               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                April 26, 2012 Session

   DALE GRIMES D/B/A MADISON STREET MOTORS v. WILLIAM H.
                         HANCOCK

               Appeal from the Circuit Court for Montgomery County
                 No. MCCCCVGS110134          Ross H. Hicks, Judge


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                 No. M2011-01940-COA-R3-CV - Filed June 26, 2012
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        The defendant ran off the road and struck an expensive vehicle on a used car lot.
The lot owner sued the defendant for the damages to the vehicle plus the lost profits he
would have made with the proceeds of the sale if the accident had not happened. The trial
Court awarded the plaintiff $10,482.12, plus prejudgment interest at 5% per year from the
date the vehicle was sold at wholesale in a damaged condition. The Court did not make
any findings as to the basis for the award. The defendant asserts on appeal that the
plaintiff failed to mitigate his damages. The plaintiff assigns as error the trial Court’s
failure to award him more damages for his lost profits. We hold that the plaintiff did not
make a case for lost profits or the before and after retail value of the automobile. We
reduce the award to $4,766.47, the estimated cost of repairs to the vehicle and we reverse
the award of prejudgment interest.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in
                         Part and Affirmed as Modified.

B EN H. C ANTRELL, S ENIOR J UDGE, delivered the opinion of the Court, in which A NDY D.
B ENNETT and R ICHARD H. D INKINS, JJ., joined.

Joshua G. Offutt, Nashville, Tennessee, for the appellant, William H. Hancock.

W. Timothy Harvey, Clarksville, Tennessee, for the appellee, Dale Grimes d/b/a Madison
Street Motors.
                                         OPINION

                                              I.

        The plaintiff, Dale Grimes owns a used car lot in Clarksville. On April 30, 2009
he purchased a 2002 Lexus 470 from a dealer for $16,900. He placed the vehicle on his
lot at a retail price of $24,900.

       On September 13, 2009, a vehicle driven by Cody Hancock left the road and struck
the Lexus. Mr. Hancock stipulated that he was liable for the damage to the vehicle.

        Mr. Hancock’s insurance carrier estimated the cost to repair the vehicle at
$4,766.47 and tendered a check to Mr. Grimes in that amount. The company also
promised to pay for any unforeseen physical damage. Citing the high mileage of the
vehicle (115,000 miles) the company refused to pay any amount for the diminution in
value caused by the wreck. Mr. Grimes refused to cash the tendered check and did not
repair the vehicle. Instead, he sold it at wholesale in its damaged condition for $14,450.
He testified that he did not sell vehicles that had been damaged to the public.

        Mr. Grimes sued Mr. Hancock for the damages caused by the wreck plus the
profits lost on inventory he would have purchased with the proceeds from the first sale.
The trial Court awarded Mr. Grimes $10,482.12 plus prejudgment interest at 5% per year
from the date of the sale of the damaged vehicle. The judgment does not contain any
findings supporting the amount of damages.

       On appeal the defendant asserts that the plaintiff failed to mitigate his damages by
not repairing the vehicle and selling it at retail.

      The plaintiff asserts the trial judge should have awarded him an additional
$12,048.18 in lost profits or, alternatively, prejudgment interest from the date of the
accident, rather than from the date he sold the damaged vehicle.


                                     II.
                          GENERAL DAMAGE PRINCIPLES

       In Waggoner Motors v. Waverly Church of Christ, 159 S.W. 3d 42 (Tenn. Ct. App.
2004) this Court restated some rules guiding the Courts in making damage awards:
       1.     The general rule is to restore the injured party, as nearly as possible, to

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                the position the party would have been in had the wrongful conduct not
                occurred.
       2.      The injured party should be fully compensated for all losses caused by the
               wrongdoer’s conduct.
       3.      The person seeking damages has the burden of proving them and the proof
               of damages must be as certain as the nature of the case permits. The proof
               must enable the trier of fact to make a fair and reasonable assessment of the
               claimed damages.
       4.      Compensatory damages may also include an award for lost profits when the
               nature and occurrence have been established with reasonable certainty.
       5.      Lost profits from the sale of goods must be based on net profits not gross
               revenues or gross profits. Thus, persons seeking to recover for lost profits
               must prove not only the probable income from the sale of goods but also the
               expenses they would have incurred to produce that income.

See Id., generally, at 57 - 59.

       This Court, in GEICO v. Bloodworth, 2007 WL 1966022 (Tenn.Ct.App. 2007)
also re-stated the principles that govern awards in cases involving damaged personal
property:

               “If the property can be or has been repaired so as to
        substantially restore its function, appearance and value, then the
        reasonable cost of repair is the measure. If the property has not been
        so repaired or is not capable of such repair, then the proper measure is
        the pre-accident and post-accident difference in fair market value. Tire
        Shredders, Inc. v. ERM-North Central, Inc., 15 S.W. 3d at 855,
        GEICO at 41.

                                         * * *
               .. [t]he measure of damages is either repair costs or the
        difference in market value immediately before the accident and that
        immediately after the accident.     It is not both.      Unlike the
        Restatement provision, decrease in value measured after the repair is
        not a recognized element of allowable damages in Tennessee. Id. at
        42 (bold in original).

