# FILED October 31, 19 97 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT KNOXV

ILLE

_______________________________________________________ ) FORTUNES UNTOLD, INC. , ) Anderson County Circuit Court ) No. 96LA0405 Plaintiff

/Appella nt, ) ) VS. ) C.A. No. 03A01-9705-CV-00164 ) T. C. WATSON , ) ) Defendant/Appellee. ) )

______________________________________________________________________________ From the Circuit Court of Anderson County a t Clinton. Honorable James B. Scott, Jr., Judge

John J. Britton , Janet Strevel Hayes , LEWIS, KI

NG, KRIEG, WAL

DROP & CATRON, P.C., Knoxville, Tennessee Attorney for Plain tiff/App ellant. Philip R. Crye, Jr. , MAGIL L, CRYE & CI

ZEK, Clinton, Tennessee Attorney for D efendant/Appellee.

OPINI ON FIL

ED: AFFI RMED AND

REMANDED FARMER, J. CRAWF ORD, P.J., W.S. : (Concur s) WILLIAMS, SR. J. : (Concur s)The plaintiff , Fortunes Untold , Inc. (Fortunes), brought an action for unla wful detainer in general sessions court aga inst the defendant, T. C. Watson. That court ordered possession in favor of

the plain tiff but a warded no damag es. Plaint

iff appe aled to the trial c ourt, which reached the same result, a nd then to t

his Court.

Mr. Don Manis was the sole witness for the plaintiff and testified that he is the owner of the plain tiff cor poration . Fortunes enter ed into an

installment sa les contract to purchase the propert y from Velma F . Armstro ng in June 1 996. Title in fee sim

ple was to be conveyed to buyer after the contract

hadbeen performed. I

t provided that “[b]oth parties understand that current tenant (occupa nt) has been given until July 1st, 1996 to remove

his salvage and junk from the premises.” Mr. Manis test

ified tha t it was hisunderstanding that the property was leased

to the defendant, Mr. T. C. Watson. He testifiedth at , d es pi te re qu es ts , W at so n f ai le d t o r em ov e c ar s f ro m t he pr op er ty, whic h has b een i dent

ifie d in the rec ord a s a jun ky ard. On July

1 the re we re ap proxi mately 24 0 automobiles and several hundred tires on the property . The detainer action was filed onJuly 3 and set for hearing July

23. He stated tha

t he had a convers ation with

Watson who

told him tha

t, becau se it had bee n raining , he was h aving p roblems g etting th

e cars o ff. The h

earing was c ontinue d to August 13 to allow Watson additional time to remove the cars as well as other items from the pr op er ty. When Manis went to the property on A ugust 9th the cars had been removed, but he found ti re s a nd st ee l b ea ms on th e p ro pe rt y.

Manis testifi ed that he incurred expenses for the removal of the be ams, several hundredtires and b ulldo zer expense which was necessary to move some of the cars as they were being removed from the lot in order that he could gra de the lot. He also testified to additio nal expenses incurred in moving vehicles from another location he owned to t

he subject proper

ty a s well
as attorney’sfees. Ma

nis padloc

ked the pr

operty on July 1st. He later unlocked it so the removal could proceed. He

testified that the persons he saw removing car s from the property were other than T. C. Watson.

Mr. T. C. Watson testified that he entered into a lease on the property seve ral yea rs ago. When he leased the property , it was being operated as a junkyard by Mr. Elmer Farmer. When he took possession there were approximately 20 to 25 cars on the property. The written lease expiredseveral ye ars ag o. Once t he writte n lease e xpired, he continue d making

the leas e pay

ments to Ms. Armst rong. He tes tifi ed tha t som e four o r five years ago he allowed a Mr. Bud E

lliott to move

his
cars onto the property, a

pproximately 200 to 230. Mr. Elliott then began pay ing the rent

directly to Ms. Armstrong. Mr. Watson had not activel y participated in the business for the past four to five ye ars. Watson adm

itted rec eiv ing a letter da ted April 30, 1996 f

rom John Ba

rbour, a real es tate broker, which sta

tes as fo llows:

I am glad to have met and talked to y ou over the telephone last eveni ng. As we disc

usse d, I have

just listed the 5.95 acres for sale. Mr. & Mr s. Armstrong gave me y our telephone number

and wanted me to contact you so y

ou would not be surprised when I put up the FOR SALE sign ear

ly next week. Mr. Armstrong said y ou told him you were ready

to close down your business and sug gest

ed he se ll the property. He offered to sell the propert y to you at a discount

but you were not inter

estedin buy

ing it. You told him

you would move

you r invento ry of salva ge meta l. There are two i

tems of imme diate impo

rtance that must be

done to ma rk et th is pr op er ty. 1) To show the p

roperty I must have a way

to get inside the fenced

area. Is ther

e a key to the lock on the gate you could let me use? 2) Anybuyer woul d want y our salva ge meta l off th e propert y so they could devel op it for their own use. Please have every

thing off by

the first we ek in July 1996. I thank you for y

our help and assistanc e in selling Mrs. V elma Ar ms tr on g’ s p ro pe rt y.

He testifi ed that when approached by Mrs. Armstrong, he told her that he had no interest in buy ing the p roperty as he had

no use for

it. He tes tified tha

t, w hen contacted by

Mr. Manis, he advised Manis tha t he would

talk to Bud Elliott and get every thing off the property

as soon
as he could. After r

eceiving the le

tter, he told Mr. Elliott that Mr . Elliott wouldhave to remove h is po ssess ions from the lot. He testified that the steel beams were on the prope rty when he took possession. He testif

ied that th

e conditi on of the p

roperty on July 1, 1996, was about the same as it was when he first took possession.

