# FILED
February

28, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

FRANK SMITH, ) ) Plaintiff/Appellee, ) ) Fentress Circuit ) No. 7240 VS. ) ) Appeal N o. ) 01A01-9602- CV-00077 STONEY C. DUNCAN, ) ) Defenda nt/Appella

nt. )

APPEAL FROM THE CIRCUIT COURT FOR FENTRESS COUNTY

AT JAMESTOWN, TENNESSEE THE HONORABLE CONRAD TROUTMAN, JUDGE

For the Plaintiff/Appellee : For the Defen dant/Appel lant : Michael A. Walker John E. Appman Jamestown, Tennessee Jamestown, Tennessee



## AFFIRMED AS MODIFIED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE1 Tenn. Ct. A pp. R. 10(b ) provide s as follow s: The Court, with the concurrence of al l j udges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a f

ormal opin

ion would have no precedential value. When a case is dec ided by memorandum opinion it shall be designated “MEMORANDUM OPINION,” shall not b e published, and sha ll not be c it ed or r elied on for any reason in a subsequent unrelated case.
2 We are unable to discern what transpired at this hearing beca use the parties have filed neither a verbatim transcript of the proceedings nor a statement of the evidence. -2- 

## MEMORANDUM OPINION

This appeal inv olves the c ompensatio n of three deputy cle

rks employed by the clerk of

the Circ uit

Court for Fentress County. In response to a petition filed pu rsuan tto Tenn. Code Ann. § 8-20-101 ( 1993), the Circuit C ourt for Fentress County entered a

n order on O ctober 12, 1995, rai s ing the annual sal ary of the three deputy cl erks to $1 7,665.00 effective Ju ly 1, 1995

. The Fent ress County executive takes issue

on this appe al with the

evidentia ry founda tio n of the trial court’s opinion. W e have det ermined t hat the tri al court’ s decision s hould b e affirmed as modified in accordance with Tenn. Ct. App. R. 10(b). 1

I.
On June 22, 199 4, the Chanc ery Court for Fentress County entered an order setting the salar

ies of the deputy cler

ks employed

in the Fent

ress County Trustee’s office. After the Fentr

ess County C ommission

de clined to pr

ovide compa

rable salary increase s to the thre e deputy cl erks empl oyed inhis office, the Cler k of the Circuit Court for Fentress County file d a petition to “equaliz e” his deput

y clerks’ salaries with “the

salarie s establish ed for othe r deputy cl erks within the Fent ress County courthouse.” The Fent ress County

executive

answere d the petiti on contending that the a

ffected deputy clerks should be paid as Deputies I, II, and III in accordance with the chancery court’s June 22, 1994 order.
The trial court conducted a hearingof some sor t on August 15 , 1995. 2 On October 12, 1995, the trial court entered an order reciting t he many duti es of the-3-

circuit court clerk’s office and setting the salary of three dep uty clerks at $17,665.00

per year . The c ounty execu tive has ap pealed fr om this dec ision.
II. Appeals in cases of this sort are to be treated no differently than any other lawsuit. Dulaney v. McKa mey, 856 S.W.2d 144, 146 (Tenn. Ct. App. 1992). Accordi ngly, the appell ants have the burden of establi shing wher e error exists in the appellate record. Louisville& Nashville R.R . v. Co nnor, 56 Tenn. (9 Heisk.) 19, 24 (1871); HohenbergBros. Co. v. Missouri Pac. R.R., 586 S.W. 2d 117, 119 (Tenn. Ct. App. 197 9). Thus , un less plain e rror appe ars on the f

ace of the p le adings or other pa

pers file d with the t

rial cour t, appell ants must pr

ovide the appellate court wit h a recor d that inclu des a tra

nscript or statemen t of the evidence containing the portion s of theproceedi ngs relating t o the issues it intends toraise on appeal. S ee Tenn. R. App. P. 24(b) , (c). Without thi s record, the appell ate courtmust presu me that the verdict or

judgment

is proper, Kincaid

v. Bradshaw, 65 Tenn. 10 2, 103 (1973 ), and that the r ecord, h ad it been p reserve d, would have contained evidence to support the verdict or jud gment. J. C. Bradford & Co. v. Martin Constr. Co ., 576 S.W. 2d 586, 588 ( Tenn. 197 9); Leek v. Powell, 884 S.W.2d 118, 121 (Tenn. Ct. App. 1994).
All the issues sought to be raised by the county executive

in this case

relate to the reception of e vidence by the trial court. The parties’ respective briefs contain dif

ferent ve rsions of the proc eedings b efore the tri al court. Regretta bly, the appellate record, limited only to the pleadings and papers filed in the trial court, provides no b asis for t his court todetermin e what a ctually tr anspired. Therefore, we must pr

esume that

sufficie nt, competent proof was pre sented to th e trial court to support the factual findings in the October 12, 1995 order.
III.
The trial cour

t’s opinion a

lso awar ded the law yer repr

esenting the

circuit courtclerk a $250.00 fee for his services. While the lawyer unquestionab ly rendered services warra

nting compe nsation, T enn. Code Ann. § 8-20-107 (1993)-4-

does not empowe

r the tria l court to a

ward att orney’s f ees again stthe countyor its represe ntatives. Moore v. Cates , 832 S.W.2d 57 0, 572 (Tenn

. Ct. App. 1992). Any such awa

rd, if m ade, must

be paid out of the f

ees colle cted by the

petitioning public officia

l. Jenkins v . Arms trong , 31 Tenn . App. 3 3, 37-38, 211 S.W. 2d 908, 910 (1947); T enn. Code

Ann. § 8- 20-107. A ccordingly , the judgm ent should

be modified on remand to permit t he circui t court cle

rk to defray his court-approved legal expenses f

rom the fe es he colle cts inaccorda nce with T enn. Code

Ann. § 8- 20-107.
IV.
We affirm

the judgment as modified a nd remand t

he case tothe trial court for further proceedin gs. We ta x the costs o f this a

pp eal in equa

l proportion s to Ston ey C. D uncan and to Frank Smith for which execution, if necessary, may issue.

_________ __ _________________ WILLIAM C. KOCH, JR., JUDGE
CONCUR:

_________________

_______________ HENRY F. TODD, P.J., M.S.

_________________

_______________ BEN H. CANTRELL, JUDGE