author: D. MICHAEL SWINEY, J., SWINEY, J.

text:
    Joann Mallinak GLASSELL v. Richard Lee GLASSELL.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    March 24, 2004 Session.
    June 10, 2004.
    Order Denying Rehear July 2, 2004.
    Permission to Appeal Denied by Supreme Court Nov. 8, 2004.

      James M. Crain, Knoxville, Tennessee, for AppeUant.
    Kimberly R. Taylor, Knoxville, Tennessee, for the Appellee Richard Lee Glassell.
   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.

Joann Mallinak Glassell (“Plaintiff”) was represented by attorney James M. Crain (“Crain”) throughout divorce proceedings she filed against Richard Lee Glassell (“Defendant”). After a trial, the Trial Court ordered the equity from the sale of the marital residence to be divided equally between the parties. The Trial Court then applied various off-sets to the amount awarded Plaintiff, thereby reducing the net amount of Plaintiffs recovery to $0.00. The Trial Court concluded that Crain’s attorney’s fee lien was lower in priority to the various off-sets. Crain appeals, claiming the Trial Court improperly subordinated his attorney’s fee lien to the off-sets and that his hen should be given priority. We modify the judgment of the Trial Court and affirm as modified.

Background

This appeal involves the enforcement of an attorney’s fee hen. The appellant is attorney James M. Crain, who represented Plaintiff in the underlying divorce litigation which began on March 20, 2001, when Plaintiff filed a complaint seeking a divorce from Defendant on various grounds. Crain represented Plaintiff when the complaint was filed and throughout the trial.

Defendant answered the complaint and filed a counterclaim seeking a divorce from Plaintiff on the same grounds as those alleged by Plaintiff. Both Plaintiff and Defendant sought to be the primary residential parent of their two minor children, who are 10 and 11 years old.

In June of 2001, upon agreement of the parties, the Trial Court entered an order appointing attorney Wayne Wykoff (‘Wy-koff”) as guardian ad litem on behalf of the two children. The order instructed Wykoff to “make an appropriate investigation into the circumstances of the parties and the best interest of his wards” and to submit a report to the Trial Court once the investigation was completed. Plaintiff and Defendant also agreed to undergo psychological evaluations by Elsbeth Freeman, PhD, and an agreed Order was entered by the Trial Court to that effect. The parties agreed to split the costs of the psychological evaluations, “subject to reallocation by the Court at the trial of this cause.”

In February of 2002, Defendant obtained an Order of Protection after proving allegations of domestic abuse. Defendant was awarded exclusive possession of the marital residence and Plaintiff was ordered to vacate the premises. The Order further provided that counsel for Defendant was to submit an affidavit of attorney’s fees incurred in obtaining the Order of Protection and granted Defendant “reasonable attorney fees incurred in this cause.”

The parties’ equity in the marital residence was $53,471.78. The marital residence was sold prior to trial with the equity proceeds being held in trust while resolution of the various issues were pending with the Trial Court. In October of 2002, the Trial Court permitted Plaintiff to withdraw $2,000 from her share of the equity proceeds in order for her to make payments on a car note and a line of credit, said payments totaling $528.31. The remaining $1,471.69 was paid to Plaintiff directly.

The divorce trial and various motions took approximately six days, beginning in August of 2002 and concluding in November of that same year. An extensive Final Judgment was entered by the Trial Court on December 9, 2002, and amended on May 22, 2003. In the Final Judgment, as amended, the Trial Court concluded that the equity proceeds from the marital residence should be divided equally with Plaintiff and Defendant each receiving an award of $26,735.89. The Trial Court later stated that:

The Court believes that the monies held in Trust constitutes (sic) a common fund created by and for the marital estate and believes that it can charge certain expenses on the estate.

Because Plaintiff already had received $2,000 from her share of the equity proceeds, her total award was reduced to $24,735.89. The Trial Court’s order with regard to Plaintiffs remaining $24,735.89 forms the basis of this appeal.

After the parties separated, Defendant was the primary residential parent of the two minor children. One of the many issues at trial was the amount of Plaintiffs child support arrearage. The Trial Court found Plaintiff was gainfully employed from April through November oí 2001, earning $40,248 in gross wages. Plaintiff also received $548 in unemployment compensation for the month of December, thereby resulting in total gross wages of $40,796 for 2001. From January through August of 2002, Plaintiff received unemployment compensation averaging $1,237.50 per month. Plaintiff paid no child support from April 2001 through August 2002.

In December of 2001, Plaintiff began receiving $1,366 per month in Social Security disability benefits. At that same time, each of the children began receiving monthly benefits of $321. All of the Social Security payments were sent directly to Plaintiff, including the combined monthly benefit of $642 for the children. Because Defendant was the primary residential parent, the Trial Court concluded Plaintiff should have given the $642 in monthly payments to Defendant for the children’s use and benefit. From December of 2001 through August of 2002, Plaintiff received a total of $5,778 in benefits for the children, but gave Defendant only $1,600. Accordingly, the Trial Court concluded that Plaintiff owed Defendant $4,178 for the Social Security benefits earmarked for the children’s benefit which Plaintiff retained for her own use. The Trial Court also found that Plaintiff owed Defendant reimbursement for health and dental insurance on the children and for one-half of the children’s unpaid medical bills. All in all, the Trial Court concluded Plaintiff was in arrears a total of $19,584.69 for child support, Social Security payments improperly retained, reimbursement for health insurance, and one-half of the outstanding medical bills.

As previously noted, Defendant was awarded attorney’s fees when he obtained the Order of Protection. The amount of attorney’s fees Defendant was awarded was $1,533.44. In addition, Plaintiff apparently was late to court on several occasions and failed to cooperate in the discovery process to such an extent that sanctions were imposed. For example, Plaintiff failed to appear for depositions which resulted in Defendant’s incurring additional attorney’s fees. The amount of sanctions imposed by the Trial Court was $5,372.50. Thus, the combined amount Plaintiff owed Defendant for attorney fees resulting from the Order of Protection and discovery sanctions totaled $6,905.94. The Trial Court concluded these expenses should be paid to Defendant out of the remaining $24,735.89 from Plaintiffs share in the equity proceeds from the sale of the marital residence, thereby reducing Plaintiffs award to $17,829.95.

