Pam Lowery and Debbie Nelson v. Robert McVey ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
November 13, 2012 Session
PAM LOWERY AND DEBBIE NELSON
v.
ROBERT MCVEY
Appeal from the Chancery Court of Marion County
No. 7307 Jeffery F. Stewart, Chancellor
No. M2012-00555-COA-R3-CV - Filed February 11, 2013
This case involves monetary damages for contempt of court. The respondent owned a parcel
of land as tenants in common with his brother. When the brother died, the deceased brother’s
children inherited his interest in the property. The deceased brother’s daughters filed this
petition against the respondent to partition the property. The trial court entered an order
equitably dividing the property between the respondent and the two petitioner sisters and
requiring the respondent to remove personal property, junk, and debris he had placed on the
parcel awarded to the sisters. The respondent was found in contempt for failing to remove
the debris, and again ordered to do so. Apparently unhappy with this order, the respondent
proceeded to remove, damage, or destroy fixtures and structures on the property awarded to
the sisters, including a pole barn, several sheds, and a garage with an apartment. He also
failed to remove the junk and debris as specified in the trial court’s order. The petitioner
sisters filed a second petition for contempt and sought contempt damages for the harm done
to the buildings, fixtures, and structures. The trial court found the respondent in contempt
a second time, based on his continued failure to remove the junk and debris. However, the
trial court declined to award contempt damages to the petitioner sisters under T. C. A. § 29-9-
105 for the destruction of the structural improvements on the property, finding that it was not
within the parameters of the trial court’s initial order. The petitioner sisters appeal.
Discerning no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is Affirmed
H OLLY M. K IRBY, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and D AVID R. F ARMER, J., joined.
Jerry B. Bible, Jasper, Tennessee for Petitioner/Appellants Pam Lowery and Debbie Nelson
L. Thomas Austin, Dunlap, Tennessee for Respondent/Appellee Robert McVey
OPINION
F ACTS AND P ROCEEDINGS B ELOW
The facts in this case are generally undisputed. For many years, Herman McVey and his
brother, Respondent/Appellee Robert McVey (“McVey”), owned as tenants in common
approximately 26 acres of land in Marion County, Tennessee. A spring ran through the
property, and on it was the family homeplace, a large 50x70 pole barn, several sheds, and a
24x30 garage with a second story finished apartment that was leased to a tenant. McVey had
livestock and horses on the property, a camper that housed another tenant, and scrap metal and
various items of personal property. The land was also littered with McVey’s junk and debris.
After Herman McVey died, his undivided one-half interest in the property was inherited by
Herman’s son and his daughters, Petitioner/Appellants Pam Lowery and Debbie Nelson
(“Sisters”). Any efforts made by the Sisters to persuade McVey to divide the property
amicably, and to remove his personal property, junk and debris from their portion of the
property, were apparently unavailing.
Consequently, in June 2008, the Sisters filed the instant petition against McVey in the
Chancery Court of Marion County, Tennessee. The Sisters’ petition sought to either partition
the subject property, that is, physically divide it equitably with McVey, or sell it in lieu of
partition.1 The petition asserted that the Sisters had engaged in fruitless attempts to persuade
McVey to remove from the property “tons of unsightly refuse, garbage, junk, scrap metal,
cars, campers and other items which spawn mosquitoes and house snakes and rodents,” all of
which were purportedly put on the property by McVey. The petition asked the trial court to
order McVey to remove all of these items, clean the property, and properly house his “dogs,
chickens, guineas and other fowls” to keep them from roaming on the Sisters’ portion of the
property.
McVey’s answer agreed to the partition of the subject property and said there was no need to
sell it. He denied the Sisters’ allegations regarding the personal items, junk, and debris on the
1
Herman McVey’s son was joined in the lawsuit, in order to have before the trial court all parties with an
interest in the subject property. He executed a limited power of attorney in favor of the Sisters authorizing
them to act on his behalf in the litigation.
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property. In November 2009, the trial court ordered a survey of the land and appointed a
special master to make a recommendation to the trial court on the equitable division of the
property.
In January 2010, the special master issued his report to the trial court, containing his findings
and recommendations. The special master determined that the tract of land was 25.94 acres
and recommended dividing it into four plats, with a total of 12.62 acres to McVey and the
remaining 12.34 acres to the Sisters. The two plats to be awarded to McVey included the
spring and the family homeplace. The two plats the special master recommended awarding
to the Sisters included the large pole barn, the garage with the second story finished
apartment, and several sheds. Consistent with the allegations in the Sisters’ petition, the
special master recommended that the trial court give McVey six months to remove “all
unsightly refuse, garbage, junk, scrap metal, cars, campers and other items owned by him”
from the parcels awarded to the Sisters, 30 days to remove his livestock, and 30 days to evict
tenants or any other persons living on the Sisters’ parcels. McVey filed a timely objection to
the special master’s report and requested a hearing.
