### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE February 1, 2

001 Session
ESTATE OF NA

N FRANCIS v

. KARL FRA

NCIS
Appeal from the Chancery Court for Cheatham County No. 9193 Leonard Martin, Chancellor

No. M2000-01110-COA-R3-CV - Filed June 18, 2001

This appeal involves a

dispute between a

widow and her st

epson r egarding the disposition of a jointly owned certifica

te of deposit. After her stepso n liquidated the ce

rtificate of dep

osit and used the proceeds to obtain another certifica te o f deposit in his own name, the widow filed suit in the Chancery Court for Cheatham County seeking her share of the funds. The stepson filed a counterclaim,

all eg ing that the widow had contributed to his father’s death by failing to provide needed medical care

and seeking re

imbursement for hi

s father’s fune

ral expenses. The widow died while the suit was pending, and her estate was substituted asa party. After dismissing the stepson’s wrongfuldeath claim, the tr ial court determi

ned that the wid

ow’s e state and her ste

pson should receiveequal shares of the proceeds of the account remaining after the pay ment of a joint debt of the widow’s husband and her stepson and that the widow’s estate should reimburse the stepson for the expenses he incurred in connection with his fa ther’s fune ral. On this appea l, the widow’s esta

te asserts that the trial court erred by ordering that the funds in the a ccount be used to repay the joint debt and by orde

ring it to reimb

urse th e stepson for his father’s funeral expenses. We have determined that the trial court properly distributed the proceeds of the deposit account. However,
we have also determined that the trial court erred by directing the widow’ s estate to reimburse the stepson for his fa

ther’s funeral

expenses. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part and Reversed in Part

W ILLI AM C. K OCH , J R ., J., delivered the opinion of the court, in which W ILLI AM B

. C AIN an d P ATRICIA J. C OTTRELL , JJ., joined.

Charles Galbrea

th, Nashville, Ten

nessee, for the a

ppellant, Estate o

f Nan Francis.

Robert L. Perr

y, Jr., Ashlan

d City, Tenne

ssee, for the app

ellee, Karl Fr

ancis.
OPINION

On February 9, 1987, Joseph G. Francis used $100, 000 of his own funds to obtain a certificate of deposit from the Cheatham State Bank. In addition to listing himself as the certificate’s
owner , Mr. Francis dire

cted the bank to lis

t his son, Karl Fra

ncis, as a joint own

er with a right o f1 The nature and purpo se of these loans is somewha t unclear. Eve n though the lo an docum ents were signe d only

by Karl Francis, the bank ap parently considered the loan s to be the joint obligations o f Mr. Francis and K arl Francis. The trial cour

t found as fac

t that the certificate o f deposit “wa s pledged to the issuing ba nk to secure a l oan of Joseph Francis and Defenda nt at the bank.”

2 Nan Francis was not Karl Francis’s mother.

3 Even though the ce rtificate of dep osit was jointl y owned, the t

erms of the account

requiredonly one signature to liquidate the account.

4 The court

enter ed an orde

r on October 12, 19 99, dis missi ng the wrongf ul deat h clai m.
5 The trial

court f iled a dec

ree confor

ming to i ts opini on on January

30, 2000.
-2- survivorship. Shortly thereafter, Mr. Francis used the certificate

of deposit as security for a series of loans made to his son. 1 In August 1994, Mr. Francis added his wife, Nan Francis, as a joint owner of the certificate of deposit with a right of survivorship. 2 Mr. Fra ncis periodically renewed the certificate of deposit, and the bank continued to hold it as security until Mr. Fra ncis’s death on January 2, 19

97. Neither Ms. Fr

ancis nor Karl Franc

is ever contribut

ed funds to this

certificate of deposit.

Four day s a fter Mr. Francis’s death, Karl Francis liquidated the certificate of deposit and used the proceeds to purchase a certificate of deposit in his own name. 3 He conceded later that he took these steps solely to prevent Ms. Francis from obtaining any of these funds. The bank continued to hold the new certific

ate of deposit

as security for the

outstanding loans. Around this same time, Karl Francis paid $5,

484.60 to cover al

l his father’s fun

eral expenses.

