                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                           Assigned on Brief December 28, 2001

                        DEBBIE RISNER v. NATHAN HARRIS

                     An Appeal from the Circuit Court for Obion County
                          No. 0-428 William B. Acree, Jr., Judge


                    No. W2001-01041-COA-R3-CV - Filed August 21, 2002


This is an action to recover personal property. The plaintiff and defendant lived together for
seventeen years. In November 1999, the plaintiff moved out. She left personal property in the trailer
in which the couple was living, in the nearby convenience store owned by the defendant, and in a
storage unit in another town. In August 2000, the convenience store caught on fire, and the
plaintiff’s personal property in the store was destroyed. Soon thereafter, the defendant took
possession of the plaintiff’s other personal property that had been held in the storage unit and called
her to come get it. In November 2000, the plaintiff filed a warrant in general sessions court to
recover her personal property from the defendant. She claimed that the defendant had prevented her
from retrieving any of her personal property. She received a judgment which was appealed to circuit
court. The circuit court entered a judgment in favor of the plaintiff, awarded damages, and ordered
the defendant to return certain items to the plaintiff. The defendant now appeals. We reverse the
trial court’s decision with respect to two of the items ordered returned and the property that the
plaintiff had kept in the storage unit in another town, and affirm the remainder of the order.

  Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed in Part and Reversed in
                                          Part

HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J.,
W.S., and ALAN E. HIGHERS, J., joined.

Bruce Moss, Union City, Tennessee, for the appellant, Nathan Harris.

David L. Hamblen, Union City, Tennessee, for the appellee, Debbie Risner.

                                             OPINION

       Plaintiff/Appellee Debbie Risner (“Debbie”) and Defendant/Appellant Nathan Harris
(“Nathan”) lived together for approximately seventeen years. Their first home was in Dyersburg,
Tennessee. After several years, Nathan purchased a small convenience store in Hornbeak,
Tennessee. The parties moved into a small trailer near the store and put some of their furniture and
belongings into a rented storage unit in Dyersburg, Tennessee. Those items remained in the storage
unit for over ten years while the parties were living in the trailer in Hornbeak.

        During the time in which the parties lived in the trailer near the convenience store, they also
stored personal belongings in a room at the back of the store. Those items included, among other
things, Debbie’s clothing, some Home Interior home furnishings, and a hand-painted carousel horse.
In addition, Debbie purchased a tanning bed with borrowed funds, and the tanning bed was kept in
the store. Customers who visited the store paid for use of the tanning bed.1

         During the course of their relationship, the parties separated numerous times. Debbie asserts
that their final separation occurred in November 1999, when she left the trailer and took with her just
a few of her clothes. In the legal proceedings she later filed, Debbie testified that, after the
separation, Nathan refused to allow her to retrieve the remainder of her personal possessions from
the trailer or the store. She described an incident in which she spoke with Nathan over the telephone,
and he advised her that she could come get her things. However, when Debbie arrived with her
husband, Nathan cursed her and told her to leave. Debbie’s husband, Mr. Risner, corroborated
Debbie’s testimony that Nathan cursed her and threw her off the property. In contrast, Nathan denied
that he prevented Debbie from retrieving her belongings. He said that at times she returned to get
some of her belongings, and that on numerous occasions he had asked her to get her possessions.
Tammy Ray, a former employee of Nathan, testified that she overheard Nathan speaking to Debbie
on the telephone, and that she heard Nathan ask Debbie to retrieve her property. Ray also testified
that she was present when Debbie came by to pick up some of her belongings.

        In August 2000, Nathan’s store was severely damaged by fire. The fire destroyed the tanning
bed, the carousel horse, Debbie’s clothes, autographed pictures, and other personal items that had
been stored in the back room at the store. An insurance adjuster representing Nathan’s insurance
company testified that Nathan attempted to claim the tanning bed as a loss due to the fire. The
adjuster told Nathan that he could not receive insurance proceeds for the loss of any property that
belonged to Debbie. The adjuster also said that Nathan’s losses from the fire (including the loss of
the building, the inventory, and other personal property) exceeded the policy limit of $100,000.
Therefore, Nathan received the full amount of proceeds payable under his insurance policy.

        Nathan testified that, some time after the fire, he removed all items from the parties’ storage
unit, including Debbie’s belongings. At that time, he discovered that some of the items, including
a day bed, had been ruined while in storage.

