IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs November 2, 2020

SHERMAN MATTHEWS v. UPS STORE CENTER 3138 ET AL.

Appeal from the Circuit Court for Hamilton County

No. 19C744 J.B. Bennett, Judge

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No. E2020-00255-COA-R3-CV

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A store clerk packaged a customer’s personal property for shipment. When the property 

was damaged during shipment, the customer sued the store and the clerk for compensatory 

damages. At the close of the plaintiff’s proof, the defendants moved to dismiss because 

the plaintiff did not come forward with sufficient proof of damages. The trial court granted 

an involuntary dismissal. See Tenn. R. Civ. P. 41.02(2). On appeal, the plaintiff argues 

that the trial court erroneously excluded his evidence. We conclude that the excluded 

evidence, if admitted, would not have affected the outcome. So we affirm.

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

W. NEAL MCBRAYER,J., delivered the opinion of the court, in which J. STEVEN STAFFORD,

P.J., W.S., and THOMAS R. FRIERSON II, J., joined.

Sherman Matthews, Chattanooga, Tennessee, pro se appellant. 

Gary S. Napolitan and Terri L. Daugherty, Chattanooga, Tennessee, for the appellees, UPS 

STORE CENTER 3138 and Jason Delaney.

MEMORANDUM OPINION1

I.

Sherman Matthews paid UPS Store Center 3138 to pack and ship a stereo receiver

to Royal Camera Service. As part of the sale, Mr. Matthews purchased the custom packing 

materials recommended by the store clerk and allowed the clerk to re-pack the receiver. 

 

1 This opinion may not be published, “cited[,] or relied on for any reason in any unrelated case.” 

Tenn. Ct. App. R. 10.

06/25/2021
2

Royal Camera Service later notified Mr. Matthews that the stereo receiver had been

damaged. Mr. Matthews sued the UPS Store and the clerk in general sessions court. And 

he won. 

Not content with the win, Mr. Matthews appealed to the circuit court for a new trial. 

After hearing Mr. Matthews’s proof, the circuit court dismissed his action with prejudice 

because he failed to present sufficient proof of damages. See Tenn. R. Civ. P. 41.02(2). 

II.

On appeal, Mr. Matthews complains that the trial court improperly excluded his 

proof of damages. We review a trial court’s evidentiary decisions for an abuse of 

discretion. See Biscan v. Brown, 160 S.W.3d 462, 468 (Tenn. 2005). 

Mr. Matthews testified that his stereo receiver was “extremely damaged” during 

shipment. He also provided the court with two affidavits from Pawel Lewandowski, an 

employee of Royal Camera Service, and some photographs of the damaged receiver. The 

UPS Store objected to the affidavits as inadmissible hearsay. See Tenn. R. Evid. 802. And 

it complained that the photographs had not been properly authenticated. See id. 901(a). 

The trial court excluded all three items.

Mr. Matthews now contends that the affidavits were admissible as business records. 

See id. 803(6), 902. But, even if he is correct, we cannot grant him the relief he seeks. We 

only set aside a final judgment based on the erroneous exclusion of evidence when the 

evidence, if it had been admitted, would have affected the outcome. See Tenn. R. App. P. 

36(b); Pankow v. Mitchell, 737 S.W.2d 293, 298 (Tenn. Ct. App. 1987). Even with these

affidavits, we conclude that Mr. Matthews failed to establish his damages. So his case was 

properly dismissed. See City of Columbia v. C.F.W. Constr. Co., 557 S.W.2d 734, 740 

(Tenn. 1977) (explaining that “if the plaintiff’s case has not been made out by a 

preponderance of the evidence, a judgment may be rendered against the plaintiff on the 

merits”). 

“The burden of proving damages rests on the party seeking them.” Discover Bank 

v. Morgan, 363 S.W.3d 479, 496 (Tenn. 2012). Mr. Matthews sought compensation for 

the damaged stereo receiver. One way to measure property damage is the cost to repair the 

property item plus any loss of use during the repair period. Prewitt v. Brown, 525 S.W.3d 

616, 623 (Tenn. Ct. App. 2017). Or damages can sometimes be measured by the 

“difference in the fair market value of the property immediately before [and after] the 

incident.” Id. (quoting Tire Shredders, Inc. v. ERM-N. Cent., Inc., 15 S.W.3d 849, 855 

(Tenn. Ct. App. 1999)). For either measure, it was Mr. Matthews’s responsibility to “lay[] 

a sufficient foundation to allow the trier of fact to make a fair and reasonable assessment 

of damages.” Discover Bank, 363 S.W.3d at 496 (citation omitted). 
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Nothing in this record provided a sufficient basis for the court to quantify 

Mr. Matthews’s damages. We agree with Mr. Matthews that the owner of personal 

property may testify as to its value. See Maddux v. Cargill, Inc., 777 S.W.2d 687, 693 

(Tenn. Ct. App. 1989). But he did not do that here. This record contains no evidence of 

the difference in value of the stereo receiver before and after the shipment. Nor do we find 

any evidence of repair cost or loss of use. Nor did the excluded evidence shed any light on 

the subject.

2

 It merely supported Mr. Matthews’s testimony that the stereo receiver had 

been damaged. See Discover Bank, 363 S.W.3d at 496 (distinguishing between the 

existence and amount of damages). 

III.

The excluded evidence, if admitted, would not have affected the outcome. 

Mr. Matthews did not meet his burden of proof on damages. So we affirm the decision of 

the trial court. 

 s/ W. Neal McBrayer 

W. NEAL MCBRAYER, JUDGE

 

2 One affidavit referenced an attached invoice. But the invoice is not in the record. And no 

information is provided as to the invoice amount or the reason for the invoice.