                  COURT OF APPEALS OF TENNESSEE

                            AT KNOXVILLE                FILED
                                                        April 14, 1998
KENNETH C. QUARLES,                  )   C/A NO. 03A01-9708-CH-00370
                                     )                Cecil Crowson, Jr.
     Plaintiff-Appellee,             )                  Appellate C ourt Clerk
                                     )
                                     )
v.                                   )   APPEAL AS OF RIGHT FROM THE
                                     )   HAMILTON COUNTY CHANCERY COURT
                                     )
                                     )
                                     )
JOHN RONALD SHOEMAKER and            )
NANCY CAROL SHOEMAKER,               )
                                     )   HONORABLE R. VANN OWENS,
     Defendants-Appellants.          )   CHANCELLOR




For Appellants                           For Appellee

BRIAN M. HOUSE                           RONALD D. GORSLINE
Weems & House                            Chambliss, Bahner & Stophel,
Chattanooga, Tennessee                     P.C.
                                         Chattanooga, Tennessee




                            O P I N IO N




AFFIRMED AND REMANDED                                              Susano, J.

                                 1
           This dispute arose out of a lease of commercial

property by the plaintiff, Kenneth C. Quarles (“Quarles”), to the

defendants, John Ronald Shoemaker and his wife, Nancy Carol

Shoemaker (“the Shoemakers”).   Quarles filed suit alleging that

the Shoemakers had breached the lease agreement by failing to pay

rent.   The Shoemakers denied liability, claiming that Quarles had

constructively evicted them from the leased premises.     Following

a bench trial, the court found that the Shoemakers had abandoned

the lease and that Quarles was entitled to damages of $9,123.47.

The Shoemakers appealed, raising one issue for our consideration:



           Did the trial court err in failing to find
           that there had been a constructive eviction
           in this case?



                                 I



           In October, 1994, the parties executed a lease of the

subject commercial property for a term of one year.      Shortly

thereafter, they extended the lease for two additional years.

The lease requires that the Shoemakers pay rent of $700 per

month, due on the first day of each month.



           The Shoemakers opened a dry cleaning business in the

leased premises.   By late 1995, the business was experiencing

financial difficulties, and the Shoemakers were forced to lay off

their employees and cease operations.   Mr. Shoemaker began

looking for someone to take over the lease, and he and a business

associate incorporated a new dry cleaning business in early




                                 2
January, 1996.    The new business never occupied the leased

premises.



            The Shoemakers failed to pay the rent due in January,

1996, or in any month thereafter.     Later that same January,

Quarles’ property manager, G.A. Bennett (“Bennett”), received a

phone call from the Shoemakers’ attorney, who stated that his

clients, in order to avoid bankruptcy, wanted to terminate the

lease and settle their obligation for $1,500.     Bennett

subsequently received a letter to the same effect, but Quarles

did not accept the Shoemakers’ offer.



            On January 25, 1996, Bennett and Quarles drove by the

leased property and observed two men removing some of the

Shoemakers’ equipment.    When approached by Quarles and his

property manager, the men agreed to leave the remaining equipment

until Bennett and Quarles could speak with Mr. Shoemaker or his

attorney.    Shortly thereafter, Bennett and Quarles had the locks

changed and blocked the entrance to the building with a car.      The

parties exchanged correspondence, but they failed to resolve

their dispute.    The Shoemakers ultimately vacated the premises

altogether.    Bennett took steps to re-lease the property, but it

essentially remained vacant from February, 1996 through January,

1997.   Quarles filed this action in May, 1996.



            Following a bench trial, the trial court found that



            there [was] no request on the part of Mr.
            Shoemaker or his partner or his corporation
            to say, hey, we are keeping this lease, we
            are going to stay in the business. While

                                  3
           there was no unequivocal renunciation of the
           interest in the ownership of the lease,...
           the conduct itself combined with all the
           circumstances does, in the Court’s opinion,
           constitute an abandonment.

Accordingly, the court found that Quarles was entitled to unpaid

rent and other damages totaling $9,123.47.



                                  II



           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); Old Farm Bakery, Inc. v. Maxwell

Assoc., 872 S.W.2d 682, 684 (Tenn.App. 1993).    The trial court’s

conclusions of law, however, are not afforded the same deference.

Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996);

Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993).



           Our de novo review is also subject to the well-

established principle that the trial court is in the best

position to assess the credibility of the witnesses; accordingly,

such determinations are entitled to great weight on appeal.

Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn.App. 1995);

Bowman v. Bowman, 836 S.W.2d 563, 566 (Tenn.App. 1991).



                                  III



                                   4
          Although the Shoemakers’ argument focuses on the theory

of constructive eviction, we must first examine the basis for the

trial court’s decision -- abandonment of the leased premises.



          This court has held that “[t]o constitute abandonment

of the leased premises there must be an absolute relinquishment

of the premises by the tenant evidenced by an act and an intent

to abandon.”   Jaffe v. Bolton, 817 S.W.2d 19, 27 (Tenn.App.

1991); Old Farm Bakery, Inc. v. Maxwell Assoc., 872 S.W.2d 682,

684 (Tenn.App. 1993).   The issue of abandonment involves the

intent of the lessee and is generally a question of fact.      Id.;

see also Charleston, S.C., Mining & Mfg. Co. v. American Agric.

