IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 15, 2002

MOHAMMAD D. HUSSAINI, ET AL. v. GRANGE MUTUAL CASUALTY

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

Homeowners, unsatisfied with repairs to their home following a fire, sued their insurance company,

the contractor who performed repairs on their home, and another contractor who removed personal

property for cleaning and repair. The homeowners settled their claims against the insurance

company and, on the day of trial, voluntarily dismissed their claims against the contractor for

cleaning of their personal property. The trial proceeded upon their claims against the contractor who

repaired the fire damage in their home, and the trial court entered a judgment for $650.00 in favor

of the homeowners. Because the appellate record includes no record of the evidence taken at trial,

we must presume the trial court’s findings were supported by the record. Accordingly, we affirm

the trial court’s judgment. 

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

Affirmed and Remanded

PATRICIA J.COTTRELL,J., delivered the opinion of the court, in which BEN H.CANTRELL,P.J.,M.S.,

and WILLIAM C. KOCH, JR., J., joined.

Mohammad D. Hussaini, Nashville, Tennessee, Pro Se.

Mark S. LeVan, Nashville, Tennessee, for the appellee, Grange Mutual Casualty.

OPINION

This action arose out of a fire at plaintiffs’ home. Their insurance carrier apparently

contracted with Alden Ward d/b/a Master Craft/Master Clean to perform repair and cleanup services

at the home and with Kenneth Lewis to remove, clean and store certain personal property damaged

by the fire, including furniture and expensive rugs. The plaintiffs sued all three alleging: (1) that

Grange Mutual Casualty Company had failed to promptly pay for damages resulting from the fire,

thereby breaching 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 damage and had, by failing to
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exercise reasonable care, caused further damage to plaintiffs’ property, including a hot water tank,

and (3) that Kenneth Lewis removed personal property from the plaintiffs’ home to clean and repair,

but had disposed of the property valued at over $18,000, without notice to the plaintiffs, because the

insurance company failed to pay for storage of the articles. 

Prior to trial, plaintiffs compromised and settled the claim against Grange 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 prejudice of the claim against Kenneth

Lewis. 

Trial was held on the claim against Alden B. Ward d/b/a Master Craft/ Master Clean. The

trial court’s final order states:

After hearing testimony 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 preponderance of the evidence that they are entitled to damages 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 nominal

damages in the amount of $650, constituting the amount remaining to complete

repairs to the plaintiffs’ home pursuant to the contract with the defendant Alden

Ward. 

The court entered judgment against Alden Ward, d/b/a Master Craft/ Master Clean for

$650.00 and ordered the claim against Kenneth Lewis dismissed without prejudice to refiling. 

The plaintiffs have appealed, appearing pro se. The record before us includes only the

Technical Record and the exhibits introduced at trial, but without any record of the evidence

explaining those exhibits. Neither a transcript of the trial nor a statement of the evidence has been

filed pursuant to Tenn. R. App. P. 24. This limited record precludes our review of any factual issues.

On appeal, the homeowners complain they have not received the repairs due them under their

insurance policy, that Mr. Lewis retained and disposed of valuable personal property, and that Mr.

Ward damaged their home and failed to properly make necessary repairs. Their arguments against

the insurance company cannot be considered because they settled their claim against Grange Mutual

Casualty Company as evidenced by an order of compromise and settlement dismissing all claims

against Grange with prejudice. No claims against the insurance company were tried or were the

subject of the order appealed from.

Similarly, the homeowners’ arguments concerning Mr. Lewis’s disposition of their personal

property are also not properly considered in this appeal because those claims were not part of the

issues tried and decided by the trial court. The court’s final order dismisses, at plaintiffs’ request,

the claims against Mr. Lewis, without prejudice to refiling. Because the homeowners took a

voluntary nonsuit before the trial began, the claims against Mr. Lewis were not tried and not ruled
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upon by the court. The homeowners could have re-filed their lawsuit against Mr. Lewis, which

would have been the appropriate way to proceed with their claims against him. 

As to the claims against Alden Ward, the homeowners argue they sustained great damage to

their home because of Mr. Ward’s improper repair attempts and that some repairs remain undone.

We interpret these statements as an argument that the evidence preponderates against the trial court’s

finding that the plaintiffs proved only nominal damages of $650.00. 

Where the issue on appeal is one of fact, this court must be presented with a record that

allows us to make the review necessary under Tenn. R. App. P. 13. Because our jurisdiction is

appellate only, our review power is limited to those factual and legal issues for which an adequate

legal record has been preserved. 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 prepare an adequate record in order to allow meaningful

review on appeal. Tenn. R. App. P. 24(b); State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983);

McDonald v. Onoh, 772 S.W.2d 913, 914 (Tenn. Ct. App. 1989). Allegations contained in pleadings

are not evidence. State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). Recitations of

the facts contained in a brief, or arguments 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 unless the evidence in the record preponderates against them. Tenn. R. App. P. 13(d).

Where factual issues are raised, without an appellate record containing 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. 1992). Therefore, in such cases, we must assume that the

record, had it been preserved, would have contained sufficient evidence to support the trial court’s

factual findings. Id.; McDonald, 772 S.W.2d at 914; Gotten v. Gotten, 748 S.W.2d 430, 432 (Tenn.

Ct. App. 1988); Irvin v. City of Clarksville, 767 S.W.2d 649, 653 (Tenn. Ct. App. 1987). 

The issues raised by the homeowners with regard to the judgment against Mr. Ward involve

the sufficiency and preponderance of the evidence underlying the trial court’s findings. We must

conclusively 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 judgment of the trial court is affirmed. Costs are taxed to the appellant, Mohammad D.

Hussaini. 

___________________________________ 

PATRICIA J. COTTRELL, JUDGE