### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE April 16, 2002 Session CORY L. STAP

LES v. WILLIAM L. CL IFTON Direct Appeal from the Circuit Court for Ham ilton County No. 00C2128 Hon. W. Neil Thomas, III., Circuit Judge

FILED May 23, 2002 No. E2001-01385-COA-R3-CV

Trial Court entered

Judgmentfor plaintiff on malicious prosecution claim. On appeal, plaintiff seeks an additur. Defendant

also appe als, arguing ther e is no evi dence to

establish the cause of action and damages were no t establis hed. We affirm. Tenn. R. App.P.3 Appeal as of Right ; Judgment

of the Cir

cuit Cour

t Affir med.
H ERSCHEL P ICKENS F RANKS , J., delive red the o pinion of t

he court , in which C HARLES D. S USANO , J R ., J., and D. M ICHAEL S WINEY , J., joined. Harry K . Hays, Ch attanoog a, Tenne ssee, fo r Appella nt. Morgan G. Adams, Chattanooga, Tennessee, for Appe llee.

OPINION

This action f

or false arrest a nd malicious prosecution originated in Sessions Court and, upon appeal to Circuit Court after a de n ovo trial, t he Circuit Judge entered Judgment for plaintiff for $500.00. Both parties have appealed.

Appellant Clifton is a private investigator, and appellee Staples is involved in a custody dispute over his minor daughter. Clifton conducted survei llance activities of Staples on several occasions on behalf of Staples’ former wife. The record revealed a history of ill will between the parties. After hearing the evidence, the Trial Court found for appellant, opining that the appellee’s defense

and reliance on

the advice of an attorney or a detec tive is vitiated if they are not told the corr ect fac ts. The Cou

rt found t hat witne sses testimony t o be totally exaggerated and incredible, based upon its review of a video tape. The Court fe lt the matte

r was a f amily squa

bble-2-

over a little girl, and the parties were using the court system for retaliation. Judgment for $500.00 was then entered.

The scope of appellate review of the trial cour t’s finding is de novo with a presumption of

correctness. Cross v. City of Memph is , 20 S.W.3d

642 (Ten n. 2000). Where t

h e issues hinge upo n credib ility and tr uthfulne ss of the w itnesses, the trial court’s opportuni

ty to observe the witnesses’ demeanor and determine their c redibility while testifying is afforded great w eight an deference on appeal. Collins v. Howmet Corp. , 970 S.W.2d 941 (Tenn. 1998). Appellant’s sole issue so far as we can tell is seeking an additur. The Tennessee Supreme Court has made it clear that only trial court judges have authority to cure an inade quacy or unreasonably low jury verdicts by suggesting an additu r, and ap pellate c ourts hav e no autho rity to initiate an additur. Poole v. Kroge r Co. , 604 S.W.2d 52, 54 (Tenn. 1980). Appellant cannot seek relief in this Court by an additur pursuant to statutory and case law.

Appellee contends the Trial Court erred by awarding judgment with no proof of damages , the eleme

nts of probable cause were not established, and appellant failed to introduce any proof that there was a criminal procee ding that terminated in appellant’s favor.

The record

presented to this Court

contains a partial transcript of the evidence he ard by the T rial Court. Two different video tapes were shown to the Tr ial Judge, but were n eithe r transcribed

nor made an exhibit to the record of this appeal. Appellee ’s issues can only be determinedby revie wing the e vidence heard by the Tria l Court, and since all of the evidence heard by the Trial Court has not been presented to this Court, the familiar rule is applicable, i.e., whe re the appella te court is not presented with a transcript all of the evidence, it will be conclusively presumed that all of the evidence supports thetrial Judge’s factual determinations. See e.g., Turner v. Turner , 739 S.W.2d 768 (Tenn. Ct. App. 1986).

Accordingly, the Judgment of the Trial Court is affirmed and the cost of the appea l assessed one half to Cory Staples and one half to William L. Clifton.

_________________________ H ERSCHEL P ICKENS F RANKS , J.