Ms. Francis filed suit in the Chancery Court for Cheatham County on July 28, 1997, seeking her share of the certificate of deposit. Karl Francis denied that she was entitled to any portion of these funds, all eged that Ms . Francis had contribut ed to his fa ther’s deat h by failing t o rende r appropriate

medical care, 4 and demanded that she reimburse him for Mr. Francis’s fune

ral expenses. A fter Ms. Francis died

on October 8, 1997 , the trial court su bstituted her esta

te as a party

to this litigation. Following a benchtrial in late September 1999, the trial court entered an order on October 12, 1999, fi nding th at the disputed funds had been “Joe Francis’ money” and that “neither K arl Francis nor Nan Francis made any contribution to the Certificate of Deposit.” Accordingly, the trial court directed the parties to s ubmit brief s “regarding the disposition of the net proceeds of the $100,000.00 Certificate of Deposit after the pa yment of the loan upon which said Certificate of De posit is pledged.” On

December 17, 19

99, after the par

ties had submitted th

eir briefs, the tria

l court filed its opinion con

cluding that the d

isputed funds should

be used to repay

the bank’s loan to Mr. Francis and Karl Francis and that Ms. Francis’s estate and Karl Francis were entitled to equal shares of the remaining funds. The trial court also ordered Ms. Francis’s estate to pay $5,484.60 to Karl Francis to

reimburse him for

his father’s fun

eral expenses. 56 The rec o rd contains no evi dence regarding whet

her Mr. Francis die

d testate or intestat

e, whether he h

ad an estate,or whethe

r an execut

or or administ

rator was ever a

ppointed t

o administ

er whatev

er estat e he had. We in

fer fr om this record, that the bulk of Mr. Francis’s assets passed by operation of contract l aw at his death.

7 While Karl Fran cis later charac terized this po rtion of the estate ’s motio n as partiall y “uninte lligibl e,” we presume that

this reques

t for reli ef was based on the premise that Mr. Francis was liable to the ba nk for only on e-half of the joint debt. We need not address this question to decide this opini on. -3- Ms. Francis’s estate filed a motion to alter or amend the judgment requesting the trial court to order Mr. Fran

cis’s estate

6 to reimburse Karl Franc is for his fat her’s funeral e xpenses and to deduct only one-half of the outstanding loan balance fr

om the proceeds o

f the certifica

te of deposit. 7 On March 16, 2000, Ms. Francis’s estate moved for Tenn. R. Civ. P. 11 sanctions agai nstKarl Francis because of

its belief that Karl Francis had misled the estate and the court regarding the nature of the loans secured by the certificate of deposit. Therea fter, on April 14, 2000, Ms. Francis’s estate also requested the trial court to direct Karl Francis to pay over her share of the net proc eeds from the certificate of deposit. The trial court entered an order denying the estate’s

motion to alter or amend andstriki ng its motion for sanctions on April 20, 2000 and, on May 30, 2000, denied the estate’s motion requesting

the immediate pay

ment of the net pro

ceeds.

Ms. Francis’s estate perfected an appeal but did not provide a verbatim transcript of any of the proceedings in the trial court. Accordingly, Karl Francis’s attorne y presented a statement of the evidencethat was app rov ed b y the tri al c our t on Jul y 24, 200 0. F ive days later, Ms. Franc is’s estate requested the trial court to amend the statement of the evidence b y adding a document appar

ently prepared by the bank that calculated the estate’s share of the proceeds from

the certificate

of deposit. Karl Francis objecte

d to inclu ding this document in the record on the ground that it had been prepared more than six months after the trial and three months after the trial court had fi led its opinion deciding the case. After conducting a he

aring in late

September 2000, the trial court filed
an order on October

10, 2000, deny

ing the estate’ s motion to add the document to the statement of the evidence.

I. S TANDARD OF R EVIEW
We turn first to the proper standards of review. Because this is an ap peal from a decision made by the trial

court itself following a bench trial, the now familiar stan

dard in Tenn. R. Ap

p. P. 13(d) governs o

ur review. This rule contains different standards for reviewing a trial court’s decisions rega

rding factual q

uestions and leg

al questions.

