Mike Parsons v. Jeff Huffman ( 2008 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
FEBRUARY 21, 2008 Session
MIKE PARSONS v. JEFF HUFFMAN, ET AL.
Direct Appeal from the Chancery Court for Tipton County
No. 24402 Joseph H. Walker, Chancellor
No. W2007-00327-COA-R3-CV - Filed June 3, 2008
This appeal involves an election contest filed by a losing candidate for county executive. According
to the plaintiff’s complaint, the county election commission provided the minimum number of voting
machines required by state law. However, the plaintiff alleged that the commission should have
provided more voting machines because long lines at some voting locations caused many people to
leave without voting. The trial court dismissed the complaint for failure to state a claim, among
other things. The plaintiff appealed. We affirm.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed
ALAN E. HIGHERS, P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER , J., and
HOLLY M. KIRBY , J., joined.
Mike Parsons, Arlington, TN, pro se
Duke H. Brasfield, Covington, TN; Robert V. Redding, Kate R. Armes, Jackson, TN, for Appellees
OPINION
I. FACTS & PROCEDURAL HISTORY
Mike Parsons was a candidate for the office of Tipton County Executive in the August 3,
2006 Tipton County general election. The opposing candidate, Jeff Huffman, was declared the
winner of the election. On August 14, 2006, Mr. Parsons filed this lawsuit contesting the election.
His complaint alleges:
3. Although the State of Tennessee requires that the county
provide a minimum of one machine per 750 voters, the county
has the ability and duty to have as many voting machines as
they feel they may need in a given election. Microvote, the
vender of voting machines[,] stated, through their
representative, Bill Whitehead, that Microvote recommended
that they, the Tipton County Election Commission, have one
machine per every 250 voters. According to the Tipton
County Election Commission, they only provided the state
mandated minimum.
4. I personally observed over 200 individuals arrive to vote at
the East Atoka Precinct and after waiting, many for hours
outside in 100 degree temperatures, left without voting. This
same occurrence was observed by many other witnesses at
several other polling locations in the south end of Tipton
County.
5. To the contrary, the polling locations at the north end of the
county had no long lines and no reports of people walking
away without voting due to long lines.
Mr. Parsons requested that process issue against the defendants, that a hearing be set within the time
prescribed by Tennessee Code Annotated section 2-17-106, and that the August 3 election be voided
and another election held. Mr. Parsons also requested that “the poll books, voter signature list, ballot
applications[,] voting machines and all other proper evidence be received by the court as required
by T.C.A. sections 2-17-109 and 2-17-110.”
The defendants, Jeff Huffman, the Tipton County Election Commission, and its Chairman,
James Sneed, filed a motion to dismiss. They argued that service of process was not properly
executed in accordance with Tennessee Code Annotated section 2-17-103; that the complaint was
barred for failure to comply with the time limitations in Tennessee Code Annotated section 2-17-
105; and that the complaint failed to state a claim upon which relief could be granted.
In response, Mr. Parsons filed an “Emergency Motion to Compell and Clairification” [sic]
demanding that the defendants present him with the voter lists, poll books, ballot applications, all
correspondence by anyone with or concerning Microvote (the voting machine vendor), and a
complete list of all persons having any involvement with the August 3 election. Mr. Parsons also
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sought to clarify that he was suing Jeff Huffman in his individual capacity, not in his capacity as the
newly-elected Tipton County Executive.
Following a hearing, the trial court entered an order granting the defendants’ motion to
dismiss on November 21, 2006. The court found that service of process was improper because Mr.
