       IN THE COURT OF APPEALS OF TENNESSEE
                   AT NASHVILLE
                                                   FILED
                                                   December 10, 1998
GUY BEATY,                      )
                                )                  Cecil W. Crowson
      Plaintiff/Appellee,       )                 Appellate Court Clerk
                                )   Fentress Circuit
                                )   No. 6969
VS.                             )
                                )   Appeal No.
                                )   01A01-9701-CV-00046
BOBBY McGRAW and                )
STEVE BROWN,                    )
                                )
      Defendants/Appellants.    )



                    APPEAL FROM THE CIRCUIT COURT
                        FOR FENTRESS COUNTY
                      AT JAMESTOWN, TENNESSEE

            THE HONORABLE CONRAD E. TROUTMAN, JUDGE




For Plaintiff/Appellee:             For Defendants/Appellants:

John D. Agee                        James P. Smith, Jr.
Cooley, Cooley & Agee               Crossville, Tennessee
Kingston, Tennessee
                                    Patrick T. Phillips
                                    Knoxville, Tennessee




          AFFIRMED IN PART; VACATED IN PART
                   AND REMANDED




                                    WILLIAM C. KOCH, JR., JUDGE
                                     OPINION


       This appeal involves a dispute over the sale and repossession of a drilling rig. The
seller filed suit against the purchasers in the Fentress County General S essions Court seeking
immedia te possession of the rig and damages. Following the purchasers’ de novo appeal, the
Circuit Court for Fentress County awarded the seller possession of the rig but held that the
purchasers could recover the rig by paying the seller the outstanding balance of the purchase
price. On the purchasers’ appeal, this court held that the seller was entitled to a judgment for
the unpaid purchase price but that the seller had not been entitled to repossess the rig.
Acc ordingly, this court remanded the case to determine the purchasers’ damages for the
seller’s wrongful detention of the rig.       The purchasers asserted on remand that the
appropriate measure of their dam ages had already been d etermined in a similar Roane County
proceeding between the same parties. The trial court disagreed and aw arded the purchasers
$26,021 for the seller’s wrongful detention of the rig and $8,000 in attorney’s fees under
Tenn. Code Ann. § 29-30-110 (1980). All parties have appealed. The purchasers assert that
the trial court should have used the same me asure of d amages u sed in the R oane Co unty
proceeding and that they should have been awarded exemplary damages under Tenn. Code
Ann. § 29-30-210 (1980). The seller asserts that the evidence preponderates against the trial
court’s damage award and that the purchasers were not entitled to recover their attorney’s
fees. We have determined that the trial court correctly calculated the purchasers’ damages
but that the case must be remanded for further consideration of the award of attorney’s fees
to the purchasers.


                                               I.


       In January 198 6, Three G ’s Drilling Company sold a 1978 Drilltech Type SME
drilling rig to Bobby McGraw and Steve Brown for $50,000. Messrs. McGraw and Brown
paid $25,000 down a nd agreed to pay the balan ce in four $ 6,250 installm ents due between
April 1, 1986 and Janu ary 1, 1987. M essrs. McG raw and Brown took poss ession of th e rig
but failed to execute a written contract or to make any of their payments. On March 13,
1992, Guy Beaty, one of the partners in Three G’s Drilling Company, filed suit in the Roane
County General Sessions Court seeking immediate possession of the rig. The general
sessions court awarded Mr. Beaty a writ of immediate possession, and sheriff’s deputies took
possession of the rig and turned it over to Mr. Beaty in March 1992.




                                              -2-
       Messrs. McGraw and Brown resisted the Roane County suit and, in March or April
1992, convinced the general sessions court to dismiss Mr. Beaty’s suit for improper venue.
For some reason not apparent in the record, the general sessions court overlooked ordering
that the rig be returned as contemplated by Tenn. Code Ann. § 29-30-208 (1980). M essrs.
McGraw and Brow n perfected a de no vo appea l to the Circu it Court for R oane Co unty
because the Roan e Coun ty General Sessions C ourt had declined to ord er Mr. Beaty to return
the rig when it dismissed his case.


       On April 2, 1992, M r. Beaty filed suit in the Fentress Coun ty General Sessions Co urt
seeking possession of the rig and damages. His application of the writ of possession recited
that Mr. Beaty already had possession of the rig but that he was “in need of an order
conferring the right to possession.” The Fentress County General Sessions Court issued a
writ of possession on April 3, 1992. After the entry of an order in Mr. Beaty’s favor on June
2, 1992, M essrs. M cGraw and Brown perfected a de novo appeal to the Circuit Court for
Fentre ss Cou nty.


       Thus, by April 1992, the parties were pursuing similar issues in both the Circuit Court
for Roane C ounty and the Circuit Co urt for Fen tress Coun ty.            In the Roane Coun ty
proceeding, Messrs. McGra w and Brown again moved to dismiss Mr. Beaty’s suit for
improper venue. On October 5, 1992, the Circuit Court for Roane County dismissed Mr.
Beaty’s suit but, to Messrs. McGraw’s and Brown’s consternation, made no ruling on which
party was entitled to possession of the drilling rig and declined to consider their claim for
exemplary damages because they were pursuing a claim for exemplary damages in the
Fentress County pro ceeding. O n Februa ry 24, 1993, the Circuit Court for Fentress County
entered a final order find ing that M r. Beaty was e ntitled to posse ssion of the drilling rig but
that Messrs. Mc Graw and Brow n could ob tain possess ion of the rig by paying M r. Beaty
$25,000 within thirty days. The court did not awa rd Messrs. Mc Graw and Brown ex emplary
damages.