Although Plaintiff agreed to the appointment of Wykoff as guardian ad litem and to undergo a psychological examination with Dr. Elsbeth Freeman, Defendant paid most of the up-front costs associated with these agreed upon events. In addition to paying his portion of these expenses, Defendant paid, on Plaintiffs behalf, a total of $2,002.50 toward the fee of the guardian ad litem and $1,950 toward the fee of Dr. Freeman. The outstanding balance Plaintiff owed Defendant based on his payment on her behalf of these agreed upon expenses was $3,952.50. The Trial Court deducted this amount from the $17,829.95 remaining in Plaintiff’s share of the equity proceeds, leaving her a balance of $13,877.45.

Next, the Trial Court determined that Plaintiffs remaining $13,877.45 should be applied toward the $19,584.69 in child support arrearage, thereby lowering that arrearage to $5,707.24 and reducing Plaintiffs remaining share in the equity proceeds to $0.00. The Trial Court then stated:

Each party’s portion of the court costs as provided hereinafter in Paragraph 34 shall come out of that party’s share of the monies held in Trust to the extent monies remain, and the court costs shall include the Guardian ad Litem fees as already provided herein with the clerk’s costs having priority over the Guardian ad Litem’s fees taxed as costs in the event of a shortfall. To the extent insufficient funds remain to cover that party’s share of such court costs, that party shall still be responsible for the remainder owing. The amount owing to the Guardian ad Litem from ... [Plaintiff is] $9,728.85.... The attorney’s lien each attorney has against their respective clients comes last in the Order of priority.

After entry of the Final Judgment, Crain withdrew as Plaintiffs counsel, entered a special appearance, and filed a motion to amend the Final Judgment. In this motion, Crain asserted that he had a hen on all money or other assets awarded to his former client pursuant to Tenn.Code Ann. § 23-2-102. Crain claimed that because of this lien, he had a property right in Plaintiffs assets and the Trial Court lacked authority to adjudicate those rights in the manner in which it did. According to Crain, Plaintiffs financial obligations could be paid from her share of the equity “if, and only to the extent that, said sums exceed her liability to Attorney for his fees and expenses.” Crain’s hen claim is based solely on TenmCode Ann. § 23-2-102. No written agreement granting a hen on any of Plaintiffs property was entered into between Plaintiff and Crain. The Trial Court essentially denied Crain’s motion, stating as follows:

[The paragraphs in the Final Judgment regarding attorney hens] ... pertain to attorney hens and priority of payments from the Trust Account and how the attorney hens fall within the priority of payment, [and] this Court Alters or Amends the Judgment to clarify this Court’s ruling and finds that each attorney has a lien as to any money going into their respective client’s possession.- This Court finds that with respect to the funds which have been held in Trust, we are talking about other monies of the marital estate. This Court finds that James M. Crain was not a party and the issue of enforcement of his hen was not before this Court. Rather, this Court finds that what was before this Court was the issue of prioritizing payments/payment of claims to be made from the marital estate, specifically funds held in Trust. This Court finds that as to the priority of claims against the marital estate, the attorney’s hen that each party has against their respective clients comes last in the Order of priority.

Crain appeals the denial of his motion to alter or amend the Final Judgment. Crain’s issue on appeal is whether the Trial Court erred “in directing that monies awarded to Plaintiff in this action be devoted to payment of Plaintiffs obligations, free and clear of the hen of her attorney.”

Discussion

As explained in footnote one of this Opinion, the relevant facts are not in dispute on appeal. 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).

First, we will address the Trial Court’s conclusion that Crain “was not a party and the issue of enforcement of his hen was not before this Court.” The Trial Court rendered this opinion on May 22, 2003, entered nunc pro tunc to March 7, 2003. Several months later, on October 30, 2003, our Supreme Court issued its decision in Schmitt v. Smith, 118 S.W.3d 348 (Tenn.2003). In that case, Mrs. Schmitt obtained counsel and thereafter a complaint for divorce was filed on her behalf. Mrs. Schmitt subsequently retained new counsel. Mrs. Schmitt and her new attorney executed an employment agreement that granted her attorney a “lien as to all property, both real and personal, including money, assets, alimony or things of value, which were recovered, obtained, preserved or protected for Schmitt in this lawsuit or any lawsuit or claim.” 118 S.W.3d at 350. The final decree ordered the parties to sell the marital residence and to pay their own attorney fees. After the marital residence was sold, Schmitt’s attorney filed a petition to enforce the hen. Id. One of the issues to be decided was whether the trial court had jurisdiction to enforce the hen or whether the attorney was required to file a separate lawsuit in order to have the hen enforced. In resolving this issue, the Court stated:

The hen in this case is a charging hen attached to the proceeds generated from the sale of the parties’ marital home. “While a charging hen serves to secure an attorney’s fees, it does not function as an adjudication of the rights between the lawyer and his or her client.” Starks, 20 S.W.3d at 652 (citing Pierce v. Lawrence, 84 Tenn. 572, 1 S.W. 204, 205-06 (1886)). Thus, “[a] trial court may declare the existence of an attorney’s lien in the suit out of which the dispute regarding the attorney’s fee arose, but ordinarily an attorney, not being a party to the proceeding, may not obtain a judgment with respect to his or her fee in that action.” Id. (citing State v. Edgefield & Kentucky R.R., 63 Tenn. 92, 97 (1874); Perkins v. Perkins, 56 Tenn. (9 Heisk.) 95, 97-98 (1871)).
Although an attorney must generally commence a separate proceeding to enforce his or her contractual right to a fee, an exception has been carved out in which the trial court may exert jurisdiction where the money or property that is the subject of the lien “comes within the control of the court in the case in which the services were rendered.” Id. at 653....
We have here a divorce action in which the trial court adjudicated the distribution of the marital property owned by Schmitt and Smith. The residence that was the subject of McCrary’s lien was included in the marital property ultimately divided by the trial court. As such, the property upon which the lien was to be enforced, the house, was within the control of the trial court.... Therefore, we hold that the trial court properly adjudicated the attorney’s lien in this case.
⅜ ⅝ ⅜ ⅜
Finally, we note that it is in the interest of judicial economy to allow the same court to hear all matters regarding the property in question. Forcing the parties to proceed in a separate action with a judge unfamiliar with the underlying facts of the divorce action would cause both parties to incur additional attorney’s fees, costs, and litigation expenses. Therefore, we hold that the trial court in this case had jurisdiction to adjudicate McCrary’s attorney’s lien.