Parsons acted as his own process server in violation of Tennessee Code Annotated section 2-17-106
and Rule 4 of the Tennessee Rules of Civil Procedure.1 The court also found that Mr. Parsons did
not make proper return of the summonses, as the return of the summons issued for Jeff Huffman
stated that it was served on someone at the Tipton County Election Commission, and conversely, the
summons issued for the Tipton County Election Commission and its Chairman was served on an
administrative assistant at Jeff Huffman’s office. Mr. Parsons signed the return for each summons,
but did not list his address. As an alternative basis for granting the motion to dismiss, the trial court
found that Mr. Parsons’s complaint did not state a claim upon which relief could be granted. The
trial court denied Mr. Parsons’s motion to compel and for clarification, stating that Mr. Parsons was
attempting to raise new issues after the ten-day statute of limitations for filing an election contest had
expired.
On December 21, 2006, Mr. Parsons filed a motion for new trial and to alter or amend the
judgment. Regarding service of process, Mr. Parsons claimed that he only provided the defendants
with additional copies of the summonses. He claimed that he paid the sheriff’s department to serve
process, but admitted that the court’s file did not contain any copies of summonses served by the
sheriff. The motion went on to address the merits of the case, and Mr. Parsons again raised the issue
of long lines at the polls, but this time he attributed the long lines to the fact that early voting was
only held in one location in Covington at the election commission office. He claimed that the
election commission should have notified the public prior to the election that lines would be longer.
Mr. Parsons also claimed that voting machines at some locations were too close to the line of people
waiting to vote, and too close to adjacent voting machines, so that others could see how a person
voted. He also claimed that one voting location closed six hours late at 1:00 a.m., that some votes
were counted prior to the closing of all polls, and that there were discrepancies between the local
television station’s reported election results and the final results. Mr. Parsons again demanded that
he be allowed to examine evidence regarding the “vote tabulation process,” stating that it might
explain the discrepancies between the television station’s results and the official results.
1
Rule 4.01(2) of the Tennessee Rules of Civil Procedure provides that “[a] summons and complaint may be
served by any person who is not a party and is not less than 18 years of age. The process server must be identified by
name and address on the return.” (emphasis added). Tennessee Code Annotated Title 2, Chapter 17 addresses contested
elections, and section 2-17-106 provides:
(a) The trial of an election contest shall be held not less than fifteen (15) nor more
than fifty (50) days from the day the complaint is filed and not less than ten (10)
days after the complaint is served on the defendant.
(b) A sheriff or constable of the division or circuit shall serve a copy of the
complaint on the defendant and make return to the court.
(emphasis added).
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Following a hearing, the trial court denied the motion for new trial and to alter or amend the
judgment. Mr. Parsons timely filed a notice of appeal.
II. ISSUES PRESENTED
Mr. Parsons presents the following issues, slightly restated, for review:
1. Did the trial court err in dismissing the complaint for failure to state a claim for relief?
2. Did the trial court err in dismissing the case for improper service of process?
3. Was the petition time-barred?
4. Did the trial court err by ignoring the violations of election law by the election commission?
5. Did the trial court err in refusing to grant Mr. Parsons’s motion to compel?
6. Did the trial court err in denying the motion for clarification?
7. Did the trial court err in denying Mr. Parsons’s question to the court as to whether the county
attorney was representing Jeff Huffman as the county executive?
8. Did the trial court err by presiding over this case when the judge had a vested interest in the
outcome?
9. Did the trial court err by excluding the exhibits that were filed with Mr. Parsons’s motion for
new trial from the technical record on appeal?
10. Did the trial court err by excluding Mr. Parsons’s statement of the evidence from the record?
For the following reasons, we affirm the decision of the chancery court.
III. STANDARD OF REVIEW
A motion to dismiss for failure to state a claim only tests the sufficiency of the complaint,
seeking to determine whether the pleadings state a claim upon which relief can be granted.
Trau-Med of America, Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002); Smith v. First
Union Nat. Bank of Tenn., 958 S.W.2d 113, 114-15 (Tenn. Ct. App. 1997). The basis for the
motion is that the allegations in the complaint, when considered alone and taken as true, are
insufficient to state a claim as a matter of law because they do not constitute a cause of action.
