                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT MEMPHIS
                                  January 22, 2008 Session

                               THERESA L. CALDWELL
                                        v.
                                CANADA TRACE, INC.

                       Appeal from the Circuit Court for Shelby County
                        No. 90029-3 T.D.   Karen R. Williams, Judge


                     No. W2007-00783-COA-R3-CV - Filed July 29, 2008


This is an appeal from a damage award. In the underlying litigation, the plaintiff owner of a mobile
home sued the defendant owner of the mobile home park in which the mobile home was located,
over the defendant’s eviction of the plaintiff and alleged conversion and trespass, resulting in
damages to the mobile home. The trial court held in favor of the defendant mobile home park
owner, and the plaintiff appealed. The trial court’s decision was reversed on appeal, and the case
was remanded for the determination of the damages to the plaintiff mobile home owner. The trial
court awarded compensatory damages to the plaintiff mobile home owner, who now appeals again,
arguing that she should have received consequential and punitive damages. We affirm.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S.,
joined; W. FRANK CRAWFORD , J., did not participate.

William Ray Jamieson, Memphis, Tennessee, for the appellant, Theresa L. Caldwell

Joseph Duane Barton, Millington, Tennessee, for the appellee, Canada Trace, Inc.
                                          MEMORANDUM OPINION1

       This case is before this Court for a second time. The underlying facts are set forth in our
previous decision in Caldwell v. Canada Trace, Inc., No. W2003-00264-COA-R3-CV, 2004 WL
1459418 (Tenn. Ct. App. June 28, 2004), and we will not repeat them here. In the first appeal, we
remanded the case for a determination of the damages to which Plaintiff/Appellant Theresa L.
Caldwell (“Caldwell”), as owner of the subject mobile home, was entitled as a result of the trespass
of Defendant/Appellee Canada Trace, Inc. (“Canada Trace”).

        On remand, the trial court awarded damages in the amount of $7,000, which represented the
difference between the amount Caldwell paid for the home when she purchased it in March 1997
($20,000), and the amount she received when she sold the home in September 1997 ($13,000). In
addition, the trial court awarded Caldwell discretionary costs for her court reporter fees. The trial
court declined to award Caldwell any amounts for attorney’s fees, lost earnings, travel costs, or pre-
judgment interest. Caldwell again appeals.

        On appeal, Caldwell argues that the trial court erred by awarding compensatory damages of
only $7,000 and by refusing to award either punitive damages or consequential damages. We
address these issues in that order. Canada Trace raises the additional issue of whether the trial court
erred in declining to dismiss Caldwell’s case pursuant to Tennessee Code Annotated § 29-11-
105(a)(2).2

       The trial court’s findings of fact are reviewed de novo upon the record, accompanied by a
presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn. R. App.
P. 13(d). Questions of law are reviewed de novo, with no presumption of correctness. Union
Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

      Caldwell first contends that the award of $7,000 in compensatory damages was too low.
Caldwell argues that this figure is based on the trial court’s erroneous finding that the fair market

        1
            Rule 10. M EM ORANDUM OPINION

        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. W hen a case is decided by memorandum opinion it shall be designated
        “M EM ORANDUM OPINION”, shall not be published, and shall not be cited or relied on for any
        reason in any unrelated case.

        2
            Section 29-11-105 provides:

        (a) When a release or covenant not to sue or not to enforce judgment is given in good faith to one (1)
        of two (2) or more persons liable in tort for the same injury or the same wrongful death:
                 ...
                 (2) It discharges the tort-feasor to whom it is given from all liability for
                 contribution to any other tort-feasor.

T.C.A. § 29-11-105(a)(2) (2000).

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value of the subject mobile home before the trespass was $20,000. Caldwell contends that the
correct fair market value prior to Canada Trace’s trespass was $25,780.85, the amount that the prior
owners of the mobile home, the Procrasses, originally paid for the home. Accordingly, Caldwell
argues that she was entitled to $12,780.85 in compensatory damages.

         The correct amount of damages to be awarded is a question of fact. Beaty v. McGraw, 15
S.W.3d 819, 827 (Tenn. Ct. App. 1998) (citations omitted).3 Thus, the trial court’s finding on the
amount of damages is reviewed de novo on the record with a presumption that the finding was
correct. Tenn. R. App. P. 13(d); Campbell v. Fla. Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996).

        In the case at bar, the trial court had essentially two facts from which it could determine the
fair market value of the mobile home immediately before the trespass. The first was the price paid
by the Procrasses, from whom Caldwell acquired the mobile home. The second was the price paid
by Caldwell. The trial court found that the fair market value of the mobile home before Canada
Trace’s trespass was $20,000, the price paid by Caldwell. The evidence in the record, taken as a
whole, does not preponderate against this finding. Therefore, we find no error in the trial court’s
finding that Caldwell’s actual damages resulting from Canada Trace’s trespass was $7,000.
Accordingly, we affirm the award of compensatory damages.

