# FILED
October 23, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

MICHAEL SHANE LEDFORD, ) ) Plaintiff/Appellee, ) Lawrence Chancery ) No. 7378-95 VS. ) ) Appeal No. PHYLLIS DIANNE LEDFORD, ) 01A01-9701-CH-00029 ) Defendant/Appel

lant. )

APPEAL FROM THE CHAN CERY COURT FOR LAWRENCE COUNTY AT LAWRENCEBURG, TENNESSEE THE HONORABLE JIM T. HAMILTON, JUDGE

For Plaintiff/Appellee : For Defendant/A ppellant : Paul A. Bates R. Eddie Davidson Christopher V. S ockwell Nashville, Tennessee Boston, Bates, H

olt & Sockwell Lawrenceburg, Tennessee



## AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE1 Ms. Ledford remarried and is now Phyllis Dianne Rawdon. -2- 

## O P I N I O N

This appeal involves a dispu te over the destruction of property awarded to one of the spouses in a

divorce case. Be

lieving that his forme

r wife was resp

onsible for the damage to real and personal proper ty he had received f

ollowing the divorce,

the former husband filed a petiti

on in the Chancery Co

urt for Lawrenc

e County seeking to have his former w

ife held in contempt. During the contempt hearing, the trial court granted the former husband’s m otion to amend his petition to seek monetary damages and later awarded the former husband $6,000 in damages. The former wife asserts on this appeal that the

trial court erre

d by permitting her fo

rmer husband

to amend his petition to seek damages and that the evidence does not support the damage awar d. We affirm the tr

ial court.
I.

In March 1996, Michae

l Shane Ledford a

nd Phyllis Dianne Le

df ord 1 were divorced in the Chancery Cour t for Lawrence

County. Mr. Led

ford received the parties’ house as partof the division of the marital property, but the divorce decree permitted Ms. Ledford to continue to occupy the house

until the third week of May 1996. The parties agre

ed that Ms. Ledford would vacate the house on or around May 20, 1996.
Mr. Ledford discovere

d extensive damage t

o th e ho use when he took possession

from Ms. Ledford on May 21, 1996. Light fixt ures and curtains

had been removed; window screens had been removed, and windows broken; carpet hadbeen torn; pieces of indoor and outdoor furniture had been dam ag ed; pantry doors had been taken down; and a tel ephone jack had been y

anked from

the wall. Severalof the rooms had been blatantly trashed. Mr. Ledford also discovered that certain items of personal property awarded to him in the divorce w

ere missing, includ

ing a television and VCR, a heating st

ove, fishing poles and

fishing tackle, a c

omplement of

tools that Mr. Ledford ha

d been given by his father, some kitchen items, a step ladder, some bedding, and some build

ing materials.-3- On June 12, 1996, Mr. Ledford filed a pe tition in the Chancer

y Court for LawrenceCounty seeking to hold Ms. Ledford in contempt for “willful disobedience of the court’s prior or

der.” Hispetition requested that Ms. Ledford be made to appear and show cause why she s hould not b e jailed or fined f or contempt, and soug

ht all proper general re

lief. Ms. Ledf

ord opposed the petition

. The trial court held a he

aring in the

matter on

August 13, 1996. Mr. Ledford presented evi den ce concerning the sc ope of the property da

mage and the value of missing or damaged propert y. When Ms. Ledford objected to the valuation evidence, Mr. Ledford moved to amend his peti tion to include a clai

m for money damages f

or the missing or damage

d property. Follow

ing arguments from

both parties, the trial cou rt took the question under a dvisement and procee

ded with the hearing

. Thereafter, Ms. Ledford testified herself and offered other evidence concerning her estimation of the dam

aged and missing items

.
On August 19, 1996, the c ourt entered an orde

r granting Mr. Le

dford’s motion to amend his petition and finding that Ms. Ledford had harassed Mr

. Ledford in violation of the court’s prev

ious decree. Af

ter concluding that Ms. Ledford had intentionally dam aged the former marital residence, the trial court awarded Mr. Ledford $6,000 in damages for the loss or destructi

on of his property. Ms. Ledford has appealed.
II.
Before we turn to the two i ssues Ms. Ledford seeks to raise on this

appeal, we must consider the content

of the record on appe

al. Our review

of the issues presented on appeal is limited to t

he con tents o f the appellate re cord. With the exc

eption of post-judgment

facts, which ar

e not applicable her

e, we must obtain ou

r understanding of what transpire

d during the proceedin

gs below from the r

ecord on appeal.
The appellant is requir

ed to supply this court with a record that conveys a fair, accurate, and complete account of what transpired in the trial court with respect to the issues that form the bases for the appeal. See Tenn. R. App.P. 24(a); State v. Banes , 874 S.W.2d 73, 82 (T

enn. Crim. App.1993); State v. Boling , 840 S.W.2d 944, 951 (Tenn. Crim. App. 1 992). Ordinarily, the a ppellate record c

ontains a verbatim transcript o f proceedings in th e trial court. See Tenn. R. App. P. 24(b); however,2 Ms. Ledford’s brief states that “[c]ouns el for Mr. Ledford made an oral motion to amend for money damages to which theCourt replied that no damages were prayed for, and that someone would ‘either

go to jail or pay a fine,’ but inasmuch as no judgment was plead, there would be no such money damages.” -4- when a transcript is not a va ilable , Tenn. R. App. P. 24(c) permits the use of a statement of the evidence of the proceedings.The statement of the evidence must

be appr oved by the trial court, see Tenn. R. App.P. 24(f), and onc e it is approv ed, i t b ecomes t he official recor d of the proceedings i

n the trial court for

the purposes of the appeal.
The appellate record

in this case

consists of the paper

s filed with the tri

al court, the exhibits introduced by M r. Ledford at the

Augus t 13, 1996 hearing, and Mr. Ledford’s statement of the evidence thatwas approved by the trial court. These are the documents that compr ise the factual unive

rse on thi s appeal, and we mu st limit our consideration to these documents, notwithstanding the other fact u al representations ap

pearing in the parties’ briefs that have no support in the recor

d.
III.
Ms. Ledford’s first assertion, as best we understand it, is that the trial court erred by awarding