Smith, 958 S.W.2d at 115 (citations omitted). In making this determination, we construe the
complaint liberally in favor of the plaintiff, taking all allegations of fact therein as true. Id. (citing
Fuerst v. Methodist Hosp. South, 566 S.W.2d 847, 848-49 (Tenn. 1978); Holloway v. Putnam
County, 534 S.W.2d 292, 296 (Tenn. 1976)). However, “[t]here is no duty on the part of the court
to create a claim that the pleader does not spell out in his complaint.” Trau-Med, 71 S.W.3d at 704
(quoting Donaldson v. Donaldson, 557 S.W.2d 60, 61 (Tenn. 1977)). Where “no claim for relief is
stated by a party, a court may properly dismiss the action, either on motion or sua sponte.”
Donaldson, 557 S.W.2d at 62 (citations omitted).
IV. DISCUSSION
A. Failure to State a Claim
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In Tennessee, there are two grounds upon which an election contest may be predicated. Lee
v. Tuttle, 965 S.W.2d 483, 484 (Tenn. 1998); Forbes v. Bell, 816 S.W.2d 716, 719 (Tenn. 1991).
The plaintiff may assert that the election is valid and that if the outcome is properly determined by
the court, it will be apparent that the plaintiff actually won the election. Forbes, 816 S.W.2d at 719.
“The proper relief in this event is a judgment declaring the contestant to be the winner.” Id. at 719.
In suits to be declared the winner, contestants must show: “(1) that the number of illegal votes
exceeded the margin of victory; and (2) that to a mathematical certainty they would have been
victorious had the illegal votes not been counted.” Lee, 965 S.W.2d at 484-85 (citing Millar v.
Thomas, 657 S.W.2d 750, 751 (Tenn. 1983)).
In the second type of election contest, the plaintiff may claim that the election was null and
void for some valid reason or reasons. Forbes, 816 SW.2d at 719. “The proper relief in that case
is to order a new election.” Id.
“The pleadings in a suit to contest an election are critically important, particularly the
allegations of fact on which the claim for relief is based and the relief sought.” Lee, 965 S.W.2d at
486 (Reid, J., concurring). A complaint seeking to have a contestant declared the winner must
specifically point out the alleged illegal votes cast for the opponent, and show that when those votes
are thrown out, the votes the contestant received plus any legal votes he was deprived of would give
him a majority. Forbes, 816 S.W.2d at 719 (citing Blackwood v. Hollingsworth, 195 Tenn. 427, 260
S.W.2d 164, 166 (1953); Shoaf v. Bringle, 192 Tenn. 695, 241 S.W.2d 832, 833 (1951)). In the case
before us, Mr. Parsons’s complaint does not allege that the election was valid, that any votes were
illegal, or that he would have won the election had the results been properly determined. Rather, he
seeks to have the August 3 election “voided” and a new election held. Thus, we are dealing with the
second ground for contesting an election.
Under Tennessee law, courts are empowered to void an election on two alternative, but
closely related bases. Forbes, 816 S.W.2d at 719 (citing Millar v. Thomas, 657 S.W.2d 750, 751
(Tenn. 1983)).
First, upon a sufficient quantum of proof that fraud or illegality so
permeated the election as to render it incurably uncertain, even
though it can not be shown to a mathematical certainty that the result
might have been different. Secondly, where some ballots are found
to be illegal, and the number of illegal votes cast is equal to, or
exceeds the margin by which the certified candidate won.
Id. at 719-20 (quoting Millar, 657 S.W.2d at 751) (internal quotations omitted). The requirements
for declaring an election void based upon allegations of illegal votes are less stringent than are the
requirements for declaring a contestant the winner based on illegal votes. Id. at 720. However, the
allegations must still be specific enough to establish that the results would have been different absent
the illegal votes. Id. The omission of a statement setting out the margin of victory precludes a grant
of relief on this ground. Id. Again, Mr. Parsons’s complaint did not allege that any votes were
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illegally cast, and he did not mention the margin of victory. His complaint is based on the first
situation mentioned above, that the election should be declared void because it was “so permeated
with fraud and illegality that it cannot be said to fairly reflect the will of voters.” See Forbes, 816
S.W.2d at 720.
