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

Briefs J anuary

15, 2002 MOHAMMAD D. HUSSAINI, ET AL 

### . v. GRANGE MUTUAL CASU ALTY COMPANY, ET AL 

### . Appeal from the Circuit Court for Davidson County No. 98C-1004 Walter C. Kurtz, Judge

No. M2001-00658-COA-R3-CV - Filed August 28, 2002

Homeowne

rs, un sa ti sf

ie d w it h r ep ai rs to th ei r h om e fol lo wi ng a f ir e, su ed th ei r i ns ur an ce co mp an y, the contractor who performed repa irs on their home, and another contractor who removed personal propert y for cleaning and re

pair. Th e homeowners settled their claims against the insuranc e company and, on the day of

trial, v olunt arily dismissed their claims ag ainst the contractor for cleaning of their personal property . The trial proceeded upon their claims against thecontractor who repaired the fire damag e in their home, and the trial court entered a judgment for $650.00 in favor of the homeowners. Because the appe llate record includes no record of the evide nce take n at trial , we mu st pr es um e t he tr ia l c ou rt ’s fi nd in gs we re su pp or te d b y th e r ec or d. Ac co rd in gl y, we affirm the trial court’s judgment.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court

Affirmed and Remanded

P AT RICIA J. C OTT RELL , J., deliver ed the opinion of the

court, in which B EN H. C ANT RELL , P.J., M.S., and W IL LI AM C. K OCH , J R ., J., joined. Mohammad D. Hussaini, Nashville, Tennessee, Pro Se.
Ma rk S. LeV an , N as hv il le , T en ne ss ee , f or th e a pp el le e, Gr an ge Mu tu al Ca su al ty.
OPINION
This action arose out of a fire at plaintiffs’ home. Their insura nce ca rrier apparen tly contracted

withAlden War

d d/b/a Ma ster Cra

ft/Maste r Clean to perform repair and cleanup ser vices at the home and with Kenneth Lewis to re move, clean and store certain personal propert y damaged by the fire, including fur

niture a nd expensive rugs. The plaintiffs sued all three alleging: (1) that Grange Mutual Cas ualty

Company

had fail ed to promptly pay for damages resulting from the f ire, thereby breach ing its obligation under the insurance contract; (2) that Alden B. Ward d/b/a Master Craft/ Master Clean failed to completely and adequately

repair the d amage and had, by failing to-2-

exercise reasona ble car e, caused furthe

r damag e to plain

tiffs’ property, including

a hot water

tank, and (3) that

Kenneth Lewis removed

personal property

from the plaintiffs’ home to clean and repair, buthad disposed of the property valued at over $18,000, without notice to the plain tiffs, because the insurance company

failed to pay f

or storage of the articles.
Prior to trial , plai ntiffs compromised and settled the claim against Grang e Insurance Company , and that claim was dismissed with prejudice. On the day of trial, plaintiffs’ counsel announced

the intention to take a

voluntary dismissal without pre

judice of the claim agains t Kenneth Lewis.
Trial wa s held on th e claim a gainst A lden B. Wa

rd d/b/a Master Craft/ Master Clean. The trial cou rt’s fina l order s tates:
After hearing testim ony of the

parties and other witnesses, examination of the exhibits and from all of the evidence as a whole, it appears that the plaintiffs failed to prove by a pr

eponderance

of the evidence t

hat they are ent itled todamages related to the defendant’s failure to install carpet or renovation of the downstairs bathroom in [plaintiff’ home]. However, it appears that the plaintiffs have proven nom inal d amages in the amount of $650, constituting the amount remaining to co mplet e repairs to the plaintiffs’ ho me pursuant to the contract with the defendant Alden Ward.
The court en

tered ju dgment a

gainst A lden Ward , d/b/a Ma ster Cra ft/ Maste r Cle an for $650.00 and ordered the claim against Kenne th Lewis dismissed without prejudice to refiling.
The plaintiffs have appealed, appearing pro se. The record before u s include s o nly the Technical Record and the exhibits introduced at trial, but without any r ecord of thee vidence explaining those exhib its. Neither a transcript of the trial nor a statement of the evidence has been filed pursuant to Tenn. R. App. P. 24. This limite d recor d preclu des our r