       Messrs. McG raw an d Brow n appe aled bo th circui t court ju dgme nts. The Roane
County case was the first to reach the Court of Appeals. A panel of Western Section judges,
sitting in Knoxville, held that Messrs. McGraw and Brown were entitled to damages for M r.
Beaty’s wrongful taking of the drilling rig and remanded the case with directions to assess
these damages once the circuit court d etermined that it had sub ject matter jurisd iction to
decide the claim.1 See Beaty v. McGraw, No. 03A01-9211-CV-00417, 1993 WL 119799


       1
           Mr. Beaty had contended that a private act gave the Roane County General Sessions Court
                                                                                     (continued...)

                                                 -3-
(Tenn. Ct. App. Apr. 16, 1993) (No Tenn. R. App. P. 11 application filed). In the second
decision, a panel of Middle Section judges affirmed the Circuit Court for Fen tress County’s
judgment awarding Mr. Beaty $25,000 plus prejudgmen t interest but also found that M r.
Beaty had w rongf ully detain ed the d rilling rig . Acc ordingly, the court rem anded the case to
the circuit court for the consid eration o f dam ages. See Beaty v. McGraw, No 01A01-9312-
CV-00544, 1994 WL 440897 (Tenn. Ct. App. Aug. 17, 1994) (No Tenn. R. App. P. 11
applica tion filed ).


        At this point, both the Roane County and the Fentress County actions had been
remande d to their respective trial c ourts with in structions to determine the dama ges due to
Messrs. McGraw and Brown for Mr. Beaty’s wrongful detention of the drilling rig. In the
Roane County pro ceeding, the circuit court was to assess the damages from March 13, 1992
through April 3, 1992 – the time that Mr. Beaty held the rig under the aegis of the writ of
possession issued by the Roane County G eneral Sess ions Cou rt. In the Fentre ss Coun ty
proceeding, the circuit court was to assess the damages from April 3, 1992 through mid-
Augus t, 1994 – the time that Mr. Beaty held the rig under the writ of possession issued by
the Fentres s County G eneral Sess ions Cou rt.2


        On October 28, 1994, the Circuit Court for Roane County entered an order finding
that it had subject matter jurisdiction and awarding Messrs. McGraw and Brown $1,885 in
damages for the wrongful detention of the drilling rig from March 13 to April 3, 1992. The
circuit court based its award on the fair monthly rental value of the drilling rig.3


        During the hearing before the Circuit Court for Fentress County, Messrs. McGraw and
Brown asserted that the court should calculate their damages using the same calculation that
had been used in the Roane County proceedings. The circuit court chose instead to ba se its
damage calculation o n the actual i ncome Messrs. McGraw and Brown earned from the
drilling rig in 1991.4 After determining that Mr. Beaty had wrongfully detained the drilling

        1
        (...continued)
concurrent jurisdiction with the Circuit Court for Roane County on matters of replevin. Therefore,
he had argued that Messrs. McGraw and Brown’s appeal from the Roane County General Sessions
Court should have been to the Court of Appeals rather than to the circuit court.
        2
      After this court’s decision in the second appeal, Mr. Beaty returned the drilling rig to Messrs.
McGraw and Brown.
        3
        The circuit court found that the rig’s fair monthly rental value was $5,000. After deducting
$2,500 representing the monthly expenses for operating the rig, the court prorated the $2,500 net
income based on the three weeks that Mr. Beaty had the rig in his possession.
        4
            The circuit court determined that Messrs. McGraw and Brown earned $10,500 from the rig
                                                                                    (continued...)

                                                 -4-
rig under the writ of possession issued by the Fentress County General Sessions Court for
twenty-nine month s, the circuit cou rt awarded Messrs. M cGraw and Bro wn $26 ,021 in
damages plus $8,00 0 in attorney’s fees under Tenn. C ode An n. § 29-30 -110. Bo th Mr. Be aty
and Messrs. Mc Graw and Brown ha ve appealed from the Circuit Court for Fe ntress County’s
April 25, 1996 order. Thus, we consider this dispute for the third time.


                                               II.
                              T HE C OLLATERAL E STOPPEL I SSUE


         We turn first to the collateral estoppel issue. Messrs. McGraw and Brown assert that
Mr. Beaty is collaterally estopped to advance any measure of damages for his wrongful
detention of the drilling rig other than the fair rental value of the rig during the time it was
detained b ecause tha t was the m easure of d amages a dopted by the Circuit Court for Roane
Cou nty. Mr. Beaty responds that Messrs. McGraw and Brown are imperm issibly seeking to
use the doctrine of collateral estoppel offensively. Both sides are mistaken.


                                               A.