Withregard

to a trial c ourt’s findings o f fact, we will re

view the record

de novo and will presume that the findings of fac

t are correct “

unless the preponderance of the evidence is otherwise.” We will also give great weight to a trial court’s factual findings that rest on determinations of cred ibi lit y. Estate of Walton v. Young , 950 S. W.2d 956, 9 59 (Tenn. 1997). However, if the trial judge has not made a spe cific finding of

fact on a partic

ular matter, we r

eview the recor

d to determine where the prepo nderance of the

evidence lies wit

hout employin

g a presumpti

on of correctness. Ganzevoort v. Rus sell , 949 S.W.2d 293, 296 (Tenn. 1997).-4-

Reviewing findings of fact under Tenn. R. App. P. 13(d) requires an appellate c ourt to wei gh the evidence to dete

rmine in which party’s favor the weight of the aggregated evidence falls. Coles
v. Wrecker

, 2 Tenn. Cas. (Shann

on) 341, 342 (1877) ; Hohenberg Bros. Co. v. Missouri Pac. R.R. , 586 S.W.2d 117, 119 (Tenn. Ct. App. 1979). There is a “reasonable probability” that a proposition is true when thereis more evidence in its favor than there is against it. Chapman v. McAdams , 69 Tenn. 500, 506 (1878); 2 McCormick on Evidence§ 339, at 43 9 (John W . Strong ed., 4 th Practitioner’s ed. 199 2) (stating that “th e existence of a c

ontested fact is mo

re probable than

its nonexistence”). Thus, the prevailing party is the one in whose favor the evidentiary scale tips, no matter how slightly. Bryan v. Aetna Life Ins. Co. , 174 Tenn. 602, 611, 130 S.W.2d 85, 88 (1939); McBee v. Bowman , 89 Tenn. 132, 140, 14 S.W. 481, 483 (1890) ; Chapman v. McAdams , 69 Tenn. at 503. Tenn. R. App. P. 13(d)’s presumption of correctness requiresappellate court s to defer to a trial court’s findings of fact. Taylor v. T rans AeroCorp. , 924 S.W.2d 109, 112 (Tenn. Ct. App. 1995); Weaver v. Nelms , 750 S.W.2d 158, 160 (Tenn. Ct. App. 1987). Because of the presumption,
an appellate court is bound to leave a trial court’s finding of fact undisturbed unless it determines that the aggregate weight

of the evidence demonstrates that a finding of fact other than the one found by the trial court is more probably true. Estate of Haynes v. Braden , 835 S.W.2d 19, 20 (Te nn. Ct. App. 1992) (holding that an appellate court is bound to respect a trial court’s findi ngs if it ca nnot d etermine that the evidenc e preponderate s otherwise). Thu

s, for the evidenc

e to prepondera

te against
a trial court’s finding of fact , it must support anothe

r finding of fac

t with greater c

onvincing effe

ct.
The presumption of correctness in Tenn. R. App. P. 13(d) applies only to findings of fact, not to conclusions of law. Accordingly, appellate courts review a trial cour t’s resolution of legal issues withouta presumption of correctness and reach their own independent conclusions regarding th

ese issues. Nutt v. Champion Int’l Corp. , 980 S.W.2d 365, 367 (T enn. 1998); Presley v. Benne tt , 860 S.W.2d 857, 859-60 (T

enn. 1993); Hicks v. Cox , 978 S.W.2d 544, 547 (Tenn. Ct. App. 1998). Appellate courts review a trial court’s finding of fact as a legal matter in one circumstance. When a fi ndi ng of fact is b ased on u ndi spu ted evi den ce t hat can r easo nab ly supp ort only one conclusion, we will review that finding on appea

l without Tenn. R.App. P. 13(d)’s presumption of correctness. Hamblen County Educ. Ass’n v. Hamblen County Bd. of Educ. , 892 S.W.2d 428, 431 (Tenn. Ct. App. 1994); Tennessee Farmers Mut. Ins. Co. v. America n Mu t. Liab. Ins. Co. , 840 S.W.2d 933, 936 (Tenn. Ct. App. 1992).

II.

