                IN THE COURT OF APPEALS OF TENNESSEE
                                                            FILED
                            AT KNOXVILLE                   April 16, 1999

                                                         Cecil Crowson, Jr.
                                                         Appellate C ourt
                                                             Clerk
RALPH LEE, Administrator of          )   C/A NO. 03A01-9806-CH-00195
the Estate of Raymond P. Lee,        )
Deceased,                            )
                                     )
          Plaintiff-Appellee,        )
                                     )
                                     )
                                     )   APPEAL AS OF RIGHT FROM THE
v.                                   )   MONROE COUNTY CHANCERY COURT
                                     )
                                     )
                                     )
                                     )
                                     )
BEE STRICKLAND,                      )
                                     )   HONORABLE EARL H. HENLEY,
          Defendant-Appellant.       )   JUDGE




For Appellant                            For Appellee

J. REED DIXON                            EUGENE B. DIXON
Sweetwater, Tennessee                    Koella & Dixon, Attorneys
                                         Maryville, Tennessee




                          O P I N IO N




AFFIRMED AND REMANDED                                      Susano, J.

                                 1
               Ralph Lee (“Lee”), in his capacity as administrator of

the Estate of Raymond P. Lee (“the Estate”), brought suit against

the defendant, Bee Strickland (“Strickland”), alleging that

Strickland had interfered with the harvesting of timber on the

Estate’s property.         He sought injunctive relief and compensatory

and punitive damages.          Following a bench trial, the court below

awarded the Estate compensatory damages of $15,000 plus pre-

judgment interest.         Strickland appeals, claiming that the

judgment is “contrary to the evidence in this case.”               Lee, as

appellee, argues that the award is inadequate and that it should,

in any event, be tripled pursuant to the provisions of T.C.A. §

47-50-109.1       We affirm.



                                     I.   Facts



               On December 3, 1993, Lee hired a logging company to

harvest standing timber on 60 acres of property owned by the

Estate in Monroe County.          The Estate’s property is adjacent to

property owned by Strickland and is accessible via a right-of-way

across the latter’s property.2




      1
          T.C.A. § 47-50-109 provides as follows:

               It is unlawful for any person, by inducement,
               persuasion, misrepresentation, or other means, to
               induce or procure the breach or violation, refusal or
               failure to perform any lawful contract by any party
               thereto; and, in every case where a breach or
               violation of such contract is so procured, the person
               so procuring or inducing the same shall be liable in
               treble the amount of damages resulting from or
               incident to the breach of the contract. The party
               injured by such breach may bring suit for the breach
               and for such damages.
      2
       The record indicates an earlier dispute regarding the right-of-way.
Suffice it to say that a prior judgment of the trial court confirmed the
Estate’s right-of-way access across Strickland’s property.

                                          2
            Shortly after it started harvesting timber on the

Estate’s property, the logging company hired by Lee experienced

problems with Strickland.    The logging company’s owner, Michael

Buckner (“Buckner”), testified that Strickland approached him “at

the bridge on Mr. Lee’s property and [Strickland] was standing

there with a loaded shotgun in a readied position.”    He stated

that Strickland had “both hands on the gun and one hand on the

trigger.”    Strickland told Buckner that he “would be all right if

[he] didn’t cross the bridge.”    Several days after this incident,

Buckner again found himself facing Strickland.    Strickland told

him that “it was going to cost [him, being Buckner]” if Buckner

did not stop cutting the timber that was on Lee’s property.



            Strickland continued to harass the logging company.

After Strickland told Buckner that he was going to “pop it to

[him]” and subsequently threatened Buckner’s crew, Buckner pulled

his crew and equipment off the job because “it was becoming a

life-threatening situation.”    He informed Lee that he would not

complete the contract because of Strickland’s interference.



            In February, 1994, Lee obtained a court order that, in

effect, restrained Strickland from interfering with the

harvesting of the Estate’s timber.    However, when Lee asked

Buckner to resume operations, Buckner declined to do so.    Lee

attempted to hire other loggers, but he was unable to persuade

anyone to take up the logging job because, in the words of Lee’s

brother-in-law, “[no logging company] would come down there with

the history and reputation of [Strickland].”




                                  3
            At the time of trial, there had been no additional

harvesting of the subject timber.         A consulting forester

testified that 12 trees, apparently cut by Buckner’s crew, were

still on the ground; that several trees had blown over due to the

logging of trees that had previously provided a shield from the

wind; and that the remaining timber would be more difficult to

harvest because of the “logging slash” and debris that was left

from the earlier logging.       However, he testified that the better

trees on the Estate’s property remained standing and that a

logging company would not have to build as many roads to finish

harvesting the timber.      He further testified that the current

market price for timber approximated the market price at the time

of the contract.



