                                                    FILED
MICHAEL G. BINKLEY and wife,            )            August 5, 1998
MARTHA Y. BINKLEY, and ROBERT           )
A. JONES, SR., and wife, MARY EVELYN    )
                                                   Cecil W. Crowson
JONES, and CHARLES H. CATHEY and        )
                                                  Appellate Court Clerk
wife, MARY JUNE CATHEY,                 )
                                        )    Humphreys Chancery
      Plaintiffs/Appellees,             )    No. 24-001
                                        )
VS.                                     )
                                        )    Appeal No.
RODNEY TREVOR MEDLING,                  )    01A01-9708-CH-00421
                                        )
      Defendant/Appellant,              )


                  IN THE COURT OF APPEALS OF TENNESSEE
                       MIDDLE SECTION AT NASHVILLE

      APPEAL FROM THE HUMPHREYS COUNTY CHANCERY COURT
                    AT WAVERLY, TENNESSEE

                  HONORABLE ALLEN W. WALLACE, JUDGE



William G. McCaskill, Jr., #12716
TAYLOR, PHILBIN, PIGUE, MARCHETTI & BENNETT, PLLC
2908 Poston Avenue
Nashville, Tennessee 37203

Anthony L. Sanders, #2283
129 North Court Square
Waverly, Tennessee 37185
ATTORNEY FOR PLAINTIFFS/APPELLEES


Andrew B. Frazier, Jr.
116 East Main Street
P.O. Box 208
Camden, Tennessee 38320
ATTORNEY FOR DEFENDANT/APPELLANT



                        AFFIRMED AND REMANDED



                              HENRY F. TODD
                              PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE

MICHAEL G. BINKLEY and wife,                            )
MARTHA Y. BINKLEY, and ROBERT                           )
A. JONES, SR., and wife, MARY EVELYN                    )
JONES, and CHARLES H. CATHEY and                        )
wife, MARY JUNE CATHEY,                                 )
                                                        )       Humphreys Chancery
        Plaintiffs/Appellees,                           )       No. 24-001
                                                        )
VS.                                                     )
                                                        )       Appeal No.
RODNEY TREVOR MEDLING,                                  )       01A01-9708-CH-00421
                                                        )
        Defendant/Appellant,                            )



                                      OPINION

        The captioned defendant has appealed from a judgment of the Trial Court which reads

in full as follows:

                        This cause came on to be heard on this the 23rd day of
                July, 1997, before the Honorable Allen W. Wallace,
                Chancellor, upon stipulation of the parties, certified copies of
                various documents, statement of counsel, and upon the entire
                record. From all of which the Court finds that the Defendant
                improperly opened a cul-de-sac located on Timberland Drive,
                New Johnsonville, Tennessee, and Lot No. D-6 of the
                Countrywood Estates Subdivision, Section IV, and further
                that the Defendant violated the restrictions and protective
                covenants of Countrywood Estates Subdivision, Section IV,
                as a street or driveway to unrestricted and non-conforming
                adjoining property, and particularly the 11.7 acre tract that
                was purchased by the Defendant.

                       The Court further finds that certain orders, including
                an injunction should issue against the Defendant.

                        IT IS THEREFORE, ORDERED AND ADJUDGED
                as follows:

                        1.      That the road or driveway presently located on
                Lot No. D-6 of the Countrywood Estates Subdivision, Section
                IV, and owned by the Defendant, be closed and the Defendant
                is hereby ordered to close the road and cul-de-sac.

                       2.      That Defendant is further ordered to return the
                cul-de-sac and Lot No. D-6 of the Countrywood Estates
                Subdivision, Section IV, as nearly as practical to their original
                state.


                                              -2-
              3.       That Defendant remove the gate and tile
       presently located on Lot No. D-6 of the Countrywood Estates
       Subdivision, Section IV.

              4.      That Defendant is hereby permanently
       enjoined from constructing, maintaining, and/or using Lot No.
       D-6 of the Countrywood Estates Subdivision, Section IV, as
       a roadway, driveway, access way, on or across the same, for
       the purpose of providing access, either ingress or egress, to
       any adjoining property.