Schmitt, 118 S.W.3d at 353-55 (footnote omitted).

When Cram’s motion to alter or amend the Final Judgment was decided, the Trial Court did not have the benefit of the Schmitt opinion. Applying the holding of Schmitt, we conclude that the Trial Court had jurisdiction to adjudicate issues surrounding the enforcement of Crain’s attorney’s fee lien and, in fact, did so.

The primary issue on appeal is whether the Trial Court erred when it subordinated Crain’s lien- to Plaintiffs financial obligations in the manner set forth above, thereby directing all of Plaintiffs share of the equity proceeds to be used in partial satisfaction of these obligations and, for all intents and purposes, leaving Plaintiff without any assets to satisfy Crain’s lien.

Defendant argues the Trial Court correctly prioritized Crain’s lien in light of the decision of our Supreme Court in Roberts v. Mitchell, 94 Tenn. 277, 29 S.W. 5 (1895). In that case, Mitchell was awarded a monetary judgment against Roberts. In a separate and independent lawsuit, Roberts was awarded a monetary judgment against Mitchell. Roberts then filed a motion to have the judgments off-set against each other. Mitchell’s attorneys opposed the motion unless it was granted subject to their hen for attorney’s fees. The issue on appeal was whether the judgments should be off-set against each other subject to the hen for attorney’s fees. Id. at 277-78, 29 S.W. at 5.

The relevant statutory provision as it existed at that time was TenmCode Ann. § 25-105 which provided that “[jJudg-ments of the same court may be set off against each other on motion.” After discussing how other jurisdictions have resolved this particular issue, our Supreme Court adopted the following rule:

We think the better and more equitable rule is one that subordinates the right of set-off of independent judgments rendered in different suits, growing out of different causes of action, to the attorney’s hen or claim for services rendered in the particular suit; and we do not hesitate to adopt it as the rule of practice in this State. On this subject, and in elaboration of our views, we quote the language of Chancellor Walworth in Dunkin v. Vandenbergh, 1 Paige [Ch. 622,1829 WL 2198]:
“The question in all these cases is, What is equitable and just between the parties and the attorney or solicitor? Where different claims arise in the course of the same suit, or in relation to the same matter, it is undoubtedly equitable and just that these equities should be arranged between the parties without reference to the solicitor or attorney’s lien. His hen is only on the clear balance due to his client after all these equities are settled. But where other claims, arising out of different transactions, and which could not have been legal or equitable set-off in that suit, exist between the parties, the Court ought not to divest the hen of the attorney or solicitor which has already attached on the amount recovered for the costs of that particular litigation. When the solicitor has been at the labor and expense of prosecuting a suit, it is equitable and just that his costs should be paid out of that litigation.”

Nor is ... the Code to be construed so as to militate against this view. By that section it is provided that “judgments of the same Court may be set off against each other on motion.” But we hold that this section must be read as if it contained the implied condition that this set-off will not be allowed in derogation of the attorney’s lien for his services in prosecuting the suit and obtaining the particular judgment. We think this construction gives full force to this provision of the Code, and, at the same time, it preserves the equities of the parties interested .... In the case at bar an order will be entered allowing the set-off, but subject to the lien of the solicitors, which will be declared by a proper order.

Roberts, 94 Tenn. at 279-81, 29 S.W. at 5, 6.

This Court had occasion to discuss the Roberts opinion in Babcock v. Jones, No. 73, 1987 WL 19663 (Tenn.Ct.App. Nov. 13, 1987). Babcock involved a landlord-tenant lawsuit wherein the trial court entered offsetting judgments. The defendant’s attorney filed a motion for a new trial because no provision was made for his attorney’s fee lien. Babcock, 1987 WL 19663 at-1. The trial court overruled the motion and this Court affirmed that decision relying on the rule adopted in Roberts. We noted that Tenn.Code Ann. § 25-1-103 had no application to judgments rendered on claims which arose from the same transaction and which were ordered off-set. Id. 1987 WL at * 1. We noted that while Roberts was decided before the statute was amended to add the phrase “but not so as to defeat hens of attorneys ... ”, its rationale applied with continuing force because the Roberts Court “implicated a condition ... almost identical to’ the amendment which was added thirty seven years later.” Id.

Applying the foregoing to the present case, we must determine whether the claims which were off-set by the Trial Court arose “in the course of the same suit, or in relation to the same matter” such that it would be “undoubtedly equitable and just that these equities should be arranged between the parties, without reference to the solicitor or attorney’s hen.” Roberts, 94 Tenn. at 280, 29 S.W. at 5. In so doing we must keep in mind that the “matter” at issue before the Trial Court when it rendered its Final Judgment was the dissolution of the sixteen year marriage between the parties.

The first off-set by the Trial Court was for $1,533.44 in attorney’s fees incurred by Defendant in successfully obtaining an Order of Protection which was issued based on Plaintiff’s domestic abuse. The Petition for an Order of Protection was filed originally in the Fourth Circuit Court for Knox County on March 20, 2001, and an Ex Parte Order of Protection was issued by that Court the same day. March 20, 2001, also is when Plaintiff filed the complaint for divorce in the Trial Court. The order of protection was transferred to' the Trial Court pursuant to Tenn.Code Ann. § 36-3-603 which provides as follows:

36-3-603. Duration of protection order — Petition for protection order in divorce action. — (a) If an order of protection is ordered by a court and either the petitioner or respondent files a complaint for divorce, the order of protection shall remain in effect until the court in which the divorce action lies modifies or dissolves the order.
(b) Nothing in this section shall prohibit a petitioner from requesting relief under this section in a divorce action.

