### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs N

ovember 13, 2001 JAMES O’NEAL VINEYARD, ET UX 

### . v. WALKER BETTY, ET UX 

### .

Appeal from the Chancery Court for Dickson County No. 3860-95 Robert E. Burch, Judge

No. M2001-00642-COA-R3-CV - Filed April 30, 2002

Following a bench trial, t he trial court found sufficient evidence to show the existence of a prescriptive easement across the p roperty of the de fendants in favor

of the plaintiffs.

Defendants appeal, arguing that clear and convincing evidence did not exist to support the trial court’s finding andthat at trial plaint

iff did not submit pro

of of irrepara

ble harm necessary to secure injunctive relief. Appellant failed to submit a transcript of the trial court proceedings or a statement of the evi dence to the appellate c ourt leaving this c

ourt only the techn

ical record for

considerati

on o n appeal. In the absence o

f a transcript or

statement of th

e eviden ce, this court must presume the evidence suppor

ted the trial cour

t’s findings. Ther

efore, we aff

irm the decision of

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

P ATRICIA J. C OTTRELL , J., delivered the opinion of the cour

t, in which B EN H. C ANTRELL , P.J., M.S., and W ILLIAM C. K OCH , J R ., J., joined.
J. Ross Pepper, Nashville, Tennessee, for the appellants, Walker Betty, et ux.
Ronald Kilgore, Charlotte, Tennessee, for the Appellees, James O’Neal Vineyard, et ux.

OPINION

On June 5, 1995, James O’Neal Vineyard and his wife Rita Vi

neyard (“Viney

ards”) filed suit in Dickson County

Chancery Court to enforce an easement and for a permanent

injunction against Walker and Mildred Betty (“Bettys”). Contemporaneousl y with the complaint

, the Vineyards filed
a motion for tempora

ry easement and i

njunction. The Vine

yards brought suit

attempting to establish that a prescriptive easement existed over a portion of the Bettys’ property and to prohibit the Bettys from denying the use of the easement.

A t the conclusio

n of the bench trial, the trial court issued an order ruling in favor of the Vineyards and fi

nding as follows:-2-

This cause came to be

heard on Septemb

er 7, 2000, ...upon the Complaint of the Plaintiffs [Vineyards], to establish an ease

me nt over the southern part of the real property of the Defendan

ts [Bett y s], from Oak Grove Road to the Ansel C. Rymer andJune D. Rymer property to the southern boundary of Plaintiffs’ property, and the Answer of th e Defendan ts, upon the pleadings and sworn testimony, and the other proof in the cause

, and the entire r

ecord from all of

which the Court fin

ds:

1. Plaintiffs have establishedan easement on the location of the dirt road along the inside of the fenc

e by prescription

as follows:
a. Plaintiffs have established continuous use of the existing dirt road for more than 40 years. b. The proof establishes the dirt road was being used when the Defendants bought their property. c. The dirt road w

as not used by perm

ission but used of ri

ght. 2. The easement is only as wide as the road is now which is estimated at ten feet in width. The existing road can be maintained by Plaintiffs but not to be improved. 3. The Court issues an Injunction for the Defendants to re move the fence o

r to install gates in the fence to allow Plaintiffs access to their property. 4. The Court issues a Permanent Restraining Order for the Plaintiffs not to stray from the easement.
Subsequently, the Bettys filed a motion to alter or amend the order, arguing that the proposed order submitted by the Vineyards was inadequate in that it failed to

state several imp

ortant points. The Bettys also filed a motion to stay execution of judgment pending appeal. The trial court denied bothof these motions. The Vineyards then filed a motion for contempt arguing that the Bettys were not in compliance with the previous orders of the court. This motion was heard and denied by the trial court on February 1, 2001, the same day on which the Bettys filed a notice of appeal.
The Bettys present two issues for our review on appea

l: (1) whether the

trial court erre

d in granting a prescriptive easement without finding such easement exi sted by clear and convincing evidence; and (2) whether the trial court erred in granting injunctive relief in the form of a prescriptive easement where the Vineyards failed to make a showing of irreparable harm.
An easement is an interest in another’s real property that confers on the easement’s holder
an enforceable right

to use that real property for a specific use. Bradley v. McLeod , 984 S.W.2d 929, 934 (Tenn. Ct. App. 1998) (citing Brew v. Van Deman , 53 Tenn. (6 Heisk.) 433, 436 (1871)). The V ineyards claim s uch an interest in a portion of the land owned by the Bettys under a theory of prescriptive easement. To establish a prescriptive easement the use and enjoyment of the land must be ad verse, un der claim of right, continuous, uninterrupted, open, visible, exclusive, and with the knowledge and acquiescence of the owner of the ser

vient tenement, a

nd must continue for the f

ull prescriptive period, twenty years. Id .; Pevear v. Hunt , 924 S.W.2d 114, 116 (Tenn. Ct. App. 1996); Town of Benton v. People s Bank of Polk County

, 940 S.W.2d 598, 602 (Tenn. Ct. App. 1995). A party claiming an easement by pres cription must prove

facts necessary to est

ablish these eleme

nts1 To be “clea r and convincing” t he evidence must

produce in t

he mind of the t

rier of f act a fi rm belief or convicti on as to the allega tions soug ht to be established; clear and convincing evidence l eaves no serious or subst antial doubt about the cor

rectness of the concl

usions drawn f

rom the evidence. Walton v. Young , 950 S.W.2d 956, 960 ( Tenn. 1997). Clear and convi ncing evidence

makes the fact

ual conclus

ion “highly probable.” Estate of Acuff v. O’Linger, 56 S.W.3d 527 , 537 (Tenn. Ct. App. 2001 ).