In cases seeking to void an election on this ground, “it is not necessarily fatal that the
complaint does not specifically set out a sufficient number of illegal votes to change the result of the
election or to make the result mathematically uncertain.” Forbes, 816 S.W.2d at 720 (citing Southall
v. Billings, 213 Tenn. 280, 375 S.W.2d 844, 849 (1963)). However, “the alleged wrong must be so
gross and palpable a failure of the opportunity for a free and equal expression of the popular will,
that the courts cannot permit the election to stand.” Id. (citing Barry v. Lauck, 45 Tenn. 588 (1868)).
Courts should be reluctant to take the step of declaring an election invalid. Id. at 724. Most election
contests brought on this theory are based on claims of fraud or conspiracy. Id. at 720. Nevertheless,
statutory violations alone may be sufficient to render an election void, especially if the statute was
designed to “(1) prevent undue influence or intimidation of the free and fair expression of the will
of the electors or (2) ensure that only those who meet statutory requirements for eligibility [may]
vote.” Id. at 724 (citing Emery v. Robertson County Election Comm’n, 586 S.W.2d 103, 109 (Tenn.
1979)). The focus of a court’s inquiry should be whether the statutory violations are so serious as
to thwart the will of the community. Id. at 720. “[N]ot every irregularity, or even a combination of
irregularities, will necessitate the invalidation of an election.” Id. at 724. Technical non-conformity
with election statutes will not necessarily void an election, as “such strictness would lead to defeat
rather than uphold popular election, and can not be maintained.” Id. at 720 (quoting McCraw v.
Harralson, 44 Tenn. 34 (1867)). Honest mistakes, mere omissions, or irregularity in directory
matters, even if gross, but not fraudulent, will not void an election unless they affect the result or at
least render it uncertain. Id. (citing Summitt v. Russell, 199 Tenn. 174, 285 S.W.2d 137, 141
(1955)).
For example, in Forbes, the plaintiff alleged that the county election commission violated
various statutes in the following ways: allowing voters to use paper ballots rather than voting
machines when lines grew long; failing to provide a private voting compartment for those using
paper ballots; permitting the use of unlocked ballot boxes; allowing election officials to open the
ballot boxes and remove pieces of paper while voting was in progress; allowing voters to turn in their
paper ballots directly to election officials, rather than placing them in the ballot boxes; receiving
unsigned poll and tally sheets from precincts; and permitting “lines of registered voters to
accumulate . . . by not strictly enforcing time limits for voters to use the voting machines thereby
causing registered voters to leave the voting place without voting after a wait of at least one and a
half to two hours.” Forbes, 816 S.W.2d at 723. The Supreme Court discussed various cases in
which egregious conduct led to an election being set aside, and then concluded that the plaintiff’s
complaint failed to state a claim for relief because the alleged irregularities “[did] not fall far enough
along the opposite end of the spectrum to subject the case to trial.” Id. at 721. There was no
allegation of fraud or conspiracy, and the allegations tended to demonstrate “largely technical
violations” rather than misconduct by the election officials. Id. at 723.
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In Stuart v. Anderson County Election Comm’n, 237 S.W.3d 297, 300 (Tenn. Ct. App.
