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    David BLURTON and wife, Virginia Blurton v. GRANGE INSURANCE & CASUALTY COMPANY.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Jan. 20, 2004 Session.
    July 2, 2004.
    Permission to Appeal Denied by Supreme Court Jan. 24, 2005.

      Robert 0. Binkley, Jr., and Latosha Mason Dexter, Jackson, Tennessee, for the appellant, Grange Insurance & Casualty Company.
    William L. Hendricks, Jr., Memphis, Tennessee, for the appellees, David Blur-ton and wife, Virginia Blurton.
   OPINION

HOLLY M. KIRBY, J.,

delivered the opinion of the Court, in which

W. FRANK

CRAWFORD, P.J., W.S., and DAVID R. FARMER, J.,

joined.

This is a declaratory judgment action to establish coverage under an insurance policy. The plaintiffs’ home was insured by a homeowners policy with the defendant insurance company. The insurance company canceled the policy for nonpayment of the premium and claimed that it mailed a notice of cancellation to the insureds at that time. Six months later, the plaintiffs’ home was damaged by fire, and they filed a claim on their policy. The insurance company denied the claim. The plaintiffs filed this lawsuit to recover on the policy, asserting that they never received the cancellation notice, and that the insurance company did not properly cancel the policy. At trial, the insurance company representative testified about the company’s customary routine of sending cancellation notices, and it was undisputed that the insurance agent and the mortgagees received notices. The trial court held in favor of the plaintiffs based on, among other things, its determination that the insurance company did not prove that it had mailed a cancellation notice to the plaintiffs. The insurance company now appeals. We reverse, finding that the evidence preponderates in favor of a finding that the cancellation notice was mailed to the plaintiffs.

Plaintiffs/Appellees David Blurton and his wife, Virginia Blurton (collectively “Blurtons”), owned a home at 793 Allen Station Road in Brownsville, Tennessee. Effective June 1990, the Defendant/Appellant Grange Insurance & Casualty Company (“Grange”) provided homeowners insurance coverage for the Blurtons’ Allen Station Road home. The Blurtons renewed the policy for one-year periods, beginning on June 6, 1991, 1992, 1992, and 1993. Each time, the Blurtons elected to pay the premiums in five installments.

In June 1994, the Blurtons received a renewal and premium notice from Grange. At that time, the Blurtons again chose to pay the 1994 premiums in five installments. The first installment was due sometime in. June 1994, and the others were due on August 5, October 4, December 3,1994, and on February 1,1995. The Blurtons wrote a check for. the June 1994 installment in a timely manner, and the payment of that installment was acknowledged by Grange.

On July 11, 1994, Grange sent a premium notice to the Blurtons for the August 5 payment. That premium notice listed the entire installment schedule, indicating the due dates on which the three remaining installments would be due for the policy. Grange sent no further premium, notices.

The Blurtons wrote a check for'the second installment on August 10, 1994, check number 8659 from the bank account of Southern, Industrial Mechanical Maintenance Company (“SIMMCO”), owned by the Blurtons. A copy of the check was submitted as an exhibit at trial, but the check copied was not signed. The Blur-tons claimed that the check was mailed to Grange, but Grange maintained that it never received the check. The check never cleared SIMMCO’s bank account. Though the Blurtons were aware of this fact, they did not discover why the check had never cleared.

Grange contends that, on August 16, 1994, its automated system generated a cancellation notice to the Blurtons, which was scheduled to be mailed on August 17, 1994. The notice stated that the Blurtons’ homeowners policy would be canceled for nonpayment at 12:01 a.m. on August 29, 1994. A copy of that notice was sent to the Blurtons’ insurance agent, William Freeman (“Freeman”). On August 29, 1994, Grange issued a final notice of cancellation to the Blurtons, stating that the policy was canceled as of 12:01 a.m. on that day. A copy of the final notice was sent to Freeman as well as the first and second mortgagees on the property. The Blur-tons would later claim that they did not receive either of the cancellation notices sent by Grange. It is undisputed that Grange did not send the Blurtons any more invoices for installment payments of premiums, and that the Blurtons in fact made no further payments under the installment plan for the homeowners policy. Ultimately, the Blurtons apparently assumed that their June 6, 1994 policy was still in effect, but Grange considered the policy to have been canceled as of August 29,1994.

On February 25, 1995, six months after Grange canceled the Burtons’ insurance policy, the Blurtons’ home caught on fire. When the Blurtons called agent Freeman the following day, he informed them that their homeowners policy had been canceled, and that, consequently, their loss was not insured. The Blurtons claimed that this was the first time that they learned of the policy cancellation.

On February 23, 1996, the Blurtons filed the instant declaratory judgment action in the trial court below, arguing that they were entitled to recover for the fire loss under their homeowners insurance policy. The Blurtons alleged that Grange did not follow the cancellation procedures outlined in the insurance policy and that, consequently, its attempt to cancel the policy was ineffective. The original complaint named the insurance agent Freeman as a defendant, claiming that Freeman had a duty to notify the Blurtons of the cancellation of their policy when he received the initial notice of cancellation from Grange, and that this duty was breached. Freeman filed a motion for summary judgment, which was granted on November 10, 1998.

The matter proceeded to a bench trial on three separate days: December 12, 2000, April 5, 2001, and August 1, 2001. The majority of Grange’s proof at trial regarding the cancellation of the Blurton’s policy was submitted through the testimony of Earl Blair (“Blair”), Grange’s assistant vice president of process accounting. Blair testified that he was in charge of receiving premiums and issuing cancellation notices if premiums were not paid. He explained that, if Grange does not receive a premium payment on a policy, the company’s computer system automatically generates a notice of cancellation to the insured. In preparation for his testimony regarding the Blurtons, Blair stated, he obtained the computer records for the Blurtons’ account. He submitted the agent’s copy of the August 16 cancellation notice and the August 29 final notice, both generated through the automated system. The first notice was sent to the Blurtons and Freeman, Blair said, and the final notice was sent to the Blurtons, Freeman, and the first and second mortgagees. The final notice to the mortgagees included a grace period, giving the mortgagees thirteen days from the date of the notice to protect then.’ interest.

Blair described the automated process in some detail. He stated that, after a notice of cancellation is generated, it is delivered to the mail room at night. The next morning, the mail is put into inserters, which folds the mail, put the mail in window envelopes, and put postage on the envelopes. The letters are then put in mail trays, from which the postal service picks them up for mailing. Blair explained that the computer system keeps track of the number of notices it generates, and that the inserters keep track of how many notices are inserted. If the numbers do not match, Blah’ is notified that a problem exists. On the days that the notices to the Blurtons were generated, Blair was not notified of a problem, so he assumed that the notices were sent in due course. Blair testified that the envelopes in which the notices are sent contained a correct return address, and that he received no returned mail intended for the Blurtons. Blair testified that, under Grange’s automated system, all of the notices for one insured are generated at the same time. In this case, Blair stated, if agent Freeman and the mortgagees received their notices, then the Blurtons should also have received their notices, because their proper address was on the notices. Blair admitted that the computer system could not reproduce a copy of the Blurtons’ August 29 final notice, but maintained that the notice contained the same language as the mortgagees’ notices, minus the additional clause directed specifically to the mortgagees.

Mrs. Blurton testified that she did not receive either of the notices sent by Grange. She acknowledged, however, that on other occasions she had received correspondence from Grange, including two pri- or notices of cancellation. Mrs. Blurton testified that she handled the financial aspects of SIMMCO, owned by her and Mr. Blurton. She said that she and one of SIMMCO’s employees, Martha Sharp (“Sharp”), worked together on accounts payable, and indicated that Sharp actually wrote check number 8659 to Grange for the insurance premium. The Blurtons introduced into evidence SIMMCO’s check register, kept in the ordinary course of business, showing that check number 8659 was written to Grange on August 10, 1994, for the insurance premium. Mrs. Blurton testified that the check was copied before it was signed and mailed, and that she did not know what happened to the check.

The insurance agent, William Freeman, also testified. Freeman said that he received copies of both the first notice of cancellation and the final notice within three to five days after they were issued. Freeman testified that, after the fire, the Blurtons called him asking about insurance coverage. Upon further investigation, Freeman discovered that the policy had been cancelled for nonpayment, and informed the Blurtons of that fact. When he asked Mi'. Blurton what may have happened regarding the payment, Mr. Blur-ton’s response was that “an employee failed to pay it.” Freeman testified that he was aware that Mrs. Blurton had had a discussion with his co-worker, Anita Miller, indicating that Mrs. Blurton felt that she could obtain insurance somewhere else for a cheaper premium. When Freeman received his copy of the cancellation notices for the Blurton policy, he recalled that conversation, and accordingly he assumed that the Blurtons had procured insurance elsewhere. When asked why he assumed that the Blurtons had received their cancellation notices, Freeman responded that he knew that Grange was obligated under the policy to send cancellation notices to its insureds. Because he had received copies, and because he was aware that all of the notices are produced at the same time under the computer system, Freeman assumed the Blurtons’ notices were also mailed.