         Collateral estopp el is an iss ue prec lusion d octrine d evised by the co urts.     See
Dickerson v. Godfrey, 825 S.W .2d 692, 69 4 (Tenn. 1 992); Goeke v. Woods, 777 S.W.2d 347,
349 (Tenn. 19 89); Morris v. Esmark Apparel, Inc., 832 S .W.2d 563, 56 5 (Ten n. Ct. A pp.
1991). Like other preclusion doctrine s, its purposes are to conse rve judicial res ources, to
relieve litigants from the cost and vexation of multiple lawsuits, and to encourage reliance
on judi cial dec isions b y preven ting inco nsistent decisio ns. See Allen v. McCurry, 449 U.S.
90, 94, 101 S. Ct. 411, 41 4-15 (1980); Disimone v. Browner, 121 F.3d 1262, 1267 (9th Cir.
1997).


         Judge Friendly succinctly explained issue preclusion when he observed ov er thirty
years ago that “[w]here the litigants have once battled for the cou rt’s decision, the y should
neither be required, nor without good reason permitted, to battle for it again.” Zdanok v.
Glidden Co., 327 F .2d 944 , 953 (2 d Cir. 19 64). Thus, as our courts have construed the
collateral estoppel doctrine, it bars the same parties or their privies from relitigating in a
second suit issues that w ere actually raised and determ ined in an earlie r suit. See Ma ssengill
v. Scott, 738 S.W.2d 629, 631 (Tenn. 1987); Collins v. Greene County Bank, 916 S.W.2d
941, 945 (Tenn. Ct. App. 1995). Stated another way, when an issue has been actually and


         4
             (...continued)
in 1991.

                                               -5-
necessarily determine d in a form er action be tween the parties, that dete rmination is
conclusive against them in subs equen t litigation . See King v. Brooks, 562 S.W.2d 422, 424
(Tenn. 19 78); Allied Sou nd, Inc. v. Ne ely, 909 S.W.2d 81 5, 820 (Tenn. C t. App. 1995).


       The party seeking to rely on the doctrine of collateral estoppel has the burden of
proof. See Dickerson v. Godfrey, 825 S.W.2d at 695. To invoke the d octrine succe ssfu lly,
the party must demonstrate:
       1.     that the issue sought to be precluded is identical to the issue d ecided in
              the earlier suit; 5

       2.     that the issue sought to b e preclude d was ac tually litigated and decided
              on its merits in th e earlier suit; 6

       3.     that the judg ment in the earlier suit has b ecome f inal; 7

       4.     that the party against whom collateral estoppel is asserted was a party
              or is in privity with a party to the earlier su it;8 and

       5.     that the party agains t whom collateral estop pel is asserted had a full and
              fair opportunity in the earlier suit to litigate th e issue now sought to be
              precluded.9


       At common law, the collateral estoppel doctrine required mutuality of the parties and
could only be used defensively. Thus, a defe ndant traditio nally employed th e doctrine to
prevent a plaintiff from relitigating a claim that the plaintiff has previously litigated against
the defen dant an d lost. T he United States Supreme Court expanded the application of the
collateral estoppel doctrine in federal courts when it discarded the common-law mu tuality
of parties require ment. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326-333, 99 S. Ct.
646, 649-653(1 979).


       The federal courts and many state co urts now permit the offensive use of the collateral
estoppel doctrine in two ways. First, the doctrine can be used when a plaintiff seek s to


       5
        See Tennessee Farmers Mut. Ins. Co. v. Moore, 958 S.W.2d 759, 767 (Tenn. Ct. App. 1997);
Scales v. Scales, 564 S.W.2d 667, 670 (Tenn. Ct. App. 1977).
       6
       See Dickerson v. Godfrey, 825 S.W.2d at 694-95; A.L. Kornman Co. v. Metropolitan Gov’t,
216 Tenn. 205, 213, 391 S.W.2d 633, 637 (1965).
       7
        See Frank Rudy Heirs Assocs. v. Sholodge, Inc., 967 S.W.2d 810, 813 (Tenn. Ct. App.
1997); Morris v. Esmark Apparel, Inc., 832 S.W.2d at 565.
       8
        See Blue Diamond Coal Co. v. Holland-America Ins. Co., 671 S.W.2d 829, 832 (Tenn.
1984); Shelley v. Gipson, 218 Tenn. 1, 13, 400 S.W.2d 709, 714 (1966).
       9
       See Jenne v. Snyder-Falkinham, 967 S.W.2d 327, 330 (Tenn. Ct. App. 1997); Morris v.
Esmark Apparel, Inc., 832 S.W.2d at 566; Restatement (Second) of Judgments § 29 (1982).

                                              -6-
foreclose a defend ant from re litigating an issue that the defendant had previously litigated
unsucce ssfully in another a ction again st the same p laintiff. This form of collateral estoppel
is commonly referred to as “mutual offensive collateral estoppel” because the parties in the
two proceedings are the same. Second, the doctrine can be us ed whe n a plaintiff s eeks to
foreclose a defendant from relitigating an issue that the defendant had previously litigated
unsucce ssfully in another action against a different party. This form of collateral estoppel
is commonly known as “nonmutual offensive collateral estoppel.” See United States v.
Mendoza, 464 U.S . 154, 159 n .4, 104 S. C t. 568, 571 n .4 (1984); Parkland Hosiery Co. v.
Shore, 439 U.S. at 326 n.4, 99 S. Ct. at 649 n.4; Chicago Truck Drivers, Helpers and
Warehouse Union (Indep.) Pension Fund v. Century Motor Freight, Inc., 125 F.3d 526, 530
n.3 (7th Cir. 1997).