In February of 2002, the Trial Court apparently reaffirmed the previous order after concluding that Defendant had proven domestic abuse by Plaintiff. In this new Order of Protection, Defendant was awarded attorney’s fees. We believe the award of attorney’s fees in the amount of $1,533.44 arose out of the same suit and is in relation to the same matter at issue before the Trial Court and, therefore, was properly off-set against Plaintiffs share of the equity proceeds from the sale of the marital residence. This rationale also holds true for the $5,372.50 in sanctions imposed against Plaintiff during the divorce litigation. Clearly, these sanctions arose out of and were part of the same suit wherein Plaintiff was awarded, at least initially, a judgment of $24,735.89.

Plaintiff affirmatively agreed to the appointment of Wykoff as guardian ad li-tem and to undergo a psychological examination by Dr. Elsbeth Freeman. Plaintiffs agreement was memorialized in the divorce action via entry of agreed orders by the Trial Court. Defendant advanced Plaintiff $3,952.50 towards these agreed upon expenses. It would defy reason to hold these expenses did not arise out of the same suit or were not in relation to the same matter at issue before the Trial Court. Accordingly, we conclude the Trial Court properly entered a judgment for Defendant for this amount and properly off-set that amount against Plaintiffs judgment for her share of the equity proceeds from the marital residence.

The final amount which was off-set from Plaintiffs $24,735.89 judgment was a portion of the child support arrearage. As noted above, the total arrearage was $19,584.69, which represented unpaid child support, Social Security funds improperly retained, unpaid medical expenses, etc. Unpaid child support is often at issue in divorce litigation when the parties have been living in separate residences, and was so at issue in this lawsuit. Again, we would be hard-pressed to come up with a rationale for holding that these expenses did not arise out of the same lawsuit or were not related to the same matter at issue before the Trial Court. We instead hold that these expenses did arise out of this same suit and were related to the matter then at issue before the Trial Court and, therefore, were properly off-set against Plaintiffs share of the equity proceeds.

After applying the rule announced by our Supreme Court in Roberts and reaffirmed by this Court in Babcock, we conclude the Trial Court did not commit reversible error when it reduced Plaintiffs entire $24,735.89 judgment by the various off-sets awarded Defendant by giving those off-sets priority over Crain’s attorney’s fee lien. Crain’s “lien is only on the clear balance due to his client after all these equities are settled.” Here “the clear balance due” Plaintiff after the “equities are settled” is zero.

However, we note that all of the issues surrounding custody of the children were resolved by the Knox County Juvenile Court, which involved an independent proceeding and matters not directly at issue before the Trial Court herein. We, therefore, modify the Trial Court’s Final Judgment to give Crain’s lien for attorney’s fees priority over any costs associated with the Juvenile Court litigation including, but not limited to, the guardian ad litem fees incurred in that proceeding. We acknowledge that our modification of the Trial Court’s judgment will be of little comfort to Crain as the $24,735.89 which Crain claims is subject to his attorney lien is reduced to zero even with this modification of the Trial Court’s judgment.

The Final Judgment of the Trial Court is affirmed as modified. In so doing, we emphasize that Plaintiff does not challenge the adequacy of the legal representation she received from Crain and our Judgment should in no way be read to suggest that Plaintiff is not indebted to Crain for the legal fees and expenses resulting from Crain’s representing Plaintiff. In light of our holding, we pretermit Defendant’s issue of whether the $24,735.89 actually represented a “recovery” of assets subject to an attorney’s fee lien. We also pretermit the issue of whether the Trial Court properly considered the equity from the marital residence to be a “common fund” from which it could order payment of marital debts prior to enforcing an attorney’s fee Hen.

Conclusion

The judgment of the Trial Court is affirmed as modified and this cause is remanded to the Trial Court for further proceedings consistent with this Opinion and for collection of the costs below. Costs on appeal are assessed against the Appellant James M. Crain and his surety.

ORDER ON PETITION TO REHEAR

SWINEY, J.

Appellant, James M. Crain, filed a Petition to Rehear pursuant to Rule 39 of the Tennessee Rules of Appellate Procedure. Appellant asserts four grounds to support this petition. In the first ground, Appellant claims this Court did not address one of the assignments of error. Specifically, Appellant claims the Trial Court erred when it taxed as court costs the fees of the guardian ad litem which were incurred in the separate Juvenile Court proceeding. The Appellant then claims that our “ruling leaves this provision of the Decree intact, rendering Appellant liable for such fees under his cost bond.” We disagree. Tenn. R. Civ. P. 54.04(2) provides that costs not included in the bill of costs are allowable only in the trial court’s discretion, and such allowable discretionary costs specifically include “guardian ad litem fees .... ” Tenn.Code Ann. § 20-12-125 provides that:

In all cases of bonds, for the prosecution of original suits, or where security is taken or recorded in any court, sufficient security shall be taken by the clerk to pay all costs that may be at any time adjudged against the principal, in the event they are not paid by the principal. Notmthstanding any other provision of law to the contrary, where an attorney undertakes to serve as surety after July 1, 1999, such surety shall only be obligated for amounts required by law or included in the clerk’s bill of costs, and shall not be responsible for discretionary costs. In such instances, the clerk may require an additional surety other than the attorney as may be necessary to secure payment for discretionary costs, (emphasis added).

Plaintiffs complaint and Appellant’s accompanying cost bond were filed with the Trial Court on March 20, 2001. Therefore, Appellant’s claim that our ruling somehow resulted in his being obligated for guardian ad litem fees is without any merit.

