FILED

November 2, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

 IN THE COURT OF APPEALS

AT KNOXVILLE

KEVIN R. WAGNER and ) KNOX CIRCUIT 

PEGGY A. WAGNER, ) C.A. NO. 03A01-9805-CV-00159

 )

 Plaintiffs-Appellees )

 )

 )

 )

 )

 )

vs. ) HON. WHEELER ROSENBALM

 ) JUDGE

 )

 )

 )

 )

 )

TABOR CONSTRUCTION, INC., ) AFFIRMED AND REMANDED

 )

Defendant-Appellant )

and )

 )

JOHN TABOR, D/B/A TABOR CON- )

CONSTRUCTION COMPANY, )

 )

Defendant )

THOMAS R. HEN LEY, Knoxville, for Appellant, Tabor Construction

Company.

BRENT R. WATSON, Knoxville, for Appellee, Kevin R. Wagner.
1

By agreed order, John Tabor was dismissed as a party.

2

O P I N I O N

McMurray, J.

The facts of this case are relative simple. The plaintiffs

contracted to purchase a house from the defendant. 1 When the house

was complete, excepting some "punch list items" the parties entered

into a second contract. By the terms of the second contract, the

defendant was to place $5,000.00 in escrow with the mo nies to be

used toward the completion of the "punch list" items. Part of the

work was completed on the "punch list" items.

Plaintiffs filed thi s ac tion alleging breach of the sales

contract and failure to complete the "punch list" and breach of the

escrow agreement. The defendant answered and filed a counterclaim

(designated as a cross-complaint ). In the counterclaim, the

defendant alleged that all work had been comple ted an d sought

judgment for the balance held in the escrow account and for other

work and materials for which, allegedly, the defendant had not been

paid. An answer to the counterclaim was filed and the case was

heard by the court at a bench trial.
3

The court resolved the issues in favor of the original

plaintiffs and awarded judgment in their favor and against the

appellant for $7,686.09 and dismissed the counterclaim. This

appeal resulted.

The appellant presents a single issue for our review: Whether

the trial court erred in awarding damages above the balance in

escrow. Upon consideration, we think not and affirm the judgment

of the trial court.

The appellant argues that the escrow agreement discharges and

replaces the real estate sales contract. It further argues that

the escrow agreement placed a monetary limit o n de fendantappellant-builder's liability. While it may be persuasively argued

that the escrow agreement did, in fact, replace the real estate

sales contract, it is not significant relative to the issue before

us. The escrow agreement provides in pertinent part as follows:

The seller/builder herewith deposits with the Escrow

Agent, and the Escrow Agent hereby acknowledges receipt

o f the sum of five thousand and 00/100 ($5,000.00). Said

sum is the total to complete improvements and the

anticipated inspection fee. Sai d [i llegible] shall be

hel d by Escrow Agent and disbursed when the sel -

ler/builder completes all the said improvements and the

property has been inspected by the buyer. At which time

he/she is to n otify Escrow Agent in writing to release

the escrow to the seller/builder. ...
4

* * * *

2 . The seller/builder agrees to pay for all labor and

material necessary to complete the work and improvements.

3 . The seller/builder agrees that he/she is personally

liable for the satisfactory completion of the work free

and clear of all liens.

* * * *

W e first note that no statement of or transcript of the

evidence was filed. 

Where the issues raised go to the evid ence , there

must be a transcript. In the absence of a transcript of

the evidence, there is a conclusive presum ption that

there was sufficient evidence before the trial court to

support its ju d g ment, and this Court must therefore

affirm the judgment. 

Coakley v. Daniels , 840 S.W.2d 367, 370 (Tenn. App.

1992). See also Word v. Word , 937 S.W.2d 931, 932 (Tenn.

App. 1996); Sherrod v. Wix , 8 49 S.W.2d 780, 783 (Tenn.

App. 1992); Irvin v. City of Clarksville , 767 S.W.2d 649,

653 (Tenn. App. 1988).

W e must therefore indulge in a conclusive presumption that the

evidence preponderates in favor of the trial cou rt's f indings of

fact. It is only necessary for us to determine whether the escrow

agreement limited the appellant's liability.

Cont ract interpretation is a question of law, and

our review is therefore de novo upon the record with no

presumption of correctness attached to the trial court's

interpretation. Tenn.R.App.P. 13(d); Gredig v. Tennessee
5

Far mers Mut. Ins. Co. , 891 S.W.2d 909, 912 (Tenn. App .

1994). If, however, the contract contains ambiguity which

necessitates looking to extrinsic evidence to determine

the intention of the pa rtie s, then the court's factual

findings are presumed correct unless the evidence

pre ponde rates otherwise. See Tenn. R. App. P. 13(d);

APAC-Tennessee, Inc. v. J.M. Humphries Constr. Co. , 732

S.W.2d 601, 604 (Tenn. App. 1986); Southern Ry. Employees

Credit Union v. Thornburg , 680 S.W.2d 791, 792 (Tenn.

App. 1984).

Crews v. Dexter Rd. Ptnrs. , 1998 Tenn. App. LEXIS 66.

The cardinal rule for inter pret ation of contracts is to

ascertain the intention of the parties from the contract as a whole

and to give effect to that intention cons istent with legal

principles. Winfree v. Educators Credit Union , 900 S.W.2d 285, 289

(Tenn. App. 1995); Rainey v. Stansell , 836 S.W.2d 117, 118 (Tenn.

App. 1992).

I n our view the provisions of the escrow agreement that we

have quoted create a latent ambiguity which can only be resolved by

resorting to extrinsic evidence to ascertain the intention of the

parties. Therefore, without a transcript of the evidence, we must

conclusively presume that the evidence supports the judgment of the

trial court.

W e affirm the judgment of the trial court in all respects.

Costs are assessed to the appellant. This case is remanded to the
6

trial court for such other and further action as may be necessary

for enforcement of the judgment.

__________________________________

 Don T. McMurray, Judge

CONCUR:

___________________________________

Houston M. Goddard, Presiding Judge

___________________________________

William H. Inman, Senior Judge
1

 IN THE COURT OF APPEALS

AT KNOXVILLE

KEVIN R. WAGNER and ) KNOX CIRCUIT 

PEGGY A. WAGNER, ) C.A. NO. 03A01-9805-CV-00159

 )

 Plaintiffs-Appellees )

 )

 )

 )

 )

 )

vs. ) HON. WHEELER ROSENBALM

 ) JUDGE

 )

 )

 )

 )

 )

TABOR CONSTRUCTION, INC., ) AFFIRMED AND REMANDED

 )

Defendant-Appellant )

and )

 )

JOHN TABOR, D/B/A TABOR CON- )

CONSTRUCTION COMPANY, )

 )

Defendant )

JUDGMENT

This appeal came on t o be heard upon the record from the

Circuit Court of Knox County, briefs and argument of counsel. Upon

consideration thereof, this Court is of the opinion that there was

no reversible error in the trial court.
2

W e affirm the judgment of the trial court in all respects.

Costs are assessed to the appellant. This case is remanded to the

trial court for such other and further action as may be necessary

for enforcement of the judgment.

 PER CURIAM