Teresa Barger v. Linda McGinnis ( 2004 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Submitted on Briefs, May 21, 2004
TERESA BARGER v. LINDA MCGINNIS, et al.
Direct Appeal from the Chancery Court for Hamblen County
No. 2002-428 Hon. Thomas R. Frierson, Judge
No. E2003-01932-COA-R3-CV - FILED JULY 23, 2004
The Trial Court awarded plaintiff Judgment against defendants. On appeal defendants sought to
reverse Judgment of the Trial Court. No transcript of evidence was filed. We affirm the Judgment
of the Trial Court.
Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Affirmed.
HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO ,
JR., J., and D. MICHAEL SWINEY , J., joined.
Linda McGinnis, Pro se.
OPINION
Plaintiff, Teresa Barger, filed a Complaint against her landlord, Linda McGinnis, and
McGinnis’ purported agent, Terry McCracken, alleging that on July 13, 2002, the defendants
wrongfully shut off plaintiff’s water and electricity, had entered the home and thrown out her food,
and had changed the locks and padlocked the home so plaintiff could not return. Plaintiff asserted
that she was current on her rent payments through June, and had the July rent payment ready on July
2, 2002, but defendants never came to collect, as had been their custom and practice. Plaintiff
asserted that she was given no notice to vacate, and charged the defendants with a breach of the lease
agreement.
A hearing was held on August 5, 2002, and the Court found that it was undisputed
that defendants changed the locks and installed a deadbolt on the residence without providing
plaintiff keys, and that it was also undisputed that defendants shut off the water and electricity for
the residence. The Court further found there was a dispute among the parties regarding the payment
of rent and utilities, but that defendants had filed no legal proceedings against plaintiff. The Court
ordered that the restraining order prohibiting defendants from interfering with plaintiff’s use of the
residence, would be converted to a temporary injunction pending further hearing, and that plaintiff
would have use of the residence pending a further hearing, with the water and electricity restored.
On August 15, 2002, plaintiff filed a Motion to Show Cause, asserting that plaintiff
had not yet received keys to the residence, and that the utilities had not been restored. Plaintiff asked
that defendants be held in contempt, and punished in a manner sufficient to compel compliance with
the Court’s order.
At a hearing on August 26, 2002, the Court found that defendants failed to appear
though due notice was given, and further found that defendants were in willful contempt of the
Court’s order, and would be fined $50.00 per day from August 5, 2002 (the date the prior order was
entered) until they complied with the Court’s order.
Plaintiff then filed a Motion for Judgment by Default on October 29, 2002, alleging
that more than thirty days had passed since the filing of the Complaint, and defendants had failed to
answer. Defendants then filed a handwritten Motion for Judgment by Default, alleging that they had
“answered plaintiff [sic] complaint to the best of our means” and seeking judgment against plaintiff.
Plaintiff’s Legal Aid attorney then withdrew.
Defendants then filed what appears to be a counter-claim, alleging various charges
against plaintiff for damage to the residence and outstanding rent and utilities. Plaintiff filed an
Answer to Counterclaim, and conceded that she owed certain things, but alleged that she was not
responsible for most of the charges defendants sought.
At a court hearing on May 20, 2003, the Court entered an Order which recites “based
upon the evidence and testimony presented”, the Court found that defendants should reimburse
plaintiff $721.07 for hotel expenses and her personalty which they disposed of. The Court found that
plaintiff should pay 12 days’ rent and utilities, plus the cost of paint, for a total of $145.80. The
Court offset the two judgments and ordered defendants to pay plaintiff $575.27. The Court also
ordered defendants to pay $1,500.00 in contempt fines into the registry of the court. Defendants filed
Notice of Appeal.
Defendants basically ask for this Court to relieve them from the Judgment.
Defendants are pro se, and their brief does not follow the proper briefing format as set forth in Tenn.
R. App. P. 27. While we afford some leniency to pro se parties, it is difficult to determine what
relief defendants are asking from the documents that have been filed.
There is no transcript or statement of the evidence from the hearing, and no notice
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was filed as required by Tenn. R. App. P. 24(d), and appellee did not file a brief
In the absence of a transcript from the hearing, or a statement of the evidence, we
must presume there was sufficient evidence to support the Trial Court’s Judgment. In re Estate of
Henderson, 121 S.W.3d 643 (Tenn. 2003).
Defendants also ask this Court to permit them to make monthly payments on the
contempt judgment, but this request is properly addressed to the Trial Court. Contempt judgments
are reviewed under an abuse of discretion standard. Powell v. Powell, 124 S.W.3d 100 (Tenn. Ct.
App. 2003). The Court had the discretion to punish defendants for failing to comply with the Court’s
prior order (see Tenn. Code Ann. §29-9-102 through 104), but such punishment can only be imposed
after finding that the contempt is willful. See also Ahern v. Ahern, 15 S.W.3d 73 (Tenn. 2000). The
Court in its Order of Contempt found the contempt was willful at the August 26, 2002 hearing.
As to the amount of the contempt judgment, the Trial Court ordered defendants to
“pay the contempt fine from the date of the Order providing for the fine until the power was restored.
The Court finds that a period of thirty (30) days shall be assessed at Fifty Dollars ($50.00) per day,
totaling Fifteen Hundred Dollars ($1,500.00), and shall be paid to the Clerk & Master’s Office into
the registry of the Court.”
Since there is no record of what proof the Court had before it at that hearing, it is
impossible to tell whether the Court abused its discretion in assessing this fine. Absent an
evidentiary record, the appellants cannot demonstrate they are entitled to any relief. Accordingly,
we affirm the Judgment of the Trial Court, and remand with the cost of the appeal assessed to
appellants.
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HERSCHEL PICKENS FRANKS, P.J.
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