Under Rule 39(a), “[a] rehearing will not be granted to permit reargument of matters fully argued.” With regard to Appellant’s remaining three grounds, these matters were fully argued by the parties, considered by this Court, and sufficiently addressed in our Opinion. We find, contrary to Appellant’s insistence, that our Opinion does not misapprehend any material facts or propositions of law in the record.

Appellant’s Petition to Rehear is DENIED. Costs related to this Petition to Rehear are assessed to the Appellant, James M. Crain, and his surety.

      . This Court has not been provided a transcript from the divorce trial. However, none of the factual findings arising from the trial are directly at issue on appeal. We will discuss only those factual findings in the Final Judgment that are relevant to showing how and why the Trial Court distributed Plaintiff’s equity in the marital residence in the manner in which it did. Because we do not have a transcript, we conclusively presume the Trial Court's factual determinations arising from testimony presented at trial are correct. "This court cannot review the facts de novo without an appellate record containing the facts, and therefore, we must assume that the record, had it been preserved, would have contained sufficient evidence to support the trial court's factual findings.” In re Adoption of D.P.M., 90 S.W.3d 263, 267 (Tenn.Ct.App.2002) (quoting Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn.Ct.App.1992)).

      . The Knox County Juvenile Court exercised jurisdiction over custody of the children. Guardian ad litem fees were incurred in that proceeding as well. The $9,728.85 total reflects the guardian ad litem fees owed by Plaintiff from both proceedings.

      . Tenn.Code Ann. § 23-2-102 creates a statutory attorney’s lien for attorneys who begin a lawsuit. Tenn.Code Ann. § 23-2-103 creates a statutory lien for an attorney who is hired after suit has already been brought. In Schmitt the Court observed that “the analysis under both of the statutes is the same.” 118 S.W.3d at 351-52.

      . The relevant statute was amended in 1932 to expressly include the provision regarding attorney’s fee liens which the Roberts Court held was implied. With this amendment, the statute provided that "[judgments of the same court may be set off against each other on motion, but not so as to defeat liens of attorneys or to circumvent the exemption laws.” The statute has remained unchanged since the 1932 amendment and is now codified at Tenn.Code Ann. § 25-1-103.


source: Caselaw Access Project

author: DAVID H. WELLES, J.,

license: Public Domain

text:
    STATE of Tennessee v. Joy KENNEDY.
    Court of Criminal Appeals of Tennessee, at Nashville.
    April 6, 2004 Session.
    June 14, 2004.
    Application for Permission to Appeal Denied by Supreme Court Nov. 8, 2004.

      H. Thomas Parsons and Eric J. Burch, Manchester, Tennessee, for the appellee, Joy Kennedy.
    Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Steven M. Blount, for the appellant, State of Tennessee.
   OPINION

DAVID H. WELLES, J.,

delivered the opinion of the court,

in which ALAN E. GLENN and ROBERT W. WEDEMEYER, JJ., joined.

The Defendant, Joy Kennedy, was found guilty by a jury of vehicular homicide, two counts of reckless aggravated assault, and reckless driving. However, the trial court granted the Defendant’s motion for judgment of acquittal, concluding that she had established the defense of insanity by clear and convincing evidence. The State appealed on the ground that the trial court erred by granting the Defendant’s motion for judgment of acquittal. The sole issue on appeal is whether a reasonable juror could have concluded that the defense of insanity had not been established by clear and convincing evidence. We hold that no reasonable juror could have failed to find that the Defendant was legally insane at the time of the crimes. Therefore, we affirm the judgment of the trial court.

On October 23, 2001, the Defendant, a forty-two year old single woman who lived in Chattanooga, was at the home of her parents in Winchester. The purpose of her visit was to pick up her car after having had the engine rebuilt. She got into an argument with her parents that evening and was upset when she left them home at approximately 7:45 p.m. Her parents followed her to a nearby gas station, where the Defendant filled up her car’s tank, but did not pay for the gas. She left in a hurry, squealing her tires and going toward downtown Winchester.

Several witnesses saw the Defendant’s car speeding on North High Street going toward town. Terry Evenson, who saw the Defendant’s car from his front yard, estimated that she was going ninety to one hundred miles per hour. Elbert and Ina Hill were sitting in them car at a four-way stop at the intersection of High Street and Second Avenue. They saw the Defendant run the stop sign without even slowing down, and Mr. Hill estimated the Defendant’s car was going about seventy miles per hour through town. Rhonda Wilkinson was also stopped at that intersection, and she also witnessed the Defendant run through the four-way stop. She estimated that the Defendant was traveling at approximately seventy-five miles per horn*. Ann Campbell saw the Defendant’s car run through the red light at the intersection of High Street and First Avenue Northwest.

Cynthia Nunley, Marty Sons, and Joshua Sons, Marty’s ten-year-old son, were riding in Ms. Sons’ Geo Metro. They were stopped at the red light at the intersection of High Street and First Avenue Southwest. When the light turned green, they pulled out into the intersection. The Defendant ran the red light and crashed into Ms. Son’s car. Ms. Nunley, who was driving Ms. Sons’ car, had no memory of the collision. She woke up in pain at the hospital. She underwent two weeks of physical therapy for torn cartilage in her knee. She testified that her neck and knee were still damaged from the wreck. Marty Sons, who was riding in the passenger seat, suffered bruising from her seat-belt and a severe hematoma on her leg where it hit the gearshift. Joshua Sons, who was riding in the back seat behind his mother, was airlifted to Vanderbilt Hospital. Although he was wearing his seatbelt, he died as a result of blunt-force injuries to his head, neck, chest, back, and spinal cord.

The Defendant presented the testimony of three mental health experts. They each testified that the Defendant suffered from a severe mental disease, specifically bipolar disorder with psychotic episodes. They opined that, at the time of the wreck, the Defendant was delusional and was unable to appreciate the nature or the wrongfulness of her conduct. Defense counsel also elicited testimony from several witnesses who heard the Defendant make strange or bizarre statements before and after the accident, which the experts explained were consistent with their diagnoses.

