Breakstone v. Home Federal Sav. L. Ass'n

Full title: Richard C. BREAKSTONE and wife, Dorothy Breakstone, Appellants-Appellees…

Court: Court of Appeals of Tennessee. Western Section

Date published: Jul 26, 1976

539 S.W.2d 45 (Tenn. Ct. App. 1976)

Opinion

March 26, 1976. Certiorari Denied by Supreme Court July 26, 1976.

Appealed from order of the Chancery Court, Shelby County, Robert A. Hoffmann, Chancellor.

Appeal rejected and remanded.

John C. Robertson, Memphis, for appellants-appellees.

John R. Dunlap, T.F. Jackson, III, Memphis, for appellee-appellant.

NEARN, Judge.

The Chancellor granted a discretionary appeal pursuant to T.C.A. § 27-305 from an interlocutory order overruling defendant's motion for summary judgment. Both sides to the controversy have appealed. The defendant claims error in the Chancellor overruling the motion. The plaintiffs say the Chancellor reached the correct results, but on faulty reasoning.

As is within our discretion we decline to accept this appeal. See T.C.A. § 27-305; Tennessee Department of Mental Health and Mental Retardation, et al v. Lowell Paul Hughes, Tenn., 531 S.W.2d 299, Supreme Court Opinion filed at Nashville on December 30, 1975, marked "For Publication."

In Ratliff v. Hinman, et al filed in this Court on February 16, 1976, we stated:

"____ In the exercise of our discretion in accepting or rejecting an appeal under T.C.A. § 27-305, we are mindful that the true issues are the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice on the other. Where the ruling of the trial judge is that the parties go to trial because of the existence of a genuine issue as to material facts, the danger of denying justice is removed. Only under the most extraordinary and compelling circumstances could we hold that the possible reduction in time and expense of trial would justify a review of that decision. The present lawsuit does not present those extraordinary circumstances, and we will not accept this appeal."

As found in Ratliff, supra, we also here find that "The present lawsuit does not present those extraordinary circumstances, and we will not accept this appeal."

The cause is remanded to the Chancery Court of Shelby County, Tennessee for further proceedings. Costs of appeal are adjudged equally against the parties and costs below will await the outcome of the trial.

CARNEY, P.J., and MATHERNE, J., concur.