IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs February 9, 2016

SCOTT ELMER McCARTER v. 

DEBRA LYNN WALKER McCARTER

 Appeal from the Circuit Court for Sevier County

No. 2010-0043-1 Ben W. Hooper, II, Judge

No. E2015-00549-COA-R3-CV-FILED-JUNE 1, 2016

In this second appeal involving the instant divorce action, the wife appeals the trial 

court‟s enforcement of an enhanced judgment lien on behalf of her former counsel and 

the court‟s inclusion of certain tractor tires within the farm equipment previously 

awarded to the husband in the final judgment for divorce. Having determined that the 

record contains no proof of notice to the wife of the hearing at which the trial court 

awarded the enhanced judgment lien, we vacate the portion of the judgment enforcing the 

enhanced portion of the attorney‟s lien. We remand for further proceedings consistent 

with this opinion, including an evidentiary hearing addressing enforcement of the 

enhanced portion of the attorney‟s lien with notice to include the wife‟s former counsel. 

We affirm the trial court‟s judgment in all other respects.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed in Part, Vacated in Part; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL 

SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

Scott Justice, Jefferson City, Tennessee, for the appellant, Debra Lynn Walker 

McCarter.1

OPINION

I. Factual and Procedural Background

The plaintiff, Scott Elmer McCarter (“Husband”), originally initiated this action 

by filing a complaint for divorce against the defendant, Debra Lynn Walker McCarter 

 

1

The plaintiff/appellee, Scott Elmer McCarter, has elected not to participate in this appeal.
2

(“Wife”) on January 25, 2010. Following entry of an order in January 2012 declaring the 

parties divorced on mutual grounds of inappropriate marital conduct, see Tenn. Code 

Ann. § 36-4-101(a)(11) (2014), the trial court conducted a bench trial over the course of 

three days on April 19, 2012; April 20, 2012; and May 3, 2012. The court subsequently 

entered a final judgment distributing the parties‟ marital property on December 31, 2012. 

The parties had been married thirty-six years at the time of the final divorce judgment‟s 

entry. Upon Wife‟s initial appeal of the divorce judgment, this Court affirmed the trial 

court‟s equitable distribution of the marital estate, award to Wife of $500.00 weekly in 

alimony in futuro, and denial of Wife‟s multiple motions for the trial court judge‟s 

recusal. See McCarter v. McCarter, No. E2013-00890-COA-R3-CV, 2014 WL 6736305 

(Tenn. Ct. App. Dec. 1, 2014) (“McCarter I”). 

The factual and procedural background underlying the original divorce judgment 

and appeal are set forth in detail in McCarter I. 2014 WL 6736305 at *1-4. As further 

noted in McCarter I, both parties had “filed motions with this Court regarding the 

statutory injunctions set forth in Tennessee Code Annotated § 36-4-106(d), including 

motions regarding the sale of a condominium, the parties‟ remaining cattle, and a 

recreational vehicle.” Id. at *4 n.1. Having determined that the motions raised issues not 

before this Court on appeal, this Court remanded the motions to the trial court. Id.

(“„[P]erfecting an appeal does not prevent the trial court from acting with regard to 

ancillary matters relating to the enforcement or collection of its judgment.‟”) (quoting 

First Amer. Trust Co. v. Franklin-Murray Dev. Co., LP, 59 S.W.3d 135, 141 n.8 (Tenn. 

Ct. App. 2001)). 

As pertinent to this appeal, the trial court on remand conducted a hearing on 

December 16, 2014, during which both parties appeared with their respective counsel. 

Wife was represented at the hearing by attorney John D. Lockridge, Jr., who, along with 

co-counsel, Mario L. Azevedo, II, both of The Lockridge Law Firm (collectively, 

“Lockridge”), had represented her since September 30, 2011, at trial and on appeal. 

