1

 Rule 10(b) of the Rules of the Court of Appe als of Tennessee states as follows:

Memorandum Opinio n. The Co urt, with the concurrence of all judges participating in the

case, may affirm, reverse or modify the actions of the trial court by memorandum opinion

when a formal opinion would have no precedential value. When a case is decided by

memorandum opinion it shall be designated "MEMORANDU M OPINION," shall not be

published, and shall not b e cited or re lied on for an y reason in a subsequent unrelated case.

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

March 7, 2000 Session

R. G. BURNETT v. JAMES RAY SWAFFORD AND RHONDA SWAFFORD

 An Appeal from the Chancery Court for Fentress County

No. 97-24 Billy Joe White, Chancellor

No. M1999-01648-COA-R3-CV - Filed April 17, 2001

This appeal arises from an oral contract between a landlord and tenant. The plaintiff operated

a grocery and leased a grocery store to the defendant for a period of ten years, pursuant to a written

lease. The parties had a separate oral agreement in which the defendant agreed to buy the plaintiff's

business. When the defendant vacated the property at the end of the lease, the parties disagreed as

to whether the oral agreement included a purchase of the store equipment. The trial court found that

the plaintiff had converted certain items belonging to the defendant, and entered a judgment in favor

of the defendant for $5,000. We find that the trial court’s decision is based on its determinations of

credibility, and affirm. 

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

HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which ALAN E. HIGHERS, J., and

DAVID R. FARMER, J., joined.

Phillips M. Smalling, Byrdstown, Tennessee, for the appellant, R. G. Burnett.

Joe M. Looney, Crossville, Tennessee, for the appellees, James Ray Swafford and Rhonda Swafford.

MEMORANDUM OPINION1

Plaintiff Glenn Burnett (“Burnett”) owned and operated a grocery business in Clarkrange,

Tennessee. On March 1, 1987, he entered into a written lease agreement whereby he agreed to lease

his store to James and Rhonda Swafford (the “Swaffords”) for a period of five years, with the option
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of extending the lease for another five years. In 1992, the Swaffords extended the lease agreement

for another five years. In 1996, the Swaffords began construction on a new grocery store and made

plans to move out of the premises owned by Burnett. The last day that the Swaffords did business

on the leasehold property was February 26, 1997. The lease expired on February 28, 1997. 

In addition to the written lease, the parties entered into a separate oral agreement under which

the Swaffords agreed to pay Burnett $125,000 at the outset of the lease. Burnett contends that the

Swaffords orally agreed to buy only his inventory, not the equipment in the store. The Swaffords

contend that the payment under the oral agreement was for the store equipment as well as the

inventory. At the end of the lease, the Swaffords attempted to remove the equipment from the store,

but Burnett prevented them from doing so. Burnett brought suit to recover damages for the loss of

equipment that had already been removed and for damages to the property caused by the removal.

The Swaffords answered and filed a counter-complaint alleging that Burnett had converted their

equipment that remained in the store for his own commercial use. 

A one-day bench trial was held on December 8, 1998. At the trial, the parties and their

respective witnesses testified about the parties’ course of dealing regarding the equipment, the

maintenance, repair, and replacement of the equipment during the lease, and the value of the

equipment at issue. In particular, the testimony reflected that, during the course of the lease, the

Swaffords replaced some of the store equipment and, when they did so, returned the original

equipment to the Burnetts.

At the conclusion of the trial, the trial judge made an oral ruling from the bench. The trial

judge found that Burnett did not agree to sell the store equipment to the Swaffords, because the

Swaffords’ return of the equipment to Burnett as they replaced it was not consistent with them

owning the equipment outright. The trial judge also found that the fact that the Swaffords purchased

new equipment, without an agreement from Burnett that he would reimburse them, demonstrated

that the Swaffords intended to buy the replacement equipment for themselves. Therefore, the trial

court concluded that the Swaffords were entitled to have the replacement equipment returned to

them, and awarded them damages for the equipment that Burnett had converted to his own use. The

trial judge issued a writ of possession to the Swaffords for particular items. He held that Burnett had

converted the remainder of the items. After weighing the testimony of the witnesses regarding the

value of the equipment at issue, and setting off the value of the equipment belonging to the

Swaffords against the value of the equipment owned by Burnett, the trial court held Burnett liable

to the Swaffords for $5,000. From this decision, Burnett appeals. 

In this appeal, Burnett argues that the evidence showed that the Swaffords were obligated to

maintain the store’s refrigeration equipment by the terms of the lease, and they did not do so; that

Burnett was entitled to return of the premises in operational condition, and the language of the lease

did not authorize the Swaffords’ removal of the equipment they had replaced; and that the judgment

against Burnett for $5,000 is not supported by the proof. The Swaffords maintain that the trial

court’s findings rest largely upon his determination of the credibility of the witnesses, and that those
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findings should not be disturbed on appeal unless they are contrary to a preponderance of the

evidence.

An appeal from a bench trial is reviewed de novo upon the record, with a presumption of

correctness in the trial judge’s findings of fact. See Tenn. R. App. P. 13(d). 

In this case, the factual findings of the trial court hinge primarily on its determination of the

credibility of the witnesses. When the trial court resolves a conflict in testimony in favor of one

party over another, such a credibility determination is “binding on the appellate court unless from

other real evidence the appellate court is compelled to conclude to the contrary.” Reed v. Alamo

Rent-A-Car, Inc., 4 S.W.3d 677, 683 (Tenn. Ct. App. 1999) (citation omitted). The weight, faith,

and credit to be given to any witness’s testimony lies in the first instance with the trier of fact, and

the credibility accorded will be given great weight by the appellate court. See In re Estate of Walton

v. Young, 950 S.W.2d 956, 959 (Tenn. 1997).

After reviewing the transcript of the evidence and the record as a whole, and according

appropriate deference to the trial court’s determinations of credibility, we find that the evidence does

not preponderate against the trial court’s conclusions regarding the terms of the parties’ oral

agreement regarding the equipment. Likewise, we find that the evidence does not preponderate

against the trial court’s findings regarding the value of the equipment at issue. Consequently, we

affirm the trial court’s award of damages to the Swaffords in the amount of $5,000.

The decision of the trial court is affirmed. The costs of this appeal are to be taxed to the

Appellant, R.G. Burnett, and his surety, for which execution may issue if necessary. 

 

___________________________________ 

HOLLY KIRBY LILLARD, JUDGE