                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                       July 8, 2002 Session

             MARY F. HALL, ET AL. v. MARY ROSE PIPPIN, ET AL.

                     Appeal from the Chancery Court for Putnam County
                           No. 93-731   Vernon Neal, Chancellor



                  No. M2000-01151-COA-R3-CV - Filed November 26, 2002



The Defendants, Mary Rose Pippin and Dale Delaney appeal the Trial Court’s dismissal of a
Rule 60 motion, which attacked a previous determination by the Trial Court relative to their right
to maintain a fence across a roadway over which the Plaintiffs, Mary F. Hall and Don K. Hall
claim a private right-of-way. We affirm.

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

HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
D. MICHAEL SWINEY, JJ., joined.

Mary Rose Pippin and Dale Delaney, Pro Se

Chantal M. Eldridge, Cookeville, Tennessee, for the Appellees, Mary F. Hall and Don K. Hall



                                              OPINION

      As this is a non-jury case, our review is de novo upon the record of the proceedings below;
however, that record comes to us with a presumption that the trial court's factual findings are correct.
Tenn.R.App.P. 13(d). We must honor that presumption unless we find that the evidence
preponderates against the trial court's factual findings. Union Carbide Corp. v. Huddleston, 854
S.W.2d 87, 91 (Tenn. 1993). The trial court's conclusions of law, however, are not accorded the
same deference. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996).

      The origin of this appeal was a suit filed by Plaintiffs Mary F. Hall and Don K. Hall against
Defendants Mary Rose Pippin and Dale Delaney, seeking removal of a fence erected by the
Defendants across a roadway which the Plaintiffs contend is burdened by their private right-of-way.
       The Trial Court ruled in favor of the Plaintiffs upon finding that the roadway, although
having been abandoned as a public road, nevertheless was preserved as a private right-of-way as to
abutting landowners, which included the Plaintiffs.

       This determination was appealed to this Court and the Chancellor was affirmed by a
published opinion, Hall v. Pippin, 984 S.W.2d 617 (Tenn. Ct. App. 1998), to which reference is
made for a more particular discussion regarding the facts presented, the issues raised and the
disposition by the Trial Court.

       After the case was decided at the trial level, the Defendants filed three separate Rule 60
motions seeking relief from the judgment. As to the first motion, the Chancellor held that he did not
have jurisdiction in that an appeal of the case was pending before this Court. The Defendants then
requested the Court of Appeals to remand the case to the Chancery Court for disposition of that Rule
60 motion.

        The Court of Appeals declined to do so, and the reason for its action is set out in footnote 4
to the published opinion:

                  After this appeal was filed, Ms. Pippin and Mr. Delaney filed a Tenn. R.
         Civ. P. 60.02 motion in the trial court seeking to reopen the case to introduce (1)
         evidence of an action taken by the Putnam County Commission in 1905
         purportedly closing the old Boma-Baxter Road and (2) the contents of the court
         file relating to the 1942 judicial sale of the properties to the Allisons. The trial
         court properly denied this motion on the ground that it lacked jurisdiction to
         consider it. See Spence v. Allstate Ins. Co. 883 S.W.2d 586, 596 (Tenn. 1994).
         Ms. Pippin and Mr. Delaney have now requested this court to remand the case to
         the trial court for further proceedings. We deny the motion to remand the case.
         Even if the proffered evidence could be considered newly discovered evidence,
         its admission and consideration would not alter the conclusion that the evidence
         does not preponderate against the trial court's findings that Friendly Drive and the
         graveled extension to Friendly Drive follow the roadbed of the old Boma-Baxter
         Road and that the landowners residing along this area of the old Boma-Baxter
         Road have not abandoned the use of the road for access to their property.

      A second Rule 60.02 motion was filed on January 1, 2000. This motion was denied by the
Chancellor, resulting in this appeal.

        A third Rule 60.02 motion was filed, overruled by the Trial Judge, and no appeal was taken
therefrom..

       The second motion, the one which, as already noted, is the subject of this appeal, is
predicated upon two propositions. First, that the case of Allison v. Lowe, which was filed in April
1942, sustains the position of the Defendants and should be considered as newly-discovered


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evidence, the Clerk of the Court being unable to locate the file prior to trial of the case, although the
judgment of the Court, as we understand it, was available. Secondly, the Plaintiffs insists that the
minutes of the County Court for Putnam County abandoning the road likewise were not presented
to the Trial Court.

        As to the second insistence, it was conceded from the outset and found by the Chancellor and
this Court that the road was abandoned as a public road, but nevertheless the Plaintiffs were entitled
to private right-of-way, notwithstanding the abandonment.

        As to the first proposition, it appears that the very same contentions were made in the fist
Rule 60 motion and disposed of in the footnote in the opinion heretofore quoted. Thus, it has been
judicially determined that neither of the propositions raised in the second Rule 60 motion now on
appeal would have changed the determination of the Trial Court or this Court.

        The Defendants have filed a motion to have this declared a frivolous appeal and that they be
awarded damages as a consequence. Because the Plaintiffs are unrepresented and filed this appeal
pro se, we are disinclined to grant the motion.

        For the foregoing reasons the judgment of the Trial Court is affirmed and the cause remanded
for collection of costs below. Costs of appeal are adjudged against Mary Rose Pippin and Dale
Delaney.



                                                _________________________________________
                                                HOUSTON M. GODDARD, PRESIDING JUDGE




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