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

Briefs M ay 14, 2002
MICHAEL WATKINS v. GREG FITZGERALD, ET AL 

### . Appeal from the Circuit Court for Davidson County Nos. OOC2046 & OOC2047 Carol L. Soloman, Judge

No. M2000-03197-COA-R3-CV - Filed Nove mber 26, 2002

This case originated in the Genera l Sessions Court of Davidson County wherein Gre g Fitzger ald filed an unlawful detainer warrant aga inst Michael Watkins relative to real property at 1127 Delmas Avenue in Nashville. Then, Michael Wat kins fil ed an ac tion aga

inst Fitzg erald f

or wrongfully evicting him from the same p ro perty. Mr. Watkins then filed a c ivil warrant against Constance Reg inaWilson and Curtis Sharp, Jr. for breach of contract asserting an ag reement between

th e parties relative to the same real estate. Judgments of the general sessions court were a ppealed to the circuit court, consolidated and heard in circuit to the end that circuit court judgments were rendered in favor of Fitzgera

ld, Wilson and Shar

p, and ag ainst Mich ael Watkin s. From th ese judgments Watkins appeals and we affirm the judgment of the trial cour t. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
W IL LI AM B. C AIN , J., delivered the opinion of the court, in which B EN H. C ANT RELL , P.J., and P ATRIC IA J. C OTT RELL , J., joined. Michael C. Watkins, Madison, Tennessee, Pro Se. Kevin S. Key, Na shville, Tennessee, for the appellee, Greg Fitzgerald.
OPINION
Michael Watkins ap

peals, pr o se, fro m the judg ment of the Ci rcuit Cour t of Davidson County, entered December 28, 2000 following a hearing of December 12, 2000.
Un fo rt un at el y, no transcript of the evidence of the December 12, 2000 he aring is preserved for the appellate record under T.R.A.P. Rule 24(b) and no stateme nt of the evidence is preserved pursuant to T.R.A.P. Rule 24(c). In the absence of a

transcript of the evidence or a statement of the evidence, appellate courts are limited to the record filed pursua nt to R ule 24(a) of t he Tennessee Rules of Appellate Procedure. This limited record does not contain the evidence heard by the

trial court and upon which the trial court acted in rendering the judgment from which the appeal is taken.-2-

In su ch circ umstance s, this Cour t has held :
When a trial court decides a c ase wi thout a jury, it’s findings of f act are presumedto be correc t unless the evide nce in the record prepond erates agains t them. Tenn.R.A pp.P. 13(d). T

his court cannot r eview t he facts de novo without an appella te record containing the facts, and the refore, we must assume that the record, had it been pr

eserve d, would

have contained sufficient evidence to support the trial court’s factua

l finding s. McDonald v. Onoh , 772 S.W.2d 913, 914 (Tenn. Ct. App. 1989); Irv in v. Ci ty of Clark sville , 767 S.W.2d 649, 653 (Tenn. Ct. App. 1987); Gotten v. Gotten , 748 S.W.2d 430, 432 (Tenn. Ct. App. 1988).
Sherrod v . Wix , 849 S.W.2d 780, 783 (Tenn. Ct. App. 1992).
The pro se Ap

pellant h as filed with the record hand-written narratives stating his version of the events in issue between and among the parties, which is accompanied by hand-written narrative of certain allege d witness s tatement s. As the Co urt of App eals is a court of appellate jurisdiction
on ly, we are in no position to consider these documents in the first instance but could only consider th e m if they formed a

part of the record acted upon by the trial judge following the Decembe r 12, 2000 hearing . It is the oblig ation of A ppellant to have a n adequa te reco rd prepa red in order to allow a meaningful review on appea l. State v. Banes , 874 S.W.2d 73 (Tenn. Crim. App. 1993). Making all allowances for the pro se status of Appellant, this Court cannot disregard the requirements of the Tennessee Rules of Appellate Procedure. The scope of the appeal, being thus limited, we turne d to the judgment of December 28, 2000 following the December 12, 2000 hearin g. In thi s final jud

gment, t he Court h olds:
Based upon these

consolidated General Sessions Court appeals and upon statement of counsel for the Defendants, opening state ment by the Plai ntiff, revi ew of the record and testim

ony of witnes ses this Cou

rt finds a s follows: 1. The appeal agains t Greg Fitzger ald is h ereby dismissed with prejudice
on the gro unds that t

he Plaintiff failed to file an appeal from the Gener al Sessions Courtafter entry

of final judgment on May 30, 2000 in a timely fashion. This appeal was not docketed until the 20th day of July, 2000. 2. At the conclusion of the Plai ntiff’s evidence against the remaining defenda nts, Curtis Sharp and Constance Regina Wilson, and upon t hose Def endants’ Motion to Dismiss this Court finds that no contract existed betwee n the par ties as allege d by

the Plainti ff which

would support a claim against those Defendants. As a result Plaintiff’s claim should hereby be dismissed. 3. Further, upon Pre- Trial Moti on by the defe ndant, Greg Fitzgerald, for sanctions for Plaintiff’s failure to appear at deposition at the offices of Robert Greene upon proper notice to the Plaintiff an d upon the Plaintiff ’s failur e to appe ar at sa

id deposition on the 28th day of Nove mber, 2 000 , judgment is entered against the Plaintiff for $70.00 for the court reporter’s per die m.-3- IT I S SO ORDERED

this 28 day of December, 2000.
Reviewin g this jud

gment it a ppears t hat the tr ial cour t corre ctly

dismissed the case ag ainst Greg Fitzger

ald beca use the a ppeal fr om gene ral sessi ons court

to the circuit court was not timely filed pursuant

to Tennessee Code Annotated section 27-5-108. The ten day limitation provided by this statute is mandatory, and if it is not complied with, the circuit court has no jurisdiction of the
case. Love v. College Level Assessment Services, Inc. , 928 S.W.2d 36, 38 (Tenn. 1996).
As to the re

maining Defend ants, Curt

is Sharp a nd Const anc e Regina Wilson, we have no alternative but to affirm the circuit court judgment in their favor since that judgment was based upon evidence heard by

the circuit judge and such evidence is not pre served for appellate review.
The action of the trial court is in all respects affirmed with costs of the appe al assessed against Appellant.

___________________________________ WILL IAM B. CAI

N, JUDGE