                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  December 6, 2000 Session

     JOHNNY & MARY JO HARPER, ET AL. v. MELVIN SLOAN, ET AL.

                Direct Appeal from the Chancery Court for Wilson County
         No. 98254; The Honorable William H. Inman, Chancellor (by designation)



                    No. M2000-01104-COA-R3-CV - Filed March 13, 2001


This appeal involves the determination of whether the trial court erred in determining that a pathway
known as Jaybird Lane was a public road. Additionally, the trial court found that the road had not
been abandoned and thus granted summary judgment to the Defendants. For the following reasons,
we affirm the ruling of the court below in all respects.

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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
KIRBY LILLARD, J., joined.

Jerry Gonzalez, pro se, for Appellants

Dean Robinson, for Appellees Melvin Sloan and Beverly P. Sloan

Michael R. Jennings, for Appellee Steve Armistead
                                        MEMORANDUM OPINION 1

        Plaintiff Gonzalez owns property located on the north side of Jaybird Lane. Plaintiffs
         2
Harper, Figlio, Stinson, and Hammers own property located on the south side of Jaybird Lane. The
Sloans also own property located on the south side of Jaybird Lane.

       Plaintiffs alleged that Jaybird Lane is not a public road, or alternatively, that it was
abandoned. Furthermore, Plaintiffs alleged that if Jaybird Lane was a county road that the Sloans
“have indicated a positive intent to abandon any right of way by erecting several fences across this
alleged road.” Moreover, Plaintiff Harper alleged that he erected a fence across the alleged road
more than twenty years ago. As a result, he alleges that the Sloans have no right to use Jaybird Lane
because the alleged easement was abandoned.

         The Sloans averred that they acquired their property in 1997, and that it was bounded on the
north by the old country road. Due to their desire to improve the road, the Sloans contacted the Road
Commission in order to determine the legal status of the road. The Commission adopted a resolution
stating that “Nokes Drive [Jaybird Lane] was a county road, not maintained.” Moreover, the Sloans
further submit that Jaybird Lane appears in the following sources: (1) on the County index base map,
(2) on the Wilson County Chamber of Commerce map, (3) on Microsoft Corporation’s Road Atlas,
(4) in Harper’s deed as bounding their property on the north, (5) in the Gonzalezs’ chain of title as
bounding their property on the south, and (6) in the chain of title of the remaining Plaintiffs’
properties as bounding their properties on the north.

       Plaintiffs moved for summary judgment on August 18, 1998, but Plaintiffs’ motion was
denied. Furthermore, an interlocutory appeal was denied and the court of appeals denied an
extraordinary appeal.

        After Plaintiff Harper withdrew from the litigation, the Sloans moved to dismiss the
complaint for failure to state a claim. Since the Plaintiffs had moved for summary judgment and
alleged that there was no general issue of material fact, the court concluded that the Defendants Rule
12 motion would be treated as a Rule 56 motion because matters outside the pleadings would be
considered.

        The trial court concluded that Jaybird Lane was a public road and that it was not abandoned.
The trial court granted summary judgment to the Sloans and granted Defendant Armistead’s motion


         1
            Rule 10. (Court of Appeals) (b) Memorandum Opinio n. The Co urt, with the concurrence of all judges
participating in the case, may affirm, reverse, or modify the actions of the trial court by memorandum opinion when a
formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated
“MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any reason in a subsequent
unrelated case.

         2
            Mr. and Mrs. Harper filed an affidavit on April 17, 2000, indicating their intent to discontinue participation
in this case.

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to dismiss. This appeal followed. The following issues, as quoted from Appellant Gonzalez’s brief,
are submitted for our review:
        1) Whether the trial court erred when it denied Plaintiffs’ motion for summary judgment
when there were statements of fact that were not disputed by defendants.
        2) Whether the undisputed existence of fences across the pathway established the loss
through adverse possession or abandonment of any underlying easement.
        3) Whether the trial court erred when it granted summary judgment to Defendants and found
that the pathway was a public right of way when there were issues of fact in dispute.
        4) Whether the trial court erred when it granted summary judgment to Defendants and found
that the pathway had not been abandoned as a public right of way when the road commissioner has
authority to abandon public roads.