Based on this evidence, the jury convicted the Defendant of vehicular homicide, two counts of reckless aggravated assault, and reckless driving. In so doing, the jury implicitly rejected the defense of insanity. The trial judge, however, granted the Defendant’s motion for judgment of acquittal, finding that the defense of insanity had been established by clear and convincing evidence. From this order the State appeals pursuant to Tennessee Rule of Appellate Procedure 3(c). See also Tenn. R.Crim. P. 29(c).

Tennessee’s insanity statute provides as follows:

(a)It is an affirmative defense to prosecution that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature or wrongfulness of such defendant’s acts. Mental disease or defect does not otherwise constitute a defense. The defendant has the burden of proving the defense of insanity by clear and convincing evidence.
(b) As used in this section, “mental disease or defect” does not include any abnormality manifested only by repeated criminal or otherwise antisocial conduct.
(c) No expert witness may testify as to whether the defendant was or was not insane as set forth in subsection (a). Such ultimate issue is a matter for the trier of fact alone.

Tenn.Code Ann. § 39-11-501. Under the statute, the insanity defense applies only when the defendant has a severe mental disease or defect that results in the defendant being “unable to appreciate the nature or wrongfulness” of his or her actions. Id. § 39-11-501(a). Furthermore, insanity is an affirmative defense, and as such, the defendant bears the burden of proving the defense by clear and convincing evidence. See id. “Clear and convincing evidence means evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn.1992).

Much evidence was introduced at trial that called into question the Defendant’s ability to appreciate the nature or wrongfulness of her conduct. Her father, Mike Kennedy, testified 'about the Defendant’s background and mental health history, as well as her state of mind on the night of the accident. At the time of the wreck, the Defendant was a revenue agent for the United States Internal Revenue Service. Mr. Kennedy said that his daughter had lived on her own in Chattanooga for fourteen or fifteen years. She graduated with highest honors from Tennessee Tech University and received a Master’s Degree from the University of Tennessee at Chattanooga. The Defendant dropped out of law school after one term because she suffered from depression. Her father explained that she began to have manic depressive episodes at this time. She developed delusions that the water supply in Cowan, where the family lived at that time, was poisoned and their house was “bugged” with electronic eavesdropping devices. Therefore, she spent a few nights with neighbors, and, when she returned home, she barricaded herself in a back bedroom. At that point, which was sometime in 1986, their family doctor, a Dr. Stensby, had the Defendant committed to Middle Tennessee Mental Health Institute, where she stayed for two months.

When the Defendant was released from the hospital, she remained in a depressed state. However, she went to work for the I.R.S. It was not until 1997 that she experienced what Mr. Kennedy described as “a break in the illness.” As a result, she was committed by her doctor, a Dr. McGee, to Moccasin Bend Mental Health Institute for a month. She was recommitted for another month after a crisis team determined that her status had not improved. Mr. Kennedy testified that, about this time, the Defendant made statements about “wanting to go to Washington to straighten the president out.” She was subsequently released from the hospital and continued living on her own. After the terrorist attack on September 11, 2001, the Defendant came home every weekend. She was depressed and did not want to see or hear anything about the 9/11 tragedy. She also began smoking small cigars, which her father said was “out of character for her.”

Mr. Kennedy also testified that, before the Defendant left his house on the night of the accident, she was very upset. She said that she was “no longer [their] little daughter.” She accused her parents of not understanding her or knowing her fully. She also claimed that John F. Kennedy was still alive, and he was the antichrist. She stated that she was going to bear a child who would be a great world leader. She also said that people “just needed to go by faith and love and not necessarily by the precepts of any church.” At the gas station, when Mr. Kennedy saw the Defendant pumping gas into her car, he asked whether she had already inserted her credit card into the machine. She replied, “No, God’s going to take care of my gas.” Mr. Kennedy also explained that the reason the Defendant’s car had been in the shop was that she had failed to put any oil in the engine, and the engine had to be rebuilt.

The Defendant also presented evidence that, shortly after the accident, she said irrational things and behaved strangely. Joshua Hammer, who witnessed the crash on the night of October 23, 2001, went to the Defendant’s car to see if she was injured. He smelled gasoline, so he advised the Defendant that they should get away from the car because it could catch fire. The Defendant responded, “Just let it.” Mr. Hammer told the Defendant that she could be killed, and she replied, “I don’t care.” When Mr. Hammer saw that the Defendant had a dog in the car with her, he tried to get the dog out of the vehicle. The Defendant became very angry and said, “Keep your hands off my fucking dog.” When the Defendant got out of her car, she stumbled around, looking “confused” and “lost.” Mr. Hammer tried to help her into the back seat of a police car, but the door was locked. The Defendant then began frantically jerking on the door, saying, “Just let me in here. I just want to get in. I just want to get in.” She then began to curse the car and its door.

Ty Brazier, one of the police officers who responded to the crash scene, testified that he had to mace the Defendant because she was trying to kick out the back windows of the patrol car in which she was sitting. When he asked her where she was from, she replied, “Out of this universe.”

Marty Sons, one of the victims, testified that she was able to observe the Defendant when they were both at the hospital. She testified that she heard the Defendant say “she didn’t care what happened” and “she wished she could have killed herself.” Ms. Sons described the Defendant as “hostile,” “very angry,” and “hollering” for her parents.

In the statement the Defendant gave to the police on the day after the accident, she maintained that she was “not crazy.” She told them that she was “not taking any drugs” because she did not need them anymore. She trusted in God and the Holy Spirit to take care of her. One of the officers asked her how long she had been off her medication, and she replied that she quit taking it “about two days ago.” She also claimed to have “supernatural strength” “based on [her] belief in Jesus Christ.” She told the officers that she “probably can kill somebody with [her] fingers,” but she did not want to.

