Ms. Harlan leased 83 acres from Mr. Lovett for pasturage of her horses. She paid rent for several months, but then failed to pay any rent for several more months. She would not respond to Mr. Lovett's telephone calls. Finally, Mr. Lovett sold the horses to a hauler who sold them at a sale. Mr. Lovett subtracted the rent due to him and remitted the balance of the sale proceeds to Ms. Harlan.
She sued him for the tort of conversion, exercising control over property contrary to the interest of the owner. She won and was awarded damages by the jury. On appeal, in addition to other claims, Mr. Lovett contended that he had a statutory lien on the horses to secure the payment of the rent. The Court of Appeals rejected that argument, however, because the lien arose only when animals are permitted to pasture on the claimant's property. In this case, Lovett rented the property to Harlan, who