### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON Assigned on

Brief D ecem

ber 28, 200 1
DEBBIE RISNER v. N

ATHAN HARR

IS
An Appeal from the Circuit Court for Obion County No. 0-428 William B. Acree, Jr., Judge

No. W2001-01041-COA-R3-CV - Filed August 21, 2002

This is an action to recover personal property . The plaintiff and defendant lived togethe r for seventeenyears. In No vember 1 999, the p laintiff moved out. She left p ersonal propert y in the trailer in which the c ouple was living, in the nearby convenience store owned by the defendant, and in a stora ge unit in ano ther t own. In A ugust 2000, the co nveni ence st ore cau gh t on fire, an d the plaintiff’s personal propert y in the s tore was destroy ed. Soon thereafter, the defendant took possession of the pla

intiff’sother pe

rsonal pr operty that had b een held

in the stor

age un it and called her to come g et it. I

n Novembe

r 2000, the

plaintiff filed a w arrant

in gene ral sessi ons court

to recover her personal property

from the defendant. She claimed that the defenda nt had prevented her from retrieving any

of her personal property . She received a judgment which was appe aled to c ircuit court. The circuit court entered a judgment in favor of the plaintiff, awarded damages, a nd ordered the defendant to return certain items to the plaintiff. The defe ndant now appeals. We reverse the trial court’s decision w ith respe ct to two of the items ordered returned and the proper ty that the plaintiff had kept in the storage unit in another town, and aff irm the remainder of

the order. Tenn. R. App.P. 3; Judg ment of t he Circui t Court is

Affirme d in Part

and Rever

sed in Part

H OLLY K IRB Y L ILLARD , J., deliver ed the opinion of the

court, in which W. F RANK C RAWFORD , P.J., W.S., and A LAN E. H IGHERS , J., joined. Bruce Moss, Union City, Te nnessee, for the appellant, Nathan Harr is. David L. Hamblen, Union City , Tennessee, for the appellee, Debbie Risner.
OPINION Plaintiff/Appe llee Debbie Ri sner (“ Debbie” ) and Defendant /Appella nt Nathan

Harris (“Nathan”) lived tog ether f or appro ximately

sevente en y ears. Th

eir firs t homewas in Dyersb urg, Tenn essee. After several y ears, Nathan purchased a small convenie nce store in Hornb eak , Tennessee. The parties moved into a small trailer near the store and put some of their furniture and1 It is unclear f rom the record whether Debb ie, Nathan, or bot h received the proceeds from the rental of the tann ing bed.
-2- belon gings into a rente d sto rage unit in Dyersburg , Tennessee. Those items remained in th e stor age unit for over ten ye ars while the parties were living in the trailer in Hor nbeak. During the time in which the parties lived in the trailer near the convenie nce stor e, they also storedpersonal belongings in a room at the bac k of the store. Those items included, among other things, Debbie’ s clothing , some Home Interior home furnishing s, and a hand-painted carousel horse. In addition, Debbie

purchased a

tanning bed with b orrowe d funds, a nd the tan ning be d was kept in the store. Customers who visited the store paid for use of the tanning bed. 1 During the course of

their relationship, the part ies sepa rated nu merous tim

es. Debb ie asser

ts that their final separation occurred in November 1999, when she left

the trail er and to ok with he r just
a few of her clothes. I

n the legal proceedings she la ter filed, Debbi e testif

ied that, after the separation, Nathan refused to allow her to retrieve the remainder of her personal possessions from the trailer or

the store. She described an incident in which she spoke with Nathan over the te lephone, andhe advised her that she could come get he r things. However , when Debbie arrived with her h usband, Nathan cursed her and told her to leave. D ebbie’s husband, Mr. Risner, corrobo rate d Debbie’s testimony that Nathan cursed h er and th rew her off the p roperty . In c ontrast, Nathan denied that he prevented Debbie from retrieving her belongings. He said that at times she re turned to get
some of her be longings, and that on numerous occasions he had a sked her to get her possession s
. Tammy Ray, a forme

r employee of

Nathan, testified that

she over heard N athan spe aking to Debbie
on the telep

hone, and that she

heard N athan as k Debbie to retrie ve her pr operty . Ray

also testified that she w as prese

nt when De

bbie cam e by to pick up s ome of he

r belongings.

