FILED

August 5, 1998

Cecil W. Crowson

Appellate Court Clerk

MICHAEL G. BINKLEY and wife, )

MARTHA Y. BINKLEY, and ROBERT )

A. JONES, SR., and wife, MARY EVELYN )

JONES, and CHARLES H. CATHEY and )

wife, MARY JUNE CATHEY, )

) Humphreys Chancery

Plaintiffs/Appellees, ) No. 24-001

)

VS. )

) Appeal No.

RODNEY TREVOR MEDLING, ) 01A01-9708-CH-00421

)

Defendant/Appellant, )

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE HUMPHREYS COUNTY CHANCERY COURT

AT WAVERLY, TENNESSEE

HONORABLE ALLEN W. WALLACE, JUDGE

William G. McCaskill, Jr., #12716

TAYLOR, PHILBIN, PIGUE, MARCHETTI & BENNETT, PLLC

2908 Poston Avenue

Nashville, Tennessee 37203

Anthony L. Sanders, #2283

129 North Court Square

Waverly, Tennessee 37185

ATTORNEY FOR PLAINTIFFS/APPELLEES

Andrew B. Frazier, Jr.

116 East Main Street

P.O. Box 208

Camden, Tennessee 38320

ATTORNEY FOR DEFENDANT/APPELLANT

AFFIRMED AND REMANDED

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION
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CONCUR:

BEN H. CANTRELL, JUDGE

WILLIAM C. KOCH, JR., JUDGE

MICHAEL G. BINKLEY and wife, )

MARTHA Y. BINKLEY, and ROBERT )

A. JONES, SR., and wife, MARY EVELYN )

JONES, and CHARLES H. CATHEY and )

wife, MARY JUNE CATHEY, )

) Humphreys Chancery

Plaintiffs/Appellees, ) No. 24-001

)

VS. )

) Appeal No.

RODNEY TREVOR MEDLING, ) 01A01-9708-CH-00421

)

Defendant/Appellant, )

O P I N I O N

The captioned defendant has appealed from a judgment of the Trial Court which reads

in full as follows:

This cause came on to be heard on this the 23rd day of

July, 1997, before the Honorable Allen W. Wallace,

Chancellor, upon stipulation of the parties, certified copies of

various documents, statement of counsel, and upon the entire

record. From all of which the Court finds that the Defendant

improperly opened a cul-de-sac located on Timberland Drive,

New Johnsonville, Tennessee, and Lot No. D-6 of the

Countrywood Estates Subdivision, Section IV, and further

that the Defendant violated the restrictions and protective

covenants of Countrywood Estates Subdivision, Section IV,

as a street or driveway to unrestricted and non-conforming

adjoining property, and particularly the 11.7 acre tract that

was purchased by the Defendant.

The Court further finds that certain orders, including

an injunction should issue against the Defendant.

IT IS THEREFORE, ORDERED AND ADJUDGED

as follows:

1. That the road or driveway presently located on

Lot No. D-6 of the Countrywood Estates Subdivision, Section

IV, and owned by the Defendant, be closed and the Defendant

is hereby ordered to close the road and cul-de-sac.

2. That Defendant is further ordered to return the

cul-de-sac and Lot No. D-6 of the Countrywood Estates

Subdivision, Section IV, as nearly as practical to their original

state.
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3. That Defendant remove the gate and tile

presently located on Lot No. D-6 of the Countrywood Estates

Subdivision, Section IV.

4. That Defendant is hereby permanently

enjoined from constructing, maintaining, and/or usingLot No.

D-6 of the Countrywood Estates Subdivision, Section IV, as

a roadway, driveway, access way, on or across the same, for

the purpose of providing access, either ingress or egress, to

any adjoining property.

