       IN THE COURT OF APPEALS OF TENNESSEE
                   AT NASHVILLE
                                                                 FILED
                                                                September 23, 1998
MARY F. HALL and                        )
DON K. HALL,                            )                       Cecil W. Crowson
                                        )                      Appellate Court Clerk
      Plaintiffs/Appellees,             )      Putnam Chancery
                                        )      No. 93-731
VS.                                     )
                                        )      Appeal No.
MARY ROSE PIPPIN and                    )      01A01-9609-CH-00439
DALE DELANEY,                           )
                                        )
      Defendants/Appellants.            )




         ORDER GRANTING PETITION FOR REHEARING


      Mary Rose Pippin and Dale Delaney have filed a petition requesting this court
to reconsider its August 19, 1998 opinion in light of seven exhibits that were not
transmitted to this court with the rest of the record on appeal. At our request, Mary
F. Hall and Don K. Hall have filed a response to the petition for rehearing. The clerk
and master has also transmitted a supplemental record containing the seven missing
exhibits and an affidavit concerning the reasons why these exhibits were not included
with the original appellate record.


      Before turning to the substance of the petition for rehearing, we will consider
why the seven missing exhibits were not transmitted to this court when the appellate
record was originally filed. The clerk and master states that, after a discussion with
the clerk of the appellate courts, she elected not to transmit these exhibits because
they were too bulky. While Tenn. R. App. P. 25(b) states that “[d]ocuments of
unusual bulk or weight, and physical exhibits, other than documents, shall not be
transmitted” with the appellate record, the seven exhibits at issue in this case were not
bulky. When folded, they can easily fit into several manila envelopes which could
have been included with the original appellate record. Thus, we find that both the
clerk and master and the clerk of the appellate court erred when they determined that
these particular exhibits were too bulky to be transmitted with the appellate record.


      Notwithstanding this error, the clerk and master properly notified the parties
that she was not transmitting these seven exhibits with the original appellate record.
She personally notified the lawyer representing Ms. Pippin and Mr. Delaney that she
was holding these exhibits in her office and that he would be responsible for
delivering these exhibits to the appellate court on the day of argument. The lawyer
did not request these exhibits until ten days after this court entered its August 19,
1998 opinion. Thus, the clerk and master’s error was compounded by the lawyer
representing Ms. Pippin and Mr. Delaney. Their failure to cause the exhibits to be
delivered to this court or to rely on them in their brief and argument left both this
court and their adversaries with the understandable impression that they were not
relying on these exhibits on appeal.


      Under these facts, we are reluctant to conclude that Ms. Pippin and Mr.
Delaney have waived their opportunity to rely on these seven exhibits by their
lawyer’s failure to take the steps reasonably necessary to make sure that these exhibits
were before the court when this case was originally submitted. Therefore, we direct
the clerk of the appellate court to file the supplemental record containing the seven
exhibits, and we will reconsider our August 18, 1998 opinion in light of these
exhibits.


      Ms. Pippin and Mr. Delaney assert that the absence of the seven missing
exhibits caused the court to make thirteen material factual errors in its August 19,
1998 opinion. We take up each of these asserted errors.


      1.     The location of the Boma-Baxter Road. M s . P i p p i n a n d M r .
             Delaney assert that this court concurred with the trial court’s erroneous
             finding concerning the location of the Boma-Baxter Road because it did
             not consider the seven missing exhibits. The issue of the location of the
             Boma-Baxter Road is not before the court because Ms. Pippin and Mr.




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               Delaney explicitly abandoned this issue.1 Thus, the late-filed exhibits
               have no bearing on this question.

       2.      The Herrons’ January 1973 Purchase.               Ms. Pippin and Mr.
               Delaney take issue with the court’s statement that Floyd and Belle
               Herron purchased “the 3.48-acre tract” in January 1973. The exhibits
               originally included with the appellate record indicate that in January
               1973, the Herrons purchased a 12 to 15-acre tract, north of the 55-acre
               tract, that included the 3.48-acre tract they later conveyed to the Selmeks
               in 1979. The size of the tract purchased by the Herrons in January 1973
               is not relevant to the issues presented on this appeal.