       Only a small number of states presently continue to adhere to the mutuality of parties
requireme nt. See 1B James W. M oore & Jo D. L ucas, Moore’s Federal Practice ¶ 0.441 [3.-
2] (1995 ). Tennessee is one of these states. Our courts have repeatedly declined to approve
the use of nonm utual of fensiv e collate ral estop pel. See Gann v. International Harvester Co.,
712 S.W.2d 1 00, 101 (T enn. 1986 ); Algood v. Nashville Mach . Co., 648 S.W.2d 260, 261
(Tenn. Ct. App. 1983); see also Leathers v. U.S.A. Trucking, Inc., No. 02A01-9109-CV-
00198, 1992 WL 37146, at *1 (Tenn. Ct. App. Mar. 2, 1992) (No Tenn. R. App. P. 11
application filed); Beama n Bottling C o. v. Benne tt, No. 03A01-9103-CV-00091, 1991 WL
218228, at *2 (Ten n. Ct. App . Oct. 29, 19 91) (No T enn. R. A pp. P. 11 ap plication filed);
Carroll v. Times Printing Co., No. 596, 1987 WL 10 332, at *3 (T enn. Ct. App. May 5, 1987)
(No Tenn R . App. P. 11 application f iled).


       We can, however, find no decision in which an appellate court of this state has
addressed the propriety of mutual of fensive co llateral estoppe l – that is, perm itting the
plaintiff to foreclose a defenda nt from relitig ating an issu e that the def endant ha d previou sly
litigated unsuccessfully in another action against the same plaintiff.10 On the face of it,
permitting the use of mutual offensive collateral estoppel seems to provide all the benef its
of the issue preclusion doctrine without any of the perceived undesirable consequences of
nonmutual offensive collateral estop pel. Recognizing the doctrine will not increase the total
amount of litigation, and it will not necess arily be un fair to th e defe ndant. See Leathers v.
U.S.A. Trucking, Inc., 1992 WL 37146, at *2 (discussing the undesirable consequences of
nonmutual off ensive collateral estoppel).


       10
          This court may have applied mutual offensive collateral estoppel in a case involving the
construction of a will where the parties in the two proceedings were in privity with each other. See
Aclin v. Speight, 611 S.W.2d 54, 55 (Tenn. Ct. App. 1980).

                                                -7-
       Acc ordingly, we find that trial courts may permit the use of mutual offensive collateral
estoppel in proper circ ums tanc es. T his d ecision is discreti onary with the trial court. See
Parklane Hosiery Co. v. Shore, 439 U.S . at 331, 99 S . Ct. at 651-5 2; Winters v. Diamond
Shamrock Chem. Co., 149 F.3d 387, 391 (5th Cir. 1998). Mutual offensive collateral
estoppel should be permitted only when the alignment of the parties and the legal and factual
issues warra nt it. See Nations v. Sun Oil Co., 705 F.2d 742, 74 4-45 (5th Cir. 1983). The trial
court’s discretion has its limits, and the tria l court mus t take special c are to ensure that the
offensive application of the doctrine does not work a hardship on the party against whom the
estoppel is asserte d. See Re mingto n Ran d Cor p. v. Am sterdam -Rotter dam B ank, N .V., 68
F.3d 1478, 14 86 (2d C ir. 1995); Raytech Corp. v. W hite, 54 F.3d 187, 190 (3d Cir. 1995).
In exercising its discretion, the trial court may consider (1) whether the plaintiff could have
joined the former suit but decid ed instead to adopt a “wait and see” attitude, (2) whether the
defendant had an incentive to defend the former suit v igorously, and (3) whether the
judgment on whic h the plaintiff seeks to rely is itself in consistent w ith previous judgmen ts
against the defen dant. See Parklane Hosiery Co. v. Shore, 439 U.S. at 330-31, 99 S. Ct. at
651-52; Winters v. Diamond Shamrock Chem. Co., 149 F.3d at 391.


                                                B.


       Messrs. McGraw and Brown assert that Mr. Beaty should be collaterally estopped
from relitigating the issu e of the ap plicable measure of damages for his wrongful detention
of the drilling rig because the Circuit Court for R oane Coun ty already a particular measure
of damages in the earlier Roane County proceeding. Mr. Beaty responds that Messrs.
McGraw and Brown should not be permitted to use the collateral estoppel doctrine
offensiv ely. In light of our conclusion that the collateral estoppel doctrine can be used
offensive ly when the parties in both suits are the same, we find that Messrs. McGraw and
Brown may invoke the collateral estoppel doctrine if they can demonstrate that all the
necessary ingredients are present. Accordingly, we must examine the requirements of the
collateral estoppel doctrine in light of the facts of this case.