Dr. Terry Holmes, a psychiatrist at Moccasin Bend Mental Health Institute, testified that he began treating the Defendant on October 25, 2001, two days after the accident. She was committed to Moccasin Bend for almost two months, after which the doctor treated her on an outpatient basis. Dr. Holmes diagnosed the Defendant as suffering from “bipolar one disorder manic with psychosis,” and he determined that there was a history of bipolar disorder in the Defendant’s family. A person suffering from this disease would have long periods where she is in an “abnormal mood.” Her thoughts would race, she would be disorganized and extremely talkative, and she would have a decreased need for sleep. Such a person would have a loss of judgment, an increase of energy, and an inability to focus. Because the Defendant was also plagued by psychosis, she was out of touch with reality. Dr. Holmes explained that this condition often is characterized by “a distortion in one’s perception of how the world is made up,” and “falsely held belief[s].”

Dr. Holmes characterized the Defendant as a typical psychotic; she had poor hygiene, she was irritable, she was situation-ally unaware, she was disorganized, and she was not well-oriented to her circumstances. He cited her delusions as clear evidence of her psychosis. For example, the doctor cited her false beliefs that the water in Cowan was poisoned, that she was pregnant and would birth “the savior' of the race,” that President Kennedy was alive and the mastermind behind the 9/11 attacks, and that bipolar disorder was not real, as delusions that are typical with psychosis. According to the' doctor, the Defendant began her “decompensation” at least two weeks before the accident. At that time, she began drinking several gallons of water a day. One night she came home and “trashed” her parents’ house and was running around naked, “experiencing the freedom of a child.” Dr. Holmes testified that, on the night of the accident, the Defendant had a falsely-held belief that her car could fly. In his words, “she thought God would make her fly right over the other car.” She told the mental health team that evaluated her, “I felt a tinge of sadness for the boy’s family, but the boy is with God. All children go to God. If the parents are believers they will be with him soon.” In the opinion of Dr. Holmes, the Defendant “has a severe mental illness,” and, on the night of the accident, she lacked the ability to distinguish right from wrong because she was in a psychotic state. He stated that at the time of the accident, she could not appreciate the nature or wrongfulness of her actions.

Dr. Joe Mount, a psychologist at Middle Tennessee Mental Health Institute, testified that the Defendant was in his care from April 24 through May 9, 2002. He also determined that the Defendant suffered from bipolar disorder and psychosis. He explained that her particular mental problems would manifest themselves in an elevated, irritable mood that would last over one week, a decreased need for sleep, loquaciousness, difficulty concentrating, racing thought patterns, plus hallucinations or delusions. Dr. Mount testified that he thought he remembered evidence in the Defendant’s record that, for several days prior to the accident, she had not taken her medication. Dr. Mount opined that the Defendant’s manic behavior at the accident scene, as well as her beliefs that God would pay for her gasoline and God would pull her car up over the other car, were consistent with her bipolar disorder and psychosis.

Dr. Mount administered several psychological tests to the Defendant. The results of one of the tests revealed that the Defendant was stable and able to understand things and follow directions. Another of the tests indicated that the Defendant was not “malingering,” or fabricating the symptoms of her mental illness. Dr. Mount’s general impression of the Defendant was that she was “fairly stable,” “well oriented,” “very bright,” “very cooperative,” “extremely courteous,” “very kind,” “passive,” and “reserved.” He also testified that all of his findings were consistent with his diagnosis of the Defendant’s mental disorder. He stated that she was not in touch with reality at the time of the accident, and she “did not have an appreciation of the nature and wrongfulness of the offense.” He theorized that the Defendant’s breakdown may have been caused by an overreaction to the September 11th tragedy.

Dr. Bill Regan, a psychiatrist, evaluated the Defendant from April 24 through May 9, 2002 pursuant to a court order. The Defendant was referred to him by the district attorney general’s office. He determined that the Defendant had a history of bipolar disorder with episodes of mania. He believed that the Defendant’s delusions around the time of the wreck — that J.F.K. was alive and behind 9/11, and that she was pregnant with a “world leader” — were triggered by the September 11th attacks. Dr. Regan testified that, at the time of the accident, the Defendant was “out of touch with reality.” She believed that her car would fly if she pulled back on the steering wheel. She thought it was a “test from God.” Furthermore, Dr. Regan testified that she later told the police that she had “supernatural strength,” and she laughed about the accident and how fast she was driving. In Dr. Regan’s opinion, the Defendant was “unable to appreciate the wrongfulness of her conduct at the time [of the offense].” However, at the time he performed his psychiatric evaluation of the Defendant, he found her not to be com-mittable because she no longer posed a danger to herself or others.

The Tennessee Supreme Court has stated that

appellate courts in Tennessee should reverse a jury verdict rejecting the insanity defense only if, considering the evidence in the light most favorable to the prosecution, no reasonable trier of fact could have failed to find that the defendant’s insanity at the time of the offense was established by clear and convincing evidence.

State v. Flake, 88 S.W.3d 540, 554 (Tenn. 2002). In determining whether the jury properly rejected the insanity defense, an appellate court must consider all the evidence in the record in the light most favorable to the State, including evidence of the defendant’s actions or words at or near the time of the offense, as well as lay and expert testimony. See id.

The weight and value to be given expert testimony is a question for the jury. Where there is a conflict in the evidence, the trier of fact is not required to accept expert testimony over other evidence and must determine the weight and credibility of each in light of all the facts and circumstances of the case. Questions concerning the credibility of witnesses, the weight and value of the evidence, as well as all factual disputes raised by the evidence, are for the trier of fact; appellate courts do not reweigh the evidence or reevaluate credibility determinations.

Id. (citations omitted). “While a jury may not arbitrarily ignore evidence, a jury is not bound to accept the testimony of experts where the evidence is contested.” Id. at 556.

