# FILED

January 21, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKS ON

TOM GARY EWELL and ) JAMES A. SMITH, ) ) Plaintiffs/Appella

nts, ) Fayette Equity No. 8701 R.D.

) vs. ) ) Appeal No. 02A01-9608-CH-00178 ANNE HILL, ) ) Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT OF FAYETTE COUNTY

AT SOMERVILLE, TENNESSEE

THE HONORABLE HOMER W. BRADBERRY, SPECIAL JUDGE

For the Plaintiffs/A

ppellants : For the Defendant/Appellee : Terry C. Cox Charles M. Cary Collierville, Tennessee Bolivar, Tennessee

AFFIRMED

HOLLY KIRBY LILL

ARD, J.

CONCUR: W. FRANK CRAWFORD, P. J., W.S. DAVID R. FARMER, J.1 Smith was deceased during the pendency of the litigation.

2 Although the tria

l court’s order s

tates that the notic

e was returned u

nsigned, the App

ellants’ brief states that the “registered mail notice was signed for by one Belinda Hines.”

3 This provision state

s: (a) Where any county or municipality other t han metropolitan governments has prepared or has had

prepared prope

rty maps, which identif

y parcels o

f land within the area of that local

government, which assign a number or other identifying symbol to such parcels and which show names of streets and public ways, and where such OPINION This is an action to set aside a tax deed. Plaintiffs/Appellants Tom Gary Ewell (“Ewell”) and James A. Smith (“Smith”) 1 appeal the trial c ourt’s order dismi

ssing the suit. We a

ffirm. Ewell and Smith owned a ce

rtain parcel of

real property

as tenants

i n common. The State of Tennessee listed this parcel in a complaint for delinquent taxes filed on March 19, 1990. Notice sent to the owners referred

to the property as “Map 180, Parcel 500.” Notice of tax sale sent to Ewell was returned unsigned. 2 Notice of sale sent to Smith was signed by Cynthia Gra y. On March7, 1991, a

default judgment was entered against the owners of the property . The order of defau

lt judgment noted that the owners were pe rsonally se

rved with proces s and failed to respondwithin thirty

days. Eventually the parcel wa s purchased by Defendant/Appellee Anne Hill (“Hill”) at a tax sale. Ewell and Smith then filed

a complaint seeki

ng to set aside the tax deed based on lack of notice. The case was heard on March 7, 1996. The court reporter was delay ed, and the p laintiffs requested that the trial be postponed until the court reporter arrived. This request was denied, and the trial proceeded without a court reporter. On March 20, 1996, the plaintiffs filed a M otion to Reopen to Complete Record of Proof. Alternatively, the motion sought to have the court allow the parties to submit statements of the testimony of witnesses for the court’s certification for the record. In a Final Decree rendered May 21, 1996, the trial c ourt denied the plaintiffs’ motion an d dismiss ed their action. Responding to the plaintiffs’ allegations that they did not receive prop e r notice, the trial court held: The presumption is t

hat (Cynthia

Gray) signed for and on behalf of Smith. I n the instant case one o

f the property

owners receive

d notice of sale w

hich is sufficient

. The trial court held further that the plaint if fs had no standing to assert that the description of the property by means of

maps on microfilm failed to comply with Tennessee Code Annotated § 67-5- 806 (1994). 3 The trial co urt found t hat althou gh the Fayette County Register ’s office did not havemaps have been made a matter of public record and have been filed in the office of the county registrar, the

parcel number or other identifying sy mbol which a specific parcel has been assigned

on the official property identification map or maps shall be a sufficient description and identification of such pr operty for purposes of assessment. (b) The state division of property assessment shall supervise the preparation, maintenance, re