        Debbie testified that, after the fire, Nathan called her. Without mentioning the fire, he told
her to come get her belongings. When she arrived at the store, Debbie realized that there had been
a fire. She found that the tanning bed and the carousel horse had been destroyed. She saw that the



         1
          It is unclear from the record whether Debb ie, Nathan, or both received the proceeds from the rental of the
tanning bed.

                                                        -2-
smoke from the fire had covered the floor, and that there was a bare spot on the floor where boxes
containing her Home Interior home furnishings had been sitting.

      Subsequently, in November 2000, Debbie filed a warrant in the General Sessions Court of
Obion County to recover her personal property from Nathan. See Tenn. Code Ann. § 29-30-103.
The general sessions court awarded Debbie damages for her personal property in the amount of
$10,500. Nathan then appealed the case to the Obion County Circuit Court.

         On March 2, 2001, the Circuit Court conducted a bench trial on Nathan’s appeal from the
General Sessions judgment. During Debbie’s testimony before the Circuit Court, she submitted a
list of personal property belonging to her that was left in Nathan’s possession after their separation
in 1999, as well as her estimate of the value of the property (“Exhibit 1”). In the list, she separated
the claimed items into a “store” category, listing the items owned by her that had been stored in the
back room of Nathan’s store or in his trailer after the parties’ separation, and a “storage” category,
listing the items that belonged to Debbie that had been kept in the parties’ storage unit in Dyersburg.
The “store” category listed $18,995 in property, including (among other things) the tanning bed
($2,200), a computer ($2,400), a Dodge Colt automobile ($2,000), some Home Interior home
furnishings ($1,750), two men’s diamond rings ($2,750), and a woman’s diamond ring ($3,100).2
The “storage” category listed $4,150 in property, including a day bed ($800), some Home Interior
home furnishings ($1,500), and clothes ($700).3

        Debbie testified that the Dodge Colt automobile and the computer listed on Exhibit 1 had
been pledged as collateral for loans. She did not make the payments on those loans following the
parties’ separation, purportedly because Nathan would not let her use the items. Nathan claimed that
the computer and the automobile were repossessed by financing companies because Debbie stopped
making payments. He said that both items were in his possession because he later purchased the
computer from someone who bought it from the finance company, and his father purchased the
Dodge Colt automobile from the lender who repossessed it.

        In his testimony, Nathan claimed that the two men’s diamond rings on Debbie’s list of
belongings were gifts to him from Debbie. On cross-examination, Debbie admitted that the rings
were gifts to Nathan. Debbie testified that she still owed money borrowed to purchase one of the
rings. Debbie asserted that the woman’s diamond ring on her list of belongings was a gift to her
from Nathan. Nathan acknowledged that he had given Debbie the ring, but claimed that it belonged
to him because she returned the ring to him after a temporary separation while the two were still
living in Dyersburg. Moreover, Nathan testified that, in previous litigation in Dyer County, two
court orders awarded him the diamond ring.


         2
          That category also included items of indeterminable value: fam ily pictures, a 20-year-old Do nny O smond doll,
and an auto graphed picture of George Jones and V ern G odsin.

         3
             This category also included items of indeterminable value: family pictures and yearbook, and a hand sewn
quilt.

                                                          -3-
        After the trial, on April 2, 2001, the Circuit Court granted Debbie a money judgment in the
amount of $7,685. The Circuit Court also issued an order compelling Nathan to deliver the three
diamond rings to Debbie.4 There is no transcript of the proceedings below, but the parties agreed
upon a Joint Statement of the Evidence (“Joint Statement”). The Joint Statement says that the award
of $7,685 reflects one-half of the value of the items on Exhibit one, excluding the three diamond
rings. The Joint Statement states further that the trial court held that Nathan prevented Debbie from
retrieving her property from him, and that, therefore, he was under an obligation to insure her
property. On May 1, 2001, Nathan filed a pro se appeal of the decision of the Circuit Court. On
August 22, 2001, Nathan’s appellate counsel filed a notice of appearance.

         On appeal, Nathan argues that the trial court erred in failing to deal with each of the claimed
items of personal property separately, and further erred by not applying the law of bailment. He
asserts that it was undisputed that the three rings were his property, and that therefore the trial court
erred in ordering him to turn them over to Debbie. Nathan argues further that he should not be held
responsible for the property that was ruined while in storage. Thus, he claims, the judgment in favor
of Debbie should be reversed.