On December 18, 2002, the trial court entered an order finding in favor of the Blurtons. The trial court concluded that Grange had not properly canceled the insurance policy, and that, therefore, the company was liable to the Blurtons for the stipulated amount of damages, $270,000 plus prejudgment interest. The trial court based its decision on its conclusion that Grange “did not provide any evidence that the [cancellation] notice was mailed.” The trial court found that Blair’s testimony on the mailing was insufficient, because Blair had no “direct personal knowledge that any of the notices in question in this case were mailed to the Blurtons,” nor was he able to testify about any Grange employee who personally handled the notices. In determining that Blair’s testimony was insufficient to show proof of mailing, the trial court reasoned:

Mr. Blair was not employed by the Grange in the department that dealt with the mailing of notices of cancellation, and Mr. Blair had no personal knowledge that any of the involved cancellation notices were mailed to the Blurtons. Mr. Blair had no oversight of the mail room at the Grange where some 22,000 to 30,000 documents come in and go out on a daily basis. Mr. Blair could not testify as to which employee of the Grange, if any, mailed out any notice to the Blurtons. Mr. Blair could not present documentation and there is no documentation, that postage was in fact placed on the supposed notices to the Blurtons. The Grange kept no log as to the documents sent out. The Grange had no documentation to demonstrate who in the Grange’s mail room may or may not have handled the documents in question. Mr. Blair could present no documentation that showed any reconciliation in the mail room of the number of letters printed in a day and the number of stamps placed on letters. Mr. Blair had no direct personal knowledge that any of the notices in question in this case were mailed to the Blurtons. Also, Mr. Blair testified that it was impossible to produce any documentation showing that a mailing of the supposed notices of cancellation went out to the Blurtons. The August 29, 1994, final notice of cancellation showed copies to the agent, the mortgagee and the second mortgagee, but it does not show a copy to the insured.
Mr. Blair testified that he had no direct personal knowledge that the notices at issue in this case were handled in the usual course of business. In fact, Mr. Blair presented no tangible evidence or company documentation that the notices were sent at all. There was no evidence presented by the Grange that demonstrates proper mailing or delivery of the notices to the post office such that the Grange could benefit from any presumption of mailing. The undisputed proof was that the Blurtons never received the notices from the Grange that are the pivotal subject matter of this lawsuit.

Thus, the trial court held that the evidence was insufficient to show that Grange had in fact mailed the cancellation notices. The trial court found, therefore, that Grange did not properly cancel coverage pursuant to the terms of the policy. In the alternative, the trial court found that, even if Grange had mailed the notices to the Blurtons, it still did not properly cancel the policy, because it did not give the mortgagees ten days notice of the cancellation, as is required under the terms of the contract. In addition, the trial court made a factual finding that the Blurtons paid their August 1994 premium by mailing check number 8659 to Grange. The trial court inferred that, because the payment was effective when mailed, Grange had no basis on which to cancel the Blurtons’ insurance policy. Finally, the trial court determined that Grange was estopped from canceling the Blurtons’ insurance policy, because Freeman had a duty to notify the Blurtons of the cancellation and failed to do so.

On January 14, 2003, Grange filed a motion to alter or amend the judgment, requesting that the Blurtons’ Chapter 7 bankruptcy trustee be substituted as the plaintiff, because the trustee was the real party in interest based on the Blurtons’ 1999 Chapter 7 bankruptcy filing. Grange further requested that prejudgment interest, if any, be limited to a rate of not more than six percent (6%) for a period of one year. On April 24, 2003, the court entered an order on Grange’s motion, substituting the Chapter 7 trustee as the plaintiff, and ordering prejudgment interest at a rate of ten percent (10%) from February 26, 1996, through August 1, 2001. From that order, Grange now appeals.

On appeal, Grange argues that the trial court erred in concluding that the Blur-tons’ homeowners policy was not properly canceled. Grange maintains that its policy does not require it to produce a post office “proof of mailing.” Under the terms of the policy, it contends, cancellation by sending a notice in the mail is sufficient unless a post office proof of mailing is required by law. Therefore, the evidence at trial showed, by a preponderance of the evidence, that Grange mailed the cancellation notices to the Blurtons and, thus, properly canceled the policy. Grange argues further that the trial court’s three alternative bases for holding in favor of the Blurtons were erroneous because (1) notice to the mortgagee is solely to protect the mortgagee’s interest, not the interest of the insured; (2) the evidence preponderates against a finding that the Blurtons made the August 1994 payment; and (3) Freeman had no duty to contact the insured when he received his copy of the cancellation notice from Grange. In the alternative, Grange argues, even if the trial court’s decision against Grange is upheld, prejudgment interest should not have been awarded for the period of time between the Blurtons’ bankruptcy filing (June 1999) and the time the trustee undertook to pursue the claim (June 2000), because Grange should not be penalized for the bankruptcy trustee’s delay.

Because this case was decided by the trial court without a jury, we review the trial court’s findings of fact de novo on the record, presuming those findings to be correct unless the preponderance of the evidence is otherwise. Tennessee Farmers Mut. Ins. Co. v. Moore, 958 S.W.2d 759, 763 (Tenn.Ct.App.1997); Tenn. R.App. P. 13(d). The trial court’s conclusions of law are reviewed de novo, with no such presumption of correctness. Moore, 958 S.W.2d at 763; Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn.1997).

Insurance contracts are subject to the same rules of construction as any other contract. Moore, 958 S.W.2d at 763. The plain language of the policy should be given its ordinary meaning, and the parties’ intent is paramount. Id.; see also Allstate Ins. Co. v. Wilson, 856 S.W.2d 706, 709 (Tenn.Ct.App.1992). The policy should be interpreted fairly and reasonably, giving the language of the policy its common, ordinary meaning. Black v. Aetna Ins. Co., 909 S.W.2d 1, 3 (Tenn.Ct.App.1995). Any ambiguity in the policy should be construed against the party who drafted it, the insurance company. Moore, 958 S.W.2d at 763. When an insurer wishes to rely upon the cancellation of a policy by mailing a notice of cancellation, it must show that “it complied strictly with the policy’s requirements.” Quintana v. Tennessee Farmers Mut. Ins. Co., 774 S.W.2d 630, 633 (Tenn.Ct.App.1989); see Calvert Fire Ins. Co. v. American Nat’l Bank & Trust Co., 222 Tenn. 515, 438 S.W.2d 545, 546 (1969). Strict compliance is required so that the insured will have time to obtain other insurance or protection. Jefferson Ins. Co. of New York v. Curle, 771 S.W.2d 424, 425-26 (Tenn.Ct.App.1989).

In the homeowners policy at issue in this case, the cancellation provision reads as follows:

2. Cancellation
(a) Your Right to Cancel
You may cancel this policy by returning it to us or by advising us in writing when at a future date the cancellation is to be effective.
(b) Our Right to Cancel or Refuse to Renew
We may cancel this policy only for the reasons stated below by mailing notice of cancellation to you, and to any lienholder named in the policy at the address shown in the Declarations, or by delivering the notice to you.
(1) We may cancel this policy at any time with only 10 days notice before the effective date of cancellation if you have not paid the premium payable to us, to our agent or under any finance plan.
The mailing of notice, or proof of mailing when required by law, will be sufficient proof of notice. The policy period will end on the date and time stated in the notice.

(Emphasis added). Under the plain terms of the policy at issue, Grange was entitled to cancel the policy at issue “by mailing notice of cancellation” to the Blurtons. The policy does not include a requirement that Grange produce a post office proof of mailing, such as a return receipt or certificate, in order to prove that such notice had been mailed. Such proof was not required by the contract, nor is it required under Tennessee law. See Stooksbury v. Am. Nat. Prop. & Cas. Co., 126 S.W.3d 505, 516-17 (Tenn.Ct.App.2003) (recognizing that Tennessee law does not require that cancellation notices be sent via certified mail, and stating that such a requirement “is a matter better left to the Tennessee Legislature as opposed to the court system”).

Moreover, Grange notes, it is not necessary that the Blurtons have actually received the notice of cancellation in order for it to be effective. In support of its position, Grange cites the holding in Quintana v. Tenn. Farmers Mut. Ins. Co., 774 S.W.2d 630 (Tenn.Ct.App.1989). In Quin-tana, the insurance company decided to cancel the insureds’ property insurance due to the filing of multiple claims. On November 10, 1986, the insurance company mailed a cancellation notice to the insureds by registered mail. Coincidentally, on the same day, the insureds left home for several weeks to visit their son in Texas. About six weeks later, while they were in Texas, their home was damaged by arson. Quintana, 774 S.W.2d at 631-32. The insureds did not receive the cancellation notice sent by the insurance company until they returned from Texas after the fire, because they had had their mail held rather than forwarded while they were away. The insureds filed a claim on the fire loss. The insurance company denied the claim, asserting that the policy had been cancelled. The insureds sued the insurance company for coverage under the policy as well as bad faith damages. The trial court held that the insurance company’s attempted cancellation of the insureds’ policy was ineffective, because the fact that the insureds did not get the mailed notice prevented them from receiving actual notice of the policy’s cancellation. Id. at 632. On appeal, this Court reversed, concluding that “the insured need not actually receive the notice in order for the cancellation to be effective.” Id. at 632-33; see Calvert, 438 S.W.2d at 545 (holding that, where the fact of mailing was undisputed, it is unnecessary that notice actually be received in order for the cancellation to be effective).

The policy in the instant case, like the policy in Quintana, does not require that the Blurtons receive actual notice of the cancellation. Under Tennessee law, it is clear that, unless the policy requires actual notice, an insured “need not actually receive the notice in order for the cancellation to be effective.” Quintana, 774 S.W.2d at 633. In the instant case, however, the trial court did not hold that the cancellation of the Blurtons’ policy was ineffective based on the lack of actual notice. The trial court held that all of the evidence, when taken as a whole, did not show that Grange ever mailed the cancellation notices to the Blurtons. The issue, then, is whether the evidence as a whole preponderates in favor of a finding that the notice was actually mailed. In Quinta-na, it was undisputed that the insurance company mailed the cancellation notice to the insured. Therefore, the holding in Quintana is not determinative of the ultimate issue in this case.