                                        Standard of Review

        Summary judgment is appropriate if the movant demonstrates that no genuine issues of
material fact exist and that he is entitled to a judgment as a matter of law. See TENN. R. CIV . P.
56.03. We must take the strongest view of the evidence in favor of the nonmoving party, allowing
all reasonable inferences in his favor and discarding all countervailing evidence. See Shadrick v.
Coker, 963 S.W.2d 726, 731 (Tenn. 1998) (citing Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn.
1993)). Since our review concerns only questions of law, the trial court's judgment is not presumed
correct, and our review is de novo on the record before this court. See Warren v. Estate of Kirk, 954
S.W.2d 722, 723 (Tenn. 1997); Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997).

                                         Law and Analysis

        First, Plaintiffs assert that the trial court erred when it denied their motion for summary
judgment because there were statements of fact that were not disputed by Defendants. Plaintiffs cite
several facts in their brief that they allege were not disputed. However, these facts are not material.
Our supreme court has stated that when deciding a summary judgment motion “[t]he critical focus
is limited to facts deemed ‘material,’ which is to say those facts that must be decided in order to
resolve the substantive claim or defense at which the motion is directed.” Byrd v. Hall, 847 S.W.2d
208, 211 (Tenn. 1993) (citations omitted). We find that the “disputed facts” that Plaintiff focuses
on are in no way material. As a result, this issue is without merit.

        Next, we must decide whether the existence of fences across the road established loss
through adverse possession or abandonment of any underlying easement. First, we agree with the
court below that Jaybird Lane was a public road. As stated in the facts of this case, Jaybird Lane
appears on several maps and deeds, and numerous witnesses testified about its public nature. In
Dennis v. Miceli, the court stated that:

               Once a road has been dedicated for public use, it remains a public
               road in the absence of proof that the statutory procedures for closing
               roads have been followed. Thus, a dedication of land to public use is


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               not destroyed (1) by adverse possession or mere public nonuser, [sic]
               (2) by a private party’s obstruction of the road, or (3) by the public
               authority’s failure to maintain it.

Dennis v. Miceli, No. M1997-00056-COA-R3-CV, 1999 WL 1072559, at *4 (Tenn. Ct. App. Nov.
30, 1999) (citations omitted). As a result of the foregoing authority, we find no error in the trial
court’s ruling on this issue.

        Plaintiffs also assert that the trial court erred when it granted summary judgment to
Defendants and found that the path was a public right of way when there were issues of fact in
dispute. We disagree. “[T]he mere existence of some alleged factual dispute between the parties
[will] not defeat a motion for summary judgment because the ‘requirement is that there be no
genuine issue of material fact.’ Byrd v. Hall, 847 S.W.2d 208, 212 (Tenn. 1993) (emphasis in
original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Moreover, “[t]he
mere existence of a scintilla of evidence in support of the [nonmoving party’s] position will be
insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving
party].” Id. We find no error in the trial court’s grant of summary judgment to the Defendants.

        Finally, Plaintiffs assert that the trial court erred when it granted summary judgment to
Defendants and found that the road had not been abandoned when the road commissioner has
authority to abandon public roads. Abandonment must be established by “clear and unequivocal
evidence of decisive and conclusive acts.” Cottrell v. Daniel, 205 S.W.2d 973, 976 (Tenn. Ct. App.
1947). Moreover, once a road is public, “it remains a public road in the absence of proof that the
statutory procedures for closing roads have been followed. Dennis v. Miceli, 1999 WL 1072559,
at *4 (citations omitted). There is no such evidence in the case before us. Upon review of the
record, we find no error in the trial court’s ruling on this issue. As a result, this issue is without
merit.

                                            Conclusion

       The ruling of the trial court is affirmed in accordance with Court of Appeals Rule 10(b).
Costs are taxed to Plaintiffs, Johnny and Mary Jo Harper, et al, for which execution may issue if
necessary.



                                                       ___________________________________
                                                       ALAN E. HIGHERS, JUDGE




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