Following the hearing, the trial court entered an order on December 16, 2014, directing 

that Husband would be “allowed to IMMEDIATELY retrieve” a delineated list of farm 

equipment that had been awarded to him in the final judgment. On January 7, 2015, the 

trial court entered an order, inter alia, awarding to Husband a judgment for cattle sold by 

Wife in the amount of $16,000.00, which previously had been deposited with the trial 

court clerk; $3,000.00 in cash Wife received from the sale of cattle; $11,620.00 as 

compensation for Wife‟s sale of a motor home previously awarded to Husband; and 

$1,378.25 for Husband‟s attorney‟s fees related to the motor home. The court directed 

that “[t]hese judgments shall constitute liens against any real property in which the Wife 

has an interest, and further, the judgments against the Wife shall bear interest at the 

statutory rate.” 
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In its December 2012 divorce judgment, the trial court had previously imposed a 

lien in the amount of $44,338.30 on Wife‟s property awarded in the divorce to secure the 

payment of a fee balance owed to Lockridge for legal services rendered through May 2, 

2012. On February 6, 2015, Lockridge filed a motion requesting leave to withdraw as 

counsel for Wife. Lockridge alleged irreconcilable differences between counsel and 

client, court filings reflecting that Wife had “undertaken to represent herself in all further 

proceedings,” and Wife‟s “severe[]” indebtedness to counsel. Lockridge also requested 

enhancement of the existing attorney‟s judgment lien “to an amount commensurate with 

that currently owed by [Wife] as shown in the attached Exhibit „A.‟” However, the copy 

of the motion in the record on appeal has no “Exhibit A” attached. In a certificate of 

service attached to the motion, Mr. Lockridge attested that Wife had been served with the

motion on February 4, 2015. Husband subsequently filed a response, objecting to the 

withdrawal of Wife‟s counsel until pending post-divorce issues could be resolved. 

On March 24, 2015, the trial court conducted a hearing during which Husband and 

counsel for both parties appeared, but Wife did not personally appear. Upon 

commencement of the hearing, Mr. Lockridge presented an addendum to the affidavit 

purportedly filed with the motion to withdraw, stating that he had filed the addendum the 

morning of the hearing. When the court noted that Wife was not present, Mr. Lockridge 

stated that he had sent Wife a copy of the motion to withdraw complete with the affidavit. 

He further stated that he knew Wife received notice to be at the hearing on the motion to 

withdraw. Mr. Lockridge acknowledged that he had not spoken to Wife since filing the 

motion to withdraw. 

Following the March 24, 2015 hearing, the trial court entered an order that day 

addressing, inter alia, post-divorce issues involving execution of quitclaim deeds and 

retirement account documents in accordance with the divorce judgment and Husband‟s 

retrieval of items awarded to him from the marital residence. The court specifically 

found that “Wife had adequate notice of the hearing date and voluntarily chose not to 

attend said hearing.” As relevant to this appeal, the court approved the addendum 

regarding attorney‟s fees filed by Wife‟s counsel and awarded a judgment to Wife‟s 

counsel for total attorney‟s fees in the amount of $135,917.89. In comments made at the 

close of the March 24, 2015 hearing, the court clarified that the total judgment lien 

included the $44,338.30 previously awarded to Lockridge. In its order, the court placed a 

lien “on any real and personal assets awarded to the Wife to secure payment of said fees.” 

The court also granted Wife‟s counsel‟s motion to withdraw provided that Wife‟s counsel 

first approve the order at least as to form, which Mr. Lockridge subsequently did. The 

court concomitantly entered a separate order of withdrawal as well. Also relevant to this 

appeal, upon Husband‟s oral motion, the trial court awarded to Husband “the dually tires 

for the John Deere tractor previously awarded to [Husband]” and set a date for Husband 

to retrieve the tires.
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Wife, acting without benefit of counsel, timely appealed. Wife‟s current counsel

filed a notice of appearance with this Court on September 28, 2015. Following the filing 

of Wife‟s principal brief on December 7, 2015, Husband filed notice of his election not to 

participate in the appeal on January 4, 2016. Wife subsequently filed a certificate of 

service reflecting that Lockridge had been served with the principal brief on January 29, 

2016. 

II. Issues Presented

On appeal, Wife presents two issues, which we have restated as follows:

1. Whether the trial court violated Wife‟s due process rights by 

enforcing an enhanced judgment lien for attorney‟s fees in favor of 

Lockridge without proper notice to Wife of an evidentiary hearing 

on the issue. 

2. Whether the trial court erred by awarding the dually John Deere

tractor tires to Husband.