In August 2000, Nathan’s store was severely damaged by

fire. The fire destroy

ed the tanning bed, the carousel horse, Debbie’s clothes, autographed pictures, and other pe rsonal items that had been stored in

the back room at the

store. An

insuranc e adjuste

r repre se nting Nathan ’s insurance company testifie d that Nat

han atte mpted toclaim the tann ing bed as a loss due to the fire. The adjuster told Nathan that

he could not receive insurance proceeds for the loss of any pr operty that belonged to Debbie. The adjuster

also said that

Nathan’s losses from the fire (including the loss of the building , the inv entory, and other personal property ) exceeded the policy limit of $100,000. Therefore, Nathan rece

ived the full amount of proceeds pay able under his insurance policy

. Nathan testifie d that, som e time after t he fir e, he re moved all i tems f rom th e parti es’ st orage unit, including Debbie’s belongings. At that time, he discovered that some of the items, including a day bed, had been ruined while in storage.

Debbie testified that, after the fire, Nathan called her. Without mentioning the f ire, he t old her to come g et her be

longing s. When she arrived at the store, Debbie realized that there had been
a fire. She found that the tanning bed and the car ousel horse had been destroy ed. She saw that the2 That category al so i ncl uded i tem s of inde termin able v alue: fam ily picture s, a 20 -year-old Do nny O smo nd d oll,

and an auto grap hed picture of G eorg e Jo nes an d V ern G ods in.

3 Th is cat egory als o inc luded it ems of inde ter minabl e val ue: fami ly pi ctures an d yearbook, an d a hand sewn quilt.
-3- smoke from the fire had covered the floor, and that ther e was a bare spot on

the floor where boxes containing her Home I

nterior home furnishings had been sitting. Subsequently, in November 2000, De bbie filed a warrant in the General Sessions Court of Obion Coun

ty to recove r her pe rsonal pr operty from Nathan. See Tenn. Code Ann. § 29-30-103. The general sessions court awarded Debbie damages for her pe rsonal property

in the amount of $10,500. Nathan then appealed the case to the Obion County Circuit Court.

On March 2, 2001, the Circuit Court conducted a bench trial on Nathan’s ap peal from the General Sessions judgment. During Debbie’ s testimony before the Circ uit Court, she submitted a list of perso nal prope

rty belong ing toher that

was left in Nathan ’s posses sion afte r their separation in 1999, as w ell as he

r estimat e of the v alue of t

he prope rty (“Exhibit 1”). In the list, sheseparated the claimed items into a “store” category , listing the items ownedby her that had been stored in the back room of Nathan’s store or in his trailer after the pa rties’ separation, anda “ st or ag e” ca te go ry, listing the items t

hat belonged to

Debbi e that had be en kep t in t he part ies’ s torage unit in Dyersb urg. The “store” category

listed $18,995 in property, including ( among other things) the tanning bed ($2,200), a co mputer ($2,400) , a Dodg e Colt auto mobile ($2 ,000), so me Home I nterior home furni shin gs ($1,7 50), t wo men ’s dia mond rings ($2 ,750), and a woman’s diamond ring ($3,100). 2 The “storage” categ ory

listed $4,150 in property, including a day be d ($800), some Home Interior home furnishings ($1,500), and clothes ($700). 3

Debbie testified that the Dodge Colt automobile and the computer listed on E xh ibit 1 had been pledged as collateral for loans. She did not mak

e the pay ments on those loans following the parties’ separa

tion, purp ortedly

because Nathan would not let her use the items. Nathan claimed that the computer and the automobile were repossessed by financing comp anies be cause Debbie stopped making payments. He sa id that both items were in his possession because he later purchased the computer from some one who bo

ught it f rom t he fi nance company , and his father purchased the Dodge Colt automobile from the lender who repossessed it.

