Capital
              Mortgage Services, Inc. The Defendant presented her
              proof through her witnesses, including herself, Benjamin
              Davis from H.U.D., and Joe Reves, Deputy County
              Register.

                     Admitted as trial exhibits were the following:
              EXHIBIT 1 - Secretary of State records on qualifications of
              G. E. Capital Mortgage Services, Inc.
              Exhibit 2 - Letters of Notice of Foreclosure and postal
              return receipt.
              EXHIBIT 3 - Affidavit of Publication of Foreclosure Notice.

              EXHIBIT 4 - Collective exhibit of Note, Deed of Trust,
              Substitution of Trustee, Assignment.

              EXHIBIT 5 - Quit Claim Deed.

              EXHIBIT 6 - Trustee’s Deed.
              EXHIBIT 7 - Application for assumed name.

              EXHIBIT 8 - Secretary of State report of records on file for
              G. E. Capital Mortgage Services, Inc.

                     WHEREUPON, the Court adjourned the
              proceedings until September 9, 1998 at 9:00 A.M. for
              receipt of subpoenaed documents from H. U. D.; responses
              from the Plaintiff to the Defendant’s Request for Admission
              and Request for Production filed on August 10, 1998; and
              for closing argument.

       On September 10, 1998, the trial court entered the following order:

                  ORDER GRANTING JUDGMENT TO PLAINTIFF
                      THIS CAUSE came on to be heard upon appeal
              from General Sessions Court, upon testimony of the
              Plaintiff and the Defendant and of their witnesses, upon the
              exhibits introduced at trial, the pleadings, and upon the
              entire record whereupon it was found by the Court that the
              Plaintiff is entitled to possession of the property located at
              and known municipally as 495 Jenson Road, Memphis,
              Shelby County, Tennessee, 38109.
                     IT IS THEREFORE ORDERED, ADJUDGED AND
              DECREED that the Plaintiff is hereby granted possession
              of the property known as 495 Jenson Road, Memphis,
              Shelby county, Tennessee and more particularly described
              as Lot 501 in Section C of Dr. J. E. Walker Homes
              Subdivision, as shown on plat of record in plat book 19,
              Page 40, in the Register’s Office of Shelby County,
              Tennessee.

              Costs are assessed against the Defendant. Let execution
              issue.

       After denying defendant’s “petition” for a new trial, defendant has appealed and

presents the following issues for review as stated in her brief:

              A. Whether or not the Court erred in denying this Appellant
              a Jury Trial?

              B. Whether or not the Court erred in denying or not
              allowing this Appellant discovery?

              C. Whether or not the Court erred in allowing the appellee
              to bring an action not under the proper name?

              D. Whether or not the Court erred in giving the appellee
              possession and the appellee stated they did not own the
              property?
              E. Whether or not the Court erred in giving possession to
              Appellee without a foreclosure of property?
              F. Whether or not the trial court erred in not allowing all
              parties to be joined?
       In defendant’s first issue, she asserts that she was improperly denied a jury trial.

Defendant filed her appeal to the circuit court on June 10, 1998, but did not file a

demand for a jury trial until sixteen days later, on June 26, 1998. She asserts that she
had ten days from the time she received notice of the filing of the appeal in the mail

from the court clerk. We cannot agree. Rule 38.03 of the Tennessee Rules of Civil

Procedure provides in pertinent part:

              In cases removed by appeal or otherwise to the chancery
              or circuit courts or to courts of similar jurisdiction, any party
              may demand a trial by jury of any issue triable of right by
              jury by filing written demand for jury trial within ten (10)
              days after the papers are filed with the clerk.

       The Advisary Commission Comments to the rule state: “Since the appellant has

perfected the appeal, it should be obligatory upon the appellant to ascertain when the
papers have been filed with the clerk of the circuit court.” T.R.Civ.P. 38.03. Therefore,

the demand for jury trial was not timely and was properly denied by the trial court.

       Defendant’s second issues asserts that she was denied discovery. The record
reflects that on June 26, 1998, defendant filed a request for production and request for

admissions. Plaintiff responded to these requests, but on August 19, 1998, during the

trial recess, defendant filed a motion to compel as to three requests for production. In
the meantime, on August 10, 1998, defendant had filed a second request for

production, and the plaintiff responded to this request on September 8, 1998. The

record does not reflect that defendant, at any time, brought before the court for

disposition the motion to compel and she proceeded to the second part of the
bifurcated trial on September 9, 1998. Under these circumstances, it appears that

defendant waived her objection to plaintiff’s response to the discovery requests.

       In defendant’s third issue, she contests the name under which plaintiff filed the

action. She asserts that the company filed papers with the Secretary of State to only

                                             3
do business under the assumed name of G. E. Capital Home Equity Service. The trial

court determined that the suit was properly brought by the plaintiff. The record reflects

that the trial court examined the exhibits introduced into evidence, although they are not
a part of the record on appeal. There is no transcript, nor is there actually a statement

of the evidence. Defendant filed what she denominates a statement of the evidence,

but in fact is a chronological statement of the pleadings and the trial court’s actions.
There simply is no statement of the evidence. In Sherrod v. Wix, 849 S.W.2d 780

(Tenn. Ct. App. 1992), this Court said:

                     When a trial court decides a case without a jury, it’s
              findings of fact are presumed to be correct unless the
              evidence in the record preponderates against them.
              Tenn.R.App.P. 13(d). 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. McDonald v.
              Onoh, 772 S.W.2d 913, 914 (Tenn. Ct. App. 1989); Irvin
              v. City of Clarksville, 767 S.W.2d 649, 653 (Tenn. Ct.
              App. 1987); Gotten v. Gotten, 748 S.W.2d 430, 432
              (Tenn. Ct. App. 1988).

849 S.W.2d at 783.

       In defendant’s fourth and sixth issues, she asserts that the trial court erred in

giving plaintiff possession of the property, because plaintiff had conveyed the property

to the Department of Housing and Urban Development. She also asserts that the
Department of Housing and Urban Development should have been a party to the suit.

Here again, the trial court found that the plaintiff was the proper party plaintiff and was

entitled to possession of the property. In the absence of any transcript or statement of
the evidence, it is conclusively presumed that the trial court correctly found these facts.

Sherrod, at 783.

       In plaintiff’s fifth issue, she asserts that the proceeding was defective, because
there had been no foreclosure of the property. She apparently contends that there is

a necessity for a court proceeding to validly foreclose. Here again, the trial court found

that there was extra-judicial foreclosure under which plaintiff acquired the right to

possession of the property. In the absence of a statement of the evidence or a
transcript, this finding is conclusive. See Sherrod, at 783.

       The judgment of the trial court is affirmed. Costs of the appeal are assessed

against the appellant, Belinda J. Lester Young. The case is remanded to the trial court
for such further proceedings as are necessary.

                                                   ______________________________
                                                   W. FRANK CRAWFORD, P.J., W.S.

                                            4
CONCUR:


_________________________________
ALAN E. HIGHERS, JUDGE

_________________________________
HOLLY KIRBY LILLARD, JUDGE




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