         We review the trial court’s decision de novo, with a presumption of correctness of the trial
court’s findings of fact, unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d); Worth
v. Cumberland Mountain Prop. Owners Ass’n, No. 03A01-9709-CV-00442, 1999 Tenn. App.
LEXIS 92, at *7-*8 (Tenn. Ct. App. Feb. 10, 1999). We review questions of law de novo, affording
the trial court’s legal conclusions no such presumption. Ridings v. Ralph M. Parsons Co., 914
S.W.2d 79, 80 (Tenn. 1996). In an action to recover personal property, the plaintiff must show that
she was entitled to possession of the claimed property. See Tenn. Code Ann. § 29-30-101; see also
Rags, Inc. v. Thoroughbred Motor Cars, Inc., 769 S.W.2d 493, 495 (Tenn. Ct. App. 1988) (noting
that the purpose of the statute is to determine who has the right to possess certain personal property).

         We first address Nathan’s argument that the trial court erred in failing to find that all of the
diamond rings at issue belonged to him. Nathan asserts that the evidence preponderates against the
trial court’s finding that Debbie was entitled to possession of the two men’s diamond rings, because
the evidence is undisputed that they were gifts to him from Debbie. Furthermore, Nathan claims that
his testimony is unrefuted that the woman’s diamond ring, though initially a gift from him to Debbie,
was returned to him from her by order of the Dyer County court. Thus, he claims, Debbie has no
right to possession of those items. Debbie argues that the trial court did not err in ordering the men’s
rings returned to her because she still owed money on them. In addition, she denies that Nathan had
any claim to the woman’s ring, because he had given it to her as a gift.

       With respect to the men’s diamond rings, Nathan testified in the Circuit Court proceedings,
and Debbie admitted, that they were gifts from her to Nathan. The fact that she still owes money for
the purchase of the rings does not mean that she owns them. Under these circumstances, we must


         4
          Neither party ap peals the trial court’s valuation of the property. In addition, neither party appeals the trial
court’s decision to award the value of the p roperty rather than ordering a transfer of the property itself.

                                                           -4-
conclude that the evidence preponderates against the trial court’s finding that Debbie is entitled to
possession of the two men’s diamond rings, and we reverse the trial court’s order that Nathan return
those two rings to Debbie.

        The evidence regarding the woman’s diamond ring was disputed. The trial judge had the
duty to weigh the conflicting evidence on this subject and determine the credibility of the witnesses.
His determinations of credibility are entitled to great weight on appeal. See Worth, 1999 Tenn. App.
LEXIS 92, at *9-*10 (stating that the trial judge’s credibility determinations are entitled to great
weight). In this case, the trial judge credited the testimony of Debbie that the woman’s diamond ring
belonged to her. Other than Nathan’s testimony, there is no evidence in this record regarding the
proceedings in the Dyer County court upon which Nathan relies. Giving appropriate weight to the
trial court’s implicit finding of credibility in Debbie’s favor, we cannot find that the decision to
award Debbie the woman’s diamond ring was against the preponderance of the evidence.

         Next, Nathan argues that the trial court erred in awarding Debbie damages for the items in
the storage unit in Dyersburg. He notes that the evidence is undisputed that the property was
damaged while it was in storage, and there is no evidence that he prevented Debbie from getting
those items either while they were in storage or when he removed them from storage after the fire.
Debbie asserts that Nathan retrieved her items from storage after the fire because his own belongings
had been destroyed and he needed the items for his own personal use. Therefore, she contends, she
is entitled to the value of the items that were destroyed while in storage.

        It is undisputed that the “storage” property was damaged or destroyed during the time it was
in storage. According to the parties’ Joint Statement, Nathan retrieved all of the items from storage
over ten years after they were put in storage. The evidence is also undisputed that he then called
Debbie to “come and get her things.” The Joint Statement includes no evidence that Nathan ever
prevented Debbie from retrieving her property from the storage unit. Moreover, there is no
allegation that Nathan destroyed or damaged any of the items belonging to Debbie either before or
after he removed them from storage. Therefore, because the evidence indicates that the items at
issue were ruined while in storage, at a time when Nathan was not in wrongful possession of those
items, and because he never prevented Debbie from retrieving her things while in storage, we must
conclude that the trial court erred in holding Nathan liable for the value of that property.
Accordingly, we reverse the trial court’s award of damages for the value of the property in storage.