Grange argues that the evidence as a whole preponderates against the trial court’s finding that it did not mail a cancellation notice to the Blurtons. Grange argues the trial court erred in rejecting Blair’s testimony as competent evidence of mailing through the usual and customary business routine of sending out cancellation notices at Grange, and that the trial court erroneously required testimony from the person accustomed to taking the mail to the post office to prove that the Blur-tons’ notice was mailed. It asserts that Blair was thoroughly familiar with the business custom at Grange, and that Grange had followed the same procedures for thirty-four years. Grange argues that Blair explained in detail the procedures followed on August 16 and 17, 1994, and then on August 29 and 30,1994, that would indicate that the cancellation notices were mailed to the Blurtons in the due course of business. The evidence also showed, Grange points out, that all other mailings from Grange consistently reached the Blurtons at their Allen Station Road address. Furthermore, Freeman received copies of the August 16 and the August 29 notices, and the mortgagees received copies of the August 29 notice. Both Freeman and Blair testified that the notices were mailed to the agent and the insured simultaneously. Mrs. Blurton acknowledged that Grange had her correct mailing address, and that from 1990 to 1994, she had received every other document mailed to her from Grange, including two prior notices of cancellation. The only evidence to rebut Grange’s evidence that the notices were mailed, argues Grange, is the Blur-tons’ denial of their receipt of the notices. Grange contends that the Blurtons’ testimony on this issue is insufficient to overcome the evidence of mailing, because Mrs. Blurton’s testimony was inconsistent at best.

In response, the Blurtons argue that the trial court was correct in concluding that the evidence was insufficient to show that the cancellation notice was properly mailed to them, because Tennessee law requires an insurance company to present evidence that notice was actually taken to the post office. In support of that argument, the Blurtons rely on Cherokee Ins. Co. v. Hardin, 202 Tenn. 110, 302 S.W.2d 817 (1957). In Cherokee, the insurance company issued an automobile insurance policy on an automobile owned by the insureds. Sometime in 1955, the automobile was damaged, and the insureds filed a claim with the insurance company on the policy. The insurance company informed the insureds that the automobile policy had been canceled by a notice of cancellation that was mailed to them in June 1954. The insureds claimed that they did not receive the notice. They sued the insurance company for proceeds under the policy, taking the position that the notice of cancellation was never mailed to them. Cherokee, 302 S.W.2d at 818.

At trial, the insurance company introduced into evidence a carbon copy of the notice that was sent to the insureds, with an official post office receipt attached indicating that it had been received by the post office for mailing. The evidence showed that approximately twenty notices of a similar character were prepared by an insurance clerk and put in the outgoing desk mail basket each day. A porter would later pick up the letters, carry them to the post office for delivery, and procure the post office official acknowledgment for each letter for which a receipt was requested. Id. at 818-19. Despite that evidence, the jury found in favor of the insureds, determining that the cancellation notice had not been mailed. The verdict was approved by the trial court and upheld by the court of appeals. On appeal, the Supreme Court of Tennessee reversed the judgment entered on the verdict and found in favor of the insurance company. The Cherokee Court determined that, in the face of the conclusive post office proof of mailing, the insureds’ denial of receipt of the notice did not “rise to the dignity” of material evidence sufficient to support the jury verdict. See id. at 818. The Court found the language of the policy, stating that “[t]he mailing of notice ... shall be sufficient proof of notice,” indicated that the determining factor was the mailing, not the receipt of the notice. Id. at 819.

In reaching its conclusion, the Cherokee Court found that it was unnecessary for the insurance company to present as a witness the person who took the mail to the post office, so long as there was evidence that the notice was taken there. The Court determined that evidence of the regular routine in a business office could satisfy that burden of proof. The Court in Cherokee quoted with approval the following passage from an Arizona case regarding evidence of mailing:

It is the general rule in matters of this kind, where it is the custom of a business office to follow a regular routine, that where it is affirmatively established that part of a routine was followed it is presumed, in the absence of some evidence to the contrary, that the rest was also followed. [Citing cases] We think this is particularly applicable to matters such as the mailing of routine letters in an office where a very large number of such letters are customarily mailed in the due course of its business, and that proof of the custom and the fact that a carbon copy was found without the original in the place and under the circumstances where it would have been found, if the original had been mailed, is sufficient, in the absence of evidence to the contrary, to support a finding that the original had been properly mailed.

Id. at 819 (quoting Consolidated Motors v. Skousen, 56 Ariz. 481, 109 P.2d 41, 43 (1941)). Thus, in a business where a large number of letters are customarily mailed in a routine fashion, evidence of the custom of mailing, along with a copy of the letter kept in the records of the business, is sufficient to support a finding that the original was mailed.

The Blurtons also argue that the instant case is analogous to Stooksbury v. American Nat. Prop. & Cas. Co., 126 S.W.3d 505 (Tenn.Ct.App.2003), perm. app. denied (Jan. 26, 2004), in which the jury found in favor of the insureds on similar facts. In Stooksbury, the insureds’ home was damaged by fire. When they attempted to recover for the resulting damage under their homeowners policy, the insurance company denied the claim, taking the position that the insurance policy had previously been canceled. The insureds sued the insurance company for coverage under the policy and for bad faith denial of their claim. Stooksbury, 126 S.W.3d at 507. At trial, the insurance company introduced the testimony of several witnesses to show that the cancellation notice was mailed in due course, including testimony from the insurance agent, an underwriting manager, a mail specialist, and the mail room supervisor. All of those witnesses testified as to the general practices and procedures for mailing cancellation notices, but none of them had personal knowledge about the mailing of the cancellation notice at issue. The insurance agent testified that he never received a copy of the cancellation notice. Id. at 509-10. In addition, the evidence indicated that the mortgagee did not receive the cancellation notice. Id. at 508. The insurance company also introduced evidence that, when it sends cancellation notices out, it creates a list of the insureds whose policies are being canceled, and that the mailing list is stamped by the post office when the notices are mailed. At trial, the insurance company identified a list that included the plaintiffs’ names, and the list contained the post office round date stamp for the pertinent time period.

The jury held in favor of the insureds, concluding that the insurance company had not proven by a preponderance of the evidence that the notice of cancellation had been mailed to the insureds. Id. at 512. The jury also concluded that the insurance company’s failure to pay for the insureds’ loss was fraudulent and deceptive. On appeal, the insurance company argued, among other things, that the trial court erred in failing to grant it a directed verdict in light of the fact that there was no material evidence to support the jury’s conclusion that it did not mail the notice of cancellation. The insurance company claimed that the circumstances were similar to the facts in Cherokee, supra, where the Supreme Court reversed the jury verdict in favor of the insureds. Id. at 516. The appellate court in Stooksbury disagreed and upheld the trial court’s decision. The appellate court reasoned that the “round date stamp” was inconclusive proof of mailing, whereas the receipt attached to the carbon copy of the cancellation notice in Cherokee was conclusive proof of mailing. In light of that distinction, the Stooksbury court found that, “[i]n light of the non-conclusive effect of the ‘round date stamp’ ... coupled with other evidence such as Plaintiffs’ testimony that they never received the notice of cancellation, we conclude there is material evidence in the record to support a verdict for Plaintiffs regarding whether or not the cancellation notice was mailed.” Id.

In the case at bar, the Blurtons argue that, as in Stooksbury, the trial court below correctly found that the evidence did not support a finding that the cancellation notices at issue were mailed. They point out that Blair did not have any personal knowledge about the mailing of the notices, and that there was no documentary evidence, from the post office or otherwise, showing that the notices were mailed. They point out that Blair admitted that it was impossible to produce any conclusive documentation showing that the notices at issue were actually mailed to the Blurtons. Blair could present no reconciliation of the number of letters that were printed in a day and the amount of postage that was placed on those letters. Blair also acknowledged that Grange keeps no log of documents sent out. Therefore, the Blur-tons argue, because of the lack of competent evidence showing that the cancellation notices were mailed, in addition to the Blurtons’ testimony that they never received the notices, the evidence preponderates in favor of the trial court’s conclusion that the notices at issue were not mailed to the Blurtons.

In this case, the policy provision at issue states that “[t]he mailing of notice ... will be sufficient proof of notice.” Therefore, Grange was required to produce evidence that it mailed the cancellation notices to the Blurtons. The policy does not require post office proof of mailing. By this standard, we must evaluate the proof of mailing at trial.

Clearly, Blair was competent to testify about the customary routine at Grange regarding the mailing of cancellation notices. Blair was in charge of the entire department responsible for sending out such notices, and he demonstrated that he was intimately familiar with the automated process which had been in place at Grange for thirty-four years. Blair explained that notices of cancellation were generated automatically by the computer when premium payments went unpaid. Blair stated that a system was in place to alert him as to any irregularities in the process, and he testified that there were no irregularities on the dates on which the notices were sent to the Blurtons. He testified about the entire cancellation notice process, concluding with the notice being placed in a mail tray and picked up for mailing. Blair’s testimony regarding the system at Grange was unrefuted. In Cherokee, the Court clearly stated that testimony from the person who mails the cancellation notice is not necessary to show a mailing, so long as there is evidence that the notice was taken to the post office. Such proof can be supplied by establishing a business routine, and showing that a document was mailed in the due course of business. Cherokee, 302 S.W.2d at 819. As the Court acknowledged in Cherokee, “in an office where a very large number of such letters are customarily mailed in the due course of its business,” proof of custom can be sufficient to show that a document has been properly mailed. Id. (quoting Skousen, 109 P.2d at 43). The trial court in this case found that Blair’s testimony was insufficient because he had no personal knowledge of the mailing of the Blurtons’ cancellation notice. However, both Cherokee and Stooksbury show that the testimony of one with personal knowledge of the mailing is not necessary to show that the cancellation notice was mailed in due course. See John P. Luding-ton, Annotation, Proof of Mailing by Evidence of Business or Office Custom, 45 A.L.R.4th 476, § 2 (1986) (“In large offices which handle a volume of mail, direct proof of the mailing of a particular letter is impractical — a fact that has been judicially recognized. In the modern age of business, it is almost inconceivable that one person would have a positive recollection of the mailing of a particular letter.”). Overall, we must conclude that Blair’s testimony was competent evidence that the notices of cancellation were mailed.

