                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE

      JANET ARWOOD SARTAIN, ET AL. v. JOHN ROSS SARTAIN,

           Tenn. R. App. 3 Appeal from the Chancery Court for Jefferson County
                     No. 93-201 Hon. T. E. Fogerty, Jr., Chancellor



                     No. E1999-00556-COA-R3-CV - Decided May 4, 2000


Janet Arwood Sartain, Plaintiff/Appellee, filed suit for divorce against John Ross Sartain,
Defendant/Appellant, on October 7, 1993. Appellant filed a “Motion to Alter or Amend Judgment,
and For Judgment for the Value of Clothes and Tools” in that case. The Trial Court ordered that the
divorce Judgment be amended to correct a clerical error which also corrected the Judgment as to the
settlement of the marital estate. The Trial Court denied Appellant’s motion for post-judgment
interest and his request for judgment in the sum of $15,000.00 for tools and clothing. He appeals
the Trial Court’s refusal to award interest and refusal to grant judgment for tools and clothing. For
the reasons herein stated, we affirm the Judgment of the Trial Court.

Tenn. R. App. 3; Judgment Affirmed and Remanded

SWINEY , J., delivered the opinion of the court, in which GODDARD , P.J., and Susano, J., joined.

Carl R. Ogle, Jr., Jefferson City, Tennessee, for the appellant, John Ross Sartain.

P. Richard Talley, Dandridge, Tennessee, for the appellee, Janet Arwood Sartain.

                                              OPINION

                                            Background

                 Much of the protracted history of this divorce case is set out in the Opinion of this
Court in Sartain v. Sartain, No. 03A01-9707-CH-00297, filed October 29, 1998. During the
pendency of the divorce action in the Trial Court, that Court ordered the marital home sold at
auction, and the sale was accomplished in 1996. The Trial Court by order of July 7, 1997 held that
John Sartain was entitled to $40,324.27 and Janet Arwood Sartain was entitled to $33,680.26 from
the sale of the parties’ marital home and division of the marital assets. Janet Sartain’s parents, Ruble
and Carolyn Arwood, were found to be entitled to $38,411.84 from the sale, for reasons explained
below.

               This Court then entertained John Sartain’s appeal on four issues related to that
division of marital property. On June 8, 1998, while that appeal was pending, John Sartain filed in
the Trial Court a “Motion to Enforce Judgment,” asserting that the Trial Court’s “Judgment
Confirming Sale” of the parties’ marital home had been entered on November 25, 1996 and that the
proceeds of the sale had not been paid into the Court within thirty days after the date of the sale as
the Trial Court had ordered. Mr. Sartain sought statutory interest from November 11, 1996, which
was thirty days after the sale, “until the funds have been paid into the Clerk’s office.”

                Janet Arwood Sartain’s parents, Ruble and Carolyn Arwood, were parties in the
divorce action due to their contributions to and interest in the couple’s marital home. The Arwoods
also purchased the marital home when it was auctioned by the Trial Court. Since the Arwoods and
their daughter were entitled to a substantial portion (nearly two-thirds) of the funds from the sale of
the marital home, they sought through counsel to reach an agreement with Mr. Sartain whereby they
could deposit into the Court only the amount Mr. Sartain actually was entitled to receive.1 Without
that agreement, the Arwoods would have been forced to mortgage the property to, in effect, pay
themselves their portion of the funds due from the sale. Counsel for the Arwoods and then-counsel
for Mr. Sartain apparently reached such an agreement to permit the deposit into the Trial Court of
only those funds actually owed to Mr. Sartain and not in dispute, and the Trial Judge apparently
agreed to enter such an Order, but Mr. Sartain then disavowed the agreement and fired his attorney
before the Order was filed.