2 The Bettys have also ar gued that there was insufficie nt evidence of irrepar

able harm to justi

fy the grant of an injuncti on. The fi nal order e njoins t he Bettys t

o remove a fence or i

nstall gates i n the fence i

n order to al

low the Vineyards access to their property. We must presume this is the injunction refe ren ced by th e Bettys’ arg umen t. However, the argument pr incipal ly address es the lack of proof of harm from denial of access as it r elates to the eas

ement holding . In either ev ent, the issue is also one o f sufficienc y of the ev idence.

3 Although not releva

nt to the question of

the suffici

ency of the record, we also not e the case was submitted to this court without a request for oral argument, and the appellee chose not to file a brief.
-3- by clear and convincing evidence. Stone v. Brickey, No. M2000-03-93-COA-R3-CV, 2001 Tenn. App. LEXIS 748, at *6 (Tenn. Ct. App. Oct. 5, 2001) ( no Tenn. R. App. P. 11 application filed) (petition to rehear denied Oct. 5, 2001), citing House v. Close , 48 Tenn. App. 441, 346 S.W.2d 445, 447 (1961); Bingham v. Knipp , No. 02A01-98 03-CH -00083, 1999 Tenn. App. LEXIS 117, * 4-5 (Tenn. Ct. App. Feb. 23, 1999) (no Tenn. R. App. P. 11 app lication filed), citing McCammon v. Meredith , 830 S.W.2d 577, 580 (Tenn. Ct. App. 1991). 1

The Bettys argue on appeal that the trial court did not use the proper evidentiary standard for d etermining whether a prescriptive easement exists in favor of the Vineyards. Specifically, the Bettys argue that the tr

ial co urt incorrectly used the preponderance of the evidence standard as opposed to the clear and convincing evidence standard. This assertion is based on the absence in the final order of a

statement as to the burden of proof or standard of evidence applied. Whether or not the trial court

stated that the evidence was clear and convincing, an appellate court’s role is to review the evidence and make

that determination. Hogan v. Cooper , 619 S.W.2d 516, 520 (Tenn. 1981).

Wherea party is

required to esta

blish facts

by clear and con

vincing evidence

, on appeal, this court must review the evidence de novo to determine whet her or not that par

ty carried its bur

den; i.e. , whether the evidence makes the factual conclusion “highly probable” or leaves no substantial doubt about the correctness of the conclusion. Walton , 950 S.W.2d at 960; Estate of Acuff , 56 S.W.3d at 537. Thus, the Bettys’ argument is an attack on the sufficiency of the evidence. 2 These issues would require us to unde

rtake a thorough

review of the ev

idence presente

d at trial.

We have, however,

been presented

with a very limited r

ecord on appeal

in this matter. The record does not contain a transcript of the trial or a statement of the evidence. 3 Where the issueon appeal is one of f

act, this court must be presented with a record that allows us to make the review necessary under Tenn. R.App. P. 13. Because our jurisdiction is appellate only, our review power is limited t o thosefactual and legal issues for which an adequate legal record has been prese rved. Dorrier v. Dark

, 537 S.W.2d 888, 890 (Tenn. 1976); Tenn. R. App. P. 13(c).-4-

The Tennessee Rules o

f Appella te P rocedure clearly enumerate the proper contents for an appellate record, place

the burden for pr

eparing an adeq

uate record on th

e partie s, an d outline the steps that the parties must take to assure that therecord on appeal contains all the information needed to present factu

al and legal issue

s to an appellate c

ourt.

Tenn. R. App. P. 24(a) identifies the papers f iled in the trial court that will be presumptively

part of the reco

rd on appeal and i

nstructs the parti

es on how to supplement

or abridge these papers. For those factual matters that cannot

be gleaned from the papers filed with the court, Tenn. R. App. P. 24(a)(3) requires a transcript
or s ta tement of the evidence. Tenn. R. App. P. 24(b) prescribes the procedure for obtaining and filing the transcript of the proceedings, and Tenn. R. App. P. 24(c) and (d) prescribe how to prepare and file a statement of the evidence or

proceedings when a transcript is unavailable.
Trusty v. Robinson , No. M2000-01590-COA- R3-CV, 2001 Tenn. A

pp. LEXIS 75, *4-5 (

Tenn. Ct. App. Feb. 6, 2001) (

no Tenn. R. App. P.

11 application filed). Allegations contained in pleadings
are not evidence. State v. Roberts , 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). Recitations of the facts contained in a brief, or arguments of counsel, also are not evidence. Id . It is the duty of the appellant to prep

are an adequat

e record in order to allow meaningful review on appeal. Tenn. R. App. P. 24(b); State v. Bunch , 646 S.W.2d 158, 160 (Te n n. 1983); McDonald v. Onoh , 772 S.W.2d 913, 914 (Tenn. Ct. App. 1989).

The issues raised by the Bettys involve the weight and sufficiency of the evidence underlying the trial court’s fin

dings. In the abse

nce of an appell

ate record con

taining facts, this

court must presume that “the record, had

it been preserved, would have contained sufficient evidence to support the trial court’s findings.” Sherrod v. Wix , 849 S.W.2d 780, 783 (T e nn. Ct. App. 1992). Where factual issu es are raised, including issues of sufficiency of the evidence, without a transcript or complete statement of the evidenc e, we must conclusiv ely presume that there was sufficient evidence to support the trial court’s findings. Coakley v. Daniel , 840 S.W.2d 367, 370 (Tenn. Ct. App. 1992). Accordingly, we must affirm the judgment of the trial court.

For the foregoing reasons, we affirm the judgment of the trial court. Costs of this appeal are taxed to the appellants, Walker and Mildred Betty, for which execution may issue if necessary.

___________________________________ PATRICIA J. COTTRELL, JUDGE