III. Standard of Review

We review the trial court‟s conclusions of law de novo with no presumption of 

correctness. See Ray Bell Constr. Co., Inc. v. State, Tenn. Dep’t of Transp., 356 S.W.3d 

384, 386 (Tenn. 2011); Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 

303, 308 (Tenn. 2009). We presume the factual findings of the trial court to be correct 

and will not overturn those findings unless the evidence preponderates against them. See 

Tenn. R. App. P. 13(d); Morrison v. Allen, 338 S.W.3d 417, 425 (Tenn. 2011). “In order 

for the evidence to preponderate against the trial court‟s finding of fact, the evidence 

must support another finding of fact with greater convincing effect.” Wood v. Starko, 

197 S.W.3d 255, 257 (Tenn. Ct. App. 2006). 

In a divorce proceeding, the trial court‟s decision regarding litigation expenses and 

attorney‟s fees is within the sound discretion of the trial court and will not be disturbed 

upon appeal unless the evidence preponderates against it. Storey v. Storey, 835 S.W.2d 

593, 597 (Tenn. Ct. App. 1992). When reviewing the distribution of a marital estate, this 

Court “gives great weight to the decisions of the trial court in dividing marital assets and 

„we are disinclined to disturb the trial court‟s decision unless the distribution lacks proper 

evidentiary support or results in some error of law or misapplication of statutory 

requirements and procedures.‟” Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007)

(quoting Herrera v. Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App. 1996)).
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IV. Enhanced Judgment Lien for Attorney‟s Fees

Wife contends that the trial court erred by awarding to Lockridge the full 

$135,917.89 judgment for attorney‟s fees he requested at the March 24, 2015 hearing

without affording due process to Wife. In this case, the trial court‟s judgment entered on 

behalf of Lockridge constituted an enhancement of $91,579.59 over the previously 

existing judgment lien of $44,338.30. Wife asserts that she did not receive proper notice 

of the March 24, 2015 hearing and was thereby not afforded an opportunity to question 

the reasonableness of the attorney‟s fees and protect her property right over the 

$91,579.59 difference between the previously existing and enhanced attorney‟s judgment 

liens. Upon careful and thorough review of the record, we agree with Wife on this issue.

Two types of attorney‟s liens exist in Tennessee either by common law or by 

statute. See Tenn. Code Ann. §§ 23-2-102, -103 (2009); Starks v. Browning, 20 S.W.3d 

645, 650 (Tenn. Ct. App. 1999). A retaining lien is a possessory lien “that permits a 

lawyer to retain a client‟s books, papers, securities, or money coming into his or her 

possession during the course of the representation until the attorney and client have 

settled their fee dispute or until the client has otherwise posted appropriate security for 

the outstanding fee.” Starks, 20 S.W.3d at 650. A charging lien, at issue in the instant 

action, “is based on a lawyer‟s equitable right to have the fees and costs due for the 

lawyer‟s services in a particular action secured by the judgment or recovery in that 

action.” Id. A charging lien “attaches to any proceeds flowing from a judgment, as long 

as the lawyer worked to secure the judgment for the client.” Id. at 651.

Generally, after an attorney‟s lien has been declared, the attorney must commence 

a separate action to enforce his or her contractual right to a fee. Starks, 20 S.W.3d at 

652-53 (“This separate proceeding offers the client, now in the posture of a defendant, an 

opportunity to present defenses to the attorney‟s claim for a fee, including defenses that 

the attorney is not entitled to a fee because of professional negligence or some other 

basis.”). An exception applies, however, “to cases in which the money or property upon 

which the lien is to be enforced comes within the control of the court in the case in which 

the services were rendered.” Id. at 653 (explaining that “[w]hen the court is able to exert 

jurisdiction directly over the funds or property, the attorney need not resort to a separate 

suit to enforce his or her lien.”). Our Supreme Court has determined that when the 

property upon which the lien is to be enforced is included in the distribution of a marital 

estate adjudicated by the trial court during divorce proceedings, the property is within the 

control of the trial court. See Schmitt, 118 S.W.3d 348, 353 (Tenn. 2003); see also Tenn. 

Code Ann. § 36-4-121 (Supp. 2015) (authorizing trial courts to equitably distribute 

marital property within divorce proceedings); Castle v. David Dorris Logging, Inc., No. 

W2012-00917-COA-R3-CV, 2013 WL 500780 at *7 (Tenn. Ct. App. Feb. 11, 2013)
6

(“[A] trial court having jurisdiction over a divorce also has jurisdiction over the property 

at issue in the divorce during the underlying litigation.”). 