                The Arwoods responded to John Sartain’s “Motion to Enforce Judgment,” explaining
that they had paid the sum owed Mr. Sartain to the Clerk & Master in the form of two checks: (1)
$41,766.00 on the principal owed, check # 1192 dated June 20, 1997, and (2) $1,386.99 for accrued
interest, check # 1206, dated June 24, 1997. The Clerk held the two checks for eight months but
could not deposit them because no Order directing the distribution of the funds had been filed with
the Court. We quote from the Arwood’s Response to Mr. Sartain’s Motion To Enforce Judgment:

               Defendant Arwood tendered to the Court two checks for the
               Defendant’s [Mr. Sartain’s] share plus interest. An Order was
               prepared, a copy of which is attached as Exhibit “A”, whereby the
               sum of money in dispute would not be paid into the Court. Defendant
               instead was to receive a trust deed securing the amount in dispute.
               This agreement between counsel for Plaintiff and Defendant was
               announced before C. S. Rainwater, Jr., and approved. Before the
               Order could be entered, Defendant discharged Mr. Strand from
               representation. Thereafter, the Clerk and Master returned the two
               checks to Defendant Arwood. Copies of the two check are attached
               as Exhibit “B”.

              After considering Mr. Sartain’s Motion to Enforce Judgment and the Response, on
September 4, 1998, the Trial Court entered an Order finding that


       1
       It appears the Trial Court and the parties did not anticipate that the Arwoods would purchase
the home at auction when the Court ordered that all funds from the sale be deposited with the Court.

                                                 -2-
               . . . certain issues subject to the Motion to Enforce Judgment are
               currently on appeal. Therefore the Court finds that it does not have
               jurisdiction to decide this Motion. As to the other issues raised in the
               Motion, the Court finds that those issues should be reserved pending
               final appellate resolution of this case.

                Based on the foregoing findings, the Trial Court declined to rule on the Motion to
Enforce Judgment and reserved its ruling “pending final appellate resolution.” On October 29, 1998,
this Court filed its Opinion in Mr. Sartain’s appeal of the original divorce judgment, in which we
affirmed the Judgment of the Trial Court.

                On May 5, 1999, the Trial Court held another hearing “upon the Motion of John Ross
Sartain for post-judgment interest on sale proceeds involving certain marital assets, upon the request
for the return of some tools and clothing . . . .” After considering the testimony of witnesses,
arguments of counsel and “the entire record in this cause,” the Trial Court found “that the Motion
for interest should be DENIED . . . .” The Trial Court also ordered that the parties should “set a date
certain for Mr. Sartain to pick up his tools and clothing from the marital home.” The Court then
found that the case had been “lingering on the Court’s docket for a number of years” and made
specific findings of fact which summarized the financial aspects of the distribution of marital assets
in the divorce. However, that Order did not correctly memorialize the Trial Court’s division of the
marital assets.

                 On May 18, 1999, Mr. Sartain filed a new motion, styled “Motion to Alter or Amend
Judgment and For Judgment For the Value of Clothes and Tools” in the Trial Court. In that motion,
Mr. Sartain complained about an error in the asset distribution portion of the Trial Court’s Order of
May 5, 1999, and also raised again the issue of the failure of the Trial Court to award post-judgment
interest on the sale proceeds of the marital assets. He also averred that he had appeared at the marital
home, as ordered by the Trial Court, to pick up his tools and clothes, but apparently had not received
all that he sought, and asked the Trial Court to award him judgment for $15,000 “for the loss,
destruction or conversion of his tools and clothing.”

               The Trial Court held a hearing on Mr. Sartain’s “Motion to Alter or Amend Judgment
and For Judgment For the Value of Clothes and Tools” on May 25, 1999. Pursuant to that hearing,
the Trial Court entered Judgment on June 7, 1999. The Court found that a clerical error appeared
in its Judgment of May 5, 1999, and amended that Judgment, thus correcting the error in the Court’s
prior Order for distribution of marital assets. The Trial Court then found:

                that the request of John Ross Sartain for interest shall be DENIED as
                there is no Order directing the Clerk and Master to deposit any money
                in an interest bearing account.