       This appeal implicates the first two requirements for the collateral estoppel doctrine
– that the issue sought to be precluded must be identical to the issue actually litigated and
decided on the me rits in the earlier suit. We must decide wh ether the choice of the m easure
of damages for Mr. Beaty’s wrongful detention of the drilling rig under the writ of possession
issued by the Roane County General Sessions Court is the same issue as the choice of the
measure of damages for Mr. Beaty’s wrongful detention of the drilling rig under th e later writ




                                               -8-
of possession issued by the Fentress County General Sessions Court. The very formulation
of the issue foretells the answ er.


        When a party invokes the collateral estoppel doctrine, the court must f irst ascertain
what issue or issues were actually d ecided in the fir st proce eding. See Anvan Realty &
Management Co. v. Marks, 680 F. Supp. 1247, 1 249 (N .D. Ill. 19 88). For the pu rpose of th is
analysis, an “issue” is any disputed point or q uestion raised by the parties’ pleadings
concerning which the parties desire a decision. See Paine & Williams Co. v. Baldwin Rubber
Co., 113 F.2d 840, 843 (6th Cir. 194 0); Muller v. Muller, 45 Cal. Rptr. 182, 184 (Ct. App.
1965); In re Powers, 493 N.W.2d 166, 169 (Neb. 1992); Commonwealth v. Willow Grove
Veterans Home Ass’n, Inc., 509 A.2d 958, 961 (Pa. Commw. Ct. 1986); 1B James W. M oore
& Jo D. L ucas, Moore’s Federal Practice ¶ 0.443[2] (1995). The court must then determine
what issue or issues are in volved in the second proceeding and must compare the issues in
the two proceedings to determine whether they are identical. For the collateral estoppel
doctrine to apply, the issue sought to be precluded in the second proceeding must be
identical, not merely similar, to the issue de cided in the first p roceed ing. See Farha v. F DIC,
963 F.2d 283, 286 (10th Cir. 1992) ; Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1399
(9th Ci r. 1992 ).


        The process for analyzing the identity of an issue will vary depending on whether the
issue is a factu al or legal on e. Judge F eikens has explained that
                [The issue] may concern only the existence or non-existence of
                certain fact s, or it may c oncern the legal significance of those
                facts. . . . If the issues are “merely evidentiary”, they need only
                deal with the same p ast events to b e considere d identical.
                However, if they concern the legal significance of those facts,
                the legal standards to be applied m ust also be id entical; different
                legal standards as applied to the same set of facts create
                different issues.

Overseas Motors, Inc. v. Import Motors Ltd., 375 F. Supp. 49 9, 518 n.66a (E.D . Mich. 1974).
Courts now rely on the following four inquiries taken from the Restatement (Second) of
Judgments to guide their analysis of the identity of issues:
        (1)     Is there a substantial overlap between the evidence or argument to be
                advance d in the seco nd proce eding and that advan ced in the f irst?

        (2)     Does the new evidence or argument involve the application of the same
                rule of law as that involved in the prior proceeding?

        (3)     Could pretrial preparation or discovery related to the matter presented
                in the first action reasonably be expected to have embraced the matter
                sought to be presented in the second?



                                                -9-
       (4)     How closely related are the claims involved in the two proceedings?

Restatement (Second ) of Judgm ents § 27 c mt. c (1982 ); see also Disimone v. Browner, 121
F.3d at 1267; Greene v. United States, 79 F.3d 1348, 1353 (2d Cir. 1996) ; McLaughlin v.
Bradlee, 803 F.2d 1197 , 1203 (D.C. Cir. 198 6).


                                                C.


       Determinations concerning the amount of damages are factually driven. See Loftis v.
Finch, 491 S.W.2d 370, 377 (Tenn. Ct. App. 1972). Thus, the amount of damages to be
awarded in a particul ar case i s essen tially a fact q uestion . See Sholodge Franchise Sys., Inc.
v. McKibbon Bros., Inc., 919 S.W.2d 36 , 42 (Tenn. Ct. Ap p. 1995); Buice v. Scruggs Equip.
Co., 37 Tenn. App. 556, 571, 267 S.W.2d 119, 125 (1953). However, the choice of the
proper measure of dam ages is a qu estion of law to be decid ed by the cou rt. See American
Trust Inv. Co. v. Nashville Abstract Co., 39 S.W. 877, 88 1 (Tenn. Chan . App. 1896); see also
Business Mens’ Assurance Co. v. Graham, 891 S.W.2d 438, 449 (Mo. Ct. App. 1994); Town
of Fifield v. State Farm Mut. Auto. Ins. Co., 349 N .W.2d 684, 68 6 (Wis . 1984) .