2007), a plaintiff alleged, among other things, that because voters took too long at the voting
machines, “substantial numbers of prospective voters left . . . after waiting in line for excessive time
periods.” The trial court dismissed the complaint for failure to state a claim, and on appeal, the
Court stated:
The allegations of illegality in the present case are certainly no
more serious than those at issue in Forbes which were found by the
Supreme Court to be insufficient as a matter of law to set aside the
election on the basis that the election was permeated with
irregularities. We conclude, as did the Court in Forbes and the Trial
Court in this case, that the allegations of misconduct on the part of
election officials were insufficient to taint the election. [Forbes, 816
S.W.2d] at 723. Thus, of the two bases upon which Plaintiff seeks to
have this election declared invalid, the Trial Court correctly held that
Plaintiff fails to state a claim upon which relief can be granted as to
the first basis, that illegality so permeated this election “that it cannot
be said to fairly reflect the will of the voters.” Id. at 720.
Stuart, 237 S.W.3d at 305.
In this case, Mr. Parsons does not allege that any statutes were violated by the election
commission, and he acknowledges in his complaint that the county election commission “provided
the state mandated minimum” number of voting machines. Mr. Parsons simply claims that the
election commission should have provided more voting machines because the lines were too long
on election day. There is no allegation that any election officials conspired to deprive any candidate
of votes. Clearly, there is not a “sufficient quantum of proof that fraud or illegality so permeated the
election as to render it incurably uncertain,” see Forbes, 816 S.W.2d at 719, and the trial court
properly dismissed the complaint for failure to state a claim upon which relief could be granted. Mr.
Parsons’s issues regarding service of process and the timeliness of his petition are pretermitted.
B. Alleged Violations of Election Law
The next issue presented by Mr. Parsons asks whether the trial court erred by “ignoring the
violations of election law by the Tipton County Election Commission.” Presumably, Mr. Parsons
is referring to the alleged violations raised in his motion for new trial and to alter or amend the
judgment. In that motion, filed December 21, 2006, Mr. Parsons attempted to raise issues regarding
early voting being held in only one location, the election commission’s failure to notify voters that
lines would be long, voting machines being too close together and easily observed by people waiting,
one polling location closing late, the timing of counting votes, and discrepancies between the results
reported on television and the official results. These facts were not set forth in his complaint filed
on August 14, 2006.
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Tennessee Code Annotated section 2-17-105 clearly states that “[t]he complaint contesting
an election under § 2-17-101 shall be filed within ten (10) days after the election.” “This special
statute of limitations has long been strictly applied in election contests, which are purely creatures
of statute and were not recognized at common law or in equity.” Forbes, 816 S.W.2d at 718. The
statutory prerequisites for filing an election contest are jurisdictional, and the court cannot review
grounds for invalidating an election unless they have been filed within the ten-day statutory period.
Id. In Forbes, the Supreme Court rejected the plaintiff’s argument that the Tennessee Rules of Civil
Procedure would allow her to amend her complaint outside the ten-day time period to include
additional allegations and grounds for her suit that did not appear in the initial complaint. Id. The
Court emphasized that the ten-day statutory limitation applies not only to complaints, but to
amendments and exhibits to complaints. Id.
It is well-established that the statutory limitation in election contests is applied strictly to
“amended or other pleadings, making new charges on which to contest an election.” Forbes, 816
S.W.2d at 718 (quoting State ex rel. Davis v. Kivett, 180 Tenn. 598, 603, 177 S.W.2d 551, 553
(1944)). Amendments may be allowed, in the discretion of the court, if they “merely allege in more
detail grounds already alleged,” or if the amendment “seeks only to correct technical matters.” Id.
Here, however, Mr. Parsons attempted to raise totally new allegations in his motion for new trial.
They cannot be construed as mere elaboration on the allegations in the original complaint, or as an
attempt to correct a technical matter. As the Court noted in Forbes, “[w]hile these matters might
well have been relevant at trial, they were raised too late to be considered in this case.”