5. That the Defendant is given sixty (60) days

from July 23, 1997, to close the road located on Lot No. D-6

of the Countrywood Estates Subdivision, Section IV, to

remove the gate and tile, and as such is reasonably possible,

to restore the lot and cul-de-sac to the original state. That

after sixty (60) days from July 23, 1997, should Defendant

fail to complete any items ordered, Defendant shall pay into

the Registry of this Court the sum of $500.00 per day until the

items are completed.

6. Defendant shall not use this order in any way

or manner to limit or restrict the subsequent orders of this

Court in the case of New Johnsonville Regional Planning

Commission and The City of New Johnsonville, Tennessee v.

Rodney Trevor Medling, Humphreys County Chancery Court,

Civil Action No. 23-370, and in particular shall not in any

way or manner use this judgment to restrict or limit the prior

order of this Court to remove the mobile home from the

premises.

7. Defendant will pay the cost of this cause, for

which execution may issue if necessary.

The defendant presents the following issue:

The only issue for review in this case is whether or not

the judgment of the trial court is so restrictive as to violate the

general law of the State of Tennessee.

The plaintiff presents the following issue:

1. Whetherthe evidence preponderates in support

of the trial court’s order that the driveway located on Lot No.

D-6 be closed and the cul-de-sac returned to its original

condition and further that the defendant should be enjoined

from constructing, maintaining or using Lot No. D-6 as a

roadway, driveway or access way, on or across the same for

the purpose of providing access, ingress or engress to any

adjoining property.

Plaintiffs/Appellees respectfully submit that a

preponderance of the evidence does support the trial court’s
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decision with respect to this issue, and the trial court’s ruling

entered in this matter should be affirmed.

The brief of defendant states:

Since there is no transcript of the evidence, the

allegations of the complaint will be taken as admitted, along

with the oral stipulation of the parties.

No oral stipulation of the parties is included in the appellate record. No answer of the

defendant is found in the record. The record does contain a letter from the Trial Clerk to counsel

for all parties reading as follows:

Upon speaking by phone this week with Mr. Frazier,

I am preparing to forward the record in the above referenced

cause to the Court of Appeals. In order to insure that the

proper record content is sent and that I comply with T.R.A.P.

24(a), I have listed below the filings that I intend to send.

Please advise if you have any additions or objections to the

list below.

The record in this cause to be submitted to the Court

of Appeals is as follows:

(I) Exhibits filed at July 23, 1997 hearing:

Ex. 1, collective exhibit consisting of the following

documents:

Handwritten Document of Relief Sought;

Restrictions and Protective Covenants of

Countrywood Estates Subdivision 2nd Civil

District New Johnsonville, TN;

Warranty Deed from Edward W. Lucas to

Rodney T. Medling;

Complaint from Chancery Case No. 23-370;

Answer,Counter-Claim, andCross-Complaint

from Case No. 23-370;

Memorandum Opinion on Motion for

Judgment on the Pleadings from Case No. 23-

370;

Order entered in mb 52, pg 645 in Chancery

Case No. 23-370.

Ex. 2, collective exhibit consisting of photo album

(58 photos)

Ex. 3, consisting of six (6) photos

(ii) the following technical record:
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(a) Complaint

(b) Motion to Dismiss

(c) Notice

(d) Motion to Set

(e) Judgment(entered7/31/97 inmb52, pg

818)

(f) Notice of Appeal

(g) Appeal bond

(h) Motion by defendant filed 1/15/98

(I) Letter from Ms. Garton to Mr. Frazier

setting Motion for 2/2/98

(j) Order (entered mb 54, pg 87; 2/9/98)

(k) Bill of Costs for Preparing Record

In addition, I will submit this letter along with copies

of the attorneys responses to said letter.

There are no volumes of transcripts from the July 23,

1997 proceeding filed in this office to transfer to the Court of

Appeals as of today.

If you should have any questions or if I can be of any

assistance please let me know.

The record also contains the following response of defendant’s counsel:

Dear Mr. Bullion:

This will acknowledge receipt of your letter and enclosures in

regard to the above styled manner.