                5.     That the Defendant is given sixty (60) days
       from July 23, 1997, to close the road located on Lot No. D-6
       of the Countrywood Estates Subdivision, Section IV, to
       remove the gate and tile, and as such is reasonably possible,
       to restore the lot and cul-de-sac to the original state. That
       after sixty (60) days from July 23, 1997, should Defendant
       fail to complete any items ordered, Defendant shall pay into
       the Registry of this Court the sum of $500.00 per day until the
       items are completed.

              6.      Defendant shall not use this order in any way
       or manner to limit or restrict the subsequent orders of this
       Court in the case of New Johnsonville Regional Planning
       Commission and The City of New Johnsonville, Tennessee v.
       Rodney Trevor Medling, Humphreys County Chancery Court,
       Civil Action No. 23-370, and in particular shall not in any
       way or manner use this judgment to restrict or limit the prior
       order of this Court to remove the mobile home from the
       premises.

              7.     Defendant will pay the cost of this cause, for
       which execution may issue if necessary.


The defendant presents the following issue:

               The only issue for review in this case is whether or not
       the judgment of the trial court is so restrictive as to violate the
       general law of the State of Tennessee.


The plaintiff presents the following issue:

                1.      Whether the evidence preponderates in support
       of the trial court’s order that the driveway located on Lot No.
       D-6 be closed and the cul-de-sac returned to its original
       condition and further that the defendant should be enjoined
       from constructing, maintaining or using Lot No. D-6 as a
       roadway, driveway or access way, on or across the same for
       the purpose of providing access, ingress or engress to any
       adjoining property.

             Plaintiffs/Appellees respectfully submit that a
       preponderance of the evidence does support the trial court’s



                                      -3-
               decision with respect to this issue, and the trial court’s ruling
               entered in this matter should be affirmed.




       The brief of defendant states:

                       Since there is no transcript of the evidence, the
               allegations of the complaint will be taken as admitted, along
               with the oral stipulation of the parties.


       No oral stipulation of the parties is included in the appellate record. No answer of the

defendant is found in the record. The record does contain a letter from the Trial Clerk to counsel

for all parties reading as follows:

                        Upon speaking by phone this week with Mr. Frazier,
               I am preparing to forward the record in the above referenced
               cause to the Court of Appeals. In order to insure that the
               proper record content is sent and that I comply with T.R.A.P.
               24(a), I have listed below the filings that I intend to send.
               Please advise if you have any additions or objections to the
               list below.

                     The record in this cause to be submitted to the Court
               of Appeals is as follows:

               (I)     Exhibits filed at July 23, 1997 hearing:

                     Ex. 1, collective exhibit consisting of the following
               documents:

                               Handwritten Document of Relief Sought;
                               Restrictions and Protective Covenants of
                               Countrywood Estates Subdivision 2nd Civil
                               District New Johnsonville, TN;
                               Warranty Deed from Edward W. Lucas to
                               Rodney T. Medling;
                               Complaint from Chancery Case No. 23-370;
                               Answer, Counter-Claim, and Cross-Complaint
                               from Case No. 23-370;
                               Memorandum Opinion on Motion for
                               Judgment on the Pleadings from Case No. 23-
                               370;
                               Order entered in mb 52, pg 645 in Chancery
                               Case No. 23-370.

                       Ex. 2, collective exhibit consisting of photo album
                (58 photos)

                        Ex. 3, consisting of six (6) photos

                (ii)    the following technical record:

                                             -4-
                       (a)     Complaint
                       (b)     Motion to Dismiss
                       (c)     Notice
                       (d)     Motion to Set
                       (e)     Judgment (entered 7/31/97 in mb52, pg
                               818)
                       (f)     Notice of Appeal
                       (g)     Appeal bond
                       (h)     Motion by defendant filed 1/15/98
                       (I)     Letter from Ms. Garton to Mr. Frazier
                               setting Motion for 2/2/98
                       (j)     Order (entered mb 54, pg 87; 2/9/98)
                       (k)     Bill of Costs for Preparing Record

               In addition, I will submit this letter along with copies
       of the attorneys responses to said letter.

              There are no volumes of transcripts from the July 23,
       1997 proceeding filed in this office to transfer to the Court of
       Appeals as of today.

               If you should have any questions or if I can be of any
       assistance please let me know.


The record also contains the following response of defendant’s counsel:

       Dear Mr. Bullion:

       This will acknowledge receipt of your letter and enclosures in
       regard to the above styled manner.

