### FILED February 10, 19

99 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF AP PEALS OF TENNESSEE AT KNOXVILLE

FRED WORTH, ) ) Plaintiff/Appellant, ) Cumberland Circuit No. CV002431 ) v. ) ) Appeal No. 03A01-9709-CV-00442 CUMBERLAND MOUNTAIN ) PROPERTY OWNERS ASSOCIATION, ) INC. ) ) Defendant/Appellee. ) )

APPEAL FROM THE CIRCUIT COURT OF CUMBERL AND COUNTY AT CROSSVILLE, TENNESSEE THE HONORABLE JOHN J. MADDUX, JR., JUDGE

For the Plaintiff/Appellant : For the Defendant/Appellee : Michael A. Wagner Sharon Potter Serra Chattanooga, Tennessee Crossville, Tennessee

AFFIRMED

HOLLY KIRBY LILL

ARD, J.

CONCURS: W. FRANK CRAWFORD, P. J., W.S. DAVID R. FARMER, J.1 The purpose of thi s statute is to deter

mine who has the rig

ht of possessing ce

rtain personal property. See Rags, Inc. v. Tho roughbred Motor Cars, I nc ., 769 S.W.2d 493, 495 OPINION This is a replevin action. The plaintiff employee asserts he is the proper owner of two lawn

mower tractors purchased on his personal account pursuant to an oral agreement in which the defendant employer agre ed to m ake payments on the mowers in exchange for their use. The trial court found that the defendant employer was entitled to possession of the equipment and awarded the employer total damages of $608. The plaintiff employee appeals, and we affirm. In June 199 0, Plaintiff/Appellant Fred Worth (“Worth”) began working as the resident manager of the Defendan

t/Appellee Cumber

land Mountain

Retreat Property

Owners’ Association (“Ret reat”)

. His duties included maintaining and mowing the grounds of the Retreat property, maintaining the water system, and handlin

g the b usiness of the association, including purchasing necessary equipment. Worth lived on property adjacent to the Retreat property. During his employment, Worth purchased mowing equipment , including two Kubo ta mowers, a 2400 model and a 2000 model. Worth purchased the Ku bota 2400 mo wer on May 5, 1993. At trial, Worth testified that he traded in three mowing decks that belonged to the Retreat for

a $2000 credit against the Kubota 2400 mower purchase price . Wor th also traded a sa tellite dish system belonging to him in return for a $1,000 credit on the cost of the Kubota 2400. Worth asserted that he paid the $6,000 balance on the Kubota 2400 with a personal check on May 7, 1993. On the

sameday, Worth also

purchased the Kubota 2000 mower and a new mowing deck. He claimed that he traded in a Sears Craftsman mowe r for a $2,00 0 credit against the total purchase price of the Kubota 2000 mower. The dealership agreed to defer the $1,000 down payment on the Kubota 2000 for 90 days, and the remainder of the purchase price w as financed. Both mowers were purchased and the 2000 model mower was financed on Worth’s personal account. Worth used the mowers on the Retreat property and on his own propert y adjace nt to the ret reat. Wort h left his employment with the Retreat in September 1994. After the Retreat was notified that the 2000 model mower would be repossessed through foreclosure, it made the annual installment payments of $2540 in 1995 and 1996. In 1996, Worth filed suit under Tennessee Code Annotated §§ 29-30-101 to -111 seeking replevin of the mowers and

other personal pr

operty in the contr

ol of the Retreat. See Tenn. Code Ann. §§ 29-30-101 to -111 (1980). 1 The original repl evin warrant list

e d ninety-seven ite

ms. By(Tenn. App. 1988). 2

trial, however, the 2000 model mower was the only disputed item at issue from the original list. At trial, the parties agre

ed to also litigate an additio

nal mower, the 240

0 model mower. Robe

rt J. Myers (“Myers”), who testified for the Retreat, and

Worth were the o

nly witnesses at t

rial. I n his suit, Worth claimed that the mowers were purchased pursuant to an o ral a greement where

by Worth purchased

the mowers on his personal account and the Retreat agreed to make the payments on the 2000 model mower

in exchange for the use of both mowers in the upkeep of the Retreat property. The Retreat asserted that no such contract existed. It mai ntained that both mowers were purchased