In July 2010, the trial court held an evidentiary hearing on the special master’s
recommendations, at which the special master explained the basis for his recommendations.2
After the hearing, the trial court overruled McVey’s objection and confirmed the report of the
special master. However, instead of six months, the trial court gave McVey 60 days to
remove his personal property, junk, and debris on the parcel awarded to the Sisters:
Mr. McVey shall have sixty (60) days from the entering of this Order to have
all his personal property and/or trash removed from Tracts 1 and 4 which have
been awarded to the [Sisters]. The Court will entertain a request for an
extension of time to remove personal property and/or trash and debris upon
good cause being shown.
This order was entered on August 11, 2010.
McVey was apparently not moved to action by the August 2010 order. On November 29,
2010, the Sisters filed a motion to hold McVey in contempt of court for, inter alia, failing to
remove his personal property, trash, and debris from the Sisters’ parcel. After a hearing on
April 12, 2011, the trial court entered an order finding that McVey had not only failed to
remove the tenant, his horses, livestock, personal property, junk and debris from the Sisters’
2
The record does not contain a transcript of this hearing.
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parcel, he had in the interim brought an additional renter onto the property.3 It also found that
McVey had failed to make several required payments, such as the surveyors’ fee and property
taxes. The trial court held that McVey was in willful contempt of court for failing to abide
by the August 2010 order. It declined to incarcerate McVey for the contempt but ordered him
to remove his livestock within 7 days of the hearing, remove his renters within 10 days of the
hearing, and remove his personal property, junk, and debris within 60 days of the hearing.
The trial court awarded attorney fees to the Sisters and held that the amount of the attorney
fees, surveyor fees, and property taxes would become a lien against the portion of the property
awarded to McVey until paid.
This order finally moved McVey to action, just not the right kind of action. Enlisting the help
of his son, McVey proceeded to dismantle and remove essentially all of the buildings, fixtures,
and structures on the property awarded to the Sisters, namely, the pole barn, the garage with
the second story apartment, a sawmill shed, and other sheds and buildings. McVey and his son
removed fence gates, fence posts, and fencing. They also removed drainage tile and drainage
structures, some of which were underground, leaving an open ditch. McVey and his son dug
a large hole on the Sisters’ property, a “burning pit,” and the items burned in the hole included
substances that produce toxins when burned, such as cross ties, PVC pipe, vinyl siding, plastic
bottles, and asphalt roof shingles. These burned items were apparently buried on the Sisters’
property. Later, McVey was cited and fined by the Tennessee Department of Environment
and Conservation for illegal burning. About the only things McVey did not remove from the
Sisters’ property were the discarded pieces of glass and scrap metal, and McVey’s horses and
dogs.
In the wake of McVey’s actions, the Sisters filed a second motion for contempt against him.
The motion asserted that McVey had left the Sisters’ property littered with glass and pieces
of metal, left his livestock on their property, and that he did not evict one of the renters, an
alleged registered violent sex offender, until two weeks after the trial court’s deadline. The
contempt motion noted that McVey dug a large hole on the Sisters’ property and that he had
been cited by the State for illegal burning in it. The Sisters’ contempt motion also asserted
that McVey had unlawfully removed or destroyed improvements on the property that was
awarded to them, including the pole barn, the garage with the second-story apartment, two
small buildings, the shed, fencing, fence gates, and drainage tiles. The motion stated: “What
he could not strip or take, he destroyed.” The Sisters’ contempt motion sought compensatory
damages for the environmental damage from McVey’s illegal burning, and for the
“unauthorized dismantling” of the improvements on the property. The Sisters’ contempt
motion asked the trial court to award McVey’s parcel of property to the Sisters as
3
The record indicates that one of the tenants McVey had living on the Sisters’ parcel was a registered violent
sex offender.
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compensation for their damages, based on the liens against the property previously ordered
by the trial court. They also requested an award of attorney fees.4
The trial court held an evidentiary hearing on the Sisters’ second motion for contempt on
September 13, 2011. It heard testimony from McVey, his son, and one of the Sisters.