In his testimony, Nathan claimed that the two men’s diamond rings on Debbie’s list of belon gings were gifts to him from D ebbie . On cro ss-ex amina tion , Debb ie adm itte d that the ri ngs were gifts to Nathan. Debbie testified that she still owed money borrowed to purchase one of the rings. Debbie a sserted

th at the woman’s diamond ring on her list of belonging s was a gift to her from Nathan. Nathan acknowledged that he had given Debbie the ring, but c laimed that it belonged to him because she returned the ring to him afte r a temporary

separation while

th e two wer

e still living in Dyersburg . Moreover, Nathan testified that, in previous litigation in Dy er County, two court orders awarded him the diamond ring.4 Neither party ap pea ls the trial co urt’s valua tio n of t he pr operty. In addit

ion, n eith er partyappeals t he tri al
cou rt’s dec ision to a ward the valu e of the p rop erty rathe r than o rder ing a tran sfer of the pro perty itself.
-4- After the trial, on April 2, 2001, the Circuit Court granted Debbie a money judgment in the amount of $7,685. The Circuit Court also issued an order compellingNathan to d eliver the three diamond rings to Debbie. 4 There is no transcript of the pro cee dings below, but the parties agreed upon a Joint Statement of the Evidence (“Joint Statement”). The Joint Statement says that the award of $7,685 re

flects o ne-half of t he value of the items on Exhibit one, excluding the three diamond rings. The Joint Statement states further that the trial court held that

Nathan prevented Debbie from retriev ing her p roperty fr om him, and that, therefore, he was under an oblig ation to insure her pr op er ty. On May 1, 2001, Natha n filed a pro se appeal of the decision of the Circuit Court. On August 22, 2001, Nathan’s appellate counsel filed a notice of appearance.

On appeal, Nathan argues that the tria l court erred

in failing to deal with each of the claimed items of pe rs on al pr op er ty s ep ar at el y, a nd fu rt he r e rr ed by n ot ap pl yi ng the law of bailment. He assertsthat it was undisputed that the three ri ng s w er e h is pr op er ty, and that therefore the trial court erred in ordering him to tu

rn them ov er to Deb

bie. Nath an arg

ues furt her that he should

not be hel d responsi ble for the p

roperty that was ruined while in storage. Thus, he claims, the judgment in fa vor of Debbie should be reversed.

We review the trial court’s decision de novo, with a presumption of correctne ss of the trial court’s finding s of fac t, unless the evidenc e preponderate s otherwi se. Tenn . R. App. P. 13(d); Worth
v. Cumberland Mountain Prop. Own ers Ass’n , No. 03A 01-9709-C V-00442, 1999 Tenn. App. LEXIS 92, at *7-*8 (Tenn. Ct. App. Feb. 10, 1999). We review questions of law de novo, affording the trial co urt’s legal co nclusions no such presumption. Ridings v. Ralph M. Parsons Co. , 914 S.W.2d 79, 80 (Tenn. 1996). In an a ction to recover personal

property, the pla

intiff must show that she was entitled to possession of the claimed property

. See Tenn. Code Ann. § 29-30-101; see also Rags, Inc. v. Thoroughbred Motor Cars, Inc. , 769 S.W.2d 493, 495 (Tenn. Ct. App. 1988) (noting that the purpose of the statute is to determine who has the right to possess certain personal property ). We first address Nathan’s argument that the trial c ourt erred in failing to find that all of the diamond rings at issue belonged to him. Nathan asserts that the evidence preponderates ag ainst the trial court’sfinding

that Debb ie was entitled

to possess ion of the

two men’sdiamond r

ings, because the evidenc e is undispute d that the y w ere gi fts to him from Debbie. Furthermore, Nathan claims that his testimony is unrefuted that the wo man’s diamo nd rin g, though initially a gift from him to Debbie,
was returned to him from her by ord er of th e Dyer

County court. Thus, he claims, Debbie has no right to possessio n of those

items. Debbie argues that the trial court did not err in ordering the men’s rings returned to her because she still owed money on them. I n addition, she denies that Nathan had any claim to the woman’ s ring, b ecause he had given it to he

r as a g ift.