Having considered the evidence in this record in accordance with the principles set forth by our legislature and our supreme court, we agree with the trial court that no reasonable juror could have failed to find that the Defendant’s insanity was established by clear and convincing evidence. In its order granting the Defendant’s motion for judgment of acquittal, the trial court summarized the evidence in this case as follows:

1)Three imminently qualified experts, two psychiatrists and one psychologist, testified unwaveringly that in their opinion the Defendant was at the time of the wreck delusional and suffered from a severe mental disease, bi-polar mixed, and as a result did not appreciate the nature or wrongfulness of her acts.
2) This Court observed the demeanor of the experts, has reviewed the impeccable credentials of said experts and finds their testimony to have been unchallenged and unimpeached.
3) This Court has carefully reviewed the evidence of the Defendant’s conduct over the days and hours leading up to the wreck and finds nothing in that conduct which logically could be construed to defeat the Defendant’s proof of severe mental disease or defect or support a finding that the Defendant could appreciate the nature or wrongfulness of her acts.
4) This Court has carefully reviewed the Defendant’s statement taken at the hospital some nineteen (19) hours after the wreck and concludes that this statement is not sufficient to defeat the Defendant’s otherwise clear and convincing proof of insanity. This Court comes to this conclusion for two reasons: (1) this statement clearly evidences continuing delusion, and (2) the statement was taken many hours after the wreck and at a time when the Defendant had been heavily medicated with two doses of Haldol and one dose of Ativan which had resulted in her being “somewhat over sedated and lethargic” and caused her to be kept at the hospital “until her mental status had improved.”
5) There is no proof of malingering.

The State argues that there was evidence presented at trial from which the jury could have determined that the Defendant had failed to establish her insanity. First, Kelly Gass of the Winchester Public Safety Department testified that, after investigating the accident scene, it appeared to him that, just before the impact, the Defendant turned the steering wheel to the left and applied her brakes. The State maintains that this physical evidence contradicts the statements made by the Defendant to the police that “in my mind I’m thinking [God] was going to just raise the car or move the car out of the way,” “I don’t even think I tapped on the brakes,” “It’s like and I just thought we were going to go over. I ... maybe I thought we were going to fly,” and “I was thinking I would fly.” However, the State fails to explain how the fact that, just before impact, the Defendant applied her brakes and turned the steering wheel, which are quite instinctive reactions, evidences her ability to appreciate the nature or wrongfulness of her conduct. Indeed, Dr. Mount specifically testified that someone experiencing such a delusion would still be able to drive and would understand that he or she was driving a car. Therefore, the fact that the Defendant was able to apply her brakes and steer her car does not indicate that she was not experiencing a delusion. In short, the physical evidence at the accident scene does not contest or contradict the expert testimony that the Defendant was delusional at the time of the wreck.

The State also asserts that the jury could have found the Defendant to be sane based upon statements she made to police officers in which she took responsibility for the death of Joshua Sons. For example, she told police, “That was strictly my fault. One hundred percent.” “Well I take full responsibility for the ... or the blame for the death of the little boy.” “It’s my fault _ my child and I just haven’t ... there’s no need for lawyers or anything ... I’ll do whatever. Whatever it takes monitoring .... monetarily or whatever. Jail time I mean whatever.”

However, Dr. Mount specifically testified that someone with the Defendant’s mental illness would still be capable of feeling guilt and remorse upon learning that she had hurt someone. Furthermore, Dr. Mount testified that the Defendant was still delusional at the time she gave the statement to the police. In his words, “In reviewing the statement, and as a whole, I think this statement is replete with grandiose religiosity and possible delusional material taken in its total context.” He also testified that the statement from the Defendant to the police did not change his diagnosis that her mental disease prevented her from understanding the nature and wrongfulness of her conduct. Also, as the trial court noted in its order, the Defendant was heavily medicated at the time she gave her statement to the police. Therefore, the Defendant’s statement to police, in which she makes several outrageous and often incoherent claims, does not contradict the conclusion that she was “out of touch with reality” at the time of the accident.

Finally, the State argues that the jury could have found that the Defendant was trying to Mil herself. The State points to statements she made at the accident scene that she did not care if her car caught fire and she died and her statement at the hospital that “she wished she could have Mlled herself.” Dr. Mount testified that it was possible that the Defendant did want to kill herself, but she was still in a delusional state that kept her from being able to understand the nature or wrongfulness of her conduct. Therefore, these statements do not conflict with the evidence that the Defendant was legally insane at the time of the wreck.

We are quite aware that, by making insanity an affirmative defense that must be proven with clear and convincing evidence, and by not allowing experts to testify to the ultimate issue of sanity, our legislature has demonstrated its strong preference that the defense of insanity be difficult to successfully maintain. See Tenn.Code Ann. § 39-11-501. Moreover, we recognize that the standard of review that our supreme court set forth in Flake greatly limits the authority of an appellate court to reverse a jury verdict rejecting the insanity defense. See 88 S.W.3d at 554. Indeed, the Court in Flake explicitly stated, “Where the proof is contested, appellate courts should rarely reverse a jury’s rejection of the insanity defense under this deferential standard of review.” Id. at 556. However, we are also mindful that our supreme court has instructed that “a jury may not arbitrarily ignore evidence.” Id. In this case, because the proof of the Defendant’s inability to appreciate the nature or wrongfulness of her conduct was uncontested and there was no conflict in the evidence, we agree with the trial court and conclude that the jury did arbitrarily ignore and disregard the evidence of the Defendant’s insanity.

In Flake, the trial court specifically declined to exercise its role as thirteenth juror and enter a judgment of not guilty by reason of insanity, stating, “the defense of insanity was appropriately litigated and I think that the jury appropriately made the proper determination.” Id. at 556. Here, in its order granting the judgment of acquittal, the trial court stated: “At trial the insanity defense was established by clear and convincing evidence, and neither the court nor the jury can ignore the law.” Based on our review of the record in this case, we are unable to conclude that the trial judge erred by granting the motion for judgment of acquittal.

Therefore, the judgment of the trial court granting the Defendant’s motion for judgment of acquittal is affirmed.

      . This case differs procedurally from Flake in that the trial court in this case granted the Defendant’s motion for judgment of acquittal. However, our standard of review remains the same.