In his testimony, McVey admitted that he and his son dismantled and removed the pole barn,
the garage with the upstairs apartment, the sheds and other buildings, fencing, fence gates and
fence posts, drainage tile and structures. He conceded that they dug a large hole as a “burning
pit” on the Sisters’ parcel, and that he was cited and fined for illegally burning cross ties, roof
shingles, plastics, and the like. McVey maintained that all of these actions were mandated by
the trial court’s order; he said he had built and paid for all of these items and insisted: “I was
told by the Court to remove any and everything that I had put on this property.” McVey
claimed that his horses and livestock were on the Sisters’ property by accident and would not
admit that he left glass and debris on the property. McVey’s son corroborated his father’s
testimony and his father’s rationale for their actions. One of the Sisters, Ms. Lowery, testified
that McVey had in fact left their property strewn with glass and metal debris. She also
testified about the monetary damages that result from McVey’s removal and destruction of
the fixtures and structures on their property.
At the conclusion of the hearing, the trial court took the case under advisement. The trial
court asked the parties to brief the issue of damages in a contempt proceeding.
On December 1, 2011, the trial court issued an oral ruling. It held that McVey failed to
comply with the trial court’s order by failing to remove from the Sisters’ parcel all of his
livestock, debris, and personal property. It noted that McVey admittedly dug an open hole on
the Sisters’ property, engaged in illegal burning, and buried the illegally burned items. The
trial court observed that McVey “took more than he was allowed; fences, gates, tiles, barns,
a sawmill building, [and] a rental building. . . .” The trial court found that McVey was in
willful contempt of court “by his omission to do the things that he was directed to do.” It
again ordered him to clean up the glass, metal, and other debris left on the Sisters’ property,
and it also ordered him to return the fence gates, return the drainage pipe and reinstall it, fill
in the hole that he dug, and clean up and remove the burned items.
The trial court then addressed the Sisters’ request for an award of damages for the fixtures and
structures on the property that McVey either removed or damaged. After reviewing
4
The Sisters later amended their contempt motion to add a request for punitive damages. No punitive
damages were awarded by the trial court and this is not raised as an issue on appeal.
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Tennessee Code Annotated § 29-9-105, the trial court noted that its original order did not
forbid McVey from removing the structures at issue, so removal or damage to the fixtures and
structures was not a forbidden act. For this reason, the trial court held that an award of
damages pursuant to Section 29-9-105 was not appropriate, and needed instead to be reserved
for a separate filing.
The trial court entered a written order on February 27, 2012, reiterating and expanding on the
findings of fact and conclusions of law in its oral ruling.5 The trial court determined that its
previous order was clear and unequivocal: “McVey was to ‘remove all personal property
and/or trash and debris,’ not buildings. The Order did not allow for anything more than
personal property.” It found nothing in the record to support McVey’s assertion that any of
the buildings, gates, or fences on the Sisters’ parcel belonged to McVey. The trial court noted
that the original order contained “no reference for the removal of barns, apartment buildings,
fences, gates, drainage tiles or other things of that nature.” McVey was, once again, ordered
to clean the Sisters’ property by removing the broken glass, metal, and debris. He was also
ordered to return the gates, return and install the drainage pipe, fill the hole he had dug, and
clean up and remove all burned items. The trial court found that McVey had willfully failed
to comply with the trial court’s prior order, that this constituted contempt of court, and it
awarded the Sisters $4200 in attorney fees and court costs. The order then addressed the
Sisters’ request for an award of damages for McVey’s destruction of the improvements on
their parcel:
The Court has the authority to award damages under T.C.A. §29-9-105. The
Court is of the opinion that the statute applies to an individual performing acts
forbidden by a Court Order. In briefs that were submitted to the Court . . . , the
Court is of the opinion that the cases are fairly clear on the court’s authority to
issue damages for contempt. [McVey] argued that damages aren’t appropriate
in this particular case as this is a damage case that should be filed in Circuit
Court where a jury can determine the damages. [Petitioners] argued that the
Court has the authority to issue an award for damages without having to go to
a jury trial. The Court determined that the facts are clear. Mr. McVey admits
that he removed the buildings permanently attached and fixed to the real
property, his statement was “he put them up and therefore they were his.” The
Court was of the opinion that this is not what the Court allowed him to do and
he was not authorized to do those things. The Court, however, is of the opinion
that the Court Order did not specifically say that he could not tear the buildings
5
The February 27, 2012 written order held that the Sisters had not carried their burden of proving that McVey
permitted a renter to remain on the Sisters’ property past the deadline in the trial court’s prior order. This
ruling is not appealed.
