# FILED
August 5, 1998 Cecil W. Crowson Appellate Cou rt Clerk MICHAEL G. BINKLEY and wife, ) MARTHA Y. BINKLEY, and ROBERT ) A. JONES, SR., and wife, MARY EVELYN ) JONES, and CHARLES H. CATH EY and ) wife, MARY JUNE CATHEY, ) ) Humphreys Chancery Plaintiffs/Appellee

s, ) No. 24-001 ) VS. ) ) Appeal No. RODNEY TREVOR MEDLI NG, ) 01A01-9708-CH-00421 ) Defendant/Appellant, )

IN THE COURT OF AP PEALS OF TENNESSEE MIDDLE SECTION AT NASH VILLE APPEAL FROM THE HUMPHREYS COUNTY CHANCERY COURT

AT WAVERLY, TENNESSEE HONORABLE ALLEN W. WALLACE, JUDGE

William G. McCaskill, Jr., #12716 TAYLOR , PHILBIN , PIGUE , MARC HETTI & BENNE TT, PLLC 2908 Poston Avenue Nashville, Tennessee 37203 Anthony L. Sanders, #2283 129 North Court Square Waverly, Tennessee 37185 ATTORNEY FOR PLAINTIF FS/APPELLEES
Andrew B. Frazier, Jr. 116 East Main Street P.O. Box 208 Camden, Tennessee 38320 ATTORNEY FOR DEFENDANT/APPELLANT



### AFFIRMED AND REMAND ED

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION-2-

CONCUR: BEN H. CANTRELL, JUDGE WILLIA M 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. CATH EY and ) wife, MARY JUNE CATHEY, ) ) Humphreys Chancery Plaintiffs/Appellee

s, ) No. 24-001 ) VS. ) ) Appeal No. RODNEY TREVOR MEDLI NG, ) 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 Jul y, 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 John sonville, Tennessee, and Lot No. D-6 of the Countr y wood Estates Subdivision, Section IV, and further that the Defend an t 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 p a rticularly the 11.7 acre tract that was purchased b

y the Defe

ndant. The Court further

finds that certai

n orders, including an injunction should

issue against the

Defendant. IT IS THEREFORE, ORDERED AND ADJUDGED as follows: 1. That

the road or

driveway presently locate d 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 cu l-de-sac and Lot No. D- 6 of the Country wood Est ate s Subdivision, Section IV, a s nearly as practicalto their original state.-3- 3. T hat

Defendant remo

ve the gate and

ti l e presently located on Lot No. D-6 of the Countrywood Estates Subdivision, Section IV. 4. That

Defendant

is hereby pe

rmanently enjoinedfrom constructing , mainta ining, and/or using L ot 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 providi ng acces s, either ingre ss or egress, to any ad joi nin g pro pert y. 5. That

the Defe nda nt i s giv en s ixt y (60 ) days from July 23, 1997, to

close the road located on Lot No. D-6 of the Countrywood Estates Subdi visio n, Section IV, to remove the gate and tile, and as such is reasonably possible, to restore the lot and cul-de-sac to the origina l stat e. That after sixty (60) days from July 23, 1997, should Defe ndant f ail to complete any

items ordered, De

fendant 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 thisorder in

any way or manner to limit or restrict the subsequent orders of t his Courtin the case of New Johnsonville Reg ional Planning Commission and

The City of New Johnsonville, Tennessee v. Rodne y Trevor Medling , Humphreys County Chancery Court , Civil Action No. 2 3-370, 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 thi s cause , for whi ch ex ecut ion may i ssu e ifnece ssa ry. 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. Whether the evidence prepond erates in suppor t 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 origina l condition and fu rtherthat the defendant should be enjoined from constructing, ma

intaining or usin

g Lo t No. D-6 as a road way, driveway or access way , on or a cross t

he same for the purpose of provid

ing access, ing

ress o r engr ess to any adj oin ing p rop ert y. Plaint iff s/Appellees respectfully submit that a preponderance

of the evidence does support the tri al court’s-4- decision with respect to thi s issue, and the trial court’s ruling entered in this matter should be affirmed.