C. The Motion to Compel
Next, Mr. Parsons claims that the trial court should have granted his motion to compel, in
which he demanded that the election commission provide him with voter lists, poll books, ballot
applications, all correspondence with or concerning Microvote, and a complete list of all persons
having any involvement with the August 3 election. Mr. Parsons claims that he was entitled to these
materials pursuant to the following two statutes:
§ 2-17-109. Poll books, voter signature lists and ballot
applications as evidence. –
(a) Poll books, voter signature lists and ballot applications, or copies
of them, certified by the officer having custody of them, are official
records and shall be received as evidence in any case arising out of
the election. They may be impeached by other evidence.
(b) If the poll books, voter signature lists and ballot applications or
copies of them are not certified, they may nonetheless be proved by
other credible evidence and received as evidence in an election
contest.
§ 2-17-110. Voting machine as evidence. –
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(a) If voting machines were used in the election, any party to the
contest who challenges either the accuracy of the voting machines or
the accuracy of the election officials’ recording of the vote on the
machines may have the machine or machines brought into court to be
examined by the parties or as evidence.
(b) The total votes shown on the machine shall be conclusive unless
the court finds reason to believe that the vote shown on the machine
is not accurate.
First of all, these statutes do not provide any basis for Mr. Parsons to demand an inspection of
election commission correspondence or lists of all persons involved with the election. In addition,
section 2-17-110 is limited to situations in which a contestant has challenged “the accuracy of the
voting machines or the accuracy of the election officials’ recording of the vote on the machines.”
Mr. Parsons did neither.
Section 2-17-109 provides that the listed items “shall be received as evidence” by the trial
court in election contests if certified by the officer having custody of the item. In other words, poll
books certified by the officer having custody of them “are declared to be official records” by the
statute, and admissible in evidence, subject to being impeached. Gibson’s Suits in Chancery § 15.11
(Inman, 8th ed. 2004). If the poll books are not certified, they may be proved by other evidence and
admitted. Id. Unfortunately, there are no cases interpreting or even citing Tennessee Code
Annotated section 2-17-109. With regard to section 2-17-110, however, the Middle Section of this
Court has concluded that the statute is only applicable “to a complaint alleging a cause of action in
a statutory election contest and not to a complaint fatally defective ab initio under Rule 12.02(6).”
Lineberry v. Ashe, No. M1999-00075-COA-R3-CV, 2000 WL 64156, at *5 (Tenn. Ct. App. Jan.
27, 2000). The Court explained that when the plaintiff’s election contest complaint failed to state
a claim for relief, the trial court should have dismissed the complaint rather than allowing the
plaintiff to go on a “fishing expedition” by examining the voting machines. Id. at *4. We find the
Court’s reasoning persuasive and hold that the trial court did not err in refusing to order the
production of the items requested.
D. The Motion for Clarification
Next, Mr. Parsons contends that the trial court erred in denying his motion for clarification.
In that motion, Mr. Parsons stated that he wished to clarify that he was suing Jeff Huffman only in
his capacity as a candidate, and not as the Tipton County Executive. We find that Mr. Parsons’s
complaint failed to state a claim against Jeff Huffman in any capacity, and it was properly dismissed.
E. A Question to the Court
Mr. Parsons next argues that the trial court erred in “denying Plaintiff’s question to the court;
was the county attorney representing Jeff Huffman as the county executive?” Mr. Parsons does not
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cite any authority in support of this argument, and there is nothing in the record to review regarding
this matter, so we will not address the issue. “The failure of a party to cite to any authority or to
construct an argument regarding his position on appeal constitutes waiver of that issue.” Newcomb
v. Kohler Co., 222 S.W.3d 368, 400-401 (Tenn. Ct. App. 2006).
F. The Trial Judge
Mr. Parsons also contends that the trial judge should not have presided over the case because
the judge “was himself on the ballot of said election,” and if a new election were held, “a write-in
candidate could pose a challenge.” Again, Mr. Parsons cites no authority regarding this issue. Mr.
