1 Rule 10(b) of the R ules of the Court of Appe als of Tennessee states as follows:

Memorandum Opinio n. The Co urt, with the concurrence of all judges parti cipating in the case, may affirm, reve rse or modi fy the actions of the t rial cou rt by memora

ndum opinion when a formal opini on would have no precedent

ial val ue. When a case

is deci ded by memorandum opi n ion it shall be designa ted "MEMORANDU M OPINION," shall not be publish ed, and shall not b e cited or re lied on for an y reason in a subsequent unre lated case. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE March 7, 2000 Sessi

on
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 plai ntiff's business. When the defendant vacated the property at the end of the lease, the parties disagreed as to whether the ora

l agreement inc

luded a purchase

of the store equip

ment. 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 Appe al as of Right; Judgme

nt of the Chancery Co

urt Affirmed.

H OLLY K IRBY L ILLARD , J., deliver ed the opinion of the court, in which A LAN E. H IGHERS , J., and D AVID R. F ARMER , J., joined. Phillips M. Smalling, B

yrdstown, Te

nnessee, for the

appellant, R. G. Burnett.

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

INION 1

Plaintiff Glenn Burnett (“Burnett”) owned and oper ated a gr ocery business in Clarkrange, Tennessee. On March 1, 1987, h e entered into a w

ritten lease

agreement whereby he

agreed to lea

se his store to James and Rhonda Swafford (the “Swaffords”) for a period of five years, with the option-2-

of extending the lease for another five years. I n 1992, the Swaffords extended the lease agreement for another five years. In 1996, the Swaffords be gan construction

on a new grocery store and made plans to move out of the premise s owned by Burnett. The last da y that the Swa

ffords did busines s on the leasehold property was February 26, 1997. The lease expired on February 28, 1997.

In addition to the writ

ten lease, the pa

rties entered int

o a separate oral

agreement under which the Swaffords agreed to pay Burnett $125,000 at the outse t of the lease. Burnett contends that the Swaffords orally agreed to buy only his inventory, not the equipment in the store. T he Swaffords contend that the payment under the ora l agreement was for the store equipment as well as the inv ent ory. At the end of the lease, the Swaffords attempted to remove the equipment from the store, butBurnett prevented them from doing so. Burnett brought suit to recover damages for the loss of equipment that had already been removed and for damag es to the property caused

by the remov

al. The Swaffords answered and filed a counter-complaint alleging that Burne tt had conver ted 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 p arties a nd their respective wit nesses te stified about the parties’ course of dealing regarding the equipment, the maintenance, repair, and replacement of the equipment during the lease, and the val ue of the equipment

at issue. In particular, the testimony reflected tha t, during the course o f the lease, th e Swaffords replaced some of the store equipment and, when they did so, returned the original equipment to the B urnetts.
At the conclusion of the trial, the trial judge made an oral ruling from the bench. The trial judge found that Burne

tt did not agree t

o sell the store eq

uipment to th

e Sw affords, because the Swaff ords’ return of the equipment to Burnett as they replaced it was not consistent with the m 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 tr ial court concluded that the

Swaffords were

entitled to have th

e replacement e

quipment returne

d to them, and awarded them damagesfor 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 t he equipment atissue, and setting off the value of the equipment belonging to the Swaffords aga

inst the value of th

e equipment owned

by Burnett

, the trial court he

ld 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 languag e of the lease didnotauthorize the Swaf fords’ removal of the equipment they had replaced; and that the judgment against Burnett for $5,000 is not supported by the proof. The Sw affords maintain that the trial court’s findings rest largely upon his determination of the credibility

of the witnesses,

and that those-3-

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 presumpti

o n 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 w itnesses. 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 appe llate 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) (ci tation omitted). The

weight, faith, and credit to be give

n to any witness’s testimony lies in the first instance with the trier of fact, and the credibility

accorded will be

given great w

eight by the

appellate court. See In re Estate

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

After reviewing the

trans cript 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 notpreponderate against the trial court’s conclusions regarding the t erms of t he parties’ oral agreement

regarding the equipment. Likewise, we find that the evidenc e 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 tr

ial court is affir

med. The costs of th

is appeal are to

b e taxed to the Appellant, R.G. Burnett, and his surety, for which execution may issue if necessary.

___________________________________ HOLLY KIRBY L

ILLARD, JUDGE