U SE OF THE C ERTIFICATE OF D EPOSIT T O P AY THE B ANK ’ S L OAN
Ms. Francis’s esta

te first asserts that the tr ial court erred

by deciding

that the debt to Cheatham

State Bank should b

e deducte d f rom the proceeds of the certificate of deposit before dividing them between the parties. Instead, the estate argues that the proc eeds should be divided first and tha t the bank should look only to Karl Francis for pay ment of the debt. This argument i s pr emisedon the estate’s belief that the evidence does not support the trial court’s find ing that the debt for which the certificate of deposit was security was the join t debt of Mr. Francis and Karl8 None of the ac count in formati on attached to Ms. Francis’s estate’s March 16, 2000 motion for sancti ons was admittedas evidence during the September 2 9 , 1999 hearing. Because these materi als were not proper

ly admitte

d as evidence durin

g the S eptemb er hearing o r included in the record as part of a proper Tenn. R. Civ.P. 59 motion, we cannot consider them in conjunction with our inquiry into whether the evidence pre ponderates against the trial court’s finding that the loa ns to Chea tham State B ank were the joint debts o f Mr. Fran cis and Ka rl Francis.

9 Even though

Mr. Francis

and Karl Fran

cis may h

ave star ted borrowi

ng from Chea

tham Stat

e Bank in 1987, the exhi bits i ncluded wi

th the s tatement of the evidenc e indicate that Karl Fr ancis may hav

e used t he proce eds fr om a loan or a renewal of a loan in 1990 to acquire sto ck in Ryan’s Family Steak Houses, Inc. which was conveyed to Mr. Francis and his

wife.

10 We glean this intent

from the undisputed fact that Mr. Francis i nstructed the bank to include b oth Ms. F rancis and Karl Fran

cis as ow

ners of t he certi ficat e of deposi

t with right s of sur vivorsh ip.
-5- Francis. We have dete rmined tha t the evide nce does not preponderat e aga ins t the trial court’s finding that “[t]he certif

ica ted account was pledged to the issuing bank to secure a loan of Joseph Francis and . . . [Karl Francis] at the bank.”

In the absence of a transcript of the proceedings in the trial cour t, the evidence for the purposes of this appea l c onsists of the statement of the evidence and the twelve exhibits admitted into evidence and co

nsidered by

the trial court. 8 These

materials provide little information regarding the original amount

of these loans, the

ir purpose, their

repayment history, or the exact balanc e of the loans at the time of Mr. Francis’s death. 9 However, according to the statement of th

e evidence, both Karl Francis

and Joseph G. Scott, the preside nt of Cheatham State

Bank, testified t

hat the certific

ate of deposit “was pledged to the Cheatham State Bank to secure the indebtedness of Joseph G. Francis and Karl Francis payable to the bank.” Mr. Scott also testified the certific ate of deposit “has thereafter been continuously

pledged to se

c ure the indebtedn

ess and renewal

s thereof.” This testim ony provides a sufficient evidentiary basis for the trial court’s finding that the loans a t the Cheatham State Ba

nk were joint oblig

ations of Mr. Fra

ncis and Karl Fr

ancis.

Based on its finding that the Cheatham State Bank loans were joint obligations o

f Mr. Francis andKarl Francis, the trial court decided that

the jointly owned certificate of deposit used to secure these loans should be used to repay the bank and that the r

emaining funds sh

ould be divided equ

ally betweenMs. Francis and Karl Francis. This co

nclusion is amply

supported by

the evidence an

d is consistent with Mr. Francis’s apparent intent that bothhis wife and son should share in the proceeds of this account upon his death. 10

III. M R . F RANCIS ’ S F UNERAL E XPENSES
Ms. Francis’s estate also takes issue with the trialcourt’s decision requiring Ms. F

rancis to pay Karl Francis $5 ,484.60 to reimbur se him for the cost

of Mr. Francis’s f

uneral. The esta

te insists that Ms. Francis shoul

d not have been fo

und to be personal

ly liable to K

arl Francis for

these expenses because they should have been paid by Mr. Francis’s “solvent estate.” We find no merit to this argument because the record contains no evidence that Mr. Francis left behind a solvent11 We have excl uded the poss

ibili ty tha t Ms. Franci

s agreed t

hat Karl Fr

ancis wou

ld be reimb ursed for his fath er’s medical expens es becau se Karl Franci s did no

