# FILED
September 23, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

MARY F. HAL

L and ) DON K. HALL, ) ) Plaintiffs/Appell

ees, ) Putnam Chancery

) No. 93-731 VS. ) ) Appeal No. MARY ROSE PI

PPIN and ) 01A01-9609-CH-00439 DALE DELANEY, ) ) Defendants/Appel

lants. )



### ORDER GRANTING PETITION FOR REHEARIN G
Mary Rose Pippin and Dale Delaney have filed a petition requesting this court to reconsider its Augu st 19, 1998 opinion in light of seven exhibits that were not transmitted

to this court with the rest of the record on appeal. At our request, Mary F. Hall and Don K. Hall have filed a response to the petition for rehearing. The clerk and master has al so transmitted a supplemental record containing the seven missing exhibits and an affidavit co ncerning the reasons

why these exhibi

ts were not

included with the original app

ellate record.

Before turning to the substance of the petition for reh earing, we will consider whythe seven missing

exhibits were not

transmitted to t

his court when the ap

pellate record was originally filed. The clerk and master states that, after a

discussion with the clerk of the appell

ate courts, she el

ected not to transm

it these exhib its because they were too bulky. While Tenn. R. App. P. 25(b) states that “ [d]ocuments of unusual bulk or weight, and physical exhibits , other than docum ents, shall not be transmitted”

with the appellate record, the seven exhibits at issue in this case were not bulky. When folded, they can easily fit into several m

anila envelopes whi

ch could have been included with th e orig inal ap pellate record.Thus, we find tha t both the-2-

clerk and master and the clerk

of the appellate courterred when they determined that these particular e

xhibits were too bulky

to be transmitte

d with the appellate

record. Notwithstanding

this error, the c

le rk an d master properly notified the parties that she was not transmitting these seven exhibits with the ori ginal appellate re

cord. She personally notified the lawyer r epresenting

Ms. Pippin and Mr. Delaney that s he
wa s holding these exhibits in her office and tha

t he would be resp onsible fo r delivering these exhi

bits to the appellate

courton the day of argument. The lawyer did not request these exhibi ts until ten days a

fter this court ente

red its August 19, 1998 opinion. Thus, the clerk and master’s error was compounded by the lawyer representing

Ms. Pippin and Mr. Delaney. T heir failure to ca

use the exhibits t

o be delivered to this court or to re ly on them in their b rief and argum

ent left both this courtand the ir adversa

ries with the under

standable impression that they w ere not relying on these e

xhibits on appeal.

Under these facts, we are reluctant to conclude that Ms. Pippin and Mr. Delaney have waived their opportunity to rely on these se ven exhibits by the ir lawyer’s failure to take the steps reasonably

necessary to m

ake sure that these exhibits
were before the

court when this case was originally submitted. Therefore, we direct the clerk of the appellate co

urt to file the

supplemental record containing the seven exhibits, and we wi ll r econsider our August 18, 1998 opinion in light of these exhibits.

Ms. Pippin and Mr. Delan ey ass ert that the absenc e of the seven m

issing exhibits caused the court to m ake thirteen m

aterial factual errors in its August 19, 1998 opinion. We ta

ke up each of these a

sserted errors.

1. The location of th e Boma-Baxter

Road

. M s . Pippin and Mr

. Delaney assert that this cour t concurred with the

trial court’s er

roneous finding concerning

the location of

the Boma-Bax

ter Road because it

did not considerthe seven missing exhibits. The issue

of the location of

the Boma-Baxter

Road is not before the court because Ms. Pippin

and Mr.1 In their original brief, Ms. Pippin and Mr. Delaney state: “The Defendants do not believe or concede that the Chancellor wa s corre ct in his finding th at the new road, F

riendly Dri

ve, is where the old Boma Baxter Road used to be , but in light of the standards of appellate review applicable here, the Defendant-Appellants have chosen not to pursue that argument.” -3- Delaney explicitly abandoned this issue. 1 Thus, the late-f iled exhibits have no bearing on this q uestion. 2. The Herrons’ Jan uary 1973 Purchase

. Ms. Pipp in an d Mr

. Delane y t ake issue with the c ourt’s statem

ent that Floyd an

d Belle Herron purc hased “th e 3.48-acre tra ct” in January 1 973. The exhibits originally included with the appel la te record indicate that in January 1973, the Herrons purcha sed a 12 to 15-acre trac

t, north of the 55-acre tract, that included the 3.48-acre tract they later conveyed to the S elmeks in 1979. The size of t

he tract purchased

by the Herrons

in January 1973 is not relevant to the

issues presented on th

is appeal. 3. The Herrons’ Intention to Build Homes

. M s . Pip pin and Mr

. Delaney also assert that this court was incorrect when it stated that Mr. Herron acquired the proper

ty with the intention to

build homes. W

hile this point is also irrelevant to t he ultimate issu

es in the case, Ms.

