FILED

October 30, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF APPEALS

AT KNOXVILLE

JOSEPH R. CARUTHERS, ) CUMBERLAND PROBATE AND FAMILY

 ) COURT

 ) C.A. NO. 03A01-9712-PB-00539

 Plaintiff-Appellee, )

 )

vs. )

 ) HON. JAMES A. BEAN

 ) JUDGE

 )

DIANE L. CARUTHERS, )

 )

 Defendant-Appellant ) AFFIRMED AND REMANDED

 

M. JANE POWERS, The Powers Law Firm, Crossville, for Appellant.

SHARON SERRA, Crossville, for Appellee.

OPINION

McMurray, J.

This appeal is from a judgment in a divorce action heard in

the Probate and Family Court of Cumberland County. The appellant

challenges the trial court’s division of the marital estate, the

adequacy of her hearing before the court, and the trial court’s

award of $5,000.00 to the appellee for improvements to the

appellant’s separate property. We affirm the judgment of the trial

court. 
1

The pretrial order was approved for entry by the attorneys for both parties.

2

Before the trial which resulted in the judgment giving rise to

this appeal, the court entered a pretrial order pursuant to Rule

16.05, Tennessee Rules of Civil Procedure.1 The pretrial order

provides as follows:

Upon announcement of counsel for the parties that

all interested persons have participated in a mediation

session and that certain issues were resolved, with only

one issue remaining unresolved. Therefore, it is hereby

ORDERED, ADJUDGED and DECREED, that the parties have

resolved to stipulate grounds for divorce, pursuant to

T.C.A. § 36-4-129; that there were no children born to

this marriage; and that the parties have divided and

distributed all separate and marital property. Having

mediated and resolved these issues, this matter is set

for final hearing on May 30, 1997, at which time the sole

issue to be litigated is the plaintiff's claim against

the defendant for $5,000.00 for the costs of improvements

made to defendant's separate property.

ENTER this 6th day of May, 1997.

In accordance with the provisions of the pretrial order, a

hearing limited to the sole issue reserved for trial in the

pretrial order was held. The court resolved the issue in favor of

the plaintiff and entered judgment accordingly. Defendant now

appeals, presenting the following issues for our consideration:

A. The division of marital property by the trial court

was not equitable and is contrary to the weight of

the evidence introduced at trial.

B. The parties were not afforded a full and complete

trial due to the time constraints imposed by the

trial court as appellant was precluded from presenting full and adequate proof at the trial.
3

C. The trial court reached its conclusion in this

cause concerning the division of the marital property based upon inadequate proof.

D. The trial court's award of $5,000.00 to the appellee for improvements he purportedly made to the

appellant's separate property is without basis in

law or the evidence presented at trial and is

precluded by the statute of frauds.

The framing of the issues suggests that the appellant does not

grasp the significance and effect or purpose of a pretrial order.

Rule 16.05 provides as follows:

16.05. Pretrial Orders. — After any conference held

pursuant to this rule, an order shall be entered reciting

the action taken. This order shall control the subsequent course of action unless modified by a subsequent

order. The order following a pretrial conference shall

be modified only for good cause shown. (Emphasis added.)

A pretrial order for all practical purposes supplants the

pleadings regarding the issues to be tried. "The parties are

bound by the issues reserved in the pretrial order and may not

later inject a new issue except in exceptional cases ... . ... If

defendant's counsel had desired to present issues at the trial

which were not contained in the pretrial order, he should have

asked for an amendment to the pretrial order." Kathryn Neuspickle

and Larry D. Neuspickle v. The City of Knoxville, Tennessee , 4 8

F.R.D. 441 (1969).
4

Three things are worthy of note. First, Rule 16 of the

Tennessee Rules of Civil Procedure, as applied here, basically

follows the Federal Rules. Second, this is not such an exceptional

case as to require the trial court to allow issues not contained in

the pretrial order to be addressed. Third, the attorney for the

appellant in this case made no effort to have the pretrial order

amended. The pretrial order is binding.

Further Rule 36(a), Tennessee Rules of Appellate Procedure

provides in pertinent part that "[n]othing in this rule shall be

construed as requiring relief be granted to a party responsible for

an error or who failed to take whatever action was reasonably

available to prevent or nullify the harmful effect of an error."

We believe that this principle is also applicable to this case.

Assuming for purposes of discussion only, and for no other reason,

that the trial court committed error, the appellant participated in

the acts which led the court into limiting the issues and then took

no action whatever to have the pretrial order amended.

As to the last issue, the evidence does not preponderate

against the findings and judgment of the trial court. Further, we

find no basis for the application of the statute of frauds.

As to the claim that appellant was not afforded a full and

complete trial due to the time constraints imposed by the trial

court, we find this issue to be without merit. No objection was
5

raised in the trial court nor was an offer of proof made or

permission requested to do so. 

 Furthermore, the appellant's challenge to the sufficiency of

her hearing before the trial court is waived for failure to raise

this issue at trial and for failure to cite any authority for her

argument or make reference to the record for facts relied upon.

See Court of Appeals Rule 6 and Tennessee Rules of Appellate

Procedure, Rule 27(a)(7).

The appellee has asked that we find this appeal to be

frivolous pursuant to the provisions of T.C.A. § 27-1-122. Upon

consideration, we are of the opinion that while it is questionable

as to whether appellant's appeal is sufficiently meritorious to

avert sanctions for a frivolous appeal, we, in our discretion,

decline to impose sanctions.

We affirm the judgment of the trial court in all respects.

Costs are assessed to the appellant and this case is remanded to

the trial court for such other and further action as may be

necessary to carry out the judgment of the court.

_______________________________

 Don T. McMurray, Judge

CONCUR:

___________________________________

Houston M. Goddard, Presiding Judge
6

___________________________________

Herschel P. Franks, Judge
IN THE COURT OF APPEALS

AT KNOXVILLE

JOSEPH R. CARUTHERS, ) CUMBERLAND PROBATE AND FAMILY

 ) COURT

 ) C.A. NO. 03A01-9712-PB-00539

 Plaintiff-Appellee, )

 )

vs. )

 ) HON. JAMES A. BEAN

 ) JUDGE

 )

DIANE L. CARUTHERS, )

 )

 Defendant-Appellant ) AFFIRMED AND REMANDED

JUDGMENT

This appeal came on to be heard upon the record from the

Probate and Family Court for Cumberland County, briefs and argument

of counsel. Upon consideration thereof, this Court is of opinion

that there was no reversible error in the trial court.

We affirm the judgment of the trial court in all respects.

Costs are assessed to the appellant and this case is remanded to

the trial court for such other and further action as may be

necessary to carry out the judgment of the court.

PER CURIAM