with Retreat funds , and were therefore the property of the Retreat. The Retreat argued that the $6000 per sonal check Worth used in the purchase of the 2400 model mower consisted of funds he misappropriated from the Retreat. The Retreat cont ended that Worth

had no authority to trade in Retreat

assets for partial payment on the mowers. The Retreat presented evidence at trial indicating that at the time the mowers were pur chased, it did

not know that its asse

ts and allegedly misappropriatedfunds were improperly used by Worth, and therefore believed the mowers belonged to him. When these facts were discovered after Worth’s employment ended, the Retreat concluded that they owned the mowers. At the time of trial, the Retreat had a lawsuit pending against Worth for the allegedl

y misappropriate

d funds. Conflicting evidence was presented at trial concerning the ownership of the Sears Craftsman

mowe r traded in on the purchase of the 2000 model mower. Worth claimed he received a Sear s Craftsman mower by deed when he pur chased his prope

rty adjacent to

the Retreat, but provided no documentation to support his claim. The Ret reat also claimed ownership of a Sears Craftsman

mower and produced an inventory from 1992 which included a mower of this type. This mower was

n o t listed on subsequent Retreat inventories. Worth testified that the Retreat’s Craftsman mower

was traded in on a prior purchase for other equipment, but Worth could produce no documentation to support his contention.2 Tennessee Code A nnotated § 29-30- 110 provides as fo llows: The court may , in proper cases, give exemplary damages, including reasonable

attorneys fees, in favor of the defendant for the plaintiff's wrongful suing out of this possessory action or in the event that the plaintiff fails to prosecute the action after it has been instituted. Tenn. Code Ann. § 29-30-110 (1980).

3 After the bench

trial, the trial co

urt made the follow

ing findings of fac

t: (1) It is the op inion of the C ourt that the Plaintiff has not shown any ownership

interest in

the subject personal property, with the exception of a satellite dish, valued at $1,000.00; and (2) The Plaintiff left his employment with the Defendant in September 1994, but did not file this possessory action until April 1996; and (3) There was no credible proof that the Plaintiff owned a Sears 18 HP riding lawn mower, but there was proof that the Defendant owned a Sears 18 HP ri ding lawn mower; and (4) It is the opinion of the Court that both Kubota lawn tractors belong to the Defendant; and (5) The Court finds that Robert Myers was and is a very c redible witness,

and the Court was not persuaded by the testimony of Fred Worth; and (6) The Plaintiff failed to carry his burden of proof in this cause. The trial court then found that the Retreat was entitled to possession of the

two Kubota

lawn

mowers at issue in this case. Pursuant to Tennessee Code Annotated § 29-30-110, 2 the trial court awarded damages of $1,608 to the Retreat for attorney’s fees and cost of storing and transporting one of the mowers at issue in the case. The trial court awarded Worth an offset of $1,000, representing the trade-in value o

f his satellite dish,

resulting in a total award of damag es to the Retreat in the amount of $608, with

costs divided betw

een the parties.

Worth appealed

to this court. On appeal, Wor

th a rgues six points of e

rror. He first c

ontends that the tr

ial court erred

in failing to consider his $600 0 check to the law

n equipment comp

any on the pu rchase of the 2400 model mower. Next he c ontends that three

of th e trial co urt’s findings are not supported by the preponderance

of the evidence

, namely (1) that W

orth did not trade in his

Sears Craftsman mower for the purchase of the 2000 model mower, (2) that there was no agreement between Worth and the Retreat concerning the p

ayment and use of

the mowers, and (

3) that t he mowers belonged to the Retreat. Worth also asserts that the trial court erred in considering exhib

its numbered six an

d eight, pertaining to monies paid to Worth for contract services, because they were irrelevant. Finally,4

Worth argues that the trial court erred in award

ing attorney’s fe

es to the Retreat b

ecause ninety-s

ix of the ninety-seven items originally listed in the replevin warrant were returned to Worth. “Because this case was trie

d without a jury, our

review of the issu

es of fact is de novo on the record of the trial court. However, we must presume that the trial court's findings were correct unless the preponderance of the evidence is ot he rwise.” Wright v. City of Knoxv ille , 898 S.W.2d 177, 181 (Tenn. 1995); see also Tenn. R. App. P. 13(d). Worth first argues on appeal that the trial court gave inadequate consideration to Worth’ s personal check for $6000 u sed to pay off the 2