Pippin a nd Mr. Delaney refer in their original brief to the portions of Mr. Herron’s testimony in which he stated that he exten

ded Friendly D

rive “southw ar d through his property in order to build new houses in the ‘70s.” 4. The Location of C armel Allison’ s House

. M s. Pippin an d Mr

. Delaney take issue wit

h th e court’s st atement that Carmel Alliso n’s house was on the 3.48-ac re tract acquire

d by the Herrons in 1973.Mr. Allison’s house was on the 12 to 15 -acre tract ac quired by the He

rrons in 1973 but

was not on the 3.48-acre tract the Herrons later

conveyed to the Selmeks. T

his error does not affect th e outcome of this appeal because the significance of the location of Mr. Allison’s house relates to his construction of Fr

iendly Road to pro

vide him acces s to Old Baxter Road an d to the old Boma- Baxter Road. Ex

hibit 8 reinforces t

his court’s original conclusion tha t Friendly Road

passed by

Mr. Allison ’s house and provided access to Old Baxter Road and t o the old BomaBaxter Road. 5. Dead end of Friendl y Road

. Ms. Pippin and Mr. Delaney assert that Exhibit 10 demonstrates

that this courtwas incorrect when it stated that Friendly Road intersected w

ith the old Boma-Baxte

r Road. Exhibit 10 is a 1942 survey plat that must have been prepared before Mr. A llison constructed Friendly Road t o gain accessto Old Baxter Road and to the old Boma-Baxter Road. Exhibit 20 clearly shows that Frien dly Road intersects with both the Old Baxter Road and the old Boma-Baxter Road. Thus, the late-filed exhibits have no bearing on this matter.-4- 6. Use of the old Boma -Baxter Road

. Ms. Pippinand Mr. Delaney take issue with the

court’s finding that the old Boma-Baxter Road “had been little us ed ove r the preceding decades” and assert that it had not been used at all s inc e 1949. This is simply reargument of a disputed fact issue. Oliv e Jar ed, Iva Lowe, Emil Em erton, and James Stafford testified about the use of the old Boma -Baxter Road since

1949. 7. Location

of Friendly Dr

ive

. Ms. Pippin and

Mr. Delaney diff

er with the court’s conclusion

that “[t]he

improved portion

of the ol d BomaBaxter Road came to be know n as Friendly D

rive.” This argu

ment relates t o t he issue concerning w hether Friendly

Drive runs where

the old Boma-Baxter

Road used to run. Ms. Pippin and Mr. Delaney specifically

waived this issue in their original brief. The late-filed exhibits shed no new light on this question, and the cou rt’s conclusion about the location of F

riendly Drive

is amply supp

orted by the rec

ord. 8. The Development of the Bean property

. Ms. Pippin a nd Mr

. Delaney assert that the court mischaracterized the Bean property as “undeveloped farm propert y” in light of the evidence of the existence of a barn on the northern p ortion o f the property.

The state of the property’s “deve lopmen t” in 1980 is only m arginally rele

vant to the issues in this case, and the late-filed exhibits shed no new light on this question. This court pointed out the existence of the

barn in its August 19, 1998 opinio n and now concludes that a 55-acre tract of farm property is not “

developed” simpl

y because of the

erection of a barn

. 9. Access to the barn

. Ms. Pi ppin and Mr. Delaney insist that the record does n ot su ppor t thi s cour t’s co nclu sion that M r. Bean used “a relatively short dirt roadway ex te nding south from the end of the improvedportion of