Other evidence corroborated Blair’s testimony that the cancellation notices were mailed to the Blurtons. Both Blair and Freeman testified that the automated system generates the notices to the insurance agent and the insured simultaneously. Freeman stated that “[i]t comes off at the same time. The memorandum — I mean the cancellation goes to any lienholder or mortgage holder, the agent’s copy and the insured’s copy all come off of most systems at the same time.... ” It is undisputed that Freeman received his copies of both of the notices, and that the first and second mortgagees received copies of the second notice. From these facts it can be inferred that the Blurtons’ copy of the notices was mailed along with the notices to the Freemans and the mortgagees. Furthermore, it is undisputed that the Blurtons had received other documents previously mailed to them by Grange, including prior cancellation notices, to the same address. Blair’s testimony that the notices generated to the Blurtons included a correct return address, and that the notices were never returned to Grange, was likewise unrefuted. The only evidence to support the Blurtons’ claim that the cancellation notices were not mailed was the Blurtons’ denial of receipt. Considering the evidence as a whole, although it is a close question, we must conclude that the evidence preponderates against the trial court’s finding, and that the evidence in fact preponderates in favor of a finding that the cancellation notices were mailed to the Blurtons.

We readily acknowledge that the facts in this case are somewhat similar to those in Stooksbury, where the appellate court upheld the jury verdict in favor of the insureds when the primary evidence of nonmailing was the insureds’ assertion that they did not receive the cancellation notice. The evidence in Stooksbury, however, also indicated that neither the insurance agent nor the mortgagee received the cancellation notice. Moreover, the scope of our review in this case is critically different from the standard applied in Stooksbury. The Stooksbury court was required to determine whether a jury verdict in favor of the insureds was supported by any material evidence. Under that standard of review, the appellate court “must take the strongest legitimate view of the evidence in favor of the plaintiff, indulging in all reasonable inferences in his favor, and disregarding any evidence to the contrary.” Stooksbury, 126 S.W.3d at 516 (quoting Wharton Transp. Corp. v. Bridges, 606 S.W.2d 521, 525 (Tenn.1980) (quoting Cecil v. Hardin, 575 S.W.2d 268, 271 (Tenn.1978))). The instant case, however, was tried before a judge sitting without a jury. In such a case, the trial court’s findings of fact are reviewed de novo on the entire record, with a presumption of correctness. Under that standard, we do not view the evidence in the light most favorable to the trial court’s decision, and we do not disregard evidence contrary to its conclusion. Therefore, although the facts in Stooksbury are somewhat similar to those in the instant case, the same result is not required in light of the different standard of review.

In view of our holding that the trial court erred in finding that Grange had not shown that it mailed the notice of cancellation to the Blurtons, we must address the trial court’s alternative holdings, which also favored the Blurtons. First, the trial comí held that Grange did not properly cancel the Blurtons’ policy because it did not send a copy of the first cancellation notice to the two lienholders as is required under the policy. As Grange correctly points out, however, requiring notice to a lienholder is for the protection of the lienholder, not the insured. See Western Express, Inc. v. Interested Underwriters at Lloyd’s, London, 942 S.W.2d 542, 544 (Tenn.Ct.App.1996). Therefore, regardless of whether the lien-holders received the first notice, this does not mandate a finding in favor of the Blur-tons.

In addition, the trial court determined that the Blurtons mailed their August 1994 insurance payment, and concluded from this that Grange was not entitled to cancel the Blurtons’ insurance policy. Sharp testified that she wrote check number 8659 to Grange in payment of the homeowners premium, but Sharp also stated that she did not mail it. Sharp testified that Mrs. Blurton took the check to be signed, and then she gave it back to Sharp to mail. Mrs. Blurton testified that another office worker prepared the check just before she quit working for the Blurtons, and that the check sat in a folder for a week before anyone could pay it. Mrs. Blurton testified that she remembers having the check signed, and she produced an invoice containing her handwritten notation that she had paid the premium. A computer record from Grange was also submitted to indicate that the August 1994 premium was received on August 5, 1994, then it was debited on August 29, 1994, when the policy was canceled. The trial court concluded that this evidence showed that the Blurtons paid the premium on the policy. From our review of the record, however, this evidence is tenuous at best. The record also contains an unsigned copy of the premium check. The evidence is undisputed that, from the time that Mrs. Blurton allegedly mailed the check in August 1994 until February 1995, the premium check never cleared the Blurtons’ bank account. The Grange computer record is inconclusive; Blair explained in his testimony that the alleged “payment” reflected on the document was an accounting entry that was necessary when a policy was canceled, and it did not indicate that the premium had been paid. It is undisputed that the check was not written until August 10, making it impossible for Grange to have received it on August 5, the date on the computer printout upon which the Blur-tons rely. Under these circumstances, we must find that the evidence preponderates against the trial court’s finding that the Blurtons made the August 1994 premium payment under the policy.

Finally, the trial court held that Grange was estopped from canceling the insurance policy at issue because the agent, Freeman, was obligated to notify the Blurtons of any cancellation. The trial court found that Freeman assumed such a duty through his course of dealing with the Blurtons. At the same time, however, Freeman was dismissed from the lawsuit. Furthermore, “an agent has no duty to inform a client of a policy’s cancellation if the client knew or should have known of the cancellation by other means.” Quintana, 774 S.W.2d at 634. Here, Freeman knew that Grange was obligated to inform the Blurtons of a policy cancellation, and he assumed that Grange mailed a copy of the cancellation notices to the Blurtons when his were mailed. Freeman had no agreement with the Blurtons to contact them if Grange canceled their insurance policy. Moreover, Freeman’s testimony was undisputed that the Blurtons had told him that they intended to seek less expensive insurance and he did not contact them in part based on his assumption that the cancellation notice meant they had done so. Under these circumstances, we must reverse the trial court’s finding that Freeman assumed a duty to inform the Blur-tons of the policy cancellation. See id.

In sum, we reverse the trial court’s conclusion that Grange did not properly cancel the Blurtons’ insurance policy. The evidence preponderates in favor of a finding that Grange mailed the cancellation notices to the Blurtons, and that the Blur-tons did not make the August 1994 premium payment to Grange. In addition, lack of sufficient notice to the mortgagee does not protect the insured, and Grange is not estopped from canceling the policy based on Freeman’s failure to inform the Blur-tons of the cancellation notice. Our decision pretermits all other issues raised in this appeal.

The decision of the trial court is reversed. Costs on appeal are to be taxed to Appellees David Blurton and his wife, Virginia Blurton, for which execution may issue, if necessary.

      . The records of SIMMCO reflect that the payment was for personal use, rather than a business use.

      . The Blurtons do not challenge the timeliness of the first notice, that is, whether a notice mailed on August 17, 1994,. fell within the ten-day provision of the policy; rather, they challenge the fact that it was mailed.

      . Blair testified that under Grange’s system, the mortgagees were not mailed copies of the first notice.


source: Caselaw Access Project

author: D. MICHAEL SWINEY, J.,

license: Public Domain

text:
    Wanda MOODY v. Timothy HUTCHISON, Sheriff of Knox County.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    March 24, 2004 Session.
    May 25, 2004.
    Permission to Appeal Denied by Supreme Court Dec. 6, 2004.
    Petition to Rehear Denied Feb. 22, 2005.

      Mary Ann Stackhouse, Dean B. Farmer, and Keith L. Edmiston, Knoxville, Tennessee, for the Appellant Timothy Hutchison, Sheriff of Knox County.
    Herbert S. Moncier, Knoxville, Tennessee, for the Appellee Wanda Moody.
   OPINION

D. MICHAEL SWINEY, J.,

delivered the opinion of the court, in which

HERSCHEL P. FRANKS, P.J., E.S., and BEN H. CANTRELL, Sp. J.,

joined.

Knox County Commissioner Wanda Moody (“Plaintiff”) made a Public Records Act request for numerous documents in the possession of Timothy Hutchison, the Sheriff of Knox County (“Defendant”). Defendant responded and provided some, but not all of the requested documents. Plaintiff eventually sought to have Defendant held in criminal contempt claiming at least fifty of his responses to the various document requests were false. After a trial on the criminal contempt charges, the Trial Court concluded Defendant made “at least six” false representations which amounted to criminal contempt, and imposed the maximum fine of $50 for each offense, for a total of $300. Defendant appeals claiming, among other things, that the proof faded to establish that he was guilty beyond a reasonable doubt of criminal contempt. We affirm the judgment of the Trial Court.

Background

The events giving rise to this litigation began when Plaintiff sought numerous public records from Defendant Tim Hutch-ison, the Sheriff of Knox County. By letter dated December 21, 2001, Plaintiff, by and through her attorney, sent Defendant a letter seeking production of certain documents pursuant to the Tennessee Public Records Act, Tenn.Code Ann. § 10-7-503. Plaintiff sought disclosure of, among other things:

leases, rental or use agreements or any other written documents for the use of a barn located at 3633 Topside Road ... and for the use of property located off Mascot Road and/or Mine Road along the Holston River where your helicopters are currently located and a project is currently underway ....

Plaintiff attached a rider to the request designating 26 specific groups or classes of documents which Plaintiff also sought to inspect and/or copy. In the rider, Plaintiff sought invoices, cancelled checks, receipts, etc., regarding the acquisition and upkeep of horses by the Knox County Sheriffs Department (“KCSD”)- Plaintiff also sought invoices, cancelled checks, receipts, bid proposals, records of inmate labor or contract labor, etc., pertaining to the construction of horse stables off Maloneyville Road as well as the conversion of a temporary jail and training facility on Maloney-ville Road to a dormitory. Plaintiff also sought original bank account statements, cancelled checks, deposit tickets, etc., for all bank accounts of any type maintained by KCSD. While the above is by no means exhaustive of the information requested by Plaintiff, suffice it to say that a significant number of documents were requested to be produced for inspection.

