              IN THE COURT OF APPEALS OF TENNESSEE

                   EASTERN SECTION AT KNOXVILLE              FILED
                                                            December 10, 1997
ONEIDA WOOD PRODUCTS, INC.,                   )             Cecil Crowson, Jr.
                                              )              Appellate C ourt Clerk
      Plaintiff/Appellant                           )
                                                    )      SCOTT CHANCERY
v.                                            )
                                              )      NO. 03A01-9707-CH-00264
ONEIDA WOOD INDUSTRIES, INC.,                 )
LUMBER, INC. and DANIEL L.                    )
BILLINGSLEY,                                  )      HON. BILLY JOE WHITE
                                              )      CHANCELLOR
      Defendants/Appellees                    )
                                              )      VACATED and
                                              )      REMANDED

Danny P. Dyer, Knoxville, for Appellant.
Johnny V. Dunaway, LaFollette, for Appellees.


                                  OPINION

                                                    INMAN, Senior Judge

      The corporate parties are closely held and competitively engaged in the

lumber business. David L. Billingsley [“Billingsley”], owns a substantial

number of shares of the plaintiff, Oneida Wood Products [“Oneida”], and is a

corporate officer. Before his termination on September 13, 1996, he was

employed as Plant Manager.

      Billingsley is also principal shareholder and President of the defendants,

Oneida Wood Industries, Inc. [“OWI”], and Lumber, Inc. The corporate

plaintiff accuses him of fraudulent conduct involving his manipulations of the

various corporations resulting in his enrichment to the detriment of the plaintiff.

The complaint was filed on September 13, 1996. The corporate defendants and

Billingsley in course filed their answers, generally denying the allegations of

false dealings.

                                         1
         On June 2, 1997, the plaintiff filed a motion for a temporary restraining

order against Billingsley, who allegedly intended to close an access road to the

plaintiff’s plant which it had used for eight years.1

         The defendants, on June 5, 1997, moved to dissolve the TRO, alleging

that the affidavit of Escue in support of the motion was ‘inaccurate.’

         On June 11, 1997, the plaintiff filed a motion for a temporary injunction,

which enlarged upon the motion for the TRO. The motion for a temporary

injunction was heard on June 12, 1997.

         The thrust of the plaintiff’s evidence is that the disputed road across

Billingsley’s land to the public Verdun road has been used for more than seven

years and is vital to its continued existence. The thrust of the defendant’s

evidence is that the plaintiff has no vested rights in the disputed road and that

the plaintiff has unfettered access to another public road on which its property

abuts.

         The Chancellor found no ‘legal basis for a permanent easement,’ but gave

the plaintiff the right to use the ‘driveway’ for 90 days in order to facilitate

another access. The plaintiff appeals, (1) insisting that the defendants should be

estopped from denying the existence of the easement, and (2) that the

Chancellor improperly “awarded relief to a non-moving party that had not been

requested in any pleading.”

         Our review of the findings of fact made by the trial court is de novo upon

the record of the trial court, accompanied by a presumption of the correctness of

the finding, unless the preponderance of the evidence is otherwise. TENN. R.



1
          Th e T RO was app aren tly granted. It is not inc luded in the reco rd. W e as sum e it
restrained the defenda nts from closing the “access road.” It was supported by the affidavit of
Alvin Escue, President and principal shareholder of the plaintiff, who testified, essentially, that the
plaintiff would be irreparably harmed if the TRO was not granted.

                                                    2
APP. P., RULE 13(d).

      The defendants objected to the introduction of evidence of the ownership

interests of Billingsley in these competing corporations. According to the

pleadings, he owned one-third of the shares of the plaintiff and 100 percent of

the shares of each defendant. He was the Secretary of the plaintiff and the

President of each defendant. As owner of the land over which the easement by

estoppel is claimed, he allowed the plaintiff, which employed him as plant

manager, to utilize the easement for seven years. Its use was apparently

permissive; there was no documentation involved. Given the apparent posture

of Billingsley, which allegedly subjects him to a conflict of interest with respect

to the other shareholder of the plaintiff, we think the argument of the plaintiff

that the relief granted to Billingsley was in excess of the pleadings is well-

taken. See, T. C. A. § 48-18-310; 48-18-403; Knox-Tenn Rental Co. v. Jenkins

Ins., Inc., 755 S.W.2d 33 (Tenn. 1986); Fidelity-Phenix Fire Ins. Co. of N. Y. v.

Jackson, 181 S.W.2d 625 (Tenn. 1944); John J. Heirigs Const. Co., Inc. v.

Exide, 709 S.W.2d 604 (Tenn. App. 1986).

      The particular procedural problem presented here is to be found in the

fact that the issue was whether a temporary injunction should be issued,

keeping in mind that none of the defendants filed a pleading seeking to have the

plaintiff’s right to use the access road terminated. The defendants argue that the

Chancellor could not adjudicate the issue of whether to grant a temporary

injunction without first determining whether the plaintiff had an easement as

claimed; we disagree. The Chancellor based his conclusion that no easement

existed because the Statute of Frauds, which was not pleaded, required

documentation of it; he did not reach the issue of whether the defendants should

be equitably estopped from denying the claimed easement, and as to this we

                                         3
offer no opinion and none should be inferred. We note, in passing, that an

easement by estoppel may be established by proof of a representation

communicated to the plaintiff which was believed and relied upon. See,

Charton v. Burgess, Court of Appeals, 1989 WL 105655 (1989). In light of the

defendants’ sustained objection to testimony relative to the relationship and

activities of Billingsley, we think that the issue of whether the plaintiff has an

easement as claimed should be reserved for a merit trial. Since the denial of a

temporary injunction was based solely upon the finding that no easement

existed, the judgment is vacated in toto and the case is remanded. Costs are

assessed to the appellee.




_____________________________
                                               William H. Inman, Senior Judge

CONCUR:



__________________________________
Houston M. Goddard, Presiding Judge


___________________________________
Charles D. Susano, Jr., Judge




                                         4
