                       IN THE COURT OF APPEALS OF TENNESSEE
                                  AT NASHVILLE

                                                               FILED
ELEANOR MICELI,                       )
                                      )                         August 17, 1999
       Plaintiff/Appellant,           )      Sumner Chancery No. 97C-229
                                      )                      Cecil Crowson, Jr.
v.                                    )                    Appellate Court Clerk
                                      )      Appeal No. 01A01-9807-CH-00400
DEBORAH KAY THOMPSON,                 )
CHARLES R BURNETT, and wife           )
MEREDYTH G. BURNETT,                  )
                                      )
       Defendants/Appellees.          )



             APPEAL FROM THE CHANCERY COURT OF SUMNER COUNTY
                          AT GALLATIN, TENNESSEE


                     THE HONORABLE TOM E. GRAY, CHANCELLOR


For the Plaintiff/Appellant:          For the Defendants/Appellees:

Vance Cramb, Jr.                      William Timothy Hill
Nashville, Tennessee                  Nashville, Tennessee




                                      AFFIRMED


                                      HOLLY KIRBY LILLARD, J.



CONCURS:

W. FRANK CRAWFORD, P.J., W.S.

ALAN E. HIGHERS, J.
                                             OPINION

       This case involves the enforcement of a judgment lien. The trial court held that the judgment

lien had expired because the judgment creditor failed to enforce the lien within the three year period

set out in Tennessee Code Annotated § 25-5-105. We affirm.

       On March 4, 1994, Plaintiff/Appellant Eleanor Miceli (“Miceli”) obtained a judgment against

Defendant/Appellee Deborah Kay Thompson (“Thompson”) in the Chancery Court of Davidson

County, Tennessee, in the amount of $18,000.1 On March 23, 1995, an order was entered allowing

the judgment to be paid by installments. At the time of the judgment, Thompson and her husband

Thomas Thompson owned real property located at 1096 Jenkins Lane, Hendersonville, Tennessee,

(“the Property”) as tenants by the entirety. On March 8, 1996, Deborah Kay Thompson and Thomas

Thompson were divorced.

       After the Thompsons were divorced, on March 27, 1996, Miceli recorded a judgment lien

against the Property. Deborah Kay Thompson and Thomas Thompson subsequently conveyed their

interest in the Property to Defendants/Appellees Charles and Meredyth Burnett (“the Burnetts”) by

warranty deed on May 9, 1996.

       Approximately one year later, on May 7, 1997, Thompson filed another motion to pay the

judgment by installments. On May 8, 1997, the trial court stayed garnishment for sixty days from

the date of its order. On June 23, 1997, Miceli attempted to execute on Thompson’s personal

property in order to satisfy the judgment. The execution/levy was returned “Nulla Bona” on July

1, 1997. On July 31, 1997, Miceli filed a complaint to enforce the judgment lien. The Burnetts filed

an answer and a cross-claim against Deborah Kay Thompson and a third party complaint against

Thomas Thompson for breach of warranty in the conveyance of the Property. Miceli filed a motion

for default judgment against Deborah Kay Thompson; the motion was granted on March 18, 1998.

       The Burnetts filed a motion for summary judgment. In the motion, the Burnetts argued that

the judgment lien had expired because Miceli failed to execute the lien within the three-year period

set out by Tennessee Code Annotated § 25-5-105. The Burnetts noted that the judgment was entered

on March 4, 1994, and the complaint seeking to enforce the judgment lien was filed on July 31,

1997, well beyond the statutory period. In response, Miceli argued that the statutory period should

be extended because the trial court granted several motions to stay execution on Thompson’s



       1
           Deborah Kay Thompson was formerly known as Deborah Kay Miceli.
personal property. Miceli noted that Tennessee Code Annotated § 26-3-101 requires that the

plaintiff first execute on goods and chattels of the defendant, and if the amount recovered is

insufficient to pay the debt, plaintiff may then execute on the defendant’s real property. Miceli

argued that the trial court stayed execution on personal property, which prevented Miceli from

executing on the real property. Miceli also noted that a judgment lien attaches to after-acquired

property of the debtor, and asserted that Thompson in effect acquired a “new” interest in the Property

when the divorce decree was entered on March 12, 1996.

       The trial court granted the Burnetts’ motion for summary judgment:

               [T]hat a judgment for which Eleanor Miceli seeks enforcement in this suit
       was rendered on March 4, 1994. The abstract of judgment obtained by Miceli was
       recorded on March 27, 1996 . . . . Thomas E. Thompson, et ux, Deborah Kay
       Thompson executed and conveyed certain real property in Sumner County to Charles
       R. Burnett et ux, Meredyth Burnett by Warranty Deed . . . on May 9, 1996. This
       action to enforce the judgment lien as to real property was commenced on July 31,
       1997.
               T.C.A. 25-5-105 states that a lien given by that chapter will be lost, unless an
       execution is taken out within three (3) years commencing with the date of entry of
       the judgment. Levy on personal property was issued on June 23, 1997. Execution
       was taken out more than three years after the rendition of the judgment. This action
       was commenced after the time period as prescribed by T.C.A. 25-5-104 and T.C.A.
       25-5-105 and the lien expired.
               Plaintiff asserts that the injunctive powers granted pursuant to T.C.A. 26-2-
       216 are equal in effect to an extension of time for execution for other adverse
       proceedings provided in T.C.A. 25-5-106. The injunctive powers and extension of
       time for execution for other adverse proceedings was a provision which was deleted
       by the legislature in 1986. T.C.A. 25-5-106 provides that the time for sale in section
       25-5-105 shall commence upon the final determination of such case if an appeal is
       taken. T.C.A. 25-5-106 as amended in 1986 does not provide for extension of time
       on injunctions or other adverse proceedings as previously enacted.
               Plaintiff next submits that the judgment lien attached to after acquired interest
       in land and continued for the period of three years from the time that title was
       acquired by judgment debtor. While the Debtors divorce decree may have divided
       [sic] certain actions to take place with respect to title, the deed as filed by the parties
       and before this Court . . . does not reflect any conveyance to a judgment debtor, but
       rather was executed by both Thomas E. Thompson and Deborah Kay Thompson to
       present owners and defendants, Charles R. Burnett and wife, Meredyth G. Burnett.
       The doctrine of after acquired property does not apply so as to defeat defendant’s
       Motion for Summary Judgment.
               The plaintiff submitted several documents in asserting admissions and
       waivers. These items are presented to the Court absent an affidavit and are not a part
       of certified documents from the Court. The defendants make objection that these
       items are not properly filed under Rule 56 of the Rules of Civil Procedure. The
       Court does not consider these items, but nonetheless, these items are considered as
       relevant nor material facts.
               The Court finds that there is no genuine issue as to any material fact in this
       cause, and Charles R. Burnett and wife, Meredyth G. Burnett are entitled to judgment
       as a matter of law.

From this order, Miceli now appeals.




                                                   2
        A motion for summary judgment should be granted when the movant demonstrates that there

are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter

of law. Tenn. R. Civ. P. 56.04. In this case, there are no disputed facts, only isses of law which arise

from the undisputed facts. Since only questions of law are involved, there is no presumption of

correctness regarding a trial court's grant of summary judgment. Bain, 936 S.W.2d at 622.

Therefore, our review of the trial court’s grant of summary judgment is de novo on the record before

this Court. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

        Tennessee Code Annotated § 25-5-105 states that execution on a judgment lien must

commence within three years from the date the judgment was entered, or the lien will be lost. Tenn.

Code Ann. § 25-5-105 (Supp. 1998). Tennessee Code Annotated § 26-3-101 requires execution on

personal property before real property:

        Executions shall be levied on the goods and chattels of the defendant, in the first
        instance, if any there be; but if, to the best of the officer’s knowledge, there be no
        such goods and chattels, or not sufficient to answer the plaintiff’s demands, the same
        shall be executed upon the lands and tenements.

Tenn. Code Ann. § 26-3-101 (1980).

        In this case, the underlying judgment was rendered on March 4, 1994. On July 31, 1997,

Miceli filed a complaint to enforce the judgment lien. Miceli argues that the three year period for

the enforcement of the judgment lien should be extended because the trial court stayed execution on

Thompson’s personal property, and precluding execution on the real property.

        In Weaver v. Hamrick, 907 S.W.2d 385 (Tenn. 1995), the Tennessee Supreme Court

addressed the issue of whether the three year period for the enforcement of a judgment lien in

Tennessee Code Annotated § 25-5-105 was tolled during an automatic stay in bankruptcy, which

precluded the enforcement of the lien. The Weaver Court noted that Tennessee Code Annotated §

25-5-106 tolls the statute only during the appeal of the underlying judgment. Weaver, 907 S.W.2d

at 390. The Court recognized that Section 25-5-106 once provided for the continuation of the lien

“[i]f . . . prevented by injunction, writ of error, or other adverse proceeding in court . . . .” Id. at 390

(citing Tenn. Code Ann. § 25-5-106 (1980)). However, the statute was amended to delete this

language. The Weaver Court noted “that the Tennessee legislature has narrowed the situations in

which the life of the lien may be extended.” Id. Thus, it held that the three year period was not

tolled by the automatic stay in bankruptcy. Id. at 390-91.



                                                     3
       The reasoning in Weaver must control in this case. The statutory language which would

support Miceli’s argument was specifically deleted by amendment of the statute. We must conclude

that the three year period to enforce the judgment lien was not tolled by the trial court’s stays of

execution in this case. See Tenn. Code Ann. § 25-5-106 (Supp. 1998).

       Miceli also contends on appeal that the three year period should commence on the date the

Thompsons’ divorce decree was entered. Miceli argues that the Property was “after-acquired”

property because it was “revested,” pursuant to the language of the divorce decree, as a tenancy in

common. The trial court rejected this argument:

       While the Debtors divorce decree may have divided [sic] certain actions to take place
       with respect to title, the deed . . . does not reflect any conveyance to a judgment
       debtor, but rather was executed by both Thomas E. Thompson and Deborah Kay
       Thompson to present owners and defendants, Charles R. Burnett and wife, Meredyth
       G. Burnett. The doctrine of after acquired property does not apply . . . .

(emphasis added). We agree with the trial court’s reasoning. This issue is without merit.

       The decision of the trial court is affirmed. Costs are taxed to the Appellant, for which

execution may issue, if necessary.




                                      HOLLY KIRBY LILLARD, J.

CONCUR:



W. FRANK CRAWFORD, P. J., W.S.



ALAN E. HIGHERS, J.




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