When responses to the Public Records Act request were not forthcoming, Plaintiff filed with the Trial Court on January 7, 2002, a Petition for Access to Public Records. In this petition, Plaintiff sought the documents referenced in the December 2001 letter and accompanying rider. The next day, in accordance with Tenn.Code Ann. § 10-7-505, the Trial Court entered an Order requiring Defendant to appear in court to show cause, if he had any, why the petition should not be granted. The Trial Court set the show cause hearing for January 14, 2002.

On January 11, 2002, Defendant filed a written response to Plaintiffs petition. In several of the specific responses, Defendant claimed KCSD did not maintain the requested records and referred Plaintiff to the Knox County Purchasing or Knox County Finance Departments. In several other responses, Defendant claimed there simply were no documents responsive to a particular request. For example, Defendant indicated there were no documents pertaining to the construction of horse stables on Maloneyville Road. While Defendant claimed there was no conversion of a temporary training facility into a dormitory, Defendant did admit that a temporary jail had been remodeled into a dormitory for trainees. Defendant denied conducting any project on Mascot Road and/or Mine Road. The documents produced by Defendant in the response comprised a total of twenty-two (22) pages. The response was not signed by Defendant but instead was signed by attorney Carleton Bryant as Administrative Assistant to the Sheriff, and by Mary Ann Stackhouse, Deputy Law Director, who signed the pleading “As to Form” only. Plaintiff filed a reply claiming Defendant’s response was altogether inadequate because Defendant was required to produce public records in his possession regardless of whether additional copies were maintained in other Knox County departments. Plaintiff also moved to strike the response claiming the signatures did not comply with Tenn. R. Civ. P. 11.02. Plaintiffs motion to strike was denied after the Trial Court permitted Defendant to amend his response at which time Deputy Law Director Stackhouse did not limit the scope of her signature.

On January 18, 2002, Defendant filed a Second Amended Response to Open Records Act Request (“Second Amended Response”). Defendant actually signed the Second Amended Response and it is this document which forms the basis for several issues on appeal. The Second Amended Response stated many of the documents Plaintiff requested were made available to her on January 14 and 17 of 2002. Defendant again denied a horse stable was being constructed off Maloneyville Road or that a temporary training facility had been converted to a dormitory, although “[tjhere was a remodeling of the temporary jail to a dormitory for trainees.” Defendant denied the existence of any project off Mascot Road or Mine Road in Knox County and, consequently, stated there were no documents responsive to the requests seeking information on such a project.

Plaintiffs Request No. 13 contained in the rider and Defendant’s response in the Second Amended Response are as follows:

13. All original bank account statements, cancelled checks, deposit tickets, and checkbook stubs for banking accounts or (sic) any type maintained by the Knox County Sheriffs Department since January 1,1996 ....
RESPONSE: Petitioner’s attorney was provided all of this information within the last eighteen months. Mr. Moncier [attorney for Plaintiff/Petitioner] sat in the Sheriffs office for two days with [Carleton] Bryant to inspect these records. Mr. Moncier brought his copier/scanner and copied the documents described. If petitioner wants to update the information from the last date of information received, defendant will make arrangements for petitioner to do so. To the extent maintained by the Sheriffs Department, to be made available January 17, 2002.

After setting forth separate responses to the twenty-six different document requests contained in the rider, Defendant ended his Second Amended Response with the following paragraph:

AS TO ALL REQUESTS:
Every effort has been made to supply petitioner through her counsel with the information requested. An extensive search through the files of the Sheriffs Department has been conducted, and the documents found to be responsive to petitioner’s request have been provided. The remaining invoices from the Sheriffs Office have been made available to petitioner. Petitioner has been given the opportunity to search the files. If any further documents are found that respond to any of these Requests, petitioner will be notified and same will be made available promptly.

On January 24, 2002, Plaintiff filed a “Report on Defendant’s Record Inspection” describing Defendant’s record production which had taken place the previous week. According to Plaintiff, she, her attorney, and her attorney’s staff were provided a space approximately 5 feet by 5 feet in which to inspect 15 banker’s boxes filled with various records. Prior to the document inspection, Plaintiff and her attorney were informed that they would be video and audio-taped during the entire process. In this report, Plaintiff claimed many records still had not been produced and those that were produced were “in no particular order and were not organized by the topics used by Plaintiff to request records.” According to Plaintiff, she and her attorney were unable to determine which request many of the documents pertained to and, making matters worse, Defendant intermixed numerous documents which Plaintiff never requested. Plaintiff claimed “[Defendant] deliberately included these voluminous irrelevant records to make Plaintiffs inspection as difficult as possible; to create the perception to the public that Plaintiff was making [an] unreasonable and expensive request; and to deter others from reviewing relevant records. This practice is often called a ‘discovery dump’ in civil litigation.”

A hearing was held on January 28, 2002, and the Trial Court specifically noted that Defendant was not objecting to providing the requested documents. In response to Plaintiffs repeated protestations that all documents had not been provided, the Trial Court emphasized that it was granting the Public Records Act request and “[i]f they have not provided what you asked for, then you file your appropriate petition for contempt.” The Trial Court strongly suggested to Defendant’s attorney that she “explain to the sheriff that they either be produced or there will be a petition for contempt forthcoming.”

On February 8, 2002, the Trial Court entered a Memorandum Opinion and Order which granted Plaintiffs Public Records Act request. In this order, the Trial Court discussed the pertinent history of the litigation, the various letters and communications between the parties, as well as the relevant provisions of the Public Records Act. The Trial Court also noted that a separate lawsuit was pending in the Knox County Chancery Court in which Plaintiff requested these very same documents from Defendant, but the Chancellor in that case had stayed all discovery. Notwithstanding the stay in the other lawsuit, Defendant had acknowledged in the present case that the documents sought by Plaintiff were public records pursuant to law and Plaintiff was entitled to access to these records. The Trial Court also observed that the litigation process “has been quite acrimonious for counsel, if not the parties themselves ... [and] counsels’ deportment has fallen short of that expected of members of the bar practicing before this court.” According to the Trial Court:

Common civility on the part of all counsel would, and should, have prevented the necessity for filing this action. For the reasons set forth above, and for this reason, the award of attorney’s fees will not be considered in this action.
Counsel for petitioner has suggested that defendant has not provided access to all records requested. As noted previously, defendant was ordered to produce the requested records for inspection pursuant to the Public Records Act. Counsel for both parties are reminded of the procedures for enforcement of court orders and the remedies attendant thereto.
Petitioner’s request for access to public records of the defendant having been granted, this case is concluded.

On February 19, 2002, Plaintiff filed a petition seeking entry of an order requiring Defendant to show cause why he was not in contempt of court for failing to provide all of the requested documents. In this petition, Plaintiff also claimed many of Defendant’s responses to the various document requests were false. Plaintiff detailed the specific responses which she believed were false and which constituted contemptuous conduct.

On February 27, 2002, Plaintiff filed a motion pursuant to Tenn.Code Ann. § 21-l-108(2)(B)(ii) for a hearing “and/or T.R.Crim.P. Rule 42(b) Show Cause Order”. In this motion Plaintiff stated, among other things, that:

3. Upon filing of the Petition T.C.A. § 21-l-108(2)(B)(ii) provides that the Court, if sufficient cause is shown, shall order the issuance of an attachment of the body of the contemnor, fixing the time and place of the appearance to answer, and also the amount and character of the bail bond to be taken.
4. T.R.Crim.P. 42(b) provides for the Court to issue an order to a defendant to show cause or an order of arrest on a notice of contempt.
Plaintiff moves that the Court enter a Show Cause Order to Defendant for March 15, 2002 at 9:00 a.m. for Defendant to appear and show cause why he is not in contempt of court.

The parties continued to file numerous motions and various other pleadings. The stay in the other Chancery Court lawsuit eventually was lifted and discovery in that case continued as well. While discovery in the other lawsuit was proceeding, numerous documents were produced by Defendant which Plaintiff claims should have been produced months earlier in response to the Public Records Act request in the present case. Plaintiff also claimed deposition testimony in the other case further proved that Defendant made false responses to Plaintiffs document requests herein. Accordingly, Plaintiff sought to have this newly discovered evidence admitted in the contempt proceeding.

The hearing on the criminal contempt charges began in October of 2002. We will not discuss all of the testimony of the witnesses which took place over several days, but we will summarize the testimony of a few key witnesses. The first witness at trial was Scott Walker (“Walker”), who testified to a landing fee agreement he entered into with KCSD. Walker also testified to a “side agreement” with KCSD wherein Walker agreed to provide construction services. Walker identified a memorandum from the Sheriff’s Department intended “to hold me to my agreement to provide the improvements. And it also spells out the improvements that the sheriff’s department was supposed to provide.” Walker testified he was told that the improvements could not be part of the landing fee agreement “as it would become a lease. And if it had to be a lease, it had to go before county commission, and they didn’t want to do that.” Walker also incurred attorney fees in having the lease changed to the landing fee agreement so the county commission did not become involved. Walker’s attorney sent his bill to the Sheriffs Department after KCSD agreed to pay those fees. Walker testified Captain Spangler was overseeing all improvements in the project off Mine Road and Mascot Road. Originally, the monthly rent for the landing fee was to be in the neighborhood of $600 to $700. However, Sheriff Hutchison wanted Walker to build an aircraft hangar and offices for the aviation unit, but these improvements could not be part of the agreement. According to Walker, Defendant Hutchison asked Walker if he would build these additions in exchange for higher monthly rent. Walker agreed. The rent eventually agreed to by Defendant and Walker was $2,700 per month. Walker identified many documents associated with the improvements. At the time the allegedly contemptuous statements were made by Defendant, the vast majority of the documents pertaining to the projects off Mine Road or Mascot Road had not been produced.

The next -witness was Tracy Haynes (“Haynes”), manager of the new service department for Knoxville Utility Board (“KUB”). Haynes is the custodian of records and through his testimony, several documents were admitted which showed work performed by KUB off Mine Road and/or Mascot Road for the Sheriff’s Department. One of these documents was sent to KCSD. After Haynes’ testimony, the Court inquired of defense counsel if it was still her client’s position that there was no project off Mine Road. Defendant’s position remained the same.

