### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE July 8, 2002 Session MARY F. HALL, ET AL 

### . v. MARY ROSE PIPPIN, ET AL 

### . Appeal from the Chancery Court for Putnam County No. 93-731 Vernon Neal, Chancellor

No. M2000-01151-COA-R3-CV - Filed Nove mber 26, 2002

The Defendants, Mary

Rose Pippin and Dale Delaney appeal the Trial Court’s dismissal of a Rule 60 motion, which attacked a previous determination by the Trial Court relative to their right to maintain a fenc e acros s a roadw ay over whi ch the Pla

intiffs, M ary

F. Hall a nd Don K. H all claim a pr ivate rig ht-of-w ay . We affir

m. Tenn.R.App. P. 3 Appe al as of Right ; Judgme nt of the Cha

ncery Court Affirm

ed; Cause Remanded
H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS and D. M ICHAEL S WINEY , JJ., joined. Mary Rose Pippin and Dale D elaney, Pro Se
Chantal M. Eldridg e, Cookev ille, Ten nessee, for the A

ppellee s, Mary

F. Hall a nd Don K. H all

OPINION
As this is a non -jury

case, ou r revie w is de novo upon the record of the proceeding s below; however, that record

comes to u s with a pr

esumption

that the tr ial cour t's factual findings are

correct. Tenn.R.A pp.P. 13(d). We must honor that presumption unless we find that the evidence preponderates against the trial court's factua l findings. Union Carbide Corp. v. Huddleston , 854 S.W.2d 87, 91 (Tenn. 1993). The t rial c ourt's conclusions of law, however, are not accorded the same deference. Campbell v. Florida Steel Corp. , 919 S.W.2d 26, 35 (Tenn. 1996).
The origin o f this app eal was a suit filed by Pl aintiffsMary

F. Hall a nd Don K. H all aga

inst Defend ants Mary

Rose Pippin and Dale Delaney , seeking removal of a fence erected by

the Defend ants across a roadway which the Plaintiffs contend is burdened by t he ir pr iv at e r ig ht -o f- wa y.-2-

The Trial Court ruled in fav or of t he Pl ainti ffs up on fin ding that the roadwa y, althou gh having been ab andoned

as a publi c road, n

everthe less was p reserv ed as a pr

ivate rig ht-of-w ay as to abutting landowne

rs, which included the Plainti ffs.
This determination was appealed to this Cour t and th e C ha nc el lo r w as af fi rm ed by a publ ished opi nion, Hall v. Pip pin , 984 S.W.2d 6 17 (Tenn . Ct. App. 1 998), to w hich ref erence is made for a more particular d iscussion re garding the facts pre sented, the issues raised and the disposition

by t he Trial Court.
After the case w as de cided at the trial level, the Defendants filed three separate Rule 60 motions seeking

relief f rom the jud

gment. A s to the first motion, the Chancellor held that he did not have jurisdict

ion in that a

n appea l of the c asewas pending before this Court. The Defendants then requested the Court of Appeals to remand the case to the Chancery Court for disposition

of that Rul e 60 motion.
The Court of A

ppeals declined to

do so, and the reason for its action is set out in footnote 4 to the publ

ished opin

ion:
After this appeal was filed, Ms. Pippin and Mr. Delane y f iled a Te nn. R. Civ. P. 60.02 mot

ion in the trial court seeking to reopen the case to introduce (1) evidence of an action taken by the Putnam County Commission i n 19 05 purportedly closing

the old Boma-Baxter

Road and (2) the contents of the court filerelating to the 1942 judicial sale of the pro per ties to the Allisons. The trial court pro perly

denied th

is motion on t

he ground that it l acked ju risdictio n to consider it. See Spence v. Allstate Ins. Co. 883 S.W.2d 586, 59 6 (Tenn. 1994). Ms. Pippin

and Mr. Delaney

have now requested this court to remand the case to the trial court for further proceeding s. We deny the motion t o re mand the case. Even if the proffered evidence could be considered newly

discovere d eviden ce, its admission and consideration would not alter the conclusion that the evidence does not preponderate against the trial court' s findings that Friendly Drive and the graveled extension to

Friendly Dr

ive follow the roadbed of the old Boma-Baxter Road and that the landowners residing along this ar ea of the old Bom a-Baxte r Road have not abandoned the use of the road for access to their property

. A second Rule 60.02 motion was filed on January 1, 2000. This motion was denied by the Chancellor, res ulting in

this appe al.
A third Rule 60.02 motion was filed, overruled by the Trial Judge, and

no appeal was taken therefrom..
The sec ond motion, the one which, as already noted, is the subject of this appea l, i s predicated

upon two pr

opositions . First, that the case of Allison v. Lowe , which wa s filed in A pril 1942, sustains the position of the Defendants and should be considered as newly -discovered-3-

evidence, the Clerk

of the Court being unable to locate the file prior to trial of the c ase, although the judgment of the Court, as we understand it, was available. Secondly , the Plaintiffs insists that the minutes of the County Court for Putnam County abandoning the roadlikewise were not presented to the Trial Court.
As to the second insistence, it was conceded from the outset and foundby the Chancellor a nd this Court that the road was abandoned as a public road, but nevertheless the Plaintiffs were entitled to private right-of-way , notwithstanding the abandonment.
As to the fir st proposition, it app ears tha t the ver y sa me con tentions w ere mad e in the f ist Rule 60 motion and

disposed o f in the fo otnote in the opinion heretofore quoted. Thus, it has been judiciall y determined that ne

ither of t he propo sitions ra

ised in the

second Rule 60 motion now on appeal w ould have

chang ed the de

terminat ion of the Trial Cour

t or this Cou

rt.
The Defendants have

filed a motion to have this declared a frivolous appeal and that they be awarded damages as a consequence . Because the Plaintiffs are unrepr esented and filed this appeal pro se , we are disinclined to grant the motion.
For the foregoing reasons the judg ment of the Trial Court is affirmed and the cause remanded for collection of costs below. Costs of appeal are adjudg e d again st Mary Rose Pippin

and Dale De la ne y.

_________________________________________ HOUSTON M. GODDARD, PRESIDI NG JUDGE