       Damages for the wron gful deten tion of prop erty may be me asured eithe r by the fair
market rental va lue of th e prope rty for the p eriod o f deten tion, see Sta nley v. Donoho, 84
Tenn. 492, 494 (1886 ), or by the n et profi t lost dur ing the d etention period . See American
Bldgs. Co. v. DBH Attachments, Inc., 676 S.W.2d 55 8, 562-63 (Tenn . Ct. App. 1984);
Summers & Lewis v. Sanderson, 7 Tenn. App. 624, 627-28 (1928). In the Roa ne Cou nty
proceeding, the trial court used the fair market rental value of the property to calculate the
damages for the three-week detention of the property. In the Fentress County proceeding,
the trial court chose the net profit measure of damages. Messrs. McGraw and Brown insist
that the doctrine of collateral e stoppel req uired the trial co urt in Fentres s County to use the
same measure of damages that the Roane County trial court used. We disagree be cause all
the elements n ecessary for th e invocatio n of collateral estopp el do not ex ist with regard to
this issue.


       Matters adjudged as to one period of time are not necess arily an estoppe l as to other
time periods. See International Shoe Machine Corp. v. United Shoe Mach inery Corp., 315
F.2d 449, 455 (1st C ir. 19 63). The valu e of the prope rty’s u se may have bee n less if used
over one period of time as opp osed to anothe r. See Stanley v. Donoho, 84 Tenn. at 494. The
measure of damages for a long-term deprivation of personal property cannot necessarily be
reliably calculated by extrapolating the damag es for a short-term deprivation over a longer
term. See Perkins v. Brown, 132 Tenn. 294, 299, 177 S.W. 1158, 1160 (1915) (rejecting the

                                               -10-
calculation of damages for the loss of use of an automobile for twelve weeks based on the
rental charge for the autom obile for one we ek).


       The doctrine of collateral estoppel does not apply in this case because of the
significant factual differences between the three-week detention of the drilling rig under the
Roane County writ of attach ment and the 29-mo nth detentio n under th e Fentress C ounty writ
of attachmen t. While the nature of the claims in the two proceedings are similar, there is no
overlap between the facts adduced in the Roane County proceeding and those adduced in the
Fentress Coun ty procee ding. In addition , the Fentress County proceeding called for an
application of different legal principles because the ability of Messrs. McGraw and Brown
to mitigate their damages would have been greater during the long term, as opposed to the
short term. The circumstances surrounding the use of a piece of heavy equipment like a
drilling rig that may ver y well be fixed over a short period of a few weeks can easily change
over a period of years.          P rofit opportunities come and go; planned and unplanned
maintenance varies; deployment of the machinery can change; the competitive environment
surrounding the use of the equipment can change; and even the tax consequences
surrounding the use and depreciation of the equipment can change. Therefore, the factual
differences between the period of detention under the Roane County writ of possession and
the period of d etention under the Fentress County writ of detention justified the Fentress
County trial court’s choice of a measure of damages different from the one employed by the
trial c ourt in Roane Co unty.


                                              III.
             T HE C ALCULATION OF D AMAGES FOR W RONGFUL D ETENTION


       Messrs. McGraw a nd Brow n also con tend that the tria l court misca lculated their
damages and erred by not aw arding them exempla ry damages. F or his part, Mr. Bea ty asserts
that the evidence that M essrs. McGraw and Brow n presented with rega rd to their damages
did not sup port the amou nt of da mage s the trial c ourt aw arded. We have determined that the
trial court’s damage ca lculation is supported by the facts and that the trial court properly
declined to award exemplary damages.


                                               A.
                                   C OMPENSATORY D AMAGES


       Both parties assert that the trial court did not give appro priate weight to M r. Brown’s
testimony about the damages from the wrongful detention of the drilling rig. Messrs.


                                              -11-
McGraw and Bro wn asser t that the trial cou rt did not give enough weigh t to Mr. Brown ’s
testimony concernin g their loss of a potential co ntract with th e federal g overnm ent; while
Mr. Beaty asserts that the trial court did not give sufficient weight to Mr. Brown’s concession
that his in come actually in creased after M r. Beaty re posses sed the drilling ri g.


       Compensa tory damage s are intende d to compensate the wronged party for the loss or
injury sustaine d by the w rongd oer’s co nduct. See Inland Container Corp. v. March, 529
S.W.2d 43, 44 ( Tenn . 1975) . The goal is to restore the wronged party, as nearly as possible,
to the position the party would have been in had the wrongful conduct not occurred.
Damages need not be calculated with mathematical precisio n, see Provident Life & Accident
Indem. Co. v. Globe Ins. Co., 156 Ten n. 571, 576 , 3 S.W.2d 1057, 10 58 (1928 ); Buice v.
Scruggs Equip. Co., 37 Tenn. App. at 571, 267 S.W.2d a t 125; they nee d only be pro ved with
reasonab le certainty. See Act-O-Lane Gas Serv. Co. v. Clinton, 35 Tenn. App. 442, 456, 245
S.W.2 d 795, 8 02 (19 51).


       Whether the trial court has utilized the proper me asure of damages is a question of law
that we review do nov o. See generally S exton v. Sev ier Coun ty, 948 S.W.2d 747, 749 (Tenn.
Ct. App. 1997). On the other hand, the amount of damages actually awarded, where the
amount is within the limits set by law , is a que stion of fact. See Spence v. Allstate Ins. Co.,
883 S.W.2d 586, 594 (Tenn. 1994); Reagan v. Wolsieffer, 34 Tenn. App. 537, 542, 240
S.W.2d 273, 275 (1951). In cases whe re the tria l cou rt is h earin g the case with out a jury, we
review the amount of damages awarded by the trial court with the presumption that it is
correct, and we will alter the am ount of d amages o nly when the trial court has adopted the
wrong measure of damages or when the evidence preponderates against the amount of
damages award ed. See Tenn. R . App. P. 13 (d); Armstrong v. Hickman County Highway
Dep’t, 743 S .W.2d 189, 19 5 (Ten n. Ct. A pp. 198 7).


       We have alrea dy conclude d that the trial co urt was fre e to select the measure of
damages most appropriate to the facts of this case and th at the trial court did not err by
choosing to calculate Messrs. McGraw’s and Brown’s damages based on their net lost pro fits
during the twenty-nine months that Mr. Beaty had the drilling rig. Thus the only remaining
area of inquiry concerns the factual support for the trial court’s damage award.


       The trial court app ears to have given relative ly little weight to Mr. Brown’s testimony
concerning the anticipated contract with the federal governm ent. Instead, the trial court’s
memorandum opinion shows that it placed greater weight on Mr. Brown’s 1991 federal
income tax return. Trial courts are not bound to accept any particular witness’s testimony


                                               -12-
concerning dama ges. See Cole v. Clifton, 833 S.W .2d 75, 77 (Tenn. C t. App. 1992);
Tennessee Farmers Mut. Ins. Co. v. Hinson, 651 S.W.2d 23 5, 238 (Tenn. C t. App. 1983).
While the record may very well support a different damage award, we cannot say that the
trial court erred by discounting Mr. Brown’s testimony about his anticipated profits and by
basing its damage award on the amount of income th at Mr. Bro wn wa s actually earning with
the drillin g rig be fore M r. Beaty re posses sed it.


       Mr. Brown also testified that he and Mr. McGraw spent “probably five thousand
dollars” to return the drilling rig to the conditio n it had bee n in before Mr. Bea ty repossessed
it and that it would take an additional “five to ten thousand” dollars to complete the repairs.
Howeve r, he cou ld prod uce rep air bills fo r only $75 9.02 . The trial court awarded Messrs.
McGraw and Brown $646.21 after deducting what appear to be itemized fuel expenses from
the repair b ills that M r. Brow n prod uced. In light of M r. Brown ’s inability to substan tiate
the other repair costs, we cann ot say that the trial court erred by failing to award Messrs.
McGraw and Brown more damages for repairs to the drilling rig.


                                                  B.
                                     E XEMPLARY D AMAGES


       Messrs. McGraw and Brown also contend that the trial court should have awarded
them exemplary dam ages in light o f the man ner in wh ich Mr. B eaty obtained th e writ of
possession from the Fentress County General Sessions Court. Tenn. Code Ann. § 29-30-
210(a) permits awarding e xemplary damages for wrongfully obtaining a writ of possession
if the wrongdoer’s actions have departed from the type of conduct that society has the right
to expec t. See Huckeby v. Spangler, 563 S.W.2d 55 5, 558-59 (Tenn . 1978). An exemp lary
damage award must be preceded by an award for actual dama ges. See Whittington v. Grand
Valley Lakes, Inc., 547 S .W.2d 241, 24 3 (Ten n. 1977 ). The decision to award exe mplary
damages rests with the trial cou rt’s discre tion. See Foster v. Jeffers, 813 S.W.2d 449, 454
(Tenn . Ct. Ap p. 1991 ).


        When Mr. Beaty sought a writ of possession from the Fentress County General
Sessions Court, he alleged that Messrs. McGraw and Brown had reneged on their promise
to sign a written contract for the purchase of the drilling rig and had failed to pay the balance
due on the drilling rig.         H e also alleged that “the drilling rig was obtained by
misrepresentation insofar as the defendant Bobby McGraw represented that he and [M r.




                                                 -13-
Brown] would comp lete the tra nsactio n.” 11 Even though neither the order granting the
possessory writ nor the writ itself is in the record, we assume that the general sessions court
issued the writ on the ground that Messrs. McGraw and Brown obtained the writ through
misrep resenta tions.


       After the case was rem anded to the trial court for the assessment of dam ages, Mr.
Beaty was asked “Now, with respect to Mr. Brown and Mr. McGraw, have either of them
misrepresented anything to you in their conduct towards you?” Mr. Beaty responded, “No,
they’ve not in any way. I mean, just that they wasn’t paying.” Messrs. McGraw and Brown
have seized on this answe r as a basis for insisting that they are entitled to collect exemp lary
damages because Mr. Beaty knowingly made untrue statements in his application for the writ
of possession.


       Looking at the trial record as a whole, we cannot say that this brief exchange between
Mr. Beaty and c ounsel co ntradicts the statemen ts in Mr. Be aty’s sworn ap plication for a writ
of possession. During the same line of questioning, Mr. Beaty was also asked if he had “any
reason to believe that an action for the recovery of this drilling rig was the proper action to
take.” He replied , “Well, we had a contract an d [Mr. B rown] ke pt saying he w ould get it
signed. I thought we had a legal right to pick [the rig] up anywhere it was.” This response
is completely consistent with the allegations in Mr. Beaty’s application for a writ of
possession.


       The trial court had the discretion in the first instan ce to determ ine wheth er the facts
of this case warranted aw arding exemplary damages against Mr. Beaty. The trial court heard
all the evidence and was not convinced that Mr. Beaty swore falsely in his application for the
writ. While the cited pass ages from Mr. Bea ty’s testimony could be re ad m ore than one way,
we will not, from this distance, p lace the trial cou rt in error for its in terpretation of Mr.
Beaty’s testimo ny. Hav ing con sidered the argu ments o f Me ssrs. McGraw and Brown, we
cannot say that the trial erred by determining that this was not a case for exemplary damages
under Tenn. C ode Ann. § 2 9-30-210(a).


                                              IV.
                             T HE A WARD OF A TTORNEY’S F EES




       11
         One of the statutory grounds for obtaining a writ of possession is that the property was
obtained by misrepresentation. See Tenn. Code Ann. § 29-30-106(1)(B)(I) (1980).

                                              -14-
       As a final matter, we turn to the propriety of the trial court’s decision to award Messrs.
McGraw and Bro wn $8,0 00 in attorne y’s fees. Mr. B eaty takes issue with this award because
the proof concerning the reasonableness of these fees does not differe ntiate between the time
spent unsuccessfully defending Mr. Beaty’s breach of contract action and the time spent
pursuin g their o wn w rongf ul poss ession c laim.


       Tenn. Code Ann. § 29-30-110 permits a trial court to award a party reasonable
attorney’s fees as exemplary damages for the “wrongful suing out of [a] possessory action
or in the event that the plaintiff fails to prose cute the actio n after it has been instituted.” In
the earlier appeals of this case, this court held that Mr. Beaty had failed to prosecute the
Roane Coun ty action, see Beaty v. McGraw, 1993 WL 11 9799, at *4 , and that M r. Beaty
lacked any basis for instituting th e posse ssory actio n in Fen tress Co unty. See Beaty v.
McGraw, 1994 WL 440897, at *2-3.              These findings gave the trial court sufficient
justification to award attorney’s fees in its discretion. However, even though Messrs.
McGraw and Brown might have been entitled to attorney’s fees for their successful action
for wrongf ul possessio n, they were n ot entitled to atto rney’s fees fo r unsucce ssfully
defending against Mr. Beaty’s breach of contract claim. Mr. Beaty prevailed on that claim.
See Beaty v. McGraw, 1994 W L 440 897, at * 3.


       Messrs. McGraw and Brown had the burden of proving the amount of their legal fees
for vindicating their rights to possession of the drilling ri g. See In re Estate of Perlberg, 694
S.W.2d 304, 309 (Tenn. Ct. App. 1984) (holding tha t the burden of establishin g a reason able
attorney’s fee is on the party claiming it); Cook & Nichols, Inc . v. Peat, M arwick, M itchell
& Co., 480 S.W.2d 542, 545 (Tenn. Ct. App. 1971). When a party substantiates a claim for
attorney’s fees, the trial cou rt has a d uty to aw ard a rea sonab le fee. See Taylor v. T & N
Office Equip., Inc., No. 01A01-9609-CV-00411, 1997 WL 272444 4, at *4 (Te nn. Ct. App.
May 23 , 1997) (No T enn. R . App. P . 11 app lication f iled).


       We are significantly handicapped in considering the propriety of the attorney’s fee
award in this case because Messrs. McGraw and Brown failed to provide records making it
possible to determine the amo unt of time their lawyers devoted to defend ing Mr. Beaty’s
breach of contract action and the amount of time the ir lawyers spent prosecuting their
wrongful possession claim. The fee awarded by the trial court likewise cannot be traced back
to the time the lawyers representing Messrs. McG raw and Brown devoted s olely to their
clients’ w rongf ul poss ession c laim.




                                               -15-
         With the record in its present state, we are unable either to determine that the trial
court’s decision to award Messrs. McGraw and Brown $8,000 for the legal expenses was
reasonab le or to make an award of reasonable attorney’s fees ourselves. Therefore, we have
no choice other than to vacate this portion of the judgment and remand the case for the
reconsideration of the attorney’s fee issue. The trial court should set a reasonable fee based
on the time that the lawyers for Messrs. McGraw and Brown spent on their wrongful
possession claim and should evaluate the requested fee in light of the factors found in Tenn.
S. Ct. R. 8 , DR 2 -106(b ). See Taylor v. T & N Office Equip., Inc., 1997 WL 272444, at *5.


                                               V.


         We affirm all portions of the judgment except for the $8,000 award of attorney’s fees
which we vacate and remand for further proceedings in accordance with this opinion. We
tax the costs of this appeal in equal prop ortions to G uy Beaty and, jointly and s everally, to
Bobby McGraw and Steve Brown and their surety for which execution, if necessary may
issue.


                                            ____________________________
                                            WILLIAM C. KOCH, JR., JUDGE


CONCUR:


_________________________________
HENRY F. TODD,
PRESIDING JUDGE , M.S.


_________________________________
SAMUEL L. LEWIS, JUDGE




                                              -16-