            Strickland did not attend the trial, but he was

represented by counsel.       At the time of trial, he was 78 years

old and had recently had one leg amputated.3           The trial court

granted several continuances and attempted to accommodate

Strickland’s complaints that he could not negotiate the ramp

leading into the courthouse.        For example, the court at one time

granted a continuance so the defendant could find someone to

bring him into the courthouse in his wheelchair.            The trial court

proceeded with the trial after determining that “[Strickland] has

had every opportunity on numerous occasions to be in court and he




      3
       Strickland filed a motion with the Clerk of the Court of Appeals asking
us to consider a report from his doctor that was received after the hearing
below. We do not find that this motion is well taken; accordingly, it is
denied.

                                      4
just has not cooperated.”4       After hearing the plaintiff’s proof,

the trial court awarded Lee $15,000 plus pre-judgment interest.



                         II.   Standard of Review



            Our review of this non-jury case is de novo upon the

record of the proceedings below; however, that record comes to us

with a presumption that the trial court’s factual findings are

correct.    Rule 13(d), T.R.A.P.      We must honor this presumption

unless we find that the evidence preponderates against the trial

court’s findings.     Id.; Union Carbide Corp. v. Huddleston, 854

S.W.2d 87, 91 (Tenn. 1993); Matter of Gordon, 980 S.W.2d 372,

376-77 (Tenn.App. 1998); Quarles v. Shoemaker, 978 S.W.2d 551,

552 (Tenn.App. 1998).      The trial court’s conclusions of law are

not afforded the same deference, however, and we review those

legal conclusions “de novo with no presumption of correctness.”

Premium Finance v. Crump Ins. Services, 978 S.W.2d 91, 93 (Tenn.

1998); Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn.

1997).



            It is well-settled that the trial court is in the best

position to assess the credibility of witnesses; accordingly,

such determinations are entitled to great weight on appeal.

Quarles, 978 S.W.2d at 553; Massengale v. Massengale, 915 S.W.2d

818, 819 (Tenn.App. 1995); Bowman v. Bowman, 836 S.W.2d 563, 566

(Tenn.App. 1991).

     4
       Strickland did not state as an issue in his brief the fact that the
trial court proceeded in his absence, cf. Rule 27(a)(4), T.R.A.P.; but he
alluded to this as error in the argument section of that document and at oral
argument. We find no abuse of discretion in the trial court’s decision to
proceed in Strickland’s absence.

                                      5
                              III.   Analysis



            After reviewing the record in this case, we cannot say

that the evidence preponderates against the trial court’s finding

that Strickland’s actions amounted to a tortious interference

with Lee’s business relationship with the logging company.



            The tort of interference with business relations is

defined in New Life Corp. v. Thomas Nelson, Inc., 932 S.W.2d 921

(Tenn.App. 1996):



            “The basic elements which establish a prima
            facie tortious interference with a business
            relationship are the existence of a valid
            business relation (not necessarily evidenced
            by an enforceable contract) or expectancy;
            knowledge of the relationship or expectancy
            on the part of the interferer; an intentional
            interference inducing or causing a breach or
            termination of the relationship or
            expectancy; and resultant damage to the party
            whose relationship or expectancy has been
            disrupted.”



Id. at 927 (quoting 45 AM.JUR .2d Interference § 50 (1969)).5            It

is clear from the record in this case that a “valid business

relation” existed between Lee and Buckner, and that Strickland

was aware that Buckner intended to harvest the timber from Lee’s

property pursuant to that relationship.          It is further clear that

on numerous occasions Strickland confronted Buckner and his

employees in an aggressive, threatening manner.           Buckner




      5
       The court in New Life Corp. borrowed the above quotation from its
unreported decision in Kan Const. & Cleaning Corp. v. Tatum, No. 01A01-9304-
CV-00150, 1993 WL 434741 (Tenn.App., W.S., filed Oct. 27, 1993).

                                      6
testified that he left the job without harvesting the best

timber, because



           it was becoming a life-threatening situation.
           A situation getting worse. It was time to
           quit. [Strickland] was getting more bold and
           harass [sic] with his statements...it was a
           no win situation. Either get shot or shoot
           somebody....