With respect

to the men’s diamond rings, N athan te stified in the Circu it Court pr

oceedings, andDebbie admitted, that they were gifts from her to Nathan. The fact that she still owes money

for the purchase of therings do es not mea n that she owns them. Under thesecircumst ances, w e must5 Na than also includ es the thre e diam ond rings in tha t list. Tho se items have b een a ddr essed abo ve. -5- conclude that the evidence prepondera tes against thetrial cou

rt’s find ing that Debbie isentitled t

o possession of the two men’s diamond rings, and we reverse the tria l court’s order that Nathan return those two rings to Debbie.

The evidenc e rega

rding th e woman’ s diamond r

in g was di spute d. The trial judge had the duty to weigh the conflicting evidence on this subject a nd determine the cr

edibility of the wit nesses. His determinations of

credibility are

entitled to great weight on appeal. See Worth , 1999 Tenn. App. LEXIS 92, at *9-*10 (stating th at the trial judge’s credibility determinations are entitled to great weight). In this case, the trial judge credited the testimony of

Debbie that the woman’s diamond ring belo ngedto her. Other than Nathan’s testimony , there is no evidence in this record reg arding the procee dings in the Dyer County court upon which Nathan relies. G iving ap propria te weig ht to the trial court’s implicit finding of credibility in Debbie’s favor, we cannot find that the dec ision t o award Debbie the woman’s diamond ring w as against the preponderance of the evidence. Next, Nathan argues that the trial court erred in award ing Deb bie dama ges for the items in the storage unit in Dy ersburg. He notes that the eviden ce is undisputed that the property wa s damaged while it wa s in storage, and the re is n o evidence that he prevented Debbie from ge tting those items either

while they

were in storage or when he removed them from storage after the fire. Debbie asserts that Nathan retrieved her items from storag e after

the fire because his own be longi ngs hadbeen destroy ed and he needed the items for his own personal use. The refore, she contends, she is entitled to the value of the items that were destroy ed while in storage.

It is undisputed that the “storage” property was damaged or destroy

ed during the time it was in storag e. Acco

rding to the part ies’ Joint Sta

tement, N athan re

trieved all of the it ems fr om st orage over ten years af

ter they were pu t in storage. The evidence is als o undisputed tha t he then called Debbie to “come and get her things.” The Joint Statement includ es no evidence that Nathan ever p revented Debbie from retrieving her prope rty from the storage unit. Moreover, there is n o allegationthat Nathan destroy ed or damaged any

of the items belonging to Debbie either before or
a fter he remov ed them f

rom stora ge. The refore , becau se the ev

idence indicate s that th e items a t issue were ru

ined while

in storag e, at a

time when

Nathan w as not in wr

ongful p ossession

of those items, and because he never prevent ed Debbi e from ret

rieving her thing s while in s torage , we must conclude that the trial court erred in holding Nathan liable for the value o f that p ro pe rt y. Ac co rd in gl y, we reverse the trial court’s awa rd of damage s for the

value of the prope rty in storage.

Nathan argues further that the trial court e rred in awa

rding Debb ie damages for twoitems that did not bel ong to De

bbie, des pitethe fact that they were listed in the “store” categ ory of Exhibit 1, namely, the Dodg e Colt and the tanning bed. 5 Nathan c laims that th e record is clear that the Dodge Colt no longer belonged to Debbie beca use it had been re

possesse d and wassubseque ntly sold to his father. Wi th respect to the tanning bed, Nathan asserts that the f act that his insurance adjuster thought t hat it washis property a

nd included the tanning bed in his insurance claim indicates that the tanning bed in fact belonged to him. Debbie a sserts that she stopped making pay ments on-6-