vision and record

ing of all such pr

operty maps . It shall

be the duty of the assessor

to annually file a copy or microfilmed repr

oduction of such pr

operty maps, as currently revised, with the county reg ister of deeds exc

ept in counties with a metropolitan form of government, who shall, wi thout cha rge, accept, file, and preservesuch copy or reproduction as a public re cord. Such copy or reproduction shallbe filed on or before October 1 of each ye ar, an d sh all reflect the status of property as of January 1. Tenn. Code Ann. § 67-5-806. 2 a microfilm viewing machine, the plaintiffs could not assert this def

ense because th

e plaintiffs did not seek the opportunity to view the maps. Finally, the trial court refused to rule that taxes on the property paid by Rossville Savings B ank (“Bank”) , the mortgage holder, inured to

the benefit of the plaintiffs. In fact, the trial court foundthat taxes were owed in addition to the amount paid by Bank, leaving a balance still owed by the plaintiffs. From this decree, the plaintiffs appeal. On appeal, t

he plaintiffs allege t

hat the trial cour

t erred by d

enying the

ir motion to complete the record. They also appeal the trial court’s ruling that notice to Gray was sufficient to establish notice to Smith and, ultimately, to Ewell. In addition, the plaintiffs contend that recordationof the tax map on microfilm was ineffective since the Register’s office did not have a microfilm viewing machine. Finally, they assert that the trial court erred by concluding that Bank’s payments of taxes on the prope

rty did not in

ure to thei r benefit, and argue that they should be credited for the amount of taxes paid by Bank. The plaintiffs’ first contention is that the trial court improperly denied t heir M otion to Reopen to Complete Record of Proof and for Other Relief. The plaintiffs cite Rule 24(e) of the Tennessee Rules o

f Appellate Proc

edure, which sta

tes: If any matter properly includ able is omitted from the r ecord, is imprope

rly included, or is misstated therein, the record may be corrected or modified to conf orm to the truth. Any differences regarding whether the record

accurately discloses what occurred in the trial court shall be submitted t o and sett led by the trial court regardless

of whether the record has been transmitted to the appellate court. Absent extraordinar y c ircum stanc es, th e dete rmina tion of the trial court is con clusi ve. If ne cess ary, the appellate or trial court may direct that a supplemental record be certified and transmitted. The plaintiffs argu

e that it is virtually

impossible for this

Court to exercise a

ppellate review in the3

absence of a fa

ctual record of

the trial procee

dings. Although appellate revie

w is certainly

more difficult in the absence of a complete record of the trial proceedings, the plaintiffs are at fault for the lack of such a record. The a ppellant is “responsible

for furnishing the appellate co urt with a record

that will enable that court to reach the issues raised.” Word v. Word, 937 S.W .2d 931, 933 (Tenn. App. 1996). Rule 24(c) of the Tennessee Rules of Appellate Procedure expressly provides for the filing of a statement of evidence in the absence of

a transcript: If no stenographic

report, substantially verbatim recital or transcript of the evidence or p roceedings is available, the appellant shall prepare a statement of the evidence or proceedings from

the best availabl

e means, including the appellant’s recollection. The statement shall convey a fair, accurate and complete a ccount of what transpired withrespect to those i

ssues that are the

bases of appeal . The statement, certified by the appellant or the appellan t’s counsel as an a ccurate acco

unt of the procee

dings, shallbe filed with

the clerk of the t

rial court within

90 days after filing the notice of appeal. . . . Under the Rule, the appellee, then, has the opportunity to file objections to the proposed statement of the evidence, and the

trial court resolves any disputes. Tenn. R. App. P. 24(c) and (e). The Rules further state that if the appellant does not file a transcript or stat ement of the evidence or the proceedings,

the “appellant shall, within 15 days after the filing of the notice of appeal, file with the clerk of the trial court and serve upon the appellee a notice th at no transcript or statement is to be filed.” Tenn. R. App. P. 24(d). This rule permits the appellee to prepare a transcript or statement in the event that the appellant does not submit one. See Crouch v. Neal, Sumner Equity No. 86-313- II, 1987 WL 12044, *2 (Tenn. App. June 10, 1987). In this case, the plai ntiffs filed a Motion to Reopen to Complete Record of Proof and for Other Relief. This motion included, alternatively, a request for the parties to submit statements of the testimony of witnesses for the trial court’s certification. The plaintiff s, however, file d this motion before the trial court rendered its decision. The purpose of a statement of the evidence is not to reopen the proof