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down or commit the other acts that he has committed therefore he didn’t
commit what the Court would call a forbidden act. Since the Order did not say
he was forbidden from removing any buildings of this kind and therefore since
he didn’t commit what the Court would call a forbidden or prohibited act [then]
the Court does not have authority to award damages under T.C.A. § 29-9-205.
The Court’s ruling in this matter is based on two (2) primary cases that were
submitted by the parties in their briefs. One was Overnight v. Teamsters, 172
S.W.3d 507 and Reed v. Hamilton, 39 S.W.3d 115. Based on these cases the
Court did not award damages. The Court was of the opinion that Mr. McVey’s
acts were an issue that has to be reserved for a separate filing.
Thus, the trial court held that McVey’s actions in tearing down buildings and improvements
were “not authorized” by the trial court’s prior order, but were also not expressly “forbidden”
by the trial court’s prior order. As a result, the trial court concluded that it did not have
authority under Tennessee Code Annotated §29-9-205 to award damages for these acts. The
Sisters now appeal.
ISSUES ON A PPEAL AND S TANDARD OF REVIEW
On appeal, the Sisters raise four issues:
Under the facts of the present case, is [Section 29-9-105] applicable and is it the
exclusive remedy to the Court regarding recovery for the Appellants’ damages
which were the result of [McVey’s] willful and intentional contempt?
Did the trial court err when it ruled it had no general powers under statute or
case law to address the damages that were the result of the willful and
intentional contempt of [McVey]?
Did the Trial Court err when it ruled that the acts committed by [McVey] were
not listed as forbidden acts in the Order therefore the Court had no power to
award damages that were the result of [McVey’s] willful and intentional
contempt under [Section 29-9-105]?
Did the Trial Court err when it ruled that the Appellants’ only redress for
damages is a new and separate lawsuit pursuant to [Section 29-9-105] after
[McVey] came upon the Appellants’ property under the Court’s Orders,
committed contempt, removed, destroyed, and/or damaged Appellants’ real
property and buildings?
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Because this matter was decided by the trial court without a jury, the trial court’s findings of
facts are reviewed de novo on the record, with a presumption that those findings are correct
unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). 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).
“Appellate courts review a trial court’s decision to impose contempt sanctions using the more
relaxed ‘abuse of discretion’ standard of review.” Freeman v. Freeman, 147 S.W.3d 234,
242 (Tenn. Ct. App. 2003) (quoting McDowell v. McDowell, No. M2000-00164-COA-R3-
CV, 2001 WL 459101, at *5; 2001 Tenn. App. LEXIS 315, at *14 (Tenn. Ct. App. May 2,
2001)). Under this standard of review, the appellate court is not permitted “to substitute [its]
judgment for that of the court whose decision is being reviewed.” Konvalinka v.
Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008) (citing
Williams v. Baptist Mem’l Hosp., 193 S.W.3d 545, 551 (Tenn. 2006); Eldridge v. Eldridge,
42 S.W.3d 82, 85 (Tenn. 2001)). Thus, the trial court’s decision regarding contempt sanctions
should be reversed on appeal only if the trial court “applied incorrect legal standards, reached
an illogical conclusion, based its decision on a clearly erroneous assessment of the evidence,
or employs reasoning that causes an injustice to the complaining party.” Konvalinka, 249
S.W.3d at 358 (citing Mercer v. Vanderbilt Univ., 134 S.W.3d 121, 131 (Tenn. 2004); Perry
v. Perry, 114 S.W.3d 465, 467 (Tenn. 2003)).
A NALYSIS
On appeal, the Sisters argue energetically that the trial court erred in finding that it did not
have authority to award damages for McVey’s contemptuous actions in damaging or
removing virtually all buildings, fixtures, and structures on the parcel of property that had
been awarded to the Sisters. They emphasize the authority of the courts to punish for
contempt and argue that the trial court below had a duty to impose such punishment upon
McVey, including an award of monetary damages for “stripping the property of
improvements and structures and destroying anything else that would be useful to or usable
by” the Sisters. The Sisters note that McVey admits these actions, indeed almost brags about
them, and gave the trial court a near-facetious explanation that he thought that the court’s
order required him to remove or destroy the structures and fixtures on the property. They cite
this as indicating the intentional nature of McVey’s conduct. The Sisters argue that the trial
court was authorized under Tennessee Code Annotated §§ 29-9-102 through 29-9-105, as
well as the court’s inherent authority to enforce its orders, to mete out punishment to McVey
in a number of forms, including monetary damages, jail time, and fines. They ask this Court
to reverse the trial court’s order and remand the case to the trial court for an award of
damages.