eview of any factua l issues.
On appeal, the homeo wners c omplain they have not received

the repa irs due them under

their insurance policy, that Mr. L ewis retained and disposed of valuable personal property, a

nd that Mr. Ward damaged their

homeand fail ed to prop erly make nec essary

repair s. Their a

rgumen ts against the insurance company ca nnot be considered because they settled their claim against Grange Mutual Casualty Company

as evide nced by an order of compr omise and

se ttlemen t dismissing

all claim s agains tGrange with prejudice. No claims ag ainst the insurance co mpany were tried or were the subject o f the ord

er appe aled fr

om.
Si mi la rl y, the homeowners’ arguments conce rning Mr. Lewis’s disposition of their personal propert y are als o not properly c onsidered in this appeal because those claims were not pa rt of the issues tried and decided by the trial court. The court’s final order dismisses, at plaintiff s’ request , the claims against Mr. Lewis, witho ut prejudice to refiling. Beca use the homeowners took a voluntary nonsuit before the trial beg an, the c laims ag ainst Mr. L ewis were not tried and not ruled-3-

upon by the court. The

homeowners could have re-filed their lawsuit ag ainst Mr. Lewi s, whi ch would have been the appropriate way to proceed with their claims against him.
As to the claims against Alden Ward, the homeowners arg ue they sust ained great da mage to their home

because of Mr. Ward’s improper repair attempts and that some repairs rema in undone. We interpre

t these statements as an argument that the evidence preponderates ag ainst the trial court’s finding that the plaintiffs proved only nominal damages of $650.00.
Where the iss ue on appe al is one of fact, this court must be presented with a recor d that allows us to make t he revie w neces sary

under Te nn. R. App. P. 13. Be cause ou r jurisdiction is appella te only, our

review power is limited to those factual and legal i ssues for

which an adequa te legal record has been preserve d. Tenn. R. App. P. 13( c); Dorrier v . Dark , 537 S.W.2d 888, 890 (Tenn. 1976).
It is the duty of the appellant to pre pare an adequate recor

d in o rder to a

ll ow meaningful review on appeal. Tenn. R. App. P. 24(b); State v. Bunch , 646 S.W.2d 158, 160 (Tenn. 1983); McDonal d v. Onoh , 772 S.W.2d 913, 914 (Tenn. Ct. A pp. 19 89). A llegat ions conta ined i n plea dings
are notevidence. State v. R oberts , 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). Recitations of the facts contained in a brief, or arg uments of counsel, also are not evidence. Id

. When a trial court decides a case without a jury , its findings of fact are presumed to be correct unle ss the evide nce in the record preponderate s against them. Tenn. R. App. P. 13(d). Where factua

l issues ar

e raise d, without a

n appell ate record c ontaining the evidence, this court cannot perform a de novo review or determine the preponderance

of the evidence. Sherrod v. Wix , 849 S.W.2d 780, 783 (Tenn. Ct. App . 1 992). Therefore, in such cases, we must assume that the record, had it

been preserved, would have contained suf ficient evidence to support thetrial court’s factual findings. Id .; McDonal d , 772 S.W.2d at 914; Gotten v. Gotten , 748 S.W.2d 430, 432 (Tenn. Ct. App. 1988); Irvin v. City of Clark sville , 767 S.W.2d 649, 653 (Tenn. Ct. App. 1987).
The issues raised by the homeowners with regard to the judgment ag ainst Mr. Ward involve the sufficiency

and preponderance of the evidenc e underlying the trial court’s fi ndings. W e must conclusi ve ly

presume that there was sufficient evidence to support the trial court’s findings. Coakley
v. Daniel , 840 S.W.2d 367, 370 (Tenn. Ct. App. 1992). Accordingly we must affirm

the judgment of the trial court.
The judgmen

t of the tr ial cour t is affirmed. Costs are taxed to the appellant, Mohammad D. Hussaini.

___________________________________ PATRICIA J. COTTREL L, JUDGE