                                                                                                    09/18/2018
                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                Assigned on Briefs April 3, 2018

             SAMUEL SANDERS ET AL. V. MARVIN JACKSON ET AL.

                   Appeal from the Chancery Court for McNairy County
                        No. 9091     William C. Cole, Chancellor
                               ___________________________________

                                 No. W2017-01643-COA-R3-CV
                               ___________________________________

This matter involves a dispute between record owners of adjacent lots. Plaintiffs claim
ownership of both lots. Defendant claims ownership of one lot and a shed situated on the
other lot. Each sought compensation for damages and loss of use of their respective
personal and real property during the dispute. The trial court held that each side owned
the lot to which it was the record owner and that the shed was on plaintiffs’ lot. It held
that both sides failed to meet its burden of proof on the issue of damages. Accordingly,
the court declined to award damages. Plaintiffs appeal. We affirm.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which RICHARD H.
DINKINS, and KENNY W. ARMSTRONG, JJ., joined.

Ross Mitchell, Selmer, Tennessee, for the appellants, Samuel Sanders and Vanessa
Sanders.

Joe L. Brown, Savannah, Tennessee, for the appellee, Marvin Jackson.

                                  MEMORANDUM OPINION1


      1
          Tenn. Ct. App. R. 10 states:

                This Court, 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 “MEMORANDUM OPINION,”
                shall not be published, and shall not be cited or relied on for any reason in any
                unrelated case.

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                                             I.

       This matter involves two parcels of real property – Lot 1 and Lot 2. The parcels
are located in McNairy County. They abut. The defendant is the record owner of Lot 1,
according to the Register’s Office of McNairy County; the plaintiffs are the record
owners of Lot 2 according to the same source. Both plaintiffs and defendant claim
ownership of a shed located on Lot 2.

       At a bench trial, Mr. Kelvin Sanders, plaintiffs’ father and the former owner of the
two lots, testified that he purchased both lots in the early 1990s. He testified that he
obtained a loan secured by a deed of trust on the properties for the purpose of
constructing a house on Lot 1. The house later burned down. Lot 2 includes the shed. He
received insurance proceeds and allegedly paid off the obligation secured by the deed of
trust. However, he states that, due to an error, the deed of trust on Lot 1 was never
released. A foreclosure took place in 2004. On October 4, 2004, a substitute trustees deed
was recorded conveying the property to Bank One. Mr. Sanders the senior believes that
the foreclosure was not legal because he did not receive proper notice. Mr. Sanders the
senior was the original plaintiff in this action. Plaintiffs were later substituted for him,
because they are the record owners of Lot 2.

       After defendant purchased Lot 1, he stored items, including two vehicles, in the
shed. He testified that when an issue arose about the ownership of the parcels in question,
Mr. Sanders the senior padlocked the shed with defendant’s property still inside. Later, at
the request of Mr. Sanders the senior, the McNairy County Sheriff’s Department placed a
padlock on the shed. Defendant also had placed a padlock on the shed, but was unable to
access the shed once the sheriff placed its lock. Defendant alleges that for two years and
six months he was unable to access his property inside the shed.

       Defendant asked the court for compensation for the time his personal items were
locked inside the shed on Lot 2. He also requested compensation for improvements made
on the property and for expenses related to the cleanup and improvements of the
property. Plaintiffs requested compensation for the loss of use of the shed due to
defendant’s property being stored therein, and compensation for damages to plaintiffs’
property. The trial court held in its order that:

              [T]he Plaintiffs claim ownership of Lot 1 based on an alleged
              illegal foreclosure of Lot 1 when their father, Kelvin Sanders,
              was the record owner of Lot 1. The Defendant claims
              ownership of a storage building situated on Lot 2 because he
              was told by the seller of Lot 1, [real estate agent], that the
              storage building was included in the purchase. The Court
              finds that the Plaintiffs have failed to meet the burden of
              proof necessary for the Court to award them possession of

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              Lot 1, and that the Defendant has failed to meet the burden of
              proof necessary for the Court to award him possession of the
              storage building on Lot 2.