400 model mower. H

e claims that this check

proves his ownership of the mower. The Retreat responds by noting that the trial court stated, “I’ve already looked at all the exhibits,” and argues that this shows that the trial court considered the $6000 check. Worth pre sent ed no evidence indicating that the trial court failed to consider all of the evidence presented at trial. Indeed, the record affirmatively indicates that all of the evidence was considered. This issue is without merit. Three of Worth’s issues ad

dress the prepon

derance of the

evidence in this

case and question the trial court’s findings of fact. On these issues, Worth has the burden of establishing that the evidence preponderates against the trial court’s fact ual findings. S ee Lowe v. Caledonian-American Ins. Co. , 324 S.W.2d 420, 420 (Tenn. App. 1959). Worth argues that the trial court erred in its finding that he failed to prove ownership of the Sears Craftsman mowe r that was t raded in for the 2

000 model mower. Bo

th parties testifie

d to ownership

of a Sears Craftsman mower. Worth claimed that he received a mower of this type when he purchased his proper

ty adjace nt to the Retreat. H e provided no docu

mentation to suppor

t this assertion. The Retreat’s e quipment inventory

list for 1992 also

listed a mower of this type. No such

mower was listed on subse

quent inventories . Worth testified t hat the Retreat’ s Sears Craftsman

mower was traded in early 1992 for other lawn equipment. However, Myers testified that he reviewed records at the lawn equipment store pertaining to Retreat transactions ove

r the past several years. Meyers found records going back as far as 1991, but found no record of the trade or pu

rchase claimed by Worth. Worth a rgues that he was

the only witness

who had first hand knowledge as to which Sears Craftsman m ower was traded

in, while Myers,

the Retreat’s witness, said that his only knowledge about the transaction stemmed from documents he reviewed. The trial court found that Worth’s testimony was not persuasive, but found that Myers was5

a v ery credible witness. “Because the trial judge is in a better position to weigh and evaluat e th e credibility of the witnesses who testify orally, we give great weight to the trial judge's findings on issues involving credibility of witnesses.” In re Estate of Walton v . Young , 950 S.W.2d 956, 959 (Tenn. 1997) (quoting Randolph v. Randolph , 937 S.W.2d 815, 819 (Tenn. 1996) (citat ion s omitted)). “[F]indings that are related to the issue of credibility will not be disturbed by this court, absent other concrete evide

nce to the contra

ry which shows tha

t the trial judge er

red in his judgment of the veracity of the witnesses.” Farmers & Merchants Bank v. Dyersburg Prod. Credit Ass’n , 728 S.W.2d 10, 18 (Tenn. App. 1986). The Retreat’s assertion that its Sears Craftsman mower was the one traded in for the 2000 model mower is consistent with the proof at trial; it is not so internally inconsistent or implausible that it could not be believed by a reasonable fact finder. See Franklin

v. Aycock , 795 F.2d 1253, 1257-58 (6th Cir. 1986). The Retreat provided some documentation that it owned such a mowe

r before the two

Kubota mowers were purchased, while Worth provided no documentary pr oof of his ownership. Moreover, Worth failed to produce any documents or objective evidencethat contradicted the trial court’s finding. Based on the record as a whole, and taking into account the trial court’s credibility determinations, wecannot conclude that the evidence preponderates against the trial c ourt’s finding of f

act. The decis

ion of the trial court on this issue is affirmed. Worth also disputes the tr

ial court’s implici

t findin g that there was no oral agreement between the parties that the Retreat would make payments on the 2000 model mower in exchange for its use of both mowers. Worth asserted that such an oral agreement existed, while Myers testified that he was not aware of any such agreement. The minutes fr om the Retreat’s board meetings reflected no such agreeme

nt. Myers testifie

d that until

the Retreat disco

vered that its asse

ts, along withallegedly misappr

opriated funds,

were used to purchase the mowers, the Retreat believed that the mowers belonged

to Worth. After this discovery, the Retreat decided to make a

nnual payments of $2540 on the 2000 model mower in order to protect its interest from foreclosure. Myers stated that he understood that Worth purchased the mower on a lease purchase agre ement and that two payments were necessar

