1 Rule 10 (Court of Appeals). Memorandum Opinion . -- (b) The Court, with 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 When a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case. 1 

# FILED August 10, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_________________________________________________________________ BRADFORD T. ROBERTS and wife, ) Shelby County Circuit Court No. 71568-8 JACQUELINE E. ROBERTS ) ) Plaintiffs/Appella

nts. ) App. No. 02A01-9806-CV-00155

) VS. ) Hon. D’Army Bail ey, Judge ) THE CITY OF MEMPH IS, ) AFFIRMED AND REMANDED ) Defendant/Appellee. ) ) OPINION FIL

ED: J. Whitten Gurkin,

Memphis, Tennesse

e, for Plaintiffs/

Appellants. Ronald G. Wyatt, Assistant City Attorney, for Defendant/Appellee
.

______________________________________________________________________________ MEMORANDUM OP

INION 1

______________________________________________________________________________ Farmer, J.

Bradford T. Roberts sued the City of Memphis (City

) and two of its polic

e officers, Terry W. Moore and Chris Joyner, for injuries and damages he alleged to have suffered as a r

esult of an accident involving a vehicle owned and operated by Mr. Roberts. The complaint alleges that the other vehicle wa

s owned by the

City, was driven by defendant Terry W. Moore and that defendant Chris Joyner

was a passenger in that vehicle. Prior to trial, defendants Moore and Joyner were dismissed. Jac

queline E. Roberts

sued for loss of co

nsortium.
Following a bench trial, the trial judge ren

dered his findings of

fact, conclusions of law and judgment wherein he concluded that “the percentage of negligence attributed to the plaintiff is at least 50% thereby negating any recovery.”2 The plaintiffs ap

peal and presen

t their issue as fol

lows:

The issue before this Court is thatthe physical evidence does nots up port a finding of at least fifty percent (50%) fault for the automobile

accident onbehalf of Plaintiff Bradford T. Roberts. Since the physical e

vidence does not support said finding, the Plaintiff sho uld be ad jud ged t o be at n o fau lt a nd a llo wed a rec ove ry.

Under our system of comparative fault, a plaintiff may recover “so long as plaintiff’s negligence

remains less than the defendant’s negligence. . . .” McIntyre v. Balentin e , 833 S.W.2d 52, 57 (Tenn. 1992). Our review of findings of fact by the trial court is de novo upon the record of the trial court, acc

ompanied by

a presumption of th

e correctness of the finding, unless the preponderance

of the eviden ce is otherwise. However, the record before us contains neither a transcript of the proceedings or a statement of evidence for us to r evie w. The burden is upon the appellant to show that the evidence preponderates against the judgment of the trial court. Coakley v. Daniels , 840 S .W.2 d 367, 370 (T enn. A pp. 19 92). In the absence of the transcript or statement of evidence, it is a w

ell settled rule in

this State that it is conclusively presumed on appeal that the findings of fact made by the trial court are supported by the evidence in that court and must be accepted as true by

the appellate court. J. C. Bradford & Co. v. Martin Constr. Co. , 576 S.W.2d 586, 587 (Tenn. 1979); Leek v. Powell , 884 S.W.2d 118 ( Tenn. App . 1994); Irvin v. City of Clarksville , 767 S.W.2d 649 (Tenn. App. 1988).

It results that

the judgment of the trial court is affirmed and the costs of this appeal are taxed to the ap

pellants.

____________________________________ FARMER

, J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ LILL ARD, J. (Concurs)