At the conclusion of

the evidence, the trial judge took the matter under advisement and subsequently opined that “ [t]he Court is of the opinion, afterhearing all of the proof, plaintiff has failed to carry

the burden of proof as it relates to a lega l bases [sic] upon which damages can be1 Monetary judgm ents for pla intiff. -- I n all cas es of for

cible en try and deta iner, fo rcible detaine r, and un lawful de tainer, the judg e of the c ourt of g eneral sessions tr

ying the ca

use shall be authorized and it shall be his duty, if his judgment sha ll be that the plaintiff recover the possession, to ascertain the arrearag e of rent, and interest, and damage s, if any, and re nder judgment therefor.

2 Unlawful detainer defined.-- Unlawful detainer is where the def endant enters by contract, either as tenant or as assignee of a tenant, or as personal repre sentative of a tenant, or as subtenant, or by collusion with a tenant, a nd, in either case, willfully a nd without force, holds over the possession from the landlord, or the assignee of the remainder or reversion. awarded.”

It

is the app ellant’sp osit ion that the trial court, having awarded possession, was bound by T.C.A. § 29-18-125 1 to award damage s.
Appellee counter s that Plain tiff is not the proper entity to bring an unlawful detainer action as it does not

fall within the meaning of T.C.A. § 29-18-104. 2 It is his further position that Fortunes failed to prove damages. In reviewing this record, it is apparent

that Watson

did not con

test Fortune s’ right to

possess the property. This is evidenc ed by the following discussion between the court and respective counsel prior to the prese ntation of evidence:

THE COURT: Gentlemen, a writ of de tainer a ction is usu ally somebody

is ho ld in g m y pr op er ty u nlawf ully from me and I

want possession of it. What is this here? MR. CRYE: We don’t

dispute, Your Honor, and we make no claim that we’re entitled to possession of this property . We don’t say that we’reentitled to it, and I guess Mr. Manis is entitled to it, him or Ms. Ar mstr ong. THE COURT: So a writ of possession could, if, tech nicall y spea king, a writ [of] possession could issue right now for t hem t o have l awful poss essio n of th is pro perty is w hat you’r e saying. MR. CRYE: We’re not saying -- that ’s righ t, Your Honor, we’re not say

ing -- THE COURT: So that issue is not before me. MR. CRYE: That’s not before you. THE COURT: But the issue as to whether or not, as a result of any unlawful de

tainer, there has be en damages is the only issue that I ’m to pass on; is that r ight? MR. BRITTON: That’s corr ect, Your Honor.Thus, a s to the part ies before the court, it is apparent the only issue for the court to decide was whether Fortunes was entitled to recover damages against Mr. Watson.

This case was tried by

the court sitting withou t a jury . Therefore, ou r review is de
novo up on th e r ec or d w it h a pr es um pt io n o f c or re ct ne ss of th e f in di ng s o f f ac t b y the trial cou rt. Simmons v. O’Charley’s, Inc. , 914 S.W.2d 8 95, 902 (Tenn. App. 1995); Rule 13(d) T. R.A.P. Howev er, where the trial judge does not make any findings of fact, there is nothing in the recor d upon which a

presumpt ion of cor rectne ss can attach. Kelly v. K elly , 679 S.W.2d 458 (Tenn. App. 1984).

Unlawful detaine r is the un

justifiab le reten

ti on of the possession of lands by one whose original entry

was lawful and of

right, but whose right to the possession has terminated and who refuses to quit, as in the case of a tenant holding over after the termination of a lease, a nd in spiteof a demand for possession by the landlord. Actionsof unlawful detainer concern only the right of possession of the realty

and differ from ejectment in that no ultimate question of title or estate can be determined. Black’s L aw Dictiona

ry 581 (5th ed. 1979).

Our de novo review o f this rec ord reve als that it is undisput

ed that when Mr. Watson’s written le ase with the prope rty owner e xpired he b ecame a

month-to- month tena

nt. Some four to five years pr ior to trial he allowed Bud Elliott to move his cars onto the property . At that time Mr. Elliott began pay ing the rent directly

to the owner. Mr. Watson had not actively participated

in the business for

the past four

to five y ears. I n essenc e, Mr. Ell

iott beca me the ten ant. The steal beams which Mr. Manis was required to remove were on the property when Mr. Watson took possession. Mr. Watson testified that the condition of the property on July 1, 1996, was about the same as it was when he first took possession.

In an unlaw ful deta

iner ac tion, the in

jured pa rty is entitled to damages sustained by virtue of the defendant’s unlawful detentio n of the pr

emises. Simmons v. O’Charley’s, Inc. , 914 S.W.2d at 903. Th

us, in orde

r to rec over damages, the plain tiff entitled to pos session mu st demonstrate that such damages were proximately caused by

the acts of the defendant. Id
.We have determined from our re view of this record that the preponderance of the evidence is that any damag es sustained by For tunes resulted from the removal of items that were on the property a

t the time Mr. Watson initially took possession or belonged to persons other than Mr. Watson. It

results that the judgment of the trial court is affirmed. Costs of this appe al are ta

xed to the appe llant.

____________________________________ FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ WIL LI AMS, SR. J. (Concurs)