1 Flora Trentham died during the pendency of this suit below. Upon

her death being suggested, Fred Trentham, devisee of the property in question, was substituted as a party Defendant in her stead. 

### FILED March 10, 1999 Cecil Crowson, Jr. Appe llate Court Clerk IN THE COURT OF APPEALS AT KNOXVILLE

DOROTHY ANN ELLIS ) SEVIER COUNTY ) 03A01-9806-CH-00204 Plaintiff-Appellant ) ) ) v . ) HON. TELFORD E. FORGETY, JR., ) CHANCELLOR ) FLORA TRENTHAM, BUD ) TRENTHAM, and JANICE ) TRENTHAM ) ) Defendants-Appellees ) AFFIRMED AND REMANDED

DOROTHY ANN ELLIS, Pro Se CYNTHIA RICHARDSON WYRICK OF SEVIERVILLE FOR APPELLEES

O P I N I O N

Goddard, P.J.
This suit was originated by Dorothy Ann Ellis against Flora Trentham, 1 Bud Trentham and Janice Trentham and seeks, in connection with the parties’ adjacent properties, the following relief:2 1 . That an injunction be issued against the defendants requiring them to remove all road blocks to the Old County Road and requiring them to replace the dirt removed from the side of the hill, and to repair the Old County Road by placing it in the same condition it was in prior to removal of the dirt; 2 . That this Court perfect an easement that the plaintiff has obtained by prescription in the Old County Road, thus providing the plaintiff with access to her property; 3 . That the defendants be ordered to cease all trespass on the plaintiff’s property, and be further required to remove all improvements made by the defendant thereto; 4 . That the plaintiff be awarded damages for unlawful trespass and the resulting damage to the plaintiff’s dwelling due to said trespass and blockage of the Old County Road; 5 . That, in the event that this Court does not perfect an easement by prescription to the plaintiff, an easement be granted to the plaintiff pursuant to Tenn. Code Ann. 54-14-103, such easement to consist of sufficient metes and bounds and extend along the Old County Road as previously existing; and 6 . That this Court grant all other general relief to which the plaintiff is entitled, including the costs of this cause.
The Trial Court found in favor of the Defendants and, recognizing that his determination resulted in Ms. Ellis' property becoming landlocked, noted that she was entitled--under the provisions of Title 54, Chapter 14--to condemn an appropriate right-of-way over the Defendants' property for access to a public road.
The Chancellor entered an order pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure relative to this3

determination and reserved the issue relative to the condemnation proceeding.

Thereafter, Ms. Ellis filed a petition seeking to condemn a right-of-way pursuant to T.C.A. 54-14-102.

The case was thereupon continued from time to time until it was set for trial on February 24, 1998. Prior to that date Ms. Ellis filed a motion seeking a continuance because of her ill health and to permit her to obtain counsel. The Chancellor allowed her 30 days to retain counsel, and a total of 45 days--which included the 30 days--to have the matter ready for trial. He thereupon set the case to be heard on April 1, 1998, and advised that "no further delays will be granted."

On the date of trial Ms. Ellis appeared and reported to the Court that she had not retained counsel and she was not mentally nor physically ready to proceed with the matter. The Chancellor thereupon dismissed the action and taxed the costs to her.
Ms. Ellis appeals raising the following two issues:

1 . Did the Trial Court err in dismissing this action because I cannot afford legal counsel. I have paid $125 per hour for two attorneys for nine years and still do not have access to my property nor have I been able to stop the encroachment on to and damage to my property. I am attempting to find an attorney who will finish this case contingent on collecting damages from4

the people responsible for damaging my property and blocking my access. 2 . Did the Trial Court err in charging me for the Court Costs in this Action when Chancellor Chester Rainwater approved and signed my Uniform Civil Affidavit of Indigency on March 24, 1998. I had also proceeded as indigent in the last months in Sevier County Chancery Court. The Notice of Appeal filed and certified by Sevier County Clerk and Master, Carolyn McMahan on August 11, 1998, also shows me as indigent.
As to the first issue, there is a doctor’s statement dated February 24, 1998, which accompanied a letter from Ms. Ellis dated March 2, both of which were filed on March 4. The doctor’s statement, which appears to bear upon the February 24th hearing date, states the following:
February 24, 1998 To: Judge Forgety Re: Dorothy Ellis Dear Sir, Please be advised that Ms. Dorothy Ellis has been extremely ill over the past week and has been in this office for treatment. Ms. Ellis has also been to the emergency room due to chest pain. Respectfully, /s/ Frank H. McNiel, M.D. Frank H. McNiel, M.D.
No doctor’s report was filed as to the April 21 hearing date.5 As to matters of a continuance, the trial court is granted wide discretion. Blake v. Plus Mark, Inc. , 952 S.W.2d 413 (Tenn.1997); Turtle Creek Apartments v. Polk , 958 S.W.2d 789 (Tenn.App.1997). We cannot find under the record presented, which does not include a transcript of the hearing before the Chancellor on April 21, that an abuse of discretion has been shown.

As to the second issue, the statute permitting persons to proceed

i n forma

puperis

elieves them from the burden of making a bond for court costs, but does not relieve them from being onerated with court costs if adjudged by the trial court and justified by the record.

The Defendants raise an issue asking that this appeal be found to be frivolous and that damages be awarded pursuant to T.C.A. 27-1-122.

Recognizing that lay persons might very well believe that being granted pauper status would relieve them from payment of court costs, we are disinclined to further onerate Ms. Ellis with attorney fees for counsel for the Defendants.

Finally, we observe, as conceded by counsel for the Defendants, that the resolution of the Trial Court, at least as to the private condemnation feature of the suit, was not one on6

the merits and Ms. Ellis is still free--if not otherwise precluded-- to pursue this facet of her case.

For the foregoing reasons the judgment of the Trial Court is affirmed and the cause remanded for collection of costs below. Costs of appeal are adjudged against Ms. Ellis.

_______________________________ Houston M. Goddard, P.J.
CONCUR:

________________________________ Herschel P. Franks, J.
(Not Participating) Don T. McMurray, J.