In light of the fact that my appeal is going to be on the

technical record, and in light of the fact that I believe that the

judgment in this case is inconsistent with the judgment in

Case No. 23-370 and that judgment was also referred to in the

Judge Wallace’s memorandum, I would respectfully request

that a certified copy of Judge Burch’s memorandum opinion

and the judgment in Case No. 23-370 be made an exhibit to

Judge Wallace’s memorandum opinion and judgment. If this

is not possible, then I would request that you forward me a

certified copy of the memorandum opinion and judgment in

Case No. 23-370 so that I may properly file it as an exhibit to

my brief and argument.

The record is authenticated by the following certificate:

CERTIFICATE OF APPELLATE RECORD

I, Michael S. Bullion, Clerk and Master of the

Chancery Court of Humphreys County, Tennessee, do hereby

certify that the following items herewith transmitted to the

CIVIL COURT APPEALS are originals or true and correct

copies of all or the designated papers on file in my office in

the captioned case except for those papers filed in said cause
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which are excluded from the appellate record pursuant to

T.R.A.P. 24(a).

I. Technical record attached to this certificate

and consisting of 37 pages.

II. Exhibits filed in my office on July 23, 1997

and authenticated by the Trial Judge or as provided by

T.R.A.P. Rule 24(f) and described as follows:

Ex. 1, collective exhibit consisting of the

following documents:

Handwritten Document of Relief

Sought;

Restrictions and Protective Covenants

of Countrywood Estates Subdivision

2nd Civil District New Johnsonville,

TN;

WarrantyDeed from Edward W. Lucas

to Rodney T. Medling;

Complaint from Chancery Case No.

23-370;

Answer, Counter-Claim, and CrossComplaint from Case No. 23-370;

Memorandum Opinion on Motion for

Judgment on the Pleadings from Case

No. 23-370;

Order entered in mb 52, pg 645 in

Chancery Case No. 23-370.

Ex. 2, collective exhibit consisting of photo

album (58 photos)

Ex. 3, consisting of six (6) photos

III. There has been no volumes of transcripts from

the July 23, 1997 proceeding filed in this office as of today.

An envelope of purported exhibits accompanied the record received by this Court. None

of said exhibits is marked filed by the Trial Clerk in the present case and none is authenticated

by the signature of the Trial Judge. Some of said exhibits are marked filed in other suits against

the defendant in this case, but none is marked filed in the present case. The unfiled,

unauthenticated purported exhibits include a memorandum of the Trial Judge in a different case,

but no memorandum of the Trial Judge in the present case.

The defendant appears to argue that plaintiff’s complaint fails to state a claim for which

relief can be granted, yet it is argued that exhibits and a stipulation were presented to the Trial
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Court, and the judgment indicates that issues other than those presented by the complaint were

heard and decided by consent of the parties. Such issues might be identified by the memorandum

of the Trial Judge which is not available to this Court.

It might be argued that the allegations of the complaint were admitted by failure to

answer, but the record contains no motion for default or order thereon. TRCP Rule 55.01.

It might be argued that the exhibits were considered without objection; but, without a

transcript, this Court is without information as to whether objections were made and, if so, what

rulings resulted. Moreover, it is a general rule that an exhibit must be identified and related to

the lawsuit by testimony before it can be considered. Tennessee Rules of Evidence, Rule 901.

On appeal from this non jury judgment, the judgment of the Trial Court must be affirmed

unless a prejudicial error of law appears in the record or the evidence preponderates against the

determinative facts found by the Trial Judge. Neither ground for reversal is established by the

record.

The judgment of the Trial Court is affirmed. Costs of this appeal are assessed against the

defendant-appellant. The cause is remanded to the Trial Court for necessary further proceedings.

AFFIRMED AND REMANDED.

___________________________________

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

_____________________________

BEN H. CANTRELL, JUDGE
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_____________________________

WILLIAM C. KOCH, JR., JUDGE