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12/02/94 WILLIAM F. HIGGINBOTHAM v. NELSON PITTMAN

December 2, 1994

WILLIAM F. HIGGINBOTHAM, D/B/A CITY TRANSMISSION
v.
NELSON PITTMAN



Appeal from Jefferson Circuit Court. (CV-92-1227). William J. Wynn, TRIAL JUDGE.

Released for Publication March 10, 1995.

Richard L. Holmes, Retired Appellate Judge. All the Judges concur.

The opinion of the court was delivered by: Holmes

HOLMES, Retired Appellate Judge

The plaintiff sued the defendant for breach of warranty. After an ore tenus hearing, the trial court entered a judgment for the plaintiff.

The defendant appeals and we affirm.

On appeal the defendant contends that the trial court erred in admitting certain evidence and in its award of damages.

There is in the instant appeal no court reporter's transcript of the evidence, no statement of the evidence, or agreed upon statement of the case.

In view of the above, this court conclusively presumes that the trial court's judgment is supported by testimony presented at the ore tenus proceeding. See Ala. Digest, Appeal & Error, Key No. 907(2) (1993).

The judgment is due to be affirmed.

The appellee/plaintiff has requested an attorney's fee for representation on appeal. No basis for such an award is presented by the appellee/plaintiff. Hence, the request is denied.

The foregoing opinion was prepared by Retired Appellate Judge Richard L. Holmes while serving on active duty status as a Judge of this court under the provisions of § 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges ...


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