Friendly Drive to drive his trac tor to . . . [the] barn.” The late-filed exhibit

s shed no new light on thi s matter. T his was a contested issue at trial, an d Ms. Pippin’s and Mr. Delaney ’s or ig inal brief cites to the portion of the evidence establishing that the barn “was accessible

from a dirt road, about one hundred feet in length, which had been used by Mr. Be

an to get his tractor to the barn .” Ms. Pippin and Mr

. Delaney cann

ot take a position in the

ir petition for rehe

aring tha t differs from the position they took in their original brief. 10. Accessto the property from Friend ly Drive

. Ms. Pippin and Mr. Delaney insist that the court e rred by concludi

ng that there wer e two accesses to the 55-acre tra ct in 1985. They

insist that there is no evidence of an access to the p roperty from

Friendly Dri

v e. The la

tefiled exhibits shed lit

tle new light on this di sputed fact question.John Bond (Bohn) testified on cross-examina tion during the January

10, 1994 hearing that the

roadway from Friendly Drive w as “graveled

down” and that the Halls used the roadway to get to their barn.Thus, the evidence does not preponderate

against this court’ s finding concerning a ccess to the 55-acre tract from Friendly Drive.-5- 11. Abandonment

of the old

Boma-Baxter R

oad

. Ms. Pippin

and Mr. Delaney assert that this cour t’s conclusion that th e old Boma-Baxter Road “had not been aba

ndoned even though it

had fallen into desuetude as apublic road” conflic

ts with the trial co

urt’s conclusion tha

t the road had b een abandoned. The late-filed exhibit

s are of little help

on thi s issue. Ms. Pippin’s and Mr. Delaney’s assertion misapprehends the trial court’s conclusion. The trial court found only that the old Boma-Baxter Road has been abandoned “ as a public road,” not that it h ad b een abandoned by are

a landowners. T

his is precisely

our conclusion. 12. Access of the Jared Property

. Ms. Pi ppin and Mr. Delane y assertthat late-filed E

xhibit 26 show s that Friendly D rive and the old Boma-Baxter

Road is not Ms. Jare

d’s only means of access to her proper ty. While Exhibit 26 sh ows that Ms. Jare

d has other access t

o her property south of the i nterstat e right-of-way , it does not indicate any otheraccess to he

r proper ty north of the int erstate right-of-way. The relevant issue in this case is th

e access to Ms. Jared’s pr operty north of the interstate right-o

f-way; ther

efore, Exhibit 26 is of

little value on this question. 13. The Use of the old Boma-Baxte r Road

. This final factu al argument is basically a re

newal of Ms. Pippin ’s and Mr. Dela ney’s sixth argument regarding the use of the old Boma-Baxter Road since 1949. The latefiled exhibits shed little a dditional light on t his disputed factual issue. We have already p

ointed to three witnesses other than Mr.Emerton who testified that persons other than Mr. Herron used the old Boma-Baxter Road after 1949. The purpose of petitions for reh

earing is not to rear

gue disputed factual issu

es.
Ms. Pippin and

Mr. Delaney

cannot at this late

stage depart from

the statements and concessions contained in their or iginal brief. W

e have carefully

examined the
seven late- filed exhib its an d hav e dete rmined that t hey do not re quire an out come different from the outcome of our August 19, 1998 opinion. The factual issues Ms. Pippinand Mr. Delaney seek to raise at this time are either not relev ant or not materialto the issues presente d on this appeal. Thus, we again a ffirm the dec

ision of the trial court that the

abutting landowners h

ad not aba

n doned their use of the

old Boma-Baxter

Road even though it had c eased to be a publicly

maintained roa

d.

Itis, therefore,

ordered that our

August 19, 1998 opinion

be withdrawn and that the revised opinion issued contemporaneously with this order be filed in its place.-6- Itis f urther orde

red that the clerk a

nd master not fo

rfeit her costs for transmitting

the appellate rec

or d in light of the errone

ous advice receive

d from the clerk of the appellate co

urts and the oversight of Ms. Pippin’s and M r. Delaney’s counsel.

Itis further ordered that

the costs associated

with the filing and disposition of the petition for rehea

ring be and are her

eby taxed, jo

intlyand severally, to

Mary Rose Pippinand Dale Delane

y and their sur

ety for which execution, if necessary, may issue.

______________________________ HEN RY F. TOD D, PRESIDING JUDG E MIDDLE SECTION

______________________________ BEN H. CANTRELL, JUDGE

______________________________ WILLIAM C. KOCH, JR., JUDGE