Carol Holbert (“Holbert”) is the custodian of records in the law office of Plaintiffs attorney. Holbert maintained, organized, etc., the records produced by Defendant. As Holbert was organizing the records produced on January 17, 2002, she discovered many missing documents. Some but not all of those documents were found. Holbert also discovered the responses to the document request did not contain any information from three bank accounts. Holbert learned of the existence of these three accounts by ascertaining where some of the checks which had been produced were deposited. Holbert testified that additional banking records were not provided until depositions were taken in April of 2002. With regard to a couple of the checking accounts that were not produced when the Second Amended Response was filed, Holbert testified that these accounts were opened in the names of KCSD employees using their personal social security numbers.

Anthony Parker (“Parker”) testified that he worked for KCSD from August of 1994 until September of 2002. Parker’s testimony continued in more detail. Parker worked on the construction crew during 2001 and 2002. Parker began constructing horse stables on Maloneyville Road for KCSD in 2001. Parker was instructed by Chief Merritt to “build a horse stable and to build it post hastily.” Parker and other officers obtained the building materials. Parker would obtain from the personnel department a purchase order or a payable warrant, depending on how much money was needed. “And we would go to those places and give them the numbers, sign the ticket, and get what we need. Most of the time we would not tell [people in the sheriffs department downtown] ... what we were building because we were told not to.” Parker testified he knew KCSD did not have permission to build the horse stables. Parker testified he had discussions with his superiors that the horse stables were not approved by the county commission. Records for the purchases were kept in a four inch folder which was “full of ... copies of all the invoices” and the originals were sent downtown. A couple of months after the horse stables were completed, Parker went back and remodeled the stables to hold three more horses. Inmates also were used to help construct the horse stables. Records of inmate labor were maintained at the old penal farm. Inmates generally worked with the construction crew on other projects as well. Parker also testified that an airport or helipad was being built for KCSD off Mine or Mascot Road. The construction crew also assisted with the Mine Road/Mascot Road project. Plaintiffs counsel stopped by the construction project several times. When this happened, Parker was ordered to “put the inmates up [and] sit in the office until we tell you otherwise.” They also would stop the construction.

On February 12, 2003, the Trial Court issued an extensive Memorandum Opinion and Order and began by summarizing the procedural history of this case. The Trial Court took particular notice of the following, which we paraphrase:

1. When Defendant filed his initial response to the Public Records Act request on January 11, 2002, he purported to address all twenty-six groups of documents requested in the rider. Defendant claimed that the twenty-two pages of documents attached to the response were all of the documents in his possession which were responsive to the requests. Defendant indicated that certain documents previously had been supplied to Plaintiff and, for many of the requests, either no such records existed or they were in the possession of other Knox County departments.
2. The parties appeared at the initial show canse hearing on January 14, 2002. At that time, “[e]ounsel for defendant made several representations regarding the completeness of defendant’s responses. It was represented that while the Sheriffs Department might have copies of some of the records the Department did not maintain originals. At any rate, counsel acknowledged that defendant would respond to plaintiffs request for access ....”
3. On January 17, 2002, Defendant made numerous records available, producing fifteen banker’s boxes of documents. On January 18, 2002, Defendant filed the Second Amended Response, which was signed by Defendant who continued to maintain there were no horse stables being constructed, yet alleged that records pertinent to the mounted patrol had been produced on January 17. A similar assertion was made to the requested documents regarding conversion of a temporary training facility to a dormitory. Defendant continued to deny any project taking place off Mascot Road and/or Mine Road. “In some instances though, defendant agreed to make available records ... in response to plaintiffs request regarding the alleged project .... In other instances, defendant denied that any documents existed.”

The Trial Court then reviewed Plaintiffs petition for contempt and the sixteen specific areas where Plaintiff claimed Defendant’s responses were false. The Trial Court discussed some of the various deposition testimony which Plaintiff claimed revealed the existence of numerous documents which had not been produced, notwithstanding Defendant’s assertions to the contrary. The Trial Court also determined that while Plaintiffs petition for contempt did not specify whether she was seeking to have Defendant held in civil or criminal contempt, it nevertheless was clear from the pleadings and the proof that Plaintiff was pursuing criminal contempt charges. The Trial Court then discussed the law applicable to criminal contempt proceedings, noting that conduct punishable as contempt was set forth in Tenn.Code Ann. § 29-9-102, and guilt for criminal contempt must be established by proof beyond a reasonable doubt.

Next, the Trial Court reviewed Defendant’s initial response to the document request in light of the proof established at the hearing, concluding the responses to 23 of the 26 requests were either “totally or partially false.” For example, Defendant claimed his department did not keep originals of many documents, but the proof “throughout the course of this case has established beyond a reasonable doubt that this statement was false.” In addition, a structure was being built which could be “described as nothing but a horse stable.” The Trial Court discussed many other statements in the initial response and the proof which established those statements were false. For the sake of brevity, we will not discuss each of them here.

Once the Trial Court determined which of the responses by Defendant were false, the Trial Court focused on whether criminal contempt had been established. Relying on Maples v. State, 565 S.W.2d 202 (Tenn.1978), the Trial Court emphasized that false statements alone were insufficient to support a finding of criminal contempt. There also must be “an additional element of obstruction of justice or interference with the processes of the court.” Because many documents were produced eleven days after the false statements in the initial response were made, the Trial Court concluded there had been no obstruction of the administration of justice or unlawful interference with the proceedings of the court. In other words, even though there were numerous patently false statements in the January 11 response, these false statements did not amount to criminal contempt.

The Trial Court then shifted its focus to Defendant’s Second Amended Response, a document which, “for the first time, bore the signature of Sheriff Hutchison” and which indicated that certain documents whose existence previously had been denied were produced on January 17, 2002. The proof at trial, however, was that numerous bank accounts and public records pertaining to those accounts were produced well after that date. During the deposition of Captain Spangler in April of 2002, he testified about a checkbook for an account with the Knoxville Police Department Credit Union. Captain Spangler testified that a few days after his deposition he gave the checkbook to someone with KCSD, but could not recall who that person was. Captain Spangler had no explanation as to why the checkbook had not been produced prior to August of 2002. Mitzi Taylor testified she is the administrative assistant to Chief Ruble who also serves as legal counsel for Defendant. Ms. Taylor was responsible for maintaining the checkbook for KCSD’s state and federal accounts. Ms. Taylor acknowledged receiving letters requesting various documents and, while she claimed to have done her best in locating these documents, as of November 4, 2002, seven banker’s boxes had not been produced. Likewise, testimony from construction division workers established that there were records of inmate labor on the particular jobs referenced by Plaintiff despite Defendant’s denial of the existence of such records in paragraphs 17 and 18 of the Second Amended Response.

After reviewing the pertinent testimony, the Trial Court concluded Defendant did not produce some of the requested documents until many months after the date he claimed they were produced. Because of these false statements, Plaintiff was required to take depositions in order to discover the existence of the non-produced public records. The Trial Court then stated:

There is no way to escape the conclusion that there were willfully false statements made in the January 18, 2002 pleading signed by Sheriff Hutchison and that the effect of these willfully false statements was to obstruct and interfere with the processes of the Court. Regrettably, the Court thus finds that the making of these false statements constitutes a contempt pursuant to Tenn.Code Ann. § 29-9-102(1) and (4).
In the January 18, 2002 pleading, the only one signed by the Sheriff, the Court determines that false statements were made in reference to the bank accounts (Paragraph 13) and under the caption “As To All Requests”, each and every statement thereafter contained false representations. Thus, the Court determines that there [are] at least six (6) false representations in the January 18, 2002 pleading alone and accordingly sets the maximum fíne allowable by statute at $800.00. The Court reiterates that the Petition for Contempt has not charged defendant with willfully failing to obey an order of the court and therefore penalties for successive contempts for failing to obey the Court’s order from January 18, 2002 until November 4, 2002 are not available.

After the Trial Court issued its ruling, the parties continued their standard practice and filed numerous post-trial motions. The only post-trial motion at issue on this appeal is a motion by Plaintiff seeking to have Defendant held personally responsible for paying any fines, attorney fees, and court costs. This motion was denied by the Trial Court.

Defendant appeals raising three issues. First, Defendant claims there was insufficient proof that he was guilty of criminal contempt beyond a reasonable doubt. Second, Defendant claims that Plaintiffs proper remedy was civil contempt, not criminal contempt. Third, Defendant claims there was insufficient notice for him to be found guilty of criminal contempt in his individual capacity. Plaintiff raises two issues, the first being whether there is a final appealable judgment. Plaintiffs second issue is her claim that the Trial Court erred when it denied her motion to have Defendant held personally responsible for any fines, attorney fees, and court costs.

Discussion

The factual findings of the Trial Court are accorded a presumption of correctness, and we will not overturn those factual findings unless the evidence preponderates against them. See Tenn. R.App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn.2001). With respect to legal issues, our review is conducted “under a pure de novo standard of review, according no deference to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn.2001).

The first issue we will address is Defendant’s claim that Plaintiff failed to prove he was guilty of criminal contempt beyond a reasonable doubt. As this Court recently observed in Barber v. Chapman, No. M2003-00378-COA-R3-CV, 2004 WL 343799, 2004 Tenn.App. LEXIS 111 (Tenn.Ct.App. Feb.23, 2004), no appl. pern, appeal filed:

In a criminal contempt case, the guilt of the accused must be established beyond a reasonable doubt. Black v. Blount, 938 S.W.2d 394 at 398 (Tenn.1996) (citing Robinson v. Air Draulics Engineering Co., 214 Tenn. 30, 377 S.W.2d 908, 912 (Tenn.1964)). However, on appeal, individuals convicted of criminal contempt lose their presumption of innocence and must overcome the presumption of guilt. “Appellate courts do not review the evidence in a light favorable to the accused and will reverse criminal contempt convictions only when the evidence is insufficient to support the trier-of-fact’s finding of contempt beyond a reasonable doubt.” Thigpen v. Thigpen, 874 S.W.2d 51, 53 (Tenn.Ct.App.1993) (citing Tenn. R.App. P. 13(e)). Furthermore, appellate courts review a trial court’s decision of whether to impose contempt sanctions using the more relaxed abuse of discretion standard of review. Hawk v. Hawk, 855 S.W.2d 573, 583 (Tenn.1993).