Chem. Co., 126 Tenn. 18, 30, 150 S.W. 1143, 1146 (1911).    The

intent of a lessee is to be ascertained from his or her conduct

and statements in light of the surrounding circumstances.      McNeil

Real Estate Management, Inc. v. Seiler, C/A No. 03A01-9503-CV-

00097, 1995 WL 420008, *7 (Tenn.App., E.S., filed July 17, 1995).



          The concept of abandonment is examined in some detail

in Tennessee Jurisprudence:



          Abandonment acquiesced in by the landlord
          amounts to a surrender, and is a restoration
          of the landlord’s occupancy. Abandonment of
          the lease -- that is, the leaving of the
          premises with the intention not to return --
          or the relinquishment by the lessee of his
          rights under the lease, without intention to
          resume them, may therefore be treated by the
          landlord as a termination of the lease....
          The abandonment of possession by the tenant
          will not work a surrender of the premises,
          unless it is assented to by the lessor, and
          such acceptance must be shown by word or
          acts, such, for example, as entry into
          possession. The lessee cannot surrender

                                 5
          premises leased to him before the expiration
          of the term, so as to absolve himself from
          paying rent, without the consent of the
          lessor, and the abandonment of the premises
          with notice will not exonerate the lessee
          from paying the rent unless the lessor
          assents.



17 TENN.JUR . Landlord and Tenant § 29 (1994)(emphasis added); see

also Charleston, S.C., Mining & Mfg. Co., 126 Tenn. at 29.



          It is also important to note that, upon the abandonment

of the leased premises by the tenant, the landlord is under a

duty to mitigate damages.   Jaffe, 817 S.W.2d at 26 (citing Hailey

v. Cunningham, 654 S.W.2d 392 (Tenn. 1983)).



                                  IV



          After reviewing the record in this case, we cannot say

that the evidence preponderates against the trial court’s finding

that the Shoemakers’ actions amounted to an abandonment of the

leased premises.   There are numerous circumstances evidencing the

Shoemakers’ “relinquishment of the premises,” Jaffe, 817 S.W.2d

at 27, including the following:       the failure to pay rent; the

cessation of operations at the dry cleaning business on the

premises; the removal of equipment from the premises; the

formation of a new dry cleaning business that did not take over

payments under the lease, and never occupied the leased premises;

the statement of the Shoemakers’ attorney that his clients would

probably have to file for bankruptcy if they were not let out of

the lease; and the Shoemakers’ failure to communicate to Quarles,




                                  6
directly or through their attorney, any desire to continue the

lease arrangement.



            We recognize that there are opinions of this court

holding, under the facts of those cases, that circumstances

similar to those set forth in the preceding paragraph were not

sufficient to show an abandonment.     See Old Farm Bakery, Inc.,

872 S.W.2d at 684 (holding that no abandonment occurred where

lessee was current on rent, but had ceased operations on the

premises and had expressed its intention to stop paying rent and

find another tenant to take over the lease); and Jaffe, 817

S.W.2d at 27 (finding no intent to abandon where tenants “took no

steps to abandon the premises” other than offering to relinquish

the premises in exchange for payment for the cost of improvements

thereto).    In other cases, however, an abandonment has been

found; for instance, in the McNeil Real Estate Management case,

this Court found that an abandonment had occurred where the

tenants closed their shop on the leased premises, removed their

equipment and merchandise, and turned their keys in to the

landlord so that the premises could be shown to prospective

tenants.    See McNeil Real Estate Management, Inc., 1995 WL 420008

at *7.     In the instant case, we believe that the totality of the

Shoemakers’ conduct and statements, considered in light of the

surrounding circumstances, evidences an intent to abandon the

leased premises.     Id.



            We therefore hold that the evidence does not

preponderate against the trial court’s finding that the

Shoemakers’ actions amounted to an abandonment.     Rule 13(d),


                                   7
T.R.A.P.; see Old Farm Bakery, Inc., 872 S.W.2d at 684.     To the

extent that the trial court’s finding of an intent to abandon the

leased premises was influenced by its assessment of the

credibility of the witnesses, such determinations are, as noted

earlier, entitled to great weight.    Massengale v. Massengale, 915

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

563, 566 (Tenn.App. 1991).   Accordingly, we find that Quarles was

justified in re-taking possession of the premises, and that, by

the same token, he did not constructively evict the Shoemakers.

At no time did Quarles consent to a surrender of the premises and

waive his right to collect rent for the remaining term of the

lease, and his actions in securing the property may fairly be

construed as an effort on his part to secure the unoccupied

premises and mitigate damages upon the Shoemakers’ breach and

abandonment of the lease.



          In light of this conclusion, it is not necessary to

address further the Shoemakers’ issue regarding constructive

eviction; nor must we review the appropriateness of the amount of

damages awarded by the trial court, since that amount is not

specifically challenged by the Shoemakers on this appeal.



                                 V



          It therefore results that the decision of the trial

court is affirmed.   Costs on appeal are taxed to the appellants

and their surety.    This case is remanded to the trial court for

the enforcement of its judgment and the collection of costs

assessed there, all pursuant to applicable law.


                                  8
    __________________________
    Charles D. Susano, Jr., J.




9
CONCUR:



_________________________
Houston M. Goddard, P.J.



_________________________
Herschel P. Franks, J.




                            10