y to keep the mower from foreclosure. The checks for these payments were written in April, 1995 and April, 1996. The April, 1995 check from the Retreat indicated it was for “Lease Payment for Mower.” Worth argued that this was evidence of the agreement between the parties. Myers testified, how ever, that h e mistakenly made out the April, 1995 check to the lawn6

equipment

company rat

her than to the financing company. The employee of the lawn equipment company then told him to write on the check that it was for the lease payment. Therefore , Myer s indicated that the reference on the check to a lease concerned the fina n cing agreement between Worth and the seller rather than an agreement between the Retreat and Worth. As noted above, the trial court heard the conflicting testimony of the witnesses and found Myers was very credible and found Worth’s testimony unpersuasive. Considering the record as a whole and taking into account the trial court’s determinations regarding credibility, we cannot find that the evidence preponderates against the trial court’s finding of fact on this issue. The decision of the trial court on t

his issue is affirmed. Worth argues on appeal that the evidence preponderates against the trial court’s conclusion that the Retreat was entitled to possession of the two mowers. As noted above, the evidence at trial, including the trial court’s determination regarding credibility, support the trial court’s findings that the Retr eat’ s Sears Craftsman mower was trade

d in for the model 20

00 mower and the im

plicit finding that there was no agreemen t between the par

ties that the Retre

at would make paym

ents on the model 2000 mower in exchange for its use. These factual findings, and the record as a whole, support the trial court’s conclusion that the Retreat was entitled to possession of both mowers. The decision of the trial court on this issue is affirmed. Worth also argues that

the trial c ourt should not have admitted exhibits numbered six and eight into evidence because the evidence was irrelevant. “A trial court is given considerable latitude in the admission of evidence and will be reversed only for an abuse

of discretion.” Aussenberg v. Kramer , 944 S.W.2d 367, 370 (Tenn. App. 1996) (citing Steele v. Ft. Sanders Anesthesia Group, P.C. , 897 S.W.2d 270, 275 (Tenn. App. 1994)

). The Retreat ma

intains that Worth n

ever properly objectedto the introduction of this evidence. The record onWorth’s objection is somewhat unclear. Ho wever, Worth does not exp lain on appeal how

he was prejudice

d by the admission of

these exhibits into evidence. Based on all of these considerations, we find no abuse of discretion by the trial court in admitting th ese exhibits

into evidence. The decision of the trial court on this issue is affirmed. Finally, Worth argues that the trial court erred in assessing attorney’s fees against him when the tri al cour t assessed costs e qually between th

e parties. In this c

ase, Worth sought

a specific statutory remedy which provides that attorney’s fees may be awarded to the defendant if the court7

finds that the plaintiff wrongfully filed the possessory action. “The court may, in prope

r cases, give exemplary damages, including reasonable attorneys fees, in favor of the defendant

for the plaintiff’s wrongful suing out of this possessory action . . . .” Tenn. Code Ann. § 29-30-110 (1980). Where attorney’s fees are provided by statute, “a trial court has wide discretion in its decision to aw ar d attorneys fees.” K-Testing Lab, Inc. v. Estate of Kennon , No. 02A01-9703-CH-00064, 1998 WL 373414, at *2 (Tenn. App. July 7, 1998). As stated above, the trial court “was not persuaded by the testimony of Fred Worth.” The trial court based the attorney’s fees award on this finding. The trial court is given discretion

in awarding attor

ney's fees under

th e statutory rem edy in this case. Our review of the record indicates no abuse of discretion on the pa r t of the trial court in assessing attorney fees to Worth. In sum, we find that th

e trial cour t gave adequate consideration to Worth’s evidence reflecting his $6000 payment on the 2400 model mower. After reviewing the record, we do not find that the evidence preponderates against the trial court’s factual findings that Worth

did not trade in his Sears Craftsman mower for the 2000 model mower, that there was no oral agreement between the parties regarding the use of the mowers, and that the Retreat was entitled to the possession of bothmowers. The tria

l court did not abuse

its discretion in

admitting the contested exhibits at trial. Lastly, we find that the trial court properly awarded attorney’s fees. The decision o f the trial court is affirmed. Costs are assessed against the Appellant , fo r which execution may issue, if necessary.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRANK CRAW

FORD, P. J., W.

S.

DAVID R. FARMER, J.