                                         * * *
               An example may illustrate the issue. A vehicle is damaged in
        an accident, and that vehicle was valued at $20,000 immediately
        before the accident and at $10,000 after the accident. The cost of

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        repair is $9,000. The plaintiff is able to prove that, by virtue of the
        accident and the type of damage sustained, the vehicle’s market value
        after repair has been reduced by $3,000, even after the repairs. Under
        plaintiff’s theory herein, such a plaintiff would be entitled to recover
        both the cost of repair ($9,000) and the post-repair diminished value
        ($3,000), for a total of $12,000. Under Tennessee law, however, such
        a plaintiff would be limited to the $10,000 pre- and post-accident
        decrease in value, even if she were able to prove that repairs could not
        or did not restore the value of the vehicle substantially to its pre-
        accident value. Otherwise she would be entitled only to the cost of
        repairs ($9,000).” Id. at 43.

                                             III.

       Our review of the lower court’s judgment is hampered by the lack of specific
findings and conclusions required by Rule 52.01 Tenn. R. Civ. Pro. Reviewing the record
de novo however, we are persuaded that we can dispose of this appeal.

                                    A. The Lost Profits Issue

       As we have noted, in order to recover lost profits from the sale of goods plaintiffs
must prove the probable income from the sale and the expenses they would have incurred
to produce that income. See, Waggoner at 59.

        There is no proof in this record of the expenses that would have been incurred to
produce any additional profit from the expected sales of other vehicles. Even assuming
that the plaintiff would have been able to purchase and sell at a gross profit other vehicles
with the proceeds from the sale of the Lexus, the effort to find, store and sell those
vehicles would undoubtably involve additional expenses. Without proof of the expenses
involved, any award for lost profits would be based on pure speculation.

                                     B. The Mitigation Issue

      It is true that a person who has been injured by the wrongful or negligent acts of
another is bound to exercise reasonable care to minimize or lessen the resulting damage.
Memphis Light, Gas and Water Div. v. Starkey, 244 S.W. 3d 344 (Tenn.Ct.App. 2007).
The appellant argues that in this case such reasonable care required the plaintiff to repair
the damaged vehicle so as to obtain the best resale price.




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      In his brief the appellant raised this issue in his argument concerning “lost profits.”
Since we have held that this is not a case for lost profits, we think this argument is now
moot.

       As to the simple property damage claim, we know of no requirement, and the
Court can point to no authority that a plaintiff suffering a loss to personal property has a
duty to have it repaired.

       Since his damages are measured by (1) the cost to repair or (2) the market value
immediately before and after the accident, those values can be, and usually are,
established by expert proof. The law does not require the injured owner to repair the
property and try to get the best price he can for it.

                                   C. The Plaintiff’s Damages

        Finally, we come to the real question in this case: what are the plaintiff’s
damages? It appears to the Court that it is a simple case of damages to the plaintiff’s
personal property. There is ample proof of the before-accident value. Mr. Grimes
testified that, in his opinion, the vehicle would bring $24,900.00 on the retail market. As
the owner and a person in the business of buying and selling automobiles, he was a
competent witness to give that testimony. See, e.g., Keith v. Howerton, 1989 WL 105654
(Tenn.Ct.App.) (“’A witness may testify to the value of the witness’s own property or
services…’” citing Tenn. R. Ev. 701). The appellant did not take issue with that value.

        We find, however, that there is no proof of the after-accident retail value. Mr.
Grimes sold the vehicle at wholesale for $14,450.00. But he steadfastly avoided offering
any proof of the after-accident retail value. The import of his testimony was that the
vehicle did not have any retail value to him. Unfortunately, that is not the test. The test
is what the vehicle would bring in a transaction between a willing buyer and a willing
seller. “If [the damages have not been repaired]..then the measure of damages is the
difference in the fair market value of the property immediately before the incident and
immediately after the incident.” Tire Shredders, Inc., at 855, citing T.P.I. 3--CIVIL
14.40.

        The only proof in the record tending to show the extent of Mr. Grimes’ damages is
the cost to repair. Even though that proof is not conclusive on the amount of damages, it
is “[a]s a general proposition,..admissible as evidence bearing upon the depreciation in
value through the injury.” J.H. Anderson v. F.M. Innman, 3 Tenn.App. 195, 1926 WL
2041 (Tenn.Ct.App.). With no other proof to the contrary we think the only inference to
be drawn is that Mr. Grimes suffered $4,766.47 in damages as a result of the accident.



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       We, therefore, modify the judgment to award Mr. Grimes $4,766.47. Since the
defendant’s insurance company tendered that amount to the plaintiff before this litigation
began, he is not entitled to prejudgment interest. Therefore we reverse the prejudgment
interest award.

       This cause is remanded to the Circuit Court of Montgomery County for such other
proceedings as are necessary and consistent with this opinion. Tax and costs on appeal to
the appellee.



                                                  _________________________________
                                                   BEN H. CANTRELL, SENIOR JUDGE




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