This conduct is indicative of the ill will or malice that

Strickland felt towards the harvesting of the timber on the

Estate’s property.   Malice or ill will is a necessary element of

a tortious interference with business relations.       Lann v. Third

Nat. Bank in Nashville, 277 S.W.2d 439, 440 (Tenn. 1955);

Testerman v. Tragesser, 789 S.W.2d 553, 556-57 (Tenn.App. 1989).



           The trial court heard testimony from Buckner touching

on the first three elements of the subject tort.      From this

testimony, it determined that Strickland’s conduct “definitely

created the problem.”   As we have previously stated, the trial

court is in the best position to assess the credibility of a

witness.   Quarles, 978 S.W.2d at 553; Massengale, 915 S.W.2d at

819; Bowman, 836 S.W.2d at 566.       Therefore, we accept the trial

court-accredited testimony of Buckner.       This being the case, we

cannot say that the evidence preponderates against the trial

court’s finding that Strickland’s conduct satisfies the first

three elements of the tort under discussion.



           Proof of damages is required to make out a prima facie

case of interference with business relations.       New Life Corp.,



                                  7
932 S.W.2d at 927.   In the instant case, there is no question but

that the Estate was damaged when Buckner refused to complete the

job because of Strickland’s conduct.      The trial court heard

testimony from a consulting forester to the effect that, although

the best timber remained standing on the property, harvesting it

would be more expensive because of Strickland’s tortious conduct:



          Q:   As a logger, excuse me, as a
               forester not logger, but [as a]
               forester you have the knowledge of
               logging, in your opinion would it
               cost more now to log this
               particular piece of property as
               opposed to finishing back in 1993?

          A:   It would except for there is an
               advantage of the road being in
               there now. So the person who comes
               in now would not have to build as
               many roads, but still it would be
               distracting for someone to go
               through the logging--to get what
               good timber is left. But the road
               building would be--offset that
               somewhat.

                                     * * *

          Q:   Do you think this would be--have
               difficulty in getting a logger to
               come and fix this up?

          A:   Most loggers don’t want to follow
               up somebody, their mess that’s just
               the bottom line. And it wouldn’t
               attract for the price of the
               timber.

                                     * * *

          Q:   You don’t think that you could get
               a logger to go in there for fifty
               percent of the profit, I mean,
               fifty percent of the sale price for
               the trees to do it? That’s what
               this was.

          A:   No. That defeats--you might could
               do it for twenty-five to thirty
               percent [to the landowner].


                                 8
          The trial court determined that Lee should be awarded

$15,000 in damages plus pre-judgment interest.     Based on our de

novo review of the evidence in the record, we cannot say that

this award is excessive.    Rule 13(d), T.R.A.P.   The trial court

has wide discretion to affix a reasonable amount of damages in a

non-jury case as long as the amount is within the credible proof

established at trial and within the range of reasonableness as

defined by the Supreme Court.    Ellis v. White Freightliner Corp.,

603 S.W.2d 125, 126-27 (Tenn. 1980).



          Although Strickland urges us to grant a remittitur on

appeal, we are disinclined to do so.    It is clear from the record

that the trial court’s award of damages is consistent with the

credible proof adduced at trial and that it is reasonable based

on the record before us.    Ellis, 603 S.W.2d at 126-27.



          Lee also raises an issue in his brief regarding the

amount of damages.   He argues that the judgment is insufficient

and that, in any event, the Estate is entitled to treble damages

under T.C.A. § 47-50-109.    However, he did not allude to this

statute in his complaint, nor is there any mention of this

contention in the record before us.    It is well-settled that



          [t]his Court can only consider such matters
          as      were brought to the attention of the
          trial court and acted upon or [pretermitted]
          by the trial court.



Stewart Title Guaranty Co. v. FDIC, 936 S.W.2d 266, 271 (Tenn.App

1996) (quoting Irvin v. Binkley, 577 S.W.2d 677, 679 (Tenn.App.



                                  9
1978)).   This issue was not raised below; therefore, it was and

is waived as far as this appeal is concerned.   Civil Services

Merit Bd. of The City of Knoxville v. Burson, 816 S.W.2d 725, 735

(Tenn. 1991).




                                10
                           IV.   Conclusion



          The judgment of the trial court is affirmed.     Costs on

appeal are taxed to the appellant.      This case is remanded to the

trial court for such further proceedings as may be necessary and

for the collection of costs assessed below, all pursuant to

applicable law.




                                       __________________________
                                       Charles D. Susano, Jr., J.


CONCUR:


________________________
Houston M. Goddard, P.J.


________________________
Herschel P. Franks, J.




                                  11