the debt secured by

the car because Nathan would not let her ha ve it. S he also notes that the insurance adjuster’s belief that Nathan owned the tanning bed does not indicate that he in fact owned the bed. Again, on these issues, the trial cou rt wa s called upon to determine the credibility of the witnesses and resolve conflictingtestimony. The evidence is undisputed that Debbie was making pay ments on a lo an secu red by the D odge Colt until she left Nathan in 1999. She testified that she stopped making pay

ments because Nathan refused to allow her

to have possession of the car. The
car was then repossessed and p urchas ed by Natha n’s father. The trial court apparently concluded that Nathan in fact prevented Debbie fr om having access to the Dodge Colt. Her failur e to make pay ments, the subsequent repossession, and his father’s later purcha se of the vehicle does not alter that factual finding. As to the tanning bed, the evidence is undisputed that Debbie borrow ed money to purchas e the tan

nin g be d. Nathan submitted no evidence to the trial court indicating that he ownedthe tanning bed. The fact that Nathan’s insura nce agent may

ha ve b elieved Nathan’s representations that he owned the tanning bed does indicate that he in fact owned the bed. Thus, the trial court was entitled to credit Debbie’s testimony tha tshe owned the tanning bed and that Nathan prevented her fro m retrieving it before it was destroy ed. Accordingly , we affirm the trial court’s decision to award Debbie the value of the Dodg e Colt and the tanning bed.

Fi na ll y, Nathan argue s on appe al that the balance of the ite ms listed on

Exhibit 1 wer

e in his possession as a

result of a gratuitous bailment, and that he, therefore, would be responsible for the loss of that

property only

upon the showing of gross neglig ence. Because there was no showing of gross neglig ence in

the loss of

this prope

rty while it was in his possession, he claims, he should not be held liable to Debbie for its value.

“A bailment is a delivery of pe rsonalty for a

particular purp ose or on mere deposit, on a contract expressed or implied, that after the purpose has been fulfilled, it shall be re-delivered to the person who deliv ered it o r otherwise dealt wit

h accor ding to hi s directi on or kep t until he r eclaims it.” Merritt v. Nationwide Warehouse Co. , 605 S.W.2d 250, 252 (Tenn. Ct. App. 1980); see also Jernigan v. Ham , 691 S.W.2d 553, 556 (Tenn. Ct. App. 1994) (st a ting tha t a bailme

nt is a contractual agreement, and the con tr ac t m ay be either express or implied from the conduct of the parties). In this case, the

Joint Statement indicates that, when Debbie movedout of the trailer, she took with her “ just a few of her clothes,” and left behind other property that she intended to retrieve. The tri al court found that Nathan then prevented her f rom retrieving this property . There is no evidence that Debbie intended Nathan to keep her proper ty on her beha

lf. Rather, the evidence preponderates in favor of the trial court’s conclusion that Nathan would not allow Debbie to get her propert y until the August 2000 fire destroyed most of it. Because there is no evidence of an expres s or implied agreement between the pa rties, we find that no bailment was created. Nathan argues that a constructive ba ilment arose whenDebbie moved out because he then lawfully acquired possession of her perso nal pr opert y. Though there was no specific agre ement, he maintains , the facts could be construed as crea ting a co n structive bailment. However, there is no evidence that Nathan had any right to possession of Debbie’s property . Ind eed, the trial court-7-

expressly held that Nathan prevented Debbie from returning to the premises to retrieve her personal pr op er ty. There is no evidence indicating that Nathan intended to keep Debbie’s property safe or deliver it to her up on her re

quest. Th us, the trial court did not err in concluding that there was no constructive bailment.
Therefore, the trial

court’sorder isrevers ed insofa r as it require s Nathan

to give D ebbie

the two men’s diamond rings and the value of the property

in the “storage” categ ory in Exhibit 1. The remainder of the trial court’s order is aff irmed.

The decision of the trial court is affirmed in part and revers ed in part as set forth above. C osts are to be taxed equally to the appellant, Nathan Harris, and his surety , and to the appellee , De bb ie Ri sn er , f or wh ic h e xe cu ti on ma y is su e, if ne ce ss ar y.

___________________________________ HOLL Y KIRBY L

IL LARD, JUDGE