       3.      The Herrons’ Intention to Build Homes. M s . P i p p i n a n d M r .
               Delaney also assert that this court was incorrect when it stated that Mr.
               Herron acquired the property with the intention to build homes. While
               this point is also irrelevant to the ultimate issues in the case, Ms. Pippin
               and Mr. Delaney refer in their original brief to the portions of Mr.
               Herron’s testimony in which he stated that he extended Friendly Drive
               “southward through his property in order to build new houses in the
               ‘70s.”

       4.      The Location of Carmel Allison’s House. M s . P i p p i n a n d M r .
               Delaney take issue with the court’s statement that Carmel Allison’s
               house was on the 3.48-acre tract acquired by the Herrons in 1973. Mr.
               Allison’s house was on the 12 to 15-acre tract acquired by the Herrons
               in 1973 but was not on the 3.48-acre tract the Herrons later conveyed to
               the Selmeks. This error does not affect the outcome of this appeal
               because the significance of the location of Mr. Allison’s house relates
               to his construction of Friendly Road to provide him access to Old Baxter
               Road and to the old Boma-Baxter Road. Exhibit 8 reinforces this
               court’s original conclusion that Friendly Road passed by Mr. Allison’s
               house and provided access to Old Baxter Road and to the old Boma-
               Baxter Road.

       5.      Dead end of Friendly Road. Ms. Pippin and Mr. Delaney assert that
               Exhibit 10 demonstrates that this court was incorrect when it stated that
               Friendly Road intersected with the old Boma-Baxter Road. Exhibit 10
               is a 1942 survey plat that must have been prepared before Mr. Allison
               constructed Friendly Road to gain access to Old Baxter Road and to the
               old Boma-Baxter Road. Exhibit 20 clearly shows that Friendly Road
               intersects with both the Old Baxter Road and the old Boma-Baxter
               Road. Thus, the late-filed exhibits have no bearing on this matter.




       1
        In their original brief, Ms. Pippin and Mr. Delaney state: “The Defendants do not believe
or concede that the Chancellor was correct in his finding that the new road, Friendly Drive, is
where the old Boma Baxter Road used to be, but in light of the standards of appellate review
applicable here, the Defendant-Appellants have chosen not to pursue that argument.”

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6.    Use of the old Boma-Baxter Road. Ms. Pippin and Mr. Delaney take
      issue with the court’s finding that the old Boma-Baxter Road “had been
      little used over the preceding decades” and assert that it had not been
      used at all since 1949. This is simply reargument of a disputed fact
      issue. Olive Jared, Iva Lowe, Emil Emerton, and James Stafford
      testified about the use of the old Boma-Baxter Road since 1949.

7.    Location of Friendly Drive. Ms. Pippin and Mr. Delaney differ with
      the court’s conclusion that “[t]he improved portion of the old Boma-
      Baxter Road came to be known as Friendly Drive.” This argument
      relates to the issue concerning whether Friendly Drive runs where the
      old Boma-Baxter Road used to run. Ms. Pippin and Mr. Delaney
      specifically waived this issue in their original brief. The late-filed
      exhibits shed no new light on this question, and the court’s conclusion
      about the location of Friendly Drive is amply supported by the record.

8.    The Development of the Bean property. M s . P i p p i n a n d M r .
      Delaney assert that the court mischaracterized the Bean property as
      “undeveloped farm property” in light of the evidence of the existence of
      a barn on the northern portion of the property. The state of the
      property’s “development” in 1980 is only marginally relevant to the
      issues in this case, and the late-filed exhibits shed no new light on this
      question. This court pointed out the existence of the barn in its August
      19, 1998 opinion and now concludes that a 55-acre tract of farm
      property is not “developed” simply because of the erection of a barn.

9.    Access to the barn.         Ms. Pippin and Mr. Delaney insist that the
      record does not support this court’s conclusion that Mr. Bean used “a
      relatively short dirt roadway extending south from the end of the
      improved portion of Friendly Drive to drive his tractor to . . . [the] barn.”
      The late-filed exhibits shed no new light on this matter. This was a
      contested issue at trial, and Ms. Pippin’s and Mr. Delaney’s original
      brief cites to the portion of the evidence establishing that the barn “was
      accessible from a dirt road, about one hundred feet in length, which had
      been used by Mr. Bean to get his tractor to the barn.” Ms. Pippin and
      Mr. Delaney cannot take a position in their petition for rehearing that
      differs from the position they took in their original brief.