                The Court further finds that the request of John Ross Sartain for a
                judgment of $15,000 for tools and clothing shall be DENIED without
                allowing proof, as that matter is res judicata.


                                                 -3-
               In this appeal, Mr. Sartain asserts that it was error for the Trial Court to refuse post-
judgment interest on the proceeds of the sale of the marital home and to deny him judgment of
$15,000 for tools and clothing.

                                             Discussion

              Our review is de novo upon the record of the Trial Court, T.R.A.P. Rule 13(d). The
Trial Court’s findings of fact are conclusive on appeal unless the evidence in the record
preponderates against those findings. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

               As stated, Appellant raises two issues, which we quote:

               1.      Whether the Chancellor erred in not granting judgment for
                       interest on the amount that was ordered paid into court as a
                       result of the purchase of the property.

               2.      Whether the Court erred in ruling that the request for
                       judgment for the value of clothes, tools, and other items, or
                       the return of those clothes, tools, and other items, was res
                       judicata and could not be considered at the time of the
                       hearing?

               Mr. Sartain first argues that he is entitled to his share of interest at the rate of ten
percent on 90% of the purchase price of the marital home and other marital assets from November
25, 1996 (30 days after the date of sale), until the date he actually received his share of the proceeds
of the sale from the Clerk and Master of the Trial Court. His share of the proceeds was finally
determined, on June 7, 1999, after much effort by the parties and the Trial Court, to be $44,059.29.
Mr. Sartain bases his claim for interest on T.C.A. § 47-14-121, which provides:

                T.C.A. § 47-14-121. Interest on judgments - Rate. - Interest on
                judgments, including decrees, shall be computed at the effective rate
                of ten percent (10%) per annum, except as may be otherwise provided
                or permitted by statute; provided, that where a judgment is based on
                a note, contract or other writing fixing a rate of interest within the
                limits provided in § 47-14-103 for that particular category of
                transaction, the judgment shall bear interest at the rate so fixed.

                In interpreting T.C.A. § 47-14-121, this Court has held:

                Thus, when a judgment is rendered in the trial court originally or by
                direction from the appellate courts, the statute provides that the
                judgment shall automatically accrue interest at the statutory rate
                unless the court specifies that “its action requires that interest be
                computed other than as required by statute.”

                                                  -4-
Inman v. Alexander, 871 S.W.2d 153, 154 (Tenn. Ct. App. 1993), citing Inman v. Inman, 840
S.W.2d 927, 932 (Tenn. Ct. App. 1992).

                However, T.C.A. § 47-14-121 does not come into play until “a judgment is rendered
in the trial court originally or by direction from the appellate courts,” Inman v. Alexander, 871
S.W.2d at 154. While Mr. Sartain contends that the Trial Court entered a judgment on November
25, 1996, from which he is entitled to post-judgment interest, the record before us does not include
any such judgment. Moreover, counsel for Appellee argued before this Court at oral argument that
“the Order to Confirm the Sale was never signed,” while counsel for Appellant argued that the Order
was entered. If so, Appellant had the burden to include that Order in the record on appeal.
Appellant’s brief in this Court, page 10, states that “[h]ere the triggering event was the Order of
Confirmation of Sale which adopted the Master’s Report and was entered on November 25, 1996
[present T.R. 106].”2 However, there is no page 106 of the record before us, which consists of only
one volume, with pages numbered 1 - 56. Since the Order is not part of the record on appeal, we
cannot consider it. T.R.A.P. Rule 13(c); Tennessee Farmers Mut. Ins. Co. v. Moore, 958 S.W.2d
759, 767 (Tenn. Ct. App. 1997).