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Counsel for McVey filed an appellate brief as well, arguing that the trial court did not err in
holding that McVey’s actions were not forbidden by the trial court’s prior order and thus
were not contempt. For that reason, McVey maintains, the trial court did not err in declining
to award damages to the Sisters.
In this case, we are presented with the Sisters’ appeal of the trial court’s ruling on their
motion to hold McVey in contempt of court. The motion asked the trial court to hold McVey
in contempt for all of his actions, failing to remove the livestock, junk and debris he was
ordered to remove, and removing or destroying the fixtures and structures. The motion asked
the trial court to award the Sisters compensatory damages and attorney fees for the contempt.
The Sisters’ subsequent briefing to the trial court references criminal contempt, but
acknowledges that “[c]ivil contempt obviously is the primary remedy,” and seeks
remuneration in the form of fines, damages, or an order awarding McVey’s property to the
Sisters.
The issues presented on appeal by the Sisters, listed above, are framed in a way that presumes
that all of McVey’s actions were in contravention of the trial court’s orders and constitute
contempt of court.6 Nevertheless, we perceive that the threshold inquiry on appeal is whether
the trial court erred in holding that McVey’s actions in removing and destroying fixtures and
structures on the Sisters’ property were not covered by the trial court’s prior orders and so
did not constitute contempt of court.
“Civil contempt occurs when a person refuses or fails to comply with a court order and a
contempt action is brought to enforce private rights.” Black v. Blount, 938 S.W.2d 394, 398
(Tenn. 1996). The Tennessee Supreme Court has outlined the elements required to establish
a claim for civil contempt of court:
Civil contempt claims based upon an alleged disobedience of a court order
have four essential elements. First, the order alleged to have been violated
must be “lawful.” Second, the order alleged to have been violated must be
clear, specific, and unambiguous. Third, the person alleged to have violated
the order must have actually disobeyed or otherwise resisted the order. Fourth,
the persons’ violation of the order must be “willful.”
Konvalinka, 249 S.W.3d at 354-55 (footnotes omitted). To review on appeal the trial court’s
holding that the actions of removing and damaging structures and fixtures on the Sisters’
6
One issue contends that the trial court erred in ruling that McVey’s acts “were not listed as forbidden acts
in the Order” but primarily addresses the parameters of Section 29-9-105 regarding an award of damages for
willful contempt.
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property requires us to focus on the second and third elements, the clarity of the underlying
trial court order and whether McVey’s actions contravened it. The Konvalinka Court
expounded on the requirement that the underlying order be clear and specific:
A person may not be held in civil contempt for violating an order unless the
order expressly and precisely spells out the details of compliance in a way that
will enable reasonable persons to know exactly what actions are required or
forbidden. The order must, therefore, be clear, specific, and unambiguous.
Vague or ambiguous orders that are susceptible to more than one reasonable
interpretation cannot support a finding of civil contempt. Orders . . . must . .
. leave no reasonable basis for doubt regarding their meaning.
Orders alleged to have been violated should be construed using an objective
standard that takes into account both the language of the order and the
circumstances surrounding the issuance of the order, including the audience
to whom the order is addressed. Ambiguities in an order alleged to have been
violated should be interpreted in favor of the person facing the contempt
charge. Determining whether an order is sufficiently free from ambiguity to
be enforced in a contempt proceeding is a legal inquiry that is subject to de
novo review.
Id. at 355-56 (internal citations, quotations and footnotes omitted). The Konvalinka Court
also elaborated on the third element:
The third issue focuses on whether the party facing the civil contempt charge
actually violated the order. This issue is a factual one to be decided by the
court without a jury. The quantum of proof needed to find that a person has
actually violated a court order is a preponderance of the evidence. Thus,
decisions regarding whether a person actually violated a court order should be
reviewed in accordance with the standards in Tenn. R. App. P. 13(d).
Id. at 356 (internal citations omitted). Under this standard, we review the clarity and
specificity of the underlying trial court order, de novo, and the preponderance of the evidence
as to the trial court’s factual finding on whether McVey violated the order.
The operative order is the trial court’s August 11, 2010 order, partitioning the parties’
property. The pertinent language in the order states:
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Mr. McVey shall have sixty (60) days from the entering of this Order to have
all his personal property and/or trash and debris removed from Tracts 1 and 4
which have been awarded to the [Sisters].