Barber, 2004 WL 343799, at *2, 2004 Tenn.App. LEXIS 111, at *8. Accord, Freeman v. Freeman, 147 S.W.3d 234, 242 (Tenn.Ct.App.2003), appl. perm, appeal denied March 22, 200k (“Appellate Courts review a trial court’s decision to impose contempt sanctions using the more relaxed ‘abuse of discretion’ standard of review. ... The court of appeals has ‘appellate jurisdiction over civil or criminal contempt arising out of a civil matter.’ See T.C.A. § 16-4-108(b) ...”).

It is clear that the Trial Court painstakingly reviewed the significant evidence which had been presented at the contempt proceedings. It is true Defendant and KCSD employees testified that Defendant never instructed anyone not to produce any documents and that they tried to gather the requested documents. Focusing on this testimony, and asking this Court to disregard everything that does not pertain to the six responses for which Defendant was held in criminal contempt, Defendant asserts the proof altogether fails to prove criminal contempt beyond a reasonable doubt.

In reaching its conclusions, the Trial Court had the opportunity to assess the demeanor and credibility of all the witnesses who testified at trial. The Trial Court undoubtedly was presented with conflicting proof. On the one hand, Defendant and his employees painted a picture of cooperation and significant attempts to provide the voluminous requested documents as quickly as possible and attributed documents which were not produced to mere oversights or inadvertent mistakes. On the other hand, Plaintiff painted a picture of extreme obstructive behavior by Defendant and one intentional roadblock after another either preventing or delaying production of the documents notwithstanding Defendant’s representations to the contrary. “Unlike this Court, the trial court observed the manner and demeanor of the witnesses and was in the best position to evaluate their credibility.” Union Planters Nat’l Bank v. Island Mgmt. Auth., Inc., 43 S.W.3d 498, 502 (Tenn.Ct.App.2000). A trial court’s determinations regarding credibility are accorded deference by this Court. Id.; Davis v. Liberty Mutual Ins. Co., 38 S.W.3d 560, 563 (Tenn.2001).

We decline to view Defendant’s six statements which were held to be criminally contemptuous in total isolation from the bigger picture. The Trial Court certainly was entitled to rely on Defendant’s conduct throughout the proceedings and any legitimate inferences to be drawn therefrom. In resolving this issue, we cannot ignore the inferences to be drawn from all of the proof. By way of example only, the Trial Court found that 23 of the 26 responses in the first response were either “totally or partially false” even though these particular false statements did not rise to the level of criminal contempt. This type of conduct by Defendant, albeit criminally non-contemptuous, nevertheless gives rise to legitimate inferences which could impact the ultimate finding.

Defendant comes to this Court without the presumption of innocence, and we do not review the evidence in a light favorable to him. This Court’s function on this issue is to determine whether there was sufficient evidence to support the Trial Court’s six separate findings of criminal contempt beyond a reasonable doubt. Based upon our review of the entire record before us as already discussed in this Opinion, we conclude that there was sufficient evidence to support the Trial Court’s findings of criminal contempt.

The next issue is Defendant’s argument that the judgment of the Trial Court must be reversed because he did not receive proper notice of the criminal contempt charges as required by Tenn. R.Crim. P. 42(b). Tenn. R.Crim. P. 42 provides as follows:

Rule 42. Criminal Contempt. — (a) Summary Disposition. — A criminal contempt may be punished summarily if the judge certifies that he or she saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.
(b) Disposition upon Notice and Hearing. — A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the district attorney general or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the hearing except with the defendant’s consent. Upon a verdict of finding of guilt the court shall enter an order fixing the punishment.

Plaintiff argues Defendant received ample notice and, even if he did not, this defense should be deemed waived in accordance with Tenn. R.Crim. P. 12 because it was not raised prior to trial. Tenn. R.Crim. P. 12(b) and (f) provide, inter alia, that defenses and objections based on “defects in the institution of the prosecution” are waived if not raised prior to trial, although the “court for cause shown may grant relief from the waiver.”

A charge of criminal contempt is somewhat peculiar because such a charge encompasses aspects of both criminal law and civil law. In a criminal contempt case, many of the constitutional protections afforded a criminal defendant must be observed. For example, as discussed above, guilt must be proven beyond a reasonable doubt. See Shiflet v. State, 217 Tenn. 690, 400 S.W.2d 542 (Tenn.1966). In State v. Wood, 91 S.W.3d 769 (Tenn.Ct.App.2002), this Court noted that criminal contempt was “enough of a crime” for the double jeopardy provisions in the federal and state constitutions to apply. Id. at 773 (citing Ahern v. Ahern, 15 S.W.3d 73 (Tenn.2000)). On the other hand, criminal contempt is “not enough of a crime” to require initiation by an indictment or presentment, and there is no right to a trial by jury. State v. Wood, 91 S.W.3d at 773. Case law is clear, however, that criminal contempt is “enough of a crime” to require proper notice. In Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911) the United States Supreme Court stated that:

manifestly every citizen, however unlearned in the law, by mere inspection of the papers in contempt proceedings ought to be able to see whether it was instituted for private litigation or for public prosecution, whether it sought to benefit the complainant or vindicate the court’s authority. He should not be left in doubt as to whether relief or punishment was the object in view. He is not only entitled to be informed of the nature of the charge against him, but to know that it is a charge and not a suit.

Gompers, 221 U.S. at 446, 31 S.Ct. 492. See also Storey v. Storey, 835 S.W.2d 593, 599-600 (Tenn.Ct.App.1992).

When Plaintiff filed the petition for contempt, she did not specify whether she was seeking to have Defendant held in civil or criminal contempt. At the hearing on June 21, 2002, the Trial Court inquired about Plaintiffs intentions along this line and counsel stated “[c]riminal contempt, Your Honor, and civil contempt both. We do make a prayer for relief for punishment as well as civil, yes, sir.” The Court and counsel then began discussing the rules applicable to criminal contempt proceedings and the following dialogue took place:

THE COURT: [We] have to ... advise the defendant of what he is charged with. And the defendant in the case is represented by the county law department and I presume is aware, but maybe he’s not. Maybe I need to advise the sheriff of what he’s being confronted with in terms of the request for criminal sanctions.
MR. MONCIER: We did that, Your Honor. Now, we did that by — we complied with [42(b) ] in terms of—
THE COURT: Setting forth—
MR. MONCIER: Yes, sir. It’s set out — the reason I used the specification format, there [are] 17 specifications of false statements, the basis of those false statements, and the factual predicate for the false statements as required by Rule 42 ....
THE COURT: Ms. Stackhouse ... I take it that you’re here to represent the sheriff understands the nature of the charges being made against him in these proceedings.
MS. STACKHOUSE: He does, Your Honor....

Plaintiffs counsel further pointed out that in the first 14 specifications, Plaintiff claimed Defendant made false statements to the court which had the effect of impeding “the progress of the Public Records Act and the production of public records and this court’s processes.”

The trial on the criminal contempt charges began almost four months after the above discussion took place. During closing arguments Defendant’s counsel argued, among other things, that Plaintiff had not met her burden “on the subject of criminal contempt, the plaintiff has not met her burden of guilty beyond a reasonable doubt.” It is apparent that defense counsel prepared for and tried a criminal contempt case, and in fact successfully defended her client against most of the charges. When the Trial Court issued its judgment, it specifically pointed out that to the extent Defendant had been in civil contempt, he purged himself of that contempt when he finally produced all of the requested documents. Therefore, the Trial Court appropriately focused only on whether Defendant was proven guilty of criminal contempt beyond a reasonable doubt.

As best we understand Defendant’s argument, he claims that since the request for public records was made to him in his official capacity as Sheriff, then any criminally contemptuous conduct on his part must necessarily have been done in that official capacity, as opposed to an individual capacity. Therefore, he assumed the criminal contempt proceedings were being brought against him only in his official capacity. Taking that one step further, Defendant insists that he was entitled to a separate Tenn. R.Crim. P. 42(b) notice informing him that Plaintiff was seeking to have him held in criminal contempt in his individual capacity. We disagree. Clearly Defendant knew that he was the individual who signed the Second Amended Response. Equally as clear is the fact that at least part of the basis for the alleged criminal contempt was the allegedly false statements made in the Second Amended Response signed by Defendant. Therefore, Defendant clearly had notice that the basis for the claimed criminal contempt was his allegedly false statements. Defendant was held in criminal contempt because the Trial Court concluded he made false statements which had the effect of obstructing the proceedings of the court. If Defendant had made the exact same false statements with the same obstructive effect in litigation which did not involve his department, his statements would be no less contemptuous. In other words, it is entirely immaterial that the document containing the false statements happened to be a response to a Public Records Act request. Defense counsel specifically represented to the Trial Court that her client understood the nature of the charges placed against him. It is hard to imagine what else the Trial Court could have done after this concession to further assure Defendant had proper notice of the charges. We conclude Defendant was provided with ample notice as required by Tenn. R.Crim. P. 42. In light of this conclusion, we pre-termit the issue of whether Defendant waived this defense.