        Nathan argues further that the trial court erred in awarding Debbie damages for two items
that did not belong to Debbie, despite the fact that they were listed in the “store” category of Exhibit
1, namely, the Dodge Colt and the tanning bed.5 Nathan claims that the record is clear that the
Dodge Colt no longer belonged to Debbie because it had been repossessed and was subsequently
sold to his father. With respect to the tanning bed, Nathan asserts that the fact that his insurance
adjuster thought that it was his property and included the tanning bed in his insurance claim indicates
that the tanning bed in fact belonged to him. Debbie asserts that she stopped making payments on


       5
           Nathan also includes the thre e diam ond rings in that list. Those items have b een addressed above.

                                                          -5-
the debt secured by the car because Nathan would not let her have it. She also notes that the
insurance adjuster’s belief that Nathan owned the tanning bed does not indicate that he in fact owned
the bed.

        Again, on these issues, the trial court was called upon to determine the credibility of the
witnesses and resolve conflicting testimony. The evidence is undisputed that Debbie was making
payments on a loan secured by the Dodge Colt until she left Nathan in 1999. She testified that she
stopped making payments because Nathan refused to allow her to have possession of the car. The
car was then repossessed and purchased by Nathan’s father. The trial court apparently concluded
that Nathan in fact prevented Debbie from having access to the Dodge Colt. Her failure to make
payments, the subsequent repossession, and his father’s later purchase of the vehicle does not alter
that factual finding. As to the tanning bed, the evidence is undisputed that Debbie borrowed money
to purchase the tanning bed. Nathan submitted no evidence to the trial court indicating that he
owned the tanning bed. The fact that Nathan’s insurance agent may have believed Nathan’s
representations that he owned the tanning bed does indicate that he in fact owned the bed. Thus, the
trial court was entitled to credit Debbie’s testimony that she owned the tanning bed and that Nathan
prevented her from retrieving it before it was destroyed. Accordingly, we affirm the trial court’s
decision to award Debbie the value of the Dodge Colt and the tanning bed.

         Finally, Nathan argues on appeal that the balance of the items listed on Exhibit 1 were in his
possession as a result of a gratuitous bailment, and that he, therefore, would be responsible for the
loss of that property only upon the showing of gross negligence. Because there was no showing of
gross negligence in the loss of this property while it was in his possession, he claims, he should not
be held liable to Debbie for its value.

        “A bailment is a delivery of personalty for a particular purpose or on mere deposit, on a
contract expressed or implied, that after the purpose has been fulfilled, it shall be re-delivered to the
person who delivered it or otherwise dealt with according to his direction or kept until he reclaims
it.” Merritt v. Nationwide Warehouse Co., 605 S.W.2d 250, 252 (Tenn. Ct. App. 1980); see also
Jernigan v. Ham, 691 S.W.2d 553, 556 (Tenn. Ct. App. 1994) (stating that a bailment is a
contractual agreement, and the contract may be either express or implied from the conduct of the
parties). In this case, the Joint Statement indicates that, when Debbie moved out of the trailer, she
took with her “just a few of her clothes,” and left behind other property that she intended to retrieve.
The trial court found that Nathan then prevented her from retrieving this property. There is no
evidence that Debbie intended Nathan to keep her property on her behalf. Rather, the evidence
preponderates in favor of the trial court’s conclusion that Nathan would not allow Debbie to get her
property until the August 2000 fire destroyed most of it. Because there is no evidence of an express
or implied agreement between the parties, we find that no bailment was created.

       Nathan argues that a constructive bailment arose when Debbie moved out because he then
lawfully acquired possession of her personal property. Though there was no specific agreement, he
maintains, the facts could be construed as creating a constructive bailment. However, there is no
evidence that Nathan had any right to possession of Debbie’s property. Indeed, the trial court


                                                  -6-
expressly held that Nathan prevented Debbie from returning to the premises to retrieve her personal
property. There is no evidence indicating that Nathan intended to keep Debbie’s property safe or
deliver it to her upon her request. Thus, the trial court did not err in concluding that there was no
constructive bailment.

      Therefore, the trial court’s order is reversed insofar as it requires Nathan to give Debbie the
two men’s diamond rings and the value of the property in the “storage” category in Exhibit 1. The
remainder of the trial court’s order is affirmed.

       The decision of the trial court is affirmed in part and reversed in part as set forth above.
Costs are to be taxed equally to the appellant, Nathan Harris, and his surety, and to the appellee,
Debbie Risner, for which execution may issue, if necessary.




                                                      ___________________________________
                                                      HOLLY KIRBY LILLARD, JUDGE




                                                -7-
