1 Rule 10. Affirmanc e Without Opinion

- Mem orand um Op inion. (b) M EMORA NDUM O PINI

ON
. The Co urt, with the concurrence of all judges parti cipating in the case, may affi rm, reverse or modify the actions of t he trial court by memora ndum op inion when a formal op in ion would have n o precedenti al valu e. When a case i

s decided by memorandum opinion it s hall be des ig nat

ed “ MEMO RANDUM O PINION,” shall not be publi

shed, and s

hall not be cited or relied on for any rea son in a subse quent unrela ted case.



### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE December 5,

2000 Session

FRED BIRDSALL, ET AL 

### . v. FLOYD BIRDSALL Appeal from the Circuit Court for Campbell County No. 11,632 Hon. Conrad Troutman, Judge FILED JANUARY 5, 2001 No. E2000-01544-COA-R3-CV

Plaintiffs/Appella

nts sought the return of several items, including a shotgun, tiller and lawn mower, as well as $1,500 in damages to a 1980 Ford pick-up truck, from D efendant/Appellee. The Trial Court found the matter too speculative and dismissed the cas e. We have no transcript and no Statement of the Evidence.

Accordingly

, we must assume tha

t the record, had it been preserved, would have contained sufficient evidence to support the Trial Court’sfactual findings. Judgment of the Trial Court affirmed. Tenn. R. App. R. 3; Judgm ent of the Trial Court

Affirmed; Case Re

manded. D. M ICHAEL S WINEY , J., delivered the op inion of the court,

in which H ERSCHEL P
. F RANKS , J. and C HARLES D. S USANO , J R ., J., joined. Fred Birdsall and Wanda Birdsall, Lafollette, Tennessee, Pro Se. Floyd Birdsall, Lafollette, Tennessee , Pro Se.

MEMORANDUM OP

INION 1 Fred and Wanda Birdsall, Plaintiffs/Appellants, filed suit against Floyd Birds a ll, Defendant/Appellee, in Campbell County General Sessions Court in November 1999, seeking the-2-

return of several items i

ncluding a 12 g

auge shotgun,

a Troybilt

tiller and a lawn mower, as well as $1,500 in damages “for blowing motor up in 1980 Ford pick up.” TheTrial Court dismisse d the case based on the Pl ai ntiffs’ failure to carry th

eir burden of pro

of. Plaintiffs app

ealed to the Campb

ell County Circuit Court, which apparently heard witne sses, a lthough we have no transcript of that hearing. The Campbell County Circuit Court entered an Order on May 25, 200 0, fin ding the Plaintiffs’ claims

too speculative a

nd dismissing Plainti

ffs’ case. Plain

tiffs appeal to thi

s Court. Our ability to deal with the appeal is hampered by the absence of either a tra nscript of the proceeding

s in the Tria

l Cour t or a Statement of t he Evidence pre

pared in accor

dance with Tenn. R. App. P. 24(c). Th is Court cannot rev

iew the facts de novo without an appellate record containing the facts, and, therefore, we must assume that the record, had it been preserved, would have contained suffic

ient evidence to s

upport the Trial Co

urt’s factual fi

ndings. Sherrod

v. Wix, 849 S.W.2d 780, 783 (Tenn . Ct. App. 1992). Thi s being so, we af

firm the decision o

f the Trial Court. Conclusion The judgment of

the Trial Court is a

ffirmed and this c

ause is remanded to the Trial Court for such furthe r proceedin gs as may be required, if any , consistent with this Opinion, and for collection of the costs

below . The costs on appeal are assessed against the Appellants, Fred and Wanda Birdsall.

___________________________________ D. MICHAEL SWINEY, JUDGE