t all ege th e exis tence of suc

h an agr eement in hi s count

ercla im. He simply asserted that Ms. Fra ncis had “consis tentl y refus ed to pay t

he necess ary and re

asonable f

uneral e xpenses of her husban

d.” In her ans wer to Ka

rl Fra ncis’ s count

ercla im, Ms. Francis

admitte d that s he did not

pay for M r. Francis’s funeral expenses bu

t alle ged that she did not

do so because Karl Francis had prevented her from arranging for the type of funeral that her husband had requested. The record contains no evidence substantiat ing the factual allegat

ions of either Karl Francis or M s. Francis.
-6- estate. However, we have determined that the judgment for Karl Francis cannot stand because he failed to proved a

ll the necessary

elements of his cla

im for reimbursem

ent.

Issues regardi ng th e responsibility for paying

a decedent’s fu

neral expenses imp

licate common-law and statutory principles. Resolving these issues is heavily fa ct-dep endent. Thus, determining the ult ima te r esp ons ibi lit y for payi ng a decedent’s funeral expenses requires as certaining (a) the decedent’s marital status at the time of his or her death, (b) whether the decedent die

d testate
or intestate, (c) th

e provisions in the d

ecedent’s will f

or th e payment of

funeral expenses if the decedent died testate, (d) the solvency of the decedent’s estate, (e) whether the funeral expenses were pre-paid or covered by

insurance, (f)

the reasonable

ness of the funeral expenses in light of the decedent’s station in life, and (g) the authority of the person actually procuring the funeral services to bind the decedent’s estate.

The record in this case contains none of this information. Whether it is due to the inadequacy of the statement of

the evidenceor the oversigh t of counsel in pre

senting their ca

ses, the only

facts
we can glean fro

m this record relevant to the responsibility for paying Mr. Fr ancis’s funeral expenses are (1) that

Mr. Francis died on January 2, 1997, (2) that Mr. Francis was survived by a wife and a
son from a previous marriage, and (3) that Mr. F rancis’s son paid

$5,484.60 for his f

ather’s funera

l. The record provides no insight regarding who actually made the funeral arrangements, the terms of the contract

with the funeral director, the reasons why Karl Fra ncis paid for his father’s funeral, Karl Francis’s expectation that he would be reimbursed, or the status of Mr. Francis’s marriage when he died.

The current , expanded version of the common-law

necessaries doc

trine provides a l

egal basis forrequ iring Ms. Franc

is to reimburse Ka

rl Francis for M

r. Francis’s fu

neral expenses. 11 Ear l y common law imposed upon a husband a legal duty

to provide his

wife with the necessaries of life accordingto their station. State v. Dixon , 138 Tenn. 195, 198, 196 S.W. 486, 486 (1917). Included among these necessar

ies were the wif

e’s medical expen

ses as well has h

er fun eral expenses. Simpso n v. Drake , 150 Tenn. 84, 86, 2 62 S.W. 41, 49 (1923); St. Joseph Hosp. v. Pinson , Shelb y LawNo. 65, 1986 WL 2576, at *1 (Tenn. Ct. App. Feb. 28, 1986) (No Tenn. R. App. P. 1 1 application filed) ; see also Ison v. Sch ettino , 1 99 S.E.2d 89, 94 (Ga . Ct. App. 1973); Charles Melbourne & Sons, Inc

. v. Jessett

, 163 N.E.2d 773, 775 (Ohio Ct. App. 1960); In re Estate of Nicholas , 107 S.E.2d 53, 55 (W. Va. 1959). Thus, unless a wife’s will or a statute provided to the contrary, the surviving hus

band was primaril

y liable for

his wife’s funer

al expenses.12 The T enne sse e Ge neral Ass embly has

recogniz

ed the scope

and operati

on of the current

doctrine

of necessaries in Tenn. Code Ann. § 47-18-805 (1995).

