                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  January 23, 2013 Session

             KENNETH R. BABB, ET. AL. V. TRENT CROSS, ET. AL.

                   Appeal from the Chancery Court for Scott County
                     No. 10296 Hon. Billy J. White, Chancellor




             No. E2012-01327-COA-R3-CV-FILED-FEBRUARY 20, 2013




In this case, Plaintiffs sought a permanent injunction and a declaratory judgment prohibiting
Defendants from restricting the use of Marcum Creek Road. Defendants denied that
Plaintiffs ever had a right of access to Marcum Creek Road and asserted that Plaintiffs had
failed to state a claim upon which relief could be granted. Thereafter, Plaintiffs filed a
separate motion for a temporary injunction. The trial court consolidated the hearing on the
injunction motion with a trial on the merits and issued a declaratory judgment, providing that
Marcum Creek Road was a public road and that the public should have uninterrupted use of
the right-of-way. Defendants appeal, asserting that the trial court abused its discretion by
consolidating the motion hearing with a trial on the merits. Defendants request remand of
this case to the trial court for a trial on the merits. We affirm the judgment of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;
                                  Case Remanded

J OHN W. M CC LARTY, J., delivered the opinion of the court, in which C HARLES D. S USANO,
J R., P.J. and D. M ICHAEL S WINEY, J., joined.

C. Patrick Sexton, Oneida, Tennessee, for the appellants, Trent Cross, Gary Cross, and Ruby
Ann Cross.

David A. Stuart and Max E. Huff, Clinton, Tennessee, for the appellees, Kenneth R. Babb
and Leland Babb.
                                          OPINION

                                    I. BACKGROUND

       The record before this court is sparse. Kenneth R. Babb and Leland H. Babb
(collectively “Plaintiffs”) owned property and a timber lease to other properties in Scott
County, Tennessee. In order to access their property and the leased properties, Plaintiffs
traveled on Marcum Creek Road, which crossed property allegedly owned by or adjacent to
property owned by Trent Cross, Gary Cross, and Ruby Ann Cross (collectively
“Defendants”). In 2011, Defendants attempted to generally restrict access to Marcum Creek
Road. Defendants posted signs, and Trent Cross and Gary Cross confronted Plaintiffs on at
least one occasion, prompting a verbal and physical confrontation. Claiming to be a Scott
County Deputy, Trent Cross arrested Kenneth R. Babb for trespassing. The charges against
Kenneth R. Babb were dismissed, but the relationship between Plaintiffs and Defendants
remained tense.

       Plaintiffs eventually filed a complaint in which they sought a permanent injunction,
enjoining Defendants from interfering with the public’s right to use Marcum Creek Road.
Also in the complaint, Plaintiffs sought a declaratory judgment, providing that Marcum
Creek Road was a public road, the use of which may not be restricted by Defendants or
others who may own property through which the public road crossed. Plaintiffs alleged that
several other people also used Marcum Creek Road to access property and that family
cemeteries were located upon some of those properties.

        Defendants denied any wrongdoing, asserting that Plaintiffs never had access to any
property owned by them and that they never gave Plaintiffs or anyone else permission to
travel through their property for any purpose. Defendants denied knowledge as to the
location of Marcum Creek Road. Defendants argued that Plaintiffs had failed to state a claim
against them and demanded that Plaintiffs be required to provide evidence of the exact
location of the road at issue. Separately, Trent Cross filed a motion to dismiss, claiming that
Plaintiffs had failed to state a claim against him because he did not own any “real property
adjacent to or underneath where [the] proposed Marcum Creek Road [was] located.”

       Shortly thereafter, Plaintiffs filed a motion for a temporary injunction pursuant to Rule
65.04 of the Tennessee Rules of Civil Procedure. Plaintiffs again alleged that they owned
property and leased other property accessed by Marcum Creek Road and that Defendants had
blocked the road, preventing them from accessing their properties. They asserted that the
road had been used to access many tracts of property and cemeteries for years and that prior
attempts to “close” the road had been denied.