Defendant’s next issue is his claim that the proper remedy for Plaintiff to pursue was civil contempt, not criminal contempt. The difference between civil and criminal contempt was recently discussed by our Supreme Court in Doe v. Bd. of Professional Responsibility, 104 S.W.3d 465 (Tenn.2003) as follows:

We have on numerous occasions stated that a contempt may either be civil or criminal in nature. See Wilson v. Wilson, 984 S.W.2d 898, 906 (Tenn.1998) (Birch, J., dissenting); Black, 938 S.W.2d at 398-401; Turner, 914 S.W.2d at 954. Civil contempt occurs when a person does not comply with a court order and an action is brought by a private party to enforce rights under the order that has been violated. See Black, 938 S.W.2d at 398; Robinson v. Air Draulics Eng’g Co., 214 Tenn. 30, 377 S.W.2d 908, 912 (1964); Turner, 914 S.W.2d at 995. Punishment for civil contempt is designed to coerce compliance with the court’s order and is imposed at the insistence and for the benefit of the private party who has suffered a violation of rights. See Black, 938 S.W.2d at 398; Turner 914 S.W.2d at 955; Sherrod v. Wix, 849 S.W.2d 780, 786 n. 4 (Tenn.Ct.App.1992). Also, in civil contempt cases, the quantum of proof necessary to convict is a preponderance of the evidence. On the other hand, criminal contempts are “intended to preserve the power and vindicate the dignity and authority of the law, and the court as an organ of society.” Black, 938 S.W.2d at 398. Punishment for criminal contempt is both punitive and unconditional in nature and serves to adjudicate “an issue between the public and the accused.” Id. In criminal contempt proceedings, the defendant is presumed to be innocent and must be proven guilty beyond a reasonable doubt. See Shiflet v. State, 217 Tenn. 690, 400 S.W.2d 542, 543 (1966).

Doe, 104 S.W.3d at 473-74.

There is no doubt that Plaintiff wanted access to the documents which Defendant agreed, but failed, to provide. If Defendant had provided what he affirmatively represented that he had provided, then this case would have ended long ago when the Trial Court initially dismissed the case after it granted Plaintiffs petition. See footnote 2, supra. Nevertheless, we do not see how Plaintiffs desire for the requested documents means criminal contempt charges were not properly pursued. Civil and criminal contempt have separate goals, elements, and burdens of proof. Since all the elements and the burden of proof necessary to establish criminal contempt have been met in this case, we see no legitimate reason for this Court to invalidate both Plaintiffs choice to pursue criminal contempt and the Trial Court’s finding of criminal contempt by holding that civil contempt was the only appropriate remedy because production of documents is all Plaintiff “really” wanted. If that were the case, then Plaintiff would not have pursued criminal contempt charges once she acknowledged all of the requested documents finally had been produced prior to the contempt trial. The Trial Court’s finding of guilt beyond a reasonable doubt will, hopefully, “preserve the power and vindicate the dignity and authority of the law, and the court as an organ of society.” Black, 938 S.W.2d at 398. We affirm the judgment of the Trial Court on this issue.

The first issue raised by Plaintiff is her claim that there is no final appeal-able judgment as of yet because the Trial Court has not ruled on her motion seeking attorney fees incurred to prosecute the criminal contempt action. Our Supreme Court has held that attorney fees can be awarded to compensate a private attorney appointed by a trial court to prosecute criminal contempt actions. See Black v. Blount, 938 S.W.2d 394 (Tenn.1996). The Black Court determined that attorney fees were available under the authority of Ferguson v. Paycheck, 672 S.W.2d 746 (Tenn.1984), which adopted the following rule setting forth when a trial court can appoint and order compensation of counsel:

[T]here must exist a necessity for the services of a member of the bar to serve the court in reaching a proper resolution of questions or issues presented and pending before the court, in which case the court may award compensation to be paid by the party or parties responsible for the situation that prompted the court to make the appointment. The rule excludes the appointment of counsel to serve the interests of litigants, witnesses, or any other private parties.

Ferguson, 672 S.W.2d at 747-48; Black, 938 S.W.2d at 403. In Black, our Supreme Court further stated that because attorney fees for prosecuting a criminal contempt action were available under Ferguson, it did not have to decide whether they were also available as costs under Tenn.Code Ann. § 29-9-103, which is the statutory provision fixing punishment for criminal contempt. See Black, 938 S.W.2d at 403 n. 5. We also decline to decide whether attorney fees are available under Tenn.Code Ann. § 29-9-103 as costs or an additional form of punishment since they are otherwise available in accordance with Black and Ferguson. In State v. Green, 689 S.W.2d 189 (Tenn.Crim.App.1984), the Court of Criminal Appeals stated that “a judgment of contempt, summary or otherwise becomes final upon the entering of punishment therefor, 17 C.J.S. Contempt § 114 (1963), and is thus appealable as of right under Rule 3 T.R.A.P. It matters not that the proceedings out of which the contempt arose are not complete.” Green, 689 S.W.2d at 190. Based on Green, we conclude there is a final appealable judgment for purposes of the criminal contempt charges.

Plaintiffs final issue is her claim that the Trial Court erred when it denied her motion seeking to have Defendant held personally responsible for: (1) fines, attorney fees, costs, etc., associated with the contempt proceedings; and (2) attorney fees, costs, etc., pursuant to the Public Records Act. As set forth above, attorney fees for the criminal contempt action can be awarded pursuant to Black and Ferguson. Attorney fees can also be awarded against the nondisclosing governmental entity pursuant to the Public Records Act, which provides as follows:

If the court finds that the governmental entity, or agent thereof, refusing to disclose a record, knew that such record was public and willfully refused to disclose it, such court may, in its discretion, assess all reasonable costs involved in obtaining the record, including reasonable attorneys’ fees, against the nondisc-losing governmental entity.

TenmCode Ann. § 10-7-505(g).

According to Plaintiff, the Knox County Law Director has indicated that Knox County would pay the $300 fine imposed by the Trial Court. Plaintiff challenges this potential action and further seeks to prohibit Knox County citizens from having to pay any other costs, attorney fees, etc., which may be imposed. Plaintiff claims Knox County does not have the authority to appropriate money to pay Defendant’s fine or any of the other potential costs or attorney fees. Plaintiff argues state law, the Knox County Code, as well as public policy would prohibit Knox County and, in effect, the citizens, from paying these expenses.

We have affirmed the imposition of the $300 fine against Defendant in his individual capacity. We believe Defendant is personally responsible for payment of this fine and so hold. The question then becomes whether or not Knox County has authority to reimburse Defendant out of taxpayer dollars for the $300 fine. Based on Plaintiffs brief, it does not appear that Knox County actually has reimbursed Defendant for the $300 or that it definitively has decided to do so. Unless and until that happens, we do not believe this issue is ripe for review. With regard to the request for attorney fees, costs, etc., again and for the same reasons, we do not believe these various issues are ripe for review at this point in the litigation. When and if attorney fees and other costs are assessed against Defendant, and when and if any or all of these expenses are paid by Knox County or Knox County definitively agrees to pay them, those issues then will be ripe for review.

Conclusion

The judgment of the Trial Court is affirmed and this cause is remanded to the Trial Court for further proceedings consistent with this Opinion and for collection of the costs below. Exercising our discretion, costs on appeal are assessed one-half against the Appellant Tim Hutchison and his surety, and one-half against the Appel-lee Wanda Moody.

      .In light of Defendant’s agreement that the records were subject to the Public Records Act and there was no objection to their production, the Trial Court held in a subsequent order that, at least as of January 14, 2002, any stays in the other lawsuit could not be used as a defense to production of the documents in the present case. This particular conclusion by the Trial Court is not at issue in the present appeal.

      . Volume I of the Technical Record ends with page 119 and the Trial Court’s dismissal of this lawsuit after ordering production of the requested documents. The "acrimonious” behavior quite obviously continued, as evidenced by the fact that the Technical Record on appeal comprises nine (9) volumes totaling 1,236 pages, not counting two banker’s boxes filled with transcribed testimony and exhibits.

      . Tenn.Code Ann. § 21-1-108 was repealed effective July 1, 2002.

      . Plaintiffs challenge to Defendant’s veracity was not limited to the Second Amended Response. All in all, in the sixteen areas where Plaintiff claimed documents were not produced, she identified over fifty statements she claimed were false.

      . At this point in the litigation it appeared that all of the requested documents finally had been produced. As such, Plaintiff acknowledged that if Defendant had been in civil contempt, he purged himself of that contempt by complying with the Trial Court's original order.

      . The Trial Court noted that in addition to a maximum fine of $50, imprisonment of up to ten days for each offense was also authorized by statute. The Trial Court declined to imprison the Sheriff after concluding that sending him to jail would be a disservice to the citizens of Knox County.

      . Our Supreme Court has held that in addition to the prosecutors named in Rule 42(b), a criminal contempt charge arising out of a civil matter can be prosecuted by an attorney representing the other party. See Wilson v. Wilson, 984 S.W.2d 898 (Tenn.1998).

      . In Cooner v. Cooner, No. 01-A-01-9701-CV-00021, 1997 WL 625277, 1997 Tenn.App. LEXIS 690 (Tenn.Ct.App. Oct. 10, 1997), no appl. perm, appeal filed, this Court observed that civil and criminal contempt proceedings should not be tried together because of the significant differences in the respective procedural rights and burdens of proof. We added that giving Tenn. R.Crim. P. 42 notice as soon as possible eliminates any possible confusion regarding the nature of the proceedings, thereby enabling the alleged contemnor to invoke his procedural rights. Cooner, 1997 WL 625277 at *13, 1997 Tenn.App. LEXIS 690, at* 16.

      . The Trial Court severed the criminal contempt charges which pertained to Defendant’s responses regarding a project taking place on Topside Road. Neither party appeals the decision of the Trial Court to sever the contempt issues on that project. If Defendant is found in criminal contempt as it pertains to that project, then there will be a separate final appealable judgment once the punishment is entered. The severing of the issues pertaining to that project does not affect the finality of the judgment at issue on this appeal.