The brief of def

endant states: Since th ere i s no transcript of the evidence, the allegations of

the complaint will be taken as admitted, along with the oral stipula

tion 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 r

eading as follow

s: Upon speaking by

phone thisweek with Mr. Frazier, I am preparing to forward the record in the above referenc ed cause to the Cou rt of Appea ls. 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 be low th e filings that I intend to send. Please advise if you have any additions or obj ec tions to the list below. The record in

this cause to be submitted to the Court of Appeals is as fo

llows: (I) Exhibit s filed at J uly 23, 1997 he aring: Ex. 1, collectiv

e exhi bit consisting of the following documents: Handwritten Doc ument of Relief Soug

ht; Restrictions and Protective Covenants of Countrywood

Estates Subdivision 2

nd Civil District New Johnsonville, TN; Warranty Deed from Edward W. Lu cas to Rodney T. Medl ing; Complaint from Chancery Case No. 23-370; Answer, Cou nter- Claim, and Cross-Complain t from Case No. 23-370; Memora ndu m Opinion on Motion for Judgmenton the Pleadings from Case No. 23- 370; Order entered in m

b 52, pg 645 in Chancery Case No. 23-370. Ex. 2, c ollective exhibit consisting of p hoto albu m (58 photos) Ex. 3, consisting of six (6) photos (ii) the following technical record:-5- (a) Complaint (b) Motion to Dismiss (c) Notice (d) Motion to Set (e) J udgment (entered 7/31/97 in mb52, p g 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 theCourt of App eal s as of t oda y. If you should have any

questions or if I

can be of any assistance please let me know.

The record also

contains the follo

wing response o

f defendant’s c

ounsel: Dear Mr. Bullion: This will acknowledge receipt of your letter

and enclosures in regard to the above styled manner. I n 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 i n thi s case is inconsiste nt with the judgmen

t in CaseNo. 23-370 andthat judgment was also referred to in the Judge Wallace’s m

emorandum, I

would respectfully

request that a certified copy of

Judge Burch’s memorandum opinion andthe judgment in Ca

se No. 23- 370 be made an exhib it to Judge Wallace’s memora

ndum opinion and judg

ment. If this is not possible, th en I would request that you forward me a c ertifiedcopy of the memorandum opinion and judgmen t i n CaseNo. 23-370 so that I

may proper

ly file it as an exhibit to my brief an

d argument. The record is authenticated by the following certifica te: CERTIFICATE OF APPELLATE RECORD I, Michael S. Bullion, Clerk and Master of the Chancery Cou rt o f Hu mph reys Cou nty, Tennessee, do hereby certify that the following

items herewith tra

nsmit ted to the CIV I L COURT APPEALS are originals or true and correct c opies of all or the desig

nated papers on f

ile in my offi

ce in the captioned case except for those papers filed in said caus e-6- which are excluded from the ap pe llate record pur suant to T.R.A.P. 24(a). I. Technical record attache d to this certifica

te and consisting of

37 pages. II. Exhibits filed in my office on Jul y23, 1997 andauthenticated by the T r ial Judge or as provided by T.R.A.P. Rule 24(f)

and described a

s follows: Ex. 1, co llective exhibit consisting of th e following docume

nts: Handwritten Document of Relief Sought; Restrictions and Protective Cov enants of Countrywood Estates Subdivision 2nd Civil District New Joh n sonville, TN; Warranty Deed fro m Edward W. Luca s to Rodney T. Me dling; Complaint from Chancer y C ase No. 23-370; Answer, Counter-Claim, and CrossComplaint from Case No. 23-370; Memorandum

Opinion on Motion for Judgmenton the Pleadings from Case No. 23-370; Orde r entered in mb 52, p g 645 in Chancery Case No. 23-370. Ex. 2, collective exhibit c onsistin g of ph oto album (58 photos) Ex. 3, consisting of six (6) photos III. There has been no volumes of transcripts from the Jul y 23, 199 7 pr ocee din g fil ed i n th is o ffi ce as of t oda y.

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. So

me of said

exhibits are marke

d filed in other suit

s against the defendant in this c

ase, 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 compl

aint fails to state a claim for which relief can be granted, yet it is argue d that exhibits and a stipulation were presented to the Trial-7-

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 availa

ble to this Court.

It might be argue

d that the allega

tions of the compla

int were admi

tte d by failure

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

It might be argued t

hat th e exhibits were con sidered without ob

jection; but, withou

t 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 t

hat an exhibit must be i

dentified and re

lated 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-app

ellant. The cause

is remanded to

the Trial Court for

necessary further procee

dings.



### AFFIRMED AND REMANDED.

___________________________________ HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR:

_____________________________ BEN H. CANTRELL, JUDGE-8-

_____________________________ WILLIA M C. KOCH, JR., JUDGE