1 Rule 10 (Court of Appeals). Memorandum Opinion. – (b) The Court, with the concurrence of al l judges partici pating in the cas

e, may affir

m, reverse or

modify the act

ions of the trial court by memorandum opinion when a formal opinion would h ave no precedenti al value.When a case is decided by memorandum opinion i t shall be designated “ME MOR AND UM O PINIO N,” shall not be publishe

d, and shal

l not be cited or relied on fo r any reas on in a subsequent unrelated cas e. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE MARCH 6, 2001 Se ssion RONALD ROBINETTE, SR. v. M ARK JOHNSON Direct Appeal from the Chancery Court for Sumner County No. 97C-298; The Honorable Tom E. Gray, Chancellor

No. M2000-01514-COA-R3-CV - Filed June 21, 2001

This appeal involves a dispute over a promissory note. The jury below found for the Plaintiff. We affirm the tria l court and remand for a determination of reasonable attorney s’ fees incurred by Plaintiff with respect to this appeal.
Tenn. R. App. P. 3; Appe al as of Right; Judgme

nt of the Chancery

Court Affirmed a

nd Remanded
A LAN E. H IGHERS , J., delivered the opinion of the court, in which D AVID R. F ARMER , J., and D ON R. A SH , J., joined. Mark A. Baugh, Nashville, for Appellant Keith C. Dennen, James C. Bradshaw, Nashville, for Appellee

MEMORANDUM OP

INION 1
On December 24, 1996, Defendant Mark Johnson executed a promissory note (Note) in the principal amount of $31,216.0 0, payable

to Ronald Robinette,

Sr. Mr. Johnson failed to pay the Note. Because of Mr. Johnson’s failure to pay the Note, Mr. Robinette filed suit. I n his answer, Mr. Johnson denied execution of the promissory note, and he denied

that the Note was due and payable. The case was tried in the Sumner County Chancery Court befor e a jury. At the conclusion of the trial, the jury

found the Defendants, Mark Johnson and Andy Page, liable to Plaintiff Robinette, for money loaned pursuant to

the terms of the promissory note in the amount of $28,366.00. The jury2 Although Plaintiff Robinette was granted a Defa ult Judgment a

gainst t he Defendants, Bob Hayes and James E

. Hayes, n eith er Defenda nt filed a notice of app eal. Additionally, Plaintiff Ro binette dismissed his claim against Defendant Andy Page. Therefore,the inst ant appeal involves onl y Defendant Johns on. -2- also awarded Plaintiff Robinette prejudgment interest at the rate of ten

percent and attorney’s fees in the amount of $70,078.43. The trial court entered its order reflecting the jury verdict against the Defendants , Ma rk Johnson and Andy Page, jointly and severally . On May 9, 2000, the trial court deniedMr. Johnson’s Motion f or a Judgment Notwi

th standing the Verdict, or Alternatively for a New Trial or Alternatively, for a Remittitur, and the court denied Mr.Johnson’s Motion to Dismiss. Mr. Johnson filed his Notice of Appeal on June 1, 2000. 2 Mr. Johnson presents six issues for our review. 1) Whether the court’s failure to direct a verdi ct in favor of Mr. Johnson or Judgment Notwithstanding the Verdict during post-trial proceedings constituted reversible error. 2) Whether the court’s failure to grant Mr. Johnson’s Motion in Limine constituted reversible error. 3) Whether the chancellor erred in failing to recuse himself. 4) Whether the court erred in failing to grant

a new trial based on the failure to instruct the jury on the cross-claims

. 5) Whether the cou

rt erred when it d

id not grant Mr. John

son’s Motion to Dismiss

. 6) Whether the attorneys’ fees awarded to Plaintiff were c learly excessive. No transcript of the evidence was filed. The Appellant relies solely on the te chnical record. Standard of Review “The absence of a transcript or statement of th e evidence has a significant effect upon the scope of this Court’s review of a jury verdict.” McDonald v. Onoh , 772 S.W.2d 913, 914 (T enn. Ct. App. 1989). In the typical case, Rule 13(d) of the Tennessee Rules of Appellate Procedure requires us to review the record to determine if there is material evidence to support t he verdict. See id. “However, without a

transcript or sta

tement of procee

dings this Court must

presume that every fact admissible

under the pleadings was found or should have been found in the appellee’s favor.” See id. (citations omitted). While the Tennessee Rules of Appellate Proce

dure place the r

esponsibility for the preparation of the transcript or a statement of the evidence on the shoulders of the parties, the appellant has the primary burden of filing a proper recor d with this court. See id. (citing T ENN
. R. A PP
. P. 24). Law and Analysis First, Mr. Johnson asserts that the court erred by failing to direct a verdi

ct inhis favor or by failing to gra nt a J udgme nt Not withs tandi ng the Verdi ct. In support of this argument, Mr. Johnson makes numerous references to “the proof at trial.” As stated above, Mr. Johnson elected not to file a transcript or sta

tement of the proo

f presented at tr

ial. Therefore

, this court lacks th

e ability to consider this issue. See McDonald , 772 S.W.2d at 914.3 Canon 3, Se ction E of the Co de of Judicial Con duct states the f oll owi ng, in per tinent part: A judge sh all disqualify himself or

herself in a proceedi

ng in which the

judge’s im partiality m ight reason ably be questioned, incl uding but not lim ited to instan ces whe re: (b) the jud ge has be en a ma terial witness. . . . -3- Next, Mr. Johnson contends that the trial court erred in failing to grant his Motion in Limine. Spe cif ica lly, Mr. Johnson argues that the trial court erred in denying his motion to exclude evidence regarding his conviction for arson and his use of the alias, “Bob White.” Rule 3(e) of the Tennessee Rules of Appellate