13 Funera l arrangem ents are custo marily made by the dece dent’s surviving spouse, oth er next of kin, o r th e executor or administrator of the decedent’s estate. Wh en these persons have not attende d to the funeral arrangements, others may make the arrangem ents. Johnson v. Hailey , 204 Tenn. 664,669-71, 325 S.W.2 d 255, 2 57 (195 9); Nashville Trust Co. v. Carr , 62 S.W . 204, 20 5-06 (T enn. Ch. Ap p. 1900 ); Steger v. F rizzell , 2 Tenn. Ch. Rpt. 369, 370 ( Davidson Ch. 187 5).

14 Johnson v. Hailey , 204 Tenn. at671, 32 5 S.W .2d at 256 ; Wiles Bros . & Co. v. Wynne , 139 Tenn. 397,399, 201 S.W. 5 15, 515 (1918) ; Fite v. Beasley , 80 Tenn. 328,330 (1883) ; Stephens v . Mason , 1 Tenn. App. 246, 250 (192 5).

15 Claims against an es

tate for t he decedent’s rea

sonable funeral

expenses have statutorypriority over all other claims except cl

aims for taxes an

d administ

ration e xpenses.Tenn. Code Ann. § 30-2-317 (a)(3) ( Supp. 2000) (establishing

the priority of cla

ims in a probate proceeding); Tenn. Code Ann. § 31-2-103 (Sup p. 2000) (authorizing the
use of the deced ent’s real prop erty to be used to pay his or her fu neral ex penses); Tenn. Code Ann. § 31-4-101(b) (Supp. 2000) (giving funeral e xpenses priority over a surviving s pouse’s elective share); Tenn. Code Ann. §§ 45-2-708(a)(2)(A), -3-514(a)(2)(A), -4-405( a)(2)( A) (2000) (esta

blishing t

he pri ority

of paym e nts for funeral

expenses from account s at certain financia l institutions when no executor o r administrato r has been a ppointed ).

16 The necessaries doctrine operates quite diff erently when the spouses are not li ving together

. Kilbourne v. Hanze lik , 648 S.W .2d at 934 (Harbiso n, J., concurr ing); Sc ott County H osp . v. Cars on , Scott Law No. 35, 1989 WL 9528, at *1 (Tenn. Ct. App. Feb. 10, 1989) (N o Tenn. R. App. P. 11 application filed).
-7- Untilrelatively recent times, the common law did not imp ose a similar support obligation
on a wife. For outmoded, chauvinistic reasons, the common law absolved the wife of responsibility for providing necessaries for her husband. This gender-based dichotomy vanished in 1983 when the TennesseeSupreme Court expan ded the common-la

w necessaries d

octrin e to impose mutual support obligations on both

husbands and wives. Kilbourne v. Hanze lik , 648 S.W.2d 932, 934 (Tenn. 1983); Baptist Mem’l Hosp. v. Durden , No. 0 2A01 -9411-CV-00260, 1 995 WL 593076, a t *1 (Tenn. Ct. App. Oct. 10, 1995), perm. app. granted (Mar. 25, 1996), app. dismissed by stipulation (Tenn. Apr. 18, 1996). Thus, in Ten

nessee, a surviv

ing spouse is resp

onsib le fo r providing for the necessaries of his or her deceased spouse, including funeral expenses, if they a re not paid by the deceased spouse’s estate. See Outpatient Diagnostic Ctr. v. Christian , No. 01A0 1-9510-CV -00467, 19

97 WL 210842, at 3 n.2 (Tenn. Ct. App. Apr. 30, 1997) (No Tenn. R. App. P. 11 application filed). 12

Karl Francis may

obtain reimburse

ment from his step-

mo ther for h is father’s funeral expenses if he provided necessaries to his father in good faith. Davis-Turner Funeral Home v. Chaney , 573 N.E.2d 1242, 1244 (Wilmington Mun. Ct. 1991) (requiring a widow to reimburse her step-son for her

husband’s funeralexpenses). To prevail using this theory, Karl Francis must prove: (1) that he was justifiedunder the circum stances in making

his father’s fun

eral arrange

ments, 13 (2) that the fu neral expenses were reasonable in light of the decedent’s station in life, 14 (3) that the decedent left behind no estate or that the decedent’s estate is insufficient to pay the funer a l expenses, 15 and (4) that Mr. Francis and his wife were not separated when he died or, if they were separated, that

the separation w

as Ms. Francis’s

fault. 1617 Wilson v. Johnson , 566 S.W .2d 855 , 857 (T enn. 197 8); King v. King , 986 S.W.2d 216 , 220 (Tenn. Ct. App.

1998) ; Irvin v. City o f Clarksville , 767 S.W.2d 649 , 653 (Tenn. Ct. App. 1988).

18 Anderson v. Shar

p , 195 T enn. 274 , 281, 25 9 S.W .2d 521 , 523 (19 53); Scarbrough v. Sc arbrough , 752 S.W.2d 94, 97 (T enn. Ct. Ap p. 1988 ); Sparkle Laundry & Cleaners

, Inc. v. Kelton , 595 S.W.2d 88, 94 (Ten n. Ct. App. 1979)

. 19 The appeal b y Ms. Fran cis’s estate would have been subject to d ismissal u nder Te nn. R. App. P. 26(b) because of the failure

to fi le ei ther a trans cript or sta tement of the eviden ce wit hin t he ti me requi red by Ten

n. R. App. P. 24(b), (c).

20 In fact, Karl Fra ncis did req uest the trial cour t to correct the state ment o f the evidence. However, the corrections he requested involved the disputed certificate of dep osit, not the disputed funeral expenses.
-8- The appellate record, as we have already pointed out, contains virtually no evidence relevant to Karl Francis’s claim for funeral expenses or, for

that matter, Ms. F

rancis’s defen

se to that claim. As a general matt

er, we will p

resume that the evidence presented at trial supports the trial court’s decision either when no transcript or statement of the evidence has been include d in th e appellate record, 17 or

when the record shows that the transcript or

statement of the e

vidence does not c

ontain all the evidence presented to the trial judge. 18 We cannot invoke the presumption in this case because the record contains a statement of the evi dence prepared by Karl Franc is’s lawyer and certified by the trial court that purports to be “correct in respec t to those issues on appeal.”

The appellate rules place the initial responsibility for preparing a statement of the evidence
on the appellant. Tenn. R. App. P. 24(c). We do not know why the lawyer

for Ms. Francis’ s estate failedto discharge this ob ligation or w hy the lawyer for Ka rl Francis filed a statement of the evidencewhen Ms. Francis’s estate failed to do so. 19 Based upon the certification that the statement of the evidence is “correct,” we must presume that it contains a full and accurate a ccount of what transpiredin the trial court with regard to the issues being raised on appeal. If it did not, the parties should have reque

sted the trial cour

t to correct it. 20

In light of the conte

nts of this record, we can only conclude that Karl Fra ncis did not put on sufficient evidence to support his claim for reimbursement of his father’s funeral expenses. As the claimant, he had the burden of provi ng each of the elements of his cause of action. Winford v. Hawissee Apartment Complex , 812 S.W.2d 293, 296 (Tenn. Ct. App. 1991). A claimant’s failure to carry its burden of proof requires the claimant to shoulder the loss. Howa rd v. Howard , 991 S.W.2d 251, 255 (Tenn. Ct. App. 199 9); Stockburger v. Ray , 488 S.W.2d 378, 382 (Tenn. Ct. App. 1972).

We have reviewed t he evidence in

the record in accordance with Tenn. R. App. P. 1 3(d). We findno evidence in the record substantiating Karl Francis’s claim for reimbursement for his father’s funeral expenses. Accordingly, we conclude that the evidence do es no t support the trial court’s decision to order Ms. Francis to pay $5,484.60 to Karl Francis. Therefore, we reverse this portion of the judgment and, on remand, direct that an order be entered dismissing this claim with prejudice.-9- IV.

We affirm the portion of the judgment regarding the parties’ claims involving Mr. Francis’s $100,000 certificate

of deposit and rev

erse the portion o

f the judgment dir

ecting Ms. Fra

ncis to pay Karl Francis $5,484.60. We remand the case to the trial court for whatever fur ther proceed ings consistent with this opinion are required. We tax the costs of this appeal in equal proportions to the Estate of Nan Francis and its surety and to Karl Francis for which execution, if n eces sar y, may issue. 

# 123

WILLIA M C. KOCH, JR., JUDGE