The court held that defendant is the owner of Lot 1, and that plaintiffs are the owner of
Lot 2, including the shed. The court found that neither party owed the other damages.

                                              II.

        Plaintiffs argue that there is sufficient evidence to support the finding that
plaintiffs are entitled to an award of damages for the loss of use of the shed on Lot 2.
They argue that the defendant took possession of property belonging to plaintiffs, and
that defendant did so in violation of the property rights of plaintiffs. Conversion is “the
appropriation of [property] to the party's own use and benefit, by the exercise of
dominion over it, in defiance of plaintiff's right.” Barger v. Webb, 216 Tenn. 275, 391
S.W.2d 664, 665 (1965).

        In a non-jury case, our review of the trial court’s factual findings is de novo upon
the record, accompanied by a presumption of the correctness of the findings, unless the
preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d). We review a trial
court’s conclusions of law de novo with no presumption of correctness. Kaplan v.
Bugalla, 188 S.W.3d 632, 635 (Tenn. 2006). Due to the fact-intensive nature of boundary
line disputes, the trial court is best suited to assess the credibility of the witnesses and its
credibility determinations are binding on this Court unless the evidence preponderates
against them. Conder v. Salyers, 421 S.W.3d 589, 592 (Tenn. Ct. App. 2013).

        The standard of review we employ for damage awards in non-jury cases was set
forth in Memphis Light, Gas & Water Div. v. Starkey:

              In the appeal of a damages award, the appellate review of
              “[w]hether the trial court has utilized the proper measure
              of damages is a question of law that we review de novo.” The
              amount of damages awarded, however, is a question of fact so
              long as the amount awarded is within the limits set by the
              law. Thus, in a non-jury case such as this, we review the
              amount of damages awarded by the trial court with a
              presumption of correctness, unless the preponderance of the
              evidence demonstrates otherwise. Great weight is given to
              factual findings that are based on the trial court's assessment
              of witness credibility. This is because the “trial judge as the
              trier of fact had the opportunity to observe the manner and
              demeanor of all of the witnesses as they testified from the
              witness stand.”

                                              -3-
244 S.W.3d 344, 352–53 (Tenn. Ct. App. 2007) (internal citations omitted).

                                            III.

        The record on appeal is limited to the technical record, trial exhibits, and a
statement of the evidence prepared by plaintiffs. Plaintiffs argue in their brief that they
are “entitled to damages, most notably in the form of rent, from the use of the shed on Lot
2.” Plaintiffs argue that they “should not have to bear the cost of the loss of use of the
shed on their property while it was locked.” According to the statement of the evidence,
the only witness called by plaintiffs was the original plaintiff to this action, Mr. Sanders
the senior. He testified that he believed the foreclosure was improper, and therefore,
plaintiffs owned both lots. There is no mention of plaintiffs presenting evidence
regarding damage to any property or of rent owed. As outlined above, defendant testified
that Mr. Sanders the senior placed a lock on the shed when an ownership dispute arose.
He also caused the local sheriff to place an additional lock to prevent defendant from
accessing the shed during the dispute. Defendant had to move the court to obtain
permission to enter the shed and remove his vehicles, a motion that plaintiffs opposed.

        The record therefore indicates that plaintiffs’ loss of use of the shed occurred in
conjunction with the defendant’s loss of use of the property locked therein. This course of
conduct and the facts outlined above do not evince an entitlement to damages.
Consequently, the court declined to find that either party had carried its burden of proof
and therefore it did not award damages. From the record as a whole, we cannot conclude
that the evidence preponderates against these findings. We hold that plaintiffs are not
entitled to an award of damages.

                                            IV.

       The judgment of the trial court is affirmed. Costs on appeal are taxed to the
appellants, Samuel Sanders and Vanessa Sanders. This case is remanded to the trial court
for enforcement of the court’s judgment and for collection of costs assessed by the trial
court.



                                                    _______________________________
                                                    CHARLES D. SUSANO, JR., JUDGE




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