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       Defendants received notice to appear for a hearing on the temporary injunction
motion. The morning of the hearing, Defendants filed a motion, asserting that the court
“should not take action until [Plaintiffs] brought in all necessary parties for which they claim
an easement.” Despite the motion, the hearing was held, several witnesses testified, and
several exhibits were admitted by the trial court. At some point,1 the motion hearing was
consolidated with a trial on the merits. The trial court granted the request for a declaratory
judgment by order, which provided, in pertinent part,

           This cause came to be heard on the 23rd day of May, 2012 . . . upon the
           Motion for a Temporary Injunction filed by [Plaintiffs] and Notice by
           [Plaintiffs] to appear in [c]ourt. Upon hearing statements of counsel, the
           [c]ourt concluded testimony was necessary and began hearing testimony in this
           cause. Individuals providing live testimony to the [c]ourt were as follows:
           Leland Babb, Pat Phillips, Charles Honeycutt, James Honeycutt, Harce Allen,
           Buford Sexton, Kenneth Babb, Charity Babb, Trent Cross, Gary Cross, and
           John Beaty. Upon hearing the live testimony, this [c]ourt concluded it was no
           longer necessary for a Temporary Injunction and concluded the case upon the
           merits.

                   1. This [c]ourt finds that the passageway identified as Marcum
                   Creek Road is a public road through the defendant, Gary
                   Cross’[s] real property[.]

                   2. That the public shall have uninterrupted use of this right-of-
                   way through [Gary Cross’s] property.

           WHEREFORE, it is therefore, ORDERED, ADJUDGED and DECREED as
           follows:

                   1. That the property of [Defendants] is burdened by Marcum
                   Creek Road as a public road through their property.

                   2. That the Motion to Dismiss filed by Trent Cross is hereby
                   denied.

                   3. That the cost of this action is taxed to [Defendants].

This timely appeal followed.


1
    A transcript of the hearing was not included in the record on appeal.
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                                         II. ISSUES

       We consolidate and restate the issues raised on appeal as follows:

       A. Whether this court may review the trial court’s decision to consolidate the
       motion hearing with a trial on the merits when Defendants failed to provide a
       transcript of the hearing in the record on appeal.

       B. Whether the trial court erred in consolidating the hearing on the motion for
       a temporary injunction with a trial on the merits.

                              III. STANDARD OF REVIEW

       On appeal, the factual findings of the trial court are accorded a presumption of
correctness and will not be overturned unless the evidence preponderates against them. See
Tenn. R. App. P. 13(d). The trial court’s conclusions of law are subject to a de novo review
with no presumption of correctness. Blackburn v. Blackburn, 270 S.W.3d 42, 47 (Tenn.
2008); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). Mixed
questions of law and fact are reviewed de novo with no presumption of correctness; however,
appellate courts have “great latitude to determine whether findings as to mixed questions of
fact and law made by the trial court are sustained by probative evidence on appeal.” Aaron
v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995).

       An appellate court will find an abuse of discretion “only when the trial court applies
an incorrect legal standard, reaches an illogical decision, bases its decision on a clearly
erroneous assessment of the evidence, or employs reasoning that causes an injustice to the
complaining party.” Francois v. Willis, 205 S.W.3d 915, 916 (Tenn. Ct. App. 2006).

                                     IV. DISCUSSION

                                            A. & B.

        The record before this court does not contain a transcript or statement of the evidence
of the proceedings in the trial court, at which an extensive hearing was held. Plaintiffs assert
that this oversight is fatal to the appeal, while Defendants assert that review of a transcript
in this case is unnecessary because the issue they raised is merely a procedural issue, namely
whether the court abused its discretion in consolidating the hearing on the motion for a
temporary injunction with a trial on the merits. Stated another way, Defendants opine that
a transcript is unnecessary because this court is not reviewing the factual findings of the trial
court.