       In light of the fact that my appeal is going to be on the
       technical record, and in light of the fact that I believe that the
       judgment in this case is inconsistent with the judgment in
       Case No. 23-370 and that judgment was also referred to in the
       Judge Wallace’s memorandum, I would respectfully request
       that a certified copy of Judge Burch’s memorandum opinion
       and the judgment in Case No. 23-370 be made an exhibit to
       Judge Wallace’s memorandum opinion and judgment. If this
       is not possible, then I would request that you forward me a
       certified copy of the memorandum opinion and judgment in
       Case No. 23-370 so that I may properly file it as an exhibit to
       my brief and argument.


The record is authenticated by the following certificate:

             CERTIFICATE OF APPELLATE RECORD

               I, Michael S. Bullion, Clerk and Master of the
       Chancery Court of Humphreys County, Tennessee, do hereby
       certify that the following items herewith transmitted to the
       CIVIL COURT APPEALS are originals or true and correct
       copies of all or the designated papers on file in my office in
       the captioned case except for those papers filed in said cause

                                      -5-
               which are excluded from the appellate record pursuant to
               T.R.A.P. 24(a).

                      I.      Technical record attached to this certificate
               and consisting of 37 pages.

                     II.     Exhibits filed in my office on July 23, 1997
               and authenticated by the Trial Judge or as provided by
               T.R.A.P. Rule 24(f) and described as follows:

                               Ex. 1, collective exhibit consisting of the
                                      following documents:
                                      Handwritten Document of Relief
                                      Sought;
                                      Restrictions and Protective Covenants
                                      of Countrywood Estates Subdivision
                                      2nd Civil District New Johnsonville,
                                      TN;
                                      Warranty Deed from Edward W. Lucas
                                      to Rodney T. Medling;
                                      Complaint from Chancery Case No.
                                      23-370;
                                      Answer, Counter-Claim, and Cross-
                                      Complaint from Case No. 23-370;
                                      Memorandum Opinion on Motion for
                                      Judgment on the Pleadings from Case
                                      No. 23-370;
                                      Order entered in mb 52, pg 645 in
                                      Chancery Case No. 23-370.

                               Ex. 2, collective exhibit consisting of photo
                                      album (58 photos)
                               Ex. 3, consisting of six (6) photos

                       III.   There has been no volumes of transcripts from
               the July 23, 1997 proceeding filed in this office as of today.


       An envelope of purported exhibits accompanied the record received by this Court. None

of said exhibits is marked filed by the Trial Clerk in the present case and none is authenticated

by the signature of the Trial Judge. Some of said exhibits are marked filed in other suits against

the defendant in this case, but none is marked filed in the present case. The unfiled,

unauthenticated purported exhibits include a memorandum of the Trial Judge in a different case,

but no memorandum of the Trial Judge in the present case.



       The defendant appears to argue that plaintiff’s complaint fails to state a claim for which

relief can be granted, yet it is argued that exhibits and a stipulation were presented to the Trial



                                               -6-
Court, and the judgment indicates that issues other than those presented by the complaint were

heard and decided by consent of the parties. Such issues might be identified by the memorandum

of the Trial Judge which is not available to this Court.



          It might be argued that the allegations of the complaint were admitted by failure to

answer, but the record contains no motion for default or order thereon. TRCP Rule 55.01.



          It might be argued that the exhibits were considered without objection; but, without a

transcript, this Court is without information as to whether objections were made and, if so, what

rulings resulted. Moreover, it is a general rule that an exhibit must be identified and related to

the lawsuit by testimony before it can be considered. Tennessee Rules of Evidence, Rule 901.



          On appeal from this non jury judgment, the judgment of the Trial Court must be affirmed

unless a prejudicial error of law appears in the record or the evidence preponderates against the

determinative facts found by the Trial Judge. Neither ground for reversal is established by the

record.



          The judgment of the Trial Court is affirmed. Costs of this appeal are assessed against the

defendant-appellant. The cause is remanded to the Trial Court for necessary further proceedings.



                             AFFIRMED AND REMANDED.



                                                 ___________________________________
                                                 HENRY F. TODD
                                                 PRESIDING JUDGE, MIDDLE SECTION


CONCUR:


_____________________________
BEN H. CANTRELL, JUDGE



                                                 -7-
_____________________________
WILLIAM C. KOCH, JR., JUDGE




                                -8-