or assist the trial c

ourt in rendering its decision, but to provide the appellate court witha complete record once the trial court ren ders its de cision and notice of appeal is filed. No statement of the evidence or related motion was filed after the trial court’s final decision. The plaintiffs are responsible for the absence of a record of proof. Rule 24(c) entitles them to prepare a state

ment of the eviden

ce or proceedi

ngs. Tenn. R. App. P. 24(c). No such statement4

of the evidence was filed within 90 days after the filing of the notice of appeal. Therefore, this issue is without merit. The plaintiffs also appeal the tr ial court’s ruling

on the merits of the

case. A tax sale

may notbe set aside “except by proof that the land was not liable t o sale for taxes or that the taxes for which the land was sold

have been paid before the sale.” Tenn. Code Ann. § 67-5-2504(b) (1994). The plaintiffs argue that the sale should be invalidated since the taxes were paid and since the y did not receive notice of the sale. Review of the trial court ’s decision is d

e novo on the record with a presumption of correctness

of the trial court’s factual findings unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995). Our reviewis limited to the contents in the record. According to the Rules of the Court of Appeals of Tennessee: No complaint of or reliance upon action by the tri al court w ill be considered on appeal unless the argument thereon contains a specific re ference to th e page or pages of the record where s

uch action is

recorded. No assertion of fact will be considered on appeal unless the argument upon such assertion contains a refe

rence to the page or pages of the record where evidence of such fact is re corded. Rules of the Ct. of App. of Tenn. 6(b). “In the absence of a transcript or statement of the evidence,

we must conclusively presume that every fact admissible un

der the pleading

s was found or shou

ld have been found fa vorably to the appellee.” Leek v. Powell, 884 S.W.2d 118, 121 (Tenn. App. 1994); Lyon v. Lyon, 765 S.W.2d 759, 763 (Tenn. App. 1988). According to Tennessee Code Annotated § 67-5-2504(c): No suit shall be commenced in any court of the state to invalidate any tax title to land until the party suing

shall have paid or tendered to the clerk of the court where the suit is brought the

amount of the bid an

d all taxes subseque

ntly accru ed, with interest and charges as herein provided. This suit was filed on November 29, 1993. The plaintiffs do not dispute the trial court’s finding that “the taxes for the year 1993 had been due and pay

able since Octob

er 15, 1993.” This

amount was not paidby the Bank. Therefore, the plaintiffs have failed to c omply with the requirements of Tennessee Code Annotated § 67-5-2504(c). Complian ce with Tenn essee Code A nnotated § 67-5-2504 (c) is a prere quisite fo r filing a suit to set aside a tax sale. See Young v. Little’s Unknown Heirs, 34 Tenn. App. 39, 54, 232 S.W.2d 614, 621 (1949) ; Lee v. Harrison, 32 Tenn. 603, 613, 270 S.W.2d 173, 177 (1954); Burnett v. Williams, No. 01A01-9605-CH-00222, 1997 WL 13758, *3 (Tenn. App. Jan.16,4 Westlaw incorrectly cites this as a Court of Criminal Appeals case. 5 1997); but see Bass v. Wilkins, Madison Equity No. 1, 1989 WL 11736 (Tenn. App. Feb.15, 1989) 4 . Because the plaintiffs have failed to meet the procedural requirements, we do not rea ch the issue of whether proper notice was given or whether plaintiffs should be credited for the amount of taxes paid by Bank. The decision of the trial court is affirmed. Costs on appeal are taxed against the App ell ant s, f or w hic h ex ecut ion may i ssu e if nece ssa ry.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRANK CRAW

FORD, P. J., W.

S.

DAVID R. FARMER, J.