The May 10, 2011 order finding McVey in contempt of court the first time repeated the
language in the August 2010 order: “Mr. McVey shall have sixty days (60) from April 12,
2011 to have his personal property and/or trash and debris removed from Tracts One (1) and
Four (4).” That order, we now know, led to McVey’s decision to damage and remove all of
the buildings, structures, and fixtures on the Sisters’ parcel, under the guise of “complying”
with the trial court’s instructions.
After the hearing on the Sisters’ second motion for contempt, the subject of this appeal, the
trial court recounted how it chose the language for its initial order: “Mr. McVey had a
collection of items basically stored on the [Sisters’] real estate. Mr. McVey referred to them
as a collection of items and the other side referred to them as junk.” Hence, the trial court
explained, “the Order describ[ed] the things to be removed as trash and debris as well as
personal property.” It did not interpret its prior order as calling “for the removal of barns,
apartment buildings, fences, gates, drainage tiles or other things of that nature.” The trial
court ultimately found that McVey’s actions in removing and destroying these structures and
fixtures was simply not covered by its prior order; it held that McVey “was not authorized”
under the order to take these actions, nor was he “forbidden” from them by the terms of the
order. On this basis, the trial court concluded that these actions did not constitute contempt
of court.7
After carefully reviewing the record, we agree. From our de novo review of the trial court’s
order, we agree with the trial court that it cannot be reasonably read to address, one way or
another, McVey’s conduct in removing and destroying buildings, structures, and fixtures on
the Sisters’ property. Konvalinka, 249 S.W.3d at 356 n.19. Under these circumstances, it
follows that the evidence does not preponderate against the trial court’s factual finding that
this conduct did not violate the order and did not constitute contempt of court.
7
The trial court signaled to counsel for the Sisters that McVey’s misconduct would likely be actionable if
it were the subject of separate claims, not contempt of court, stating: “The Court was of the opinion that Mr.
McVey’s acts were an issue that has to be reserved for a separate filing.” We have no way of knowing from
this record whether the Sisters took the trial court’s suggestion, though we note that one of the issues on
appeal raised by the Sisters, listed above, asks whether the trial court erred “when it ruled that the [Sisters’]
only redress for damages is a new and separate lawsuit. . . .” As the record before us in this appeal does not
contain a “new and separate lawsuit,” addressing this issue on appeal would amount to giving an advisory
opinion, which we respectfully decline to do. We note, however, that the trial court’s order by no means
intimated that McVey’s rather brazen actions were lawful or that he could not be held liable for them; it held
only that his actions did not, strictly speaking, constitute contempt of court.
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The trial court held that some of McVey’s conduct – his failure to remove junk and debris,
and his failure to remove all of his livestock – did constitute contempt of court. The trial
court declined to award the Sisters monetary damages for this contempt. Instead it chose to,
once again, order McVey to clean up the junk and debris, and it also awarded the Sisters
attorney fees. This holding does not appear to stem from any perceived limitations on the
trial court’s authority to award damages under Tennessee statutes; the trial court’s discussion
of the limits of its authority under Tennessee Code Annotated § 29-9-105 pertains only to
McVey’s actions in removing and destroying buildings, structures, and fixtures on the
Sisters’ parcel. As noted above, we have affirmed the trial court’s holding that these actions
did not constitute contempt; this holding obviates the need for us to examine the limits of the
court’s authority to impose various remedies for contempt under the Tennessee statutes cited
by the Sisters. Thus, we review the trial court’s decision not to award monetary damages or
other relief to the Sisters for McVey’s contemptuous failure to abide by the trial court’s order
for an abuse of discretion. Id. at 358.
Certainly the trial court exercised considerable restraint in the punishment doled out to
McVey for his continued failure to abide by the trial court’s orders. Faced with such
recalcitrance by McVey, we cannot say that we would have been so restrained. Nevertheless,
the appellate court is not permitted to substitute its judgment for that of the trial court in the
choice of sanctions for contempt of the trial court’s orders. Id. From our review of the
record, we find no abuse of the trial court’s discretion.
These holdings pretermit the remaining issues raised on appeal by the Sisters. We find no
error in the trial court’s decision, and so affirm.
C ONCLUSION
The decision of the trial court is affirmed. Costs on appeal are taxed to Petitioner/Appellants
Pam Lowery and Debbie Nelson and their surety, for which execution may issue, if
necessary.
___________________________
HOLLY M. KIRBY, JUDGE
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