Mr. Ledford mone

y damages for the

damage or destruct

ion of his prop erty afterit refused to grant his oral motion to amend his complaint to seek money damages

. 2 The f actual premise on w

hich this assertion is based cannot be substantiated by the appellate record. If anything, the appellate record establishes thatprecisely

the opposite occurre

d. Both the stateme

nt of the evidence and the final jud gment state unambiguously tha t the trial court gr

anted Mr. Ledfor

d’s motion t o amend. Thus, the only conclusion that we can draw fr om the record is tha

t the trial court granted Mr.Ledford’s motion to amend to seek money da mages.
Tenn. R. Civ. P. 15 reflects a broad policy favoring permitting parties to amend their pleadings. See Branch v. Warren , 527 S.W.2d 89, 91-92 (Tenn. 1975); Winn v. Tucker Corp. , 848 S.W.2d 64,68 (Tenn. Ct. A pp. 1992). The poli

cy is qualified only by considerations of fa

irness, and the

courts, as a gener

al rule, will gra

nt motions to amend if the amendment does not undu ly prejudice the opposi

ng party’s ability to go forwardwith an action or defen se. See Gardiner v. Word , 731 S.W.2d 889, 891-92 (Tenn. 1987); Campbell County Bd. of Educ. v. Brownlee-Kesterson, Inc. , 677 S.W.2d 457, 463 (T enn. Ct. App. 1984). When the prejudice caused by an-5-

amendment

consists of inconvenience, surprise, or tactical disadvantage, the c ourts should, and generally

will, grant the oppos ing party’s request for a continuance. See Tenn. R. Civ. P . 15.02; Gardiner v. Word , 731 S.W.2d

at 892-93; Walden v. Wylie , 645 S.W.2d

247, 250 (Tenn. Ct. App. 1982). A ccordingly, parties who neglect t o request a continuance to pre

pare to meet t

he evid ence to be introduced under an amendment

waive the right to complain a bout the amendment on appeal. See Arcata Graphics Co. v. Heidelberg Harris, Inc. , 874 S.W.2d 15, 22 (T enn. Ct. App. 1993).
The record contains no in dication that Ms. Ledford

requested a

continuance in order to marshal a r esponse to Mr. Ledford’s r equest for money dam

ages. To the contrary, Ms. Ledford affirmatively countered Mr. Ledford’s evidence on damages throughher own testimony a nd b y calling her own w itnesses to testify a

bout the damages and missing items. B ased on the appellate record, no conclus

i on can be drawn other than that Ms. Ledford tried the damages issue by conse

ntat the August 13, 1996 hearing. Acc

ordingly, we find t

hat the trial court d

id not commit reversible error by permitting Mr. Ledford to proceed wit h his claim for damages

. IV.
As a back-up argument

, Ms. Ledford asserts that the evidence does not support the trial court’s damage awa rd. Compensatory damage awards made by a trial court sitting without a

jury are findings of

fact. See Armstrong v. Hickman County Hwy. Dep’t , 743 S.W.2d 189, 19 5 (Tenn. Ct. App. 1987). Accordingly, we review them de novo uponthe record with a presumption that they are correct unless the evidence preponderates oth erwise. See Tenn. R. App. P. 13(d).
The record contains exh ibits and other evidenc

e supporting Mr. Le

df ord ’s claim for damages. Th

e evid ence in th e appellate recor d contains nothing contradicting

in detail the amount of damages claimed by Mr . Ledfo rd. The statement of the evidence merely recites that the court found “certain witnesses produced by Mrs. Ledford to be of benefit to the C ourt in establishing dam

ages of $6,000.00 as contrasted to the

higher value

approximating $10,000 .00 sought by Mr. Ledford.” As we observed earlier in this opinion, our analysis of Ms. Ledford’s issues has been restricte

d by the record b efore us. M s. Ledford has the burden of demonstrating

that the evidence in the record preponderates against the trial court’s factual finding on da

mages. She has not carried that burde n on this record.-6- Ms. Ledford’s argument that the trial court could not use its contempt power t o assess damages aga

inst her misses the poi

nt. The court prop

erly all owed Mr

. Ledford to amend his original co ntempt petition

to recover monetar

y damages for the items broken or missing

from the marital residence. The resulting money judgme nt is reasonably attributable to Mr. Ledford’s added prayer for relief.
V.
We affirm the judgme

nt and remand t

he case to the trial court for whatever further proceedings may be required. We tax the costs of this ap peal to Phyllis Dianne Ledford and her s urety for which execut ion, if necessary, may i ssue.

____________________________ WILLIAM C. KOCH, JR., JUDGE
CONCUR:

_________________________________ HENRY F. TODD, PRESIDING JUDGE , M.S.

_________________________________ BEN H. CANTRELL, JUDGE