Parsons apparently assumes that if his election contest was successful, a new election would have
been held as to all officials elected on August 3. We will not address this argument, as the only
suggestion that the trial judge was in fact elected on August 3 comes from Mr. Parsons’s brief on
appeal. Facts recited in a party’s brief, but not included in the record on appeal, will not be
considered by this Court. DuBose v. Parker, No. W2005-01320-CCA-R3-HC, 2005 WL 3384723,
at *4 (Tenn. Crim. App. Dec. 9, 2005) (citing State v. Seyler, No. 01C01-9801-CR-00050, 1999 WL
357348, at *3 n. 3 (Tenn. Crim. App. June 4, 1999); Tenn. R. App. P. 24(b)). The record does not
disclose any facts regarding this issue, as Mr. Parsons did not raise an objection to the trial judge
presiding over the case. “An objection to a judge’s competence cannot be made for the first time on
appeal.” Dupuis v. Hand, 814 S.W.2d 340, 342 (Tenn. 1991); see also Obion County v. Coulter,
153 Tenn. 469, 284 S.W. 372, 374-75 (1924) (“The incompetency or disqualification of a judge . .
. is waived in civil cases by failure to make the objection in limine on the hearing, and the parties
are conclusively presumed to have consented to his presiding at the trial.”) Recusal motions must
be filed promptly after the facts forming the basis for the motion become known, and the failure to
assert them in a timely manner results in a waiver of a party’s right to question a judge’s impartiality.
Kinard v. Kinard, 986 S.W.2d 220, 228 (Tenn. Ct. App. 1998). Courts frown upon the
manipulation of the impartiality issue to gain procedural advantage and will not permit litigants to
refrain from asserting grounds for disqualification in order to experiment with the court, and raise
the objection later when the result of the trial is unfavorable. Id. (citing Holmes v. Eason, 76 Tenn.
(8 Lea) 754, 757 (1882); Gotwald v. Gotwald, 768 S.W.2d 689, 694 (Tenn. Ct. App. 1988)).
G. The Record on Appeal
Mr. Parsons’s final two issues question whether the record on appeal should contain his
statement of the evidence and certain exhibits that he claims were filed along with his motion for
new trial. We previously entered an order remanding this case to the trial court because we were not
able to determine whether the record on appeal depicted a fair, accurate, and complete account of
what transpired in the trial court. The trial court then entered an order expressly stating, “The Court
does not approve the ‘Plaintiff’s Statement of Evidence.’” The order further stated that “no evidence
was heard” because the motion to dismiss was considered on the pleadings. As for the exhibits at
issue, the order stated: “The Motion for New Trial contained in the Technical Record, pages 16 thru
32 are the same as contained in the court file. There are no exhibits attached to the Motion. Exhibits
should not be added at this point.”
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The purpose of the appellate record is to “convey a fair, accurate and complete account of
what transpired with respect to those issues that are the bases of appeal.” State v. Housler, 167
S.W.3d 294, 296 (Tenn. 2005) (quoting Tenn. R. App. P. 24).
Any differences regarding whether the record accurately discloses
what occurred in the trial court shall be submitted to and settled by
the trial court regardless of whether the record has been transmitted
to the appellate court. Absent extraordinary circumstances, the
determination of the trial court is conclusive.
Tenn. R. App. P. 24(e). We accord deference to the trial court’s decision as to which matters are
properly includable in the record, as the trial court is in the best position to determine those matters
necessary to provide a fair, accurate, and complete account of the proceedings upon which the appeal
is based. Housler, 167 S.W.3d at 296 (citing Bradshaw v. Daniel, 854 S.W.2d 865, 868 (Tenn.
1993)). Finding no extraordinary circumstances in this case, we will defer to the trial judge’s
determination as to the documents to be included in the record.
V. CONCLUSION
For the aforementioned reasons, we affirm the decision of the chancery court. Costs of this
appeal are taxed to the appellant, Mike Parsons, for which execution may issue if necessary.
___________________________________
ALAN E. HIGHERS, P.J., W.S.
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