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        An appellant’s failure to file a transcript or statement of the evidence of the
proceedings in the trial court generally frustrates this court’s review. Thus, an appellant must
prepare a record that “conveys a fair, accurate and complete account of what transpired with
respect to those issues that are the bases of the appeal.” Tenn. R. App. P. 24(b); see Nickas
v. Capadalis, 954 S.W.2d 735, 742 (Tenn. Ct. App. 1997). This court’s review of a
transcript in this case is especially important because the issue raised on appeal relates to the
trial court’s adherence to Rule 65.04 of the Tennessee Rules of Civil Procedure. The
pertinent rule provides that while a temporary injunction shall not be issued “without notice
to the adverse party,” the court may consolidate a hearing on an injunction motion with a trial
on the merits. Tenn. R. Civ. P. 65.04(1), (7). The rule provides, in pertinent part,

       Before or after the commencement of the hearing of an application for a
       preliminary injunction, the court may order the trial of the action on the merits
       to be advanced and consolidated with the hearing of the application. Even
       when this consolidation is not ordered, any evidence received upon an
       application for a preliminary injunction which would be admissible upon the
       trial on the merits becomes part of the record on the trial and need not be
       repeated upon the trial. [Subdivision 65.04(7)] shall be so construed and
       applied as to save [] the parties any rights they may have to trial by a jury.

Tenn. R. Civ. P. 65.04(7) (emphasis added).

        Rule 65.04(7) has been examined by the Tennessee Supreme Court in at least one case
that is pertinent to our review. See Clinton Books, Inc. v. City of Memphis, 197 S.W.3d 749
(Tenn. 2006) (holding that the trial court erred in ruling on the merits of the claim when the
parties were not advised that the motion hearing had been consolidated with a trial on the
merits until an order was entered). In Clinton, the Court acknowledged the United States
Supreme Court’s decision in University of Texas v. Camenisch, 451 U.S. 390, 395 (1981) as
persuasive authority. Clinton, 197 S.W.3d at 755. In Camenisch, the United States Supreme
Court stated,

       Should an expedited decision on the merits be appropriate, Rule 65(a)(2) of the
       Federal Rules of Civil Procedure provides a means of securing one. That Rule
       permits a court to “order the trial of the action on the merits to be advanced
       and consolidated with the hearing of the application.” Before such an order
       may issue, however, the courts have commonly required that “the parties
       should normally receive clear and unambiguous notice [of the court’s intent to
       consolidate the trial and the hearing] either before the hearing commences or
       at a time which will still afford the parties a full opportunity to present their
       respective cases.” This procedure was not followed here.

                                               -5-
451 U.S. 390 at 395 (internal citations omitted). Likewise, our Supreme Court held that a
trial court “must provide the parties with notice before issuing an order of consolidation in
accordance with Rule 65.04(7) of the Tennessee Rules of Civil Procedure.” Clinton, 197
S.W.3d at 755. In remanding the case to the trial court because the court failed to comply
with Rule 65.04, our Supreme Court stated,

       The trial court in the present case did not order consolidation or provide notice
       to the parties of its intent to consolidate the hearings. Throughout the hearing,
       the parties emphasized that the hearing involved only the temporary injunction
       and that they wished to address the request for a declaratory judgment at a later
       date. The parties were not advised that the trial court had consolidated the
       hearings until the trial court issued its order finding that the statute met
       Tennessee constitutional standards.

Id. Thus, the success of an appeal of a court’s decision to consolidate an injunction motion
hearing with a trial on the merits rests upon the adequacy and timing of the notice provided
to the parties.

        The hearing in this case that was, at some point, consolidated with a trial on the merits
did not merely consist of arguments submitted by counsel for both sides. The record reflects
that 8 exhibits were admitted into evidence and that 11 witnesses, including Trent Cross and
Gary Cross, testified at some point during the hearing or trial. Given these facts, this case
presents a novel and interesting issue regarding the adequacy and timing of notice of
consolidation. Unfortunately, without a transcript of the hearing, we are unable to ascertain
whether Defendants may have acquiesced to the consolidation or whether any notice, if given
after the commencement of the hearing, was adequate for purposes of Rule 65.04(7).
Accordingly, we must affirm the judgment of the trial court.

                                     V. CONCLUSION

       The judgment of the trial court is affirmed, and the case is remanded for such further
proceedings as may be necessary. Costs of the appeal are taxed equally to the appellants,
Trent Cross, Gary Cross, and Ruby Ann Cross.


                                            ______________________________________
                                            JOHN W. McCLARTY, JUDGE




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