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Clark v. Owens

Court of Appeals of Tennessee, Nashville

May 8, 2019

JERRY R. CLARK
v.
JAMES M. OWENS ET AL.

          Assigned on Briefs April 1, 2019

          Appeal from the Circuit Court for Sequatchie County No. 17-CV-82 Justin C. Angel, Judge.

         This is an easement case. Appellant, the dominant land owner, appeals the trial court's order fixing the width of the easement at 15 feet and limiting the use of the easement to residential and emergency ingress, egress, and utilities. The appellate record contains no transcript or statement of the evidence for our review as required by the Tennessee Rules of Appellate Procedure. Accordingly, we conclude that there was sufficient evidence to support the trial court's findings. Affirmed and remanded.

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

          Jerry R. Clark, Dunlap, Tennessee, appellant, Pro se.

          Everett Layne Hixson, Jr. and Everett Layne Hixson, III, Chattanooga, Tennessee, for the appellees, James M. Owens, and Teresa M. Owens.

          Kenny Armstrong, J., delivered the opinion of the court, in which Thomas R. Frierson and W. Neal McBrayer, JJ., joined.

          OPINION

          KENNY ARMSTRONG, JUDGE.

         Appellant Jerry R. Clark owns the dominant tract of land adjacent to the servient tract of land owned by James M. Owens and Teresa M. Owens, (together, "Appellees"). On April 26, 2017, Appellees filed a verified complaint, in which they sought, inter alia, a declaratory judgment regarding Appellant's use of the easement across their property. Concurrent with their complaint, Appellees filed a motion for a temporary restraining order and temporary injunction regarding Appellant's use of the easement. The trial court entered a temporary restraining order prohibiting Appellant from: (1) interfering with Appellees' construction of a fence along the existing border of the easement; (2) driving and trespassing outside the border of the easement onto Appellees' property; and (3) discharging firearms in their direction.

         On May 18, 2017, Appellant answered the complaint and asserted a counter-complaint. In his answer, Appellant averred that the easement is unrestricted and denied allegations that he and his family abused the easement in any way. In his counter-complaint, Appellant alleged that Appellees interfered with his right-of-way and use of the easement. He requested, inter alia, that the trial court restore the easement to 15 feet, preserving his "right-of-way and peaceful use for unrestricted ingress, egress and utilities."

         On September 11, 2017, Appellant filed a motion for contempt alleging that Appellees were in violation of the temporary restraining order. On October 23, 2017, Appellees moved to amend their complaint to add additional facts and to assert a claim for unjust enrichment. Appellant opposed the motion and moved to dismiss the complaint. The trial court granted Appellees' motion to amend by order entered on December 30, 2017 but deferred ruling on Appellant's motion for contempt until trial. On February 22, 2018, the trial court conducted a hearing and entered an order for easement on March 16, 2018. Before the entry of that order, Appellees filed a motion to reopen the proof and to alter or amend the trial court's ruling. Appellant also moved to alter or amend the order for easement. The trial court granted the motions of both parties by order entered May 11, 2018.

         The final trial was held on June 21, 2018, and the trial court entered a subsequent order on July 19, 2018. The trial court fixed the width of the easement at 15 feet and limited the use of the easement to residential and emergency ingress, egress, and utilities. The trial court also held that: (1) Appellant was responsible for maintaining part of the easement; (2) the parties were jointly responsible for maintaining another portion of the easement; (3) the parties were to avoid contact with each other; and (4) the parties were not to trespass on each other's property. The trial court dismissed all remaining claims. Appellant appeals. Although Appellant lists several issues for review in his brief, we do not reach the substantive issues due to procedural shortcomings in the appellate record.

         Rule 24 of the Tennessee Rules of Appellate Procedure outlines the requirements concerning both content and preparation of the appellate record, to wit:

(a) The record on appeal shall consist of: (1) copies, certified by the clerk of the trial court, of all papers filed in the trial court except as hereafter provided; (2) the original of any exhibits filed in the trial court; (3) the transcript or statement of the evidence or proceedings, which shall clearly indicate and identify ...

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