However, “[w]hile a charging lien 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; see also Chambers v. Devore, No. W2013-02827-COA-R3-

CV, 2015 WL 4381631 at *8 (Tenn. Ct. App. July 17, 2015), (“If the client disputes the 

attorney‟s right to fees or the amount thereof, the fact that the court retains jurisdiction 

over the res of the lien does not relieve the attorney from the burden of proving his or her 

fees in an evidentiary hearing.”), perm. app. denied (Tenn. July 31, 2015). Regarding a 

trial court‟s enforcement of a contract between client and counsel for attorney‟s fees, this 

Court has explained:

The courts may decline to enforce an attorney‟s fee contract only (1) when 

the attorney did not negotiate the contract in good faith, see Alexander v. 

Inman, 974 S.W.2d [689,] 693-94 [(Tenn. 1998)], (2) when the contract 

provides for an unreasonable fee, see White v. McBride, 937 S.W.2d 796, 

800-01 (Tenn. 1996), or (3) when the attorney has otherwise breached his 

or her fiduciary obligations to the client and this breach has prejudiced the 

client‟s interests. See Crawford v. Logan, 656 S.W.2d [360,] 365 [(Tenn. 

1983)]; Alexander v. Inman, 903 S.W.2d 686, 694 (Tenn. Ct. App. 1995); 

Coleman v. Moody, 52 Tenn. App. 138, 155, 372 S.W.2d 306, 311-314 

(1963).

Starks, 20 S.W.3d at 650.

In the instant action, Wife maintained a right to an evidentiary hearing with proper 

notice that the enforcement of an enhanced judgment lien would be at issue. An 

individual‟s right to due process to protect a property right is secured through the 

Fourteenth Amendment to the United States Constitution. See Bd. of Regents v. Roth,

408 U.S. 564, 576-77 (1972) (“Property interests, of course, are not created by the 

Constitution. Rather they are created and their dimensions are defined by existing rules 

or understanding that stem from an independent source such as state law—rules or 

understandings that secure certain benefits and that support claims of entitlement to those 

benefits.”); see also Tenn. Const. art. 1, § 8. As this Court has explained:

“One of the bedrock principles of this nation‟s due process jurisprudence is 

the right to notice and an opportunity to be heard before an impartial trierof-fact.” Karr. v. Gibson, 1998 WL 57536, at *2 (Tenn. Ct. App. Feb. 13, 

1998) (citing United States v. James Daniel Good Real Prop., 510 U.S. 43 

(1993), and Phillips v.. State Bd. of Regents, 863 S.W.2d 45, 50 (Tenn.
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1993)). Due process requires notice that is reasonably calculated, under all 

the circumstances, to inform a party of the pending action. See Mullane v. 

Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); McClellan v. 

Bd. of Regents, 921 S.W.2d 684, 688 (Tenn. 1996). 

Smith v. Potter, No. M2011-01560-COA-R3-CV, 2012 WL 2159596 at *2 (Tenn. Ct. 

App. June 13, 2012).

The trial court found in its final judgment that Wife “had adequate notice of the 

hearing date and voluntarily chose not to attend said hearing.” However, the record on 

appeal contains no notice to Wife of the March 24, 2015 hearing. As Mr. Lockridge

asserted during his opening statement at the hearing, his motion for withdrawal does 

include a properly executed certificate of service to Wife. The motion, however, does not 

include a notice of hearing or even a request for hearing. The only indication in the 

record that Wife received notice of the hearing is Mr. Lockridge‟s assertion during his 

opening statement that “I know [Wife] got notice to be here today on my motion to 

withdraw.” Lockridge presented no proof, however, that Wife had received notice of the 

hearing date. We emphasize that “[s]tatements and arguments of counsel made during 

the course of a hearing are not evidence.” See Wilson v. Americare Sys. Inc., No. M2008-

00419-COA-R3-CV, 2009 WL 890870 at *6 (Tenn. Ct. App. Mar. 31, 2009); see also 

State v. Reid, 164 S.W.3d 286, 343 (Tenn. 2005) (explaining that opening statements 

“„do not amount to stipulations and certainly are not a substitute for the pleadings or for 

the evidence.‟” (quoting Harris v. Baptist Mem’l Hosp., 574 S.W.2d 730, 732 (Tenn.

1978)). We also note that the copy of the motion in the appellate record has no affidavit 

concerning attorney‟s fees attached. The appellate record contains neither the affidavit of 

attorney‟s fees or the addendum referenced by Mr. Lockridge during the March 24, 2015 

hearing. We therefore have no proof before us that Wife received the affidavit or the 

addendum prior to the hearing.

We find this issue to be analogous to the due process issue in this Court‟s recent 

decision in Chambers, 2015 WL 4381631. Although Chambers involved an estate rather 

than a divorce action, the property upon which the attorney‟s lien was to be enforced was 

within the trial court‟s control and thus also fell within the exception allowing an attorney 

to enforce his or her lien without resorting to a separate lawsuit. See Chambers, 2015 

WL 4381631 at *8 (citing Starks, 20 S.W.3d at 653). Determining that the trial court had 

failed to afford the plaintiff an evidentiary hearing regarding enforcement of the 

attorney‟s lien, this Court vacated the trial court‟s order enforcing the lien. See 

Chambers, 2015 WL 4381631 at *9 (“[T]he trial court‟s error rests upon the fact that it 

ostensibly enforced the attorney‟s lien as a judgment for attorney‟s fees without the 

required evidentiary hearing.”). 
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Having determined that the trial court failed to ensure proper notice to Wife of the 

March 24, 2015 hearing, we vacate the portion of the judgment enforcing the $91,579.59 

enhancement of the lien. We emphasize that the previously awarded $44,338.30 

judgment in favor of Lockridge for legal services provided through May 2, 2012, which 

was entered as part of the divorce judgment, is unaffected by this decision. We further 

emphasize that we have not considered or reached any conclusion regarding the

reasonableness of Lockridge‟s fees for legal services provided to Wife from the last day 

of trial, May 3, 2012, through entry of the order of withdrawal on March 24, 2015. This 

case is remanded to the trial court for further proceedings consistent with this opinion, 

including an evidentiary hearing regarding enforcement of Lockridge‟s enhanced 

judgment lien. We note that such an evidentiary hearing will require proper notice to 

Lockridge.

2

V. Inclusion of Tractor Tires in Farm Equipment Awarded to Husband

Wife also contends that the trial court erred by awarding the “dually tires for the 

John Deere tractor” to Husband during the March 24, 2015 hearing without proper notice 

to Wife that the tires would be an issue addressed at the hearing. In its divorce judgment, 

the trial court awarded “all the farm equipment not owned by McCarter Auction, Inc.” to 

Husband. See McCarter I, 2014 WL 6736305 at *12. This Court affirmed that decision. 

Id. at *14. Wife does not dispute that the John Deere tractor was included in the farm 

equipment awarded to Husband. She simply argues that the tires should be considered 

separately and that she should have been afforded an opportunity to dispute Husband‟s 

claim to them and request to retrieve them from the marital residence. We disagree. 

Upon our careful review of the record, we determine that the trial court awarded the 

dually John Deere tractor tires to Husband when it awarded the John Deere tractor to 

Husband within the award of “all the farm equipment not owned by McCarter Auction, 

Inc.” Wife is not entitled to relief on this issue.

VI. Conclusion

For the reasons stated above, we vacate the portion of the trial court‟s judgment

enforcing an enhanced attorney‟s lien against Wife in the amount of $135,917.89. We 

 

2 Wife, acting pro se, failed to provide notice to Lockridge when she filed her notice of appeal. However, 

acting through her current counsel, she did provide a copy of her principal brief on appeal with sufficient 

time for Lockridge to file a motion with this Court prior to disposition of the appeal. See, e.g., Starks, 20 

S.W.3d at 649 (“After filing its brief with this court, the Bart Durham Law Offices filed a motion 

pursuant to Tenn. R. App. P. 19(b) and (e) to be added as an appellee in this case since it was a real party 

in interest with regard to the disputed $51,091.99.”). Lockridge did not take any subsequent action 

related to this appeal. See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring 

relief be granted to a party responsible for an error or who failed to take whatever action was reasonably 

available to prevent or nullify the harmful effect of an error.”).
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affirm the trial court‟s judgment in all other respects. We emphasize that the previously 

entered attorney‟s judgment lien in the amount of $44,338.30 against Wife remains 

undisturbed by this decision. We remand for collection of costs below and further 

proceedings consistent with this opinion, including an evidentiary hearing addressing 

enforcement of Lockridge‟s enhanced judgment lien with proper notice to Lockridge as 

well as the parties. Noting that Lockridge is not a party to this appeal, we tax costs on 

appeal to the appellant, Debra Lynn Walker McCarter. The appellate court clerk is 

instructed to provide a copy of this decision and accompanying judgment to The 

Lockridge Law Firm.

_________________________________ 

THOMAS R. FRIERSON, II, JUDGE