10.   Access to the property from Friendly Drive.           Ms. Pippin and Mr.
      Delaney insist that the court erred by concluding that there were two
      accesses to the 55-acre tract in 1985. They insist that there is no
      evidence of an access to the property from Friendly Drive. The late-
      filed exhibits shed little new light on this disputed fact question. John
      Bond (Bohn) testified on cross-examination during the January 10, 1994
      hearing that the roadway from Friendly Drive was “graveled down” and
      that the Halls used the roadway to get to their barn. Thus, the evidence
      does not preponderate against this court’s finding concerning access to
      the 55-acre tract from Friendly Drive.



                                   -4-
      11.    Abandonment of the old Boma-Baxter Road.               Ms. Pippin and Mr.
             Delaney assert that this court’s conclusion that the old Boma-Baxter
             Road “had not been abandoned even though it had fallen into desuetude
             as a public road” conflicts with the trial court’s conclusion that the road
             had been abandoned. The late-filed exhibits are of little help on this
             issue. Ms. Pippin’s and Mr. Delaney’s assertion misapprehends the trial
             court’s conclusion. The trial court found only that the old Boma-Baxter
             Road has been abandoned “as a public road,” not that it had been
             abandoned by area landowners. This is precisely our conclusion.

      12.    Access of the Jared Property.            Ms. Pippin and Mr. Delaney
             assert that late-filed Exhibit 26 shows that Friendly Drive and the old
             Boma-Baxter Road is not Ms. Jared’s only means of access to her
             property. While Exhibit 26 shows that Ms. Jared has other access to her
             property south of the interstate right-of-way, it does not indicate any
             other access to her property north of the interstate right-of-way. The
             relevant issue in this case is the access to Ms. Jared’s property north of
             the interstate right-of-way; therefore, Exhibit 26 is of little value on this
             question.

      13.    The Use of the old Boma-Baxter Road.            This final factual argument
             is basically a renewal of Ms. Pippin’s and Mr. Delaney’s sixth argument
             regarding the use of the old Boma-Baxter Road since 1949. The late-
             filed exhibits shed little additional light on this disputed factual issue.
             We have already pointed to three witnesses other than Mr. Emerton who
             testified that persons other than Mr. Herron used the old Boma-Baxter
             Road after 1949. The purpose of petitions for rehearing is not to reargue
             disputed factual issues.


      Ms. Pippin and Mr. Delaney cannot at this late stage depart from the statements
and concessions contained in their original brief. We have carefully examined the
seven late-filed exhibits and have determined that they do not require an outcome
different from the outcome of our August 19, 1998 opinion. The factual issues Ms.
Pippin and Mr. Delaney seek to raise at this time are either not relevant or not
material to the issues presented on this appeal. Thus, we again affirm the decision of
the trial court that the abutting landowners had not abandoned their use of the old
Boma-Baxter Road even though it had ceased to be a publicly maintained road.


      It is, therefore, ordered that our August 19, 1998 opinion be withdrawn and that
the revised opinion issued contemporaneously with this order be filed in its place.




                                          -5-
         It is further ordered that the clerk and master not forfeit her costs for
transmitting the appellate record in light of the erroneous advice received from the
clerk of the appellate courts and the oversight of Ms. Pippin’s and Mr. Delaney’s
counsel.


         It is further ordered that the costs associated with the filing and disposition of
the petition for rehearing be and are hereby taxed, jointly and severally, to Mary Rose
Pippin and Dale Delaney and their surety for which execution, if necessary, may
issue.

                                                  ______________________________
                                                  HENRY F. TODD, PRESIDING JUDGE
                                                  MIDDLE SECTION


                                                  ______________________________
                                                  BEN H. CANTRELL, JUDGE


                                                  ______________________________
                                                  WILLIAM C. KOCH, JR., JUDGE




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