                 The record before us does contain an Order of July 7, 1997, in which the Trial Court
ordered, among other things, that the Clerk and Master distribute to Mr. Sartain $40,324.27 from the
proceeds of the sale of the marital assets. The Clerk and Master had in her possession at that time
two checks from the Arwoods, as stated, for $41,766.08 and accrued interest of $1,386.99.
However, the Clerk and Master was unable to make distribution by reason of Mr. Sartain’s
disavowal of the proposed agreed order specifying the manner of such payment and his dismissal
of his then-counsel. Clearly, the Arwoods had done all in their power at that time to pay Mr. Sartain
the amount owed plus interest accrued at that time. Mr. Sartain, having refused to permit his
attorney to file the agreed Order, then fired his attorney and apparently took no steps to retain other
counsel or otherwise remedy the situation until nearly a year later, on June 8, 1998, when he filed
the Motion to Enforce Judgment.

                The Trial Court properly declined to rule on Mr. Sartain’s Motion to Enforce
Judgment at that time because the case was then “pending final appellate resolution” in this Court.
That appeal was resolved in favor of Janet Sartain on all issues by our Opinion filed October 29,
1998. The Trial Court then held another hearing, attempting once again to finalize the settlement
of the marital estate by determining the exact amounts due to the parties, considering the October
1998 Opinion of this Court, the costs of advertising and selling the marital home which had not been
calculated earlier, the court costs and other expenses.


       2
         We also note that Appellant’s brief in this Court, page 5, states: “The Court entered an Order
on the 25th day of November, 1996, affirming the above-referenced sale of the property in the terms
of that sale, being ten percent (10%) paid the date of the bid and the remainder to be paid within
thirty days thereafter, after the date of closing. [previous T.R. 106], attached hereto and marked as
Appendix “A”.” However, Appendix A to Appellant’s brief is a copy of an earlier Judgment filed
January 6, 1995, before the marital home was sold.

                                                 -5-
                Pursuant to the hearing of May 5, 1999, the Trial Court ordered that “the Clerk shall
issue a check to John Ross Sartain and his attorney, Carl R. Ogle, Jr., in the sum of $40,309.27.”
However, as stated, Mr. Sartain then filed a “Motion to Alter or Amend Judgment, and for Judgment
for the Value of Clothes and Tools” on May 18, 1999. This motion necessitated another hearing in
the Trial Court, which resulted in an Order of June 7, 1999, which corrected the May 5, 1999 Order
as to the distribution of marital assets. That Order provided that “The Clerk and Master shall
immediately issue a check in the amount of $44,059.29 to John Ross Sartain and shall also
immediately deliver to Ruble and Carolyn Arwood the Clerk and Master’s Deed.” In any event, the
record shows that the Trial Court’s final judgment awarding Mr. Sartain his share of the proceeds
from the sale of marital assets was not entered in the Trial Court until June 7, 1999. It is this June
7, 1999 judgment that triggers T.C.A. § 47-14-121.

              Mr. Sartain seeks, alternatively, “pre-judgment interest (at least interest which should
have accrued prior to the time that it was actually paid into Court) as contemplated by T.C.A. § 47-
14-123.” That statute provides:

               T.C.A. § 47-14-123. Prejudgment interest. - Prejudgment interest,
               i.e., interest as an element of, or in the nature of, damages, as
               permitted by the statutory and common laws of the state as of April
               1, 1979, may be awarded by courts or juries in accordance with the
               principles of equity at any rate not in excess of a maximum effective
               rate of ten percent (10%) per annum; provided, that with respect to
               contracts subject to § 47-14-103, the maximum effective rates of
               prejudgment interest so awarded shall be the same as set by that
               section for the particular category of transaction involved. In
               addition, contracts may expressly provide for the imposition of the
               same or a different rate of interest to be paid after breach or default
               within the limits set by § 47-14-103.

               In applying this statute, our Supreme Court has held:

               Pursuant to Tenn. Code Ann. § 47-14-123, prejudgment interest may
               be awarded in accordance with the principles of equity. In reaching
               an equitable decision, a court must keep in mind that the purpose of
               prejudgment interest is to fully compensate a plaintiff for the loss of
               the use of funds, not to penalize a defendant. Moreover, if a
               plaintiff’s right to recovery and the amount of such recovery are not
               disputed on reasonable grounds, an award of prejudgment interest is
               more likely to be equitable.

Alexander v. Inman, 974 S.W.2d 689, 697-98 (Tenn. 1998), quoting Myint v. Allstate Insurance Co.,
970 S.W.2d 920 (Tenn. 1998).

               In this case, the amount of Mr. Sartain’s recovery was disputed from the date the

                                                 -6-
divorce complaint was filed in 1994 until the date of the final judgment on June 7, 1999. The
Arwoods had attempted to pay into the Clerk and Master the amount of money they believed was
owed to Mr. Sartain, and did so long before the final judgment of June 7, 1999. Under these
circumstances, we find the Trial Court’s failure to award pre-judgment interest was not error.

                Mr. Sartain also raises the issue of the Trial Court’s refusal to award him judgment
for the “loss, destruction or conversion of his tools and clothing” in the amount of $15,000. This
Court has previously affirmed the Trial Court’s disposition of Mr. Sartain’s personal property. The
Opinion of this Court in Sartain v. Sartain, No. 03A01-9707-CH-00297, filed Oct. 29, 1998,
contains the following findings of fact on this issue:

               On March 15, 1996, Mr. Sartain filed a motion to set aside the
               judgment of the Trial Court because he had not been granted access
               to the family home in order to remove his personal effects. . . .

               In a hearing before the Trial Court on April 8, 1996, the Court
               granted Ms. Sartain exclusive possession of the marital home. Ms.
               Sartain agreed, as she had on previous occasions, to set a time for Mr.
               Sartain to pick up some personal items. On previous occasions, Mr.
               Sartain had failed to arrive to pick up his goods or had failed to
               remain civil to Ms. Sartain. Mr. Sartain refused to set a time to pick
               up his personal items. The Trial Court ordered the judicial sale of
               the marital home . . . .

               On October 12, 1996, the marital home was sold at a public sale to
               Ms. Sartain’s father for the sum of $131,000. Furthermore, all
               personal property unique to the home was sold for $12,448. (fn1.
               This phrase [unique to the home] is used to denote personal property
               in the home which had not been divided by the parties.)

                                              * * *

               . . . The facts of the case show that Mr. Sartain was scheduled to have
               access to the house on two separate occasions to remove his personal
               property. He failed to appear to collect his belongings on the first
               occasion. On the second he verbally threatened Ms. Sartain. Mr.
               Sartain failed to take steps through the Trial Court to be granted
               access to the family home on any other occasions, and failed to make
               use of the occasions on which he was granted access. . . .

               The judgment of the Trial Court is affirmed . . . .

               We glean from the findings of fact of this Court in the prior appeal that access to Mr.
Sartain’s personal property had been offered to him on several occasions. Mr. Sartain had obstructed

                                                 -7-
the Trial Court’s efforts to secure a satisfactory settlement by failing to appear and by verbally
threatening Mrs. Sartain. This Court affirmed the Judgment of the Trial Court in all respects by our
Opinion of October 29, 1998, and there the matter ends. Res judicata bars a second suit between the
same parties or their privies on the same cause of action with respect to all the issues which were or
could have been litigated in the former suit. Lien v. Couch, 993 S.W.2d 53, 56 (Tenn. Ct. App.
1998). Furthermore, it matters not whether the attempted relitigation of this issue by Mr. Sartain is
in the same suit or a second suit because “. . .when an issue has been finally determined, the principle
of res adjudicata prevents a relitigation of that issue whether in the same or in an independent suit.”
Hicks v. Hicks, 176 S.W. 2d 371, 374 (Tenn. Ct. App. 1943)

                                             Conclusion

        The judgment of the Trial Court is affirmed and this cause is remanded to the Trial Court for
such further proceedings as may be required, if any, consistent with this Opinion, and for collection
of the costs below. The costs on appeal are assessed against the Appellant, John Ross Sartain.




                                                  -8-