Procedure state

s in relevant par

t: [I]n all cases tried by a jury, no issue presented for review shall be predicated upon err or in the admissi

on or exclusion of evidence , jury instructions granted or refused, misc

onduct of jurors, parties or counsel, or other action committed or occurring during the trial of the case, or other ground upon which a new trial

is sought, unless the same was speci fically stated in

a motion for a new trial; otherwise such issues

will be treated as waiv

ed.
T ENN
. R. A PP
. P. 3(e). Clearl y, the issues surrounding Mr. Johnson’s Motion in Limine relate to the “admission or exclusion of evidence.” Thus, Mr. Johnson’s failure to include the alleged errors in his motion for new trial constitutes a waiver of those issues. See id. Moreover, due to Mr. Johnson’s failure to file a sufficient rec

ord, we are una

ble to review evid

entiary issu

es. Third, Mr. Johnson asserts that the chancellor should ha ve recused h imself from the tri al. App aren tly, Chancellor Gray te stif ied as a fact witness in another matter involving Mr. Johnson. After a review of the transcript that was filed containing Chancellor Gray’s testimony , it is evident that Chancellor Gray

was a fact witne

ss on a very

limited topic. Chanc

ellor Gray only testified about Mr. Johnson’s testimony

regarding hi

s educational bac

kground during

the course of an

other case in which Chancellor

Gray presided. Accordingly , after reviewing Canon 3, section E of the Code of Judicial Conduct, 3 we find that Chanc ellor Gray ’s limited testimony as a fact witness

did not rise to the level of being a “material witness.” Therefore, we find that it was not error for the chancellor to decline to recuse himself in this matter. Fourth, Mr. J ohnson contends that the court erred in failing to grant him a new trial based upon the court’s failu

re to instruct the jury on the cross-claims. Mr. Johnson argues in his brief that “[s]pecial verdict forms should use the same terms as those used in the jury instructions. They should repeat and highlight

the salient issues d

iscussed in the instr

uctions. Inconsistencies with jury instructions and the special verdict form may confuse the jury .” Again, we

are unable to consider this argument because Mr. Johnson failed to file a transcript of the evidence on appeal, and we do not have the jury

charge in the r

ecord before u

s. Therefore, t

his issue is without me

rit.-4-

Fifth, Mr. Johnson asserts that the court erred

when it did not gra

nt his motion to dismiss. Appellant argues that “[t]he jury in error found that a partnership existed between Mr. Johnson and Mr. Page in A & M Construction Company.” Apellant Brief

at 23. Therefor

e, Mr. Johnson arg

ues, he should have been dismissed from the case because the Plaintiff released A & M Construction and the jur y f ound that he was a p

artner in A & M Con

struction. The re

cord before us in

cludes n o finding by the jury of a partnership betwe en Johnson and Page. However, we do have before us the promissory

note that M

r. Johnson s igned as maker, which is enough to sustain Mr. Johnson’s liability. Therefore, this issue is without merit. Sixth, Mr. Johnson contends that t he atto rneys’ fe

es awarded to Pla

intiff were cle

arly excessive. Again, the appellant bears the burden to see that a proper record is prepared on appeal and filed in this court. T ENN
. R .A PP
. P. 24. Because Mr. Johnson did

not provide this cou

rt with a transcript of the

evidence, we mus

t presume that the fi ndings of the jury with respect to the award of attorneys’ fees are supported by the evidence. See McDonald , 772 S.W.2d at 914.
Fin all y, the Plaintiff requests his attorney’s fees associated with the costs of this appeal. “T he ruleis well

established in this s

tate that in the abs

ence of a contr

act, statute

or recognized ground of equity so providi ng there is n o righ t to have attorney s’ fees paid by

an opposing part

y in civil litigation.” State v. Thomas , 585 S.W.2d 606, 607 (Tenn. 1979) (citations omitted). In the instant case, however, the pro

missory note

states that “[i]n the e

vent this note shall

be in default, and placed wit h an attorney for collection, then the undersigned ag ree to pay all reasonable attorney fees an d costs of collection.” Accordingly, we remand this case to the trial court for a determination of the amount of attorne

ys’ fees in

curred by Plaintiff Robinette

with respect to thi

s appeal. Conclusion For the aforementioned reasons, we affirm the judgment of the trial court and rema nd for further proceedings consistent with this opinion. Costs on appeal are taxed to Mark Johnson, for whi ch ex ecut ion may i ssu e if nece ssa ry.

___________________________________ ALAN E. HIGHERS, JUDGE