       Caldwell also contends that the trial court erred by not awarding punitive damages. Punitive
damages are awarded “only if [the trial court] finds a defendant has acted either (1) intentionally, (2)
fraudulently, (3) maliciously, or (4) recklessly.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901
(Tenn. 1992). The plaintiff has the burden of proving that the defendant acted intentionally,
fraudulently, maliciously, or recklessly “by clear and convincing evidence.” Id. Because the trial
court made no factual findings regarding the propriety of punitive damages, we review the record
de novo. Goodman v. Memphis Park Comm’n, 851 S.W.2d 165, 166 (Tenn. Ct. App. 1992).

        From our review of the appellate record, we do not find “clear and convincing evidence” that
Canada Trace acted intentionally, fraudulently, maliciously, or recklessly. Therefore, we find no
error in the trial court’s decision to decline to award punitive damages.

        Caldwell argues further that the trial court erred in refusing to award “consequential
damages.” The “consequential damages” Caldwell sought consisted of attorney’s fees, lost earnings
for time spent in court, travel costs, and pre-judgment interest. This Court has previously noted that
attorney’s fees and travel expenses are not recoverable in a trespass action. Gottschall v. Fenn, No.
CA-12, 1986 WL 655, *3 (Tenn. Ct. App. Jan. 7, 1986) (citation omitted). Furthermore, travel costs
are not allowable as discretionary costs. Tenn. R. Civ. P. 54.04. Accordingly, we affirm the trial
court’s denial of Caldwell’s request for attorney’s fees and travel costs.



         3
           The choice of the proper measure of damages is, of course, a question of law, not a question of fact. Beaty,
15 S.W.3d at 827. In this appeal, however, it is undisputed that the proper measure of damages for the injury to the
mobile home is the difference between the fair market value of the property immediately before and immediately after
the injury. See Reid v. State, 9 S.W.3d 788, 794 (Tenn. Ct. App. 1999); see also Caldwell, 2004 WL 1459418, at *8.

                                                         -3-
        Caldwell also sought damages to compensate for her income that she lost due to attending
the proceedings in the trial court below. The trial court declined to award Caldwell any amounts for
lost earnings. We find no error in the trial court’s decision, and it is affirmed as well.

        Caldwell also challenges the trial court’s refusal to award prejudgment interest. In
considering a request for prejudgment interest, the trial court should determine whether such an
award would be fair under the given circumstances. Franklin Capital Associates, L.P. v. Almost
Family, Inc., 194 S.W.3d 392, 405 (Tenn. Ct. App. 2005). An award of prejudgment interest is
allowed if two criteria are met: (1) the amount is certain or easily ascertainable and (2) the obligation
is not disputed on reasonable grounds. Id. at 405-06. The decision on whether to award
prejudgment interest “is within the sound discretion of the trial court, and that decision will not be
disturbed by an appellate court unless the record reveals a ‘manifest and palpable abuse of
discretion.’ ” Id. at 405 (quoting Spencer v. A-1 Crane Serv., Inc., 880 S.W.2d 938, 944 (Tenn.
1994)).

        Here, the amount of actual damages on which an award of prejudgment interest would be
calculated is disputed by the parties, as evidenced by Caldwell’s first issue on appeal. Under these
circumstances, we find no abuse of discretion in the trial court’s decision not to award Caldwell
prejudgment interest.

         Finally, we address Canada Trace’s contention that Caldwell’s claim should have been
dismissed under Tennessee Code Annotated § 29-11-105(a)(2). During the initial proceedings in
the trial court, Canada Trace moved for dismissal of Caldwell’s claim based on her execution of the
release, under T.C.A. § 29-11-105(a)(2). The trial court denied this motion. Canada Trace did not
raise this issue in the first appeal. See Caldwell, 2004 WL 1459418, at *3.

       In the first appeal, we remanded this case to the trial court solely for a determination of
Caldwell’s damages. Accordingly, we find that Canada Trace waived the issue regarding T.C.A. §
29-11-105(a)(2) by failing to raise it in the first appeal in this case.

        The decision of the trial court is affirmed. Costs of this appeal are to be taxed one-half to
Plaintiff/Appellant Theresa L. Caldwell, and her surety, and one-half to Defendant/Appellee Canada
Trace, Inc., for which execution may issue if necessary




                                                        ___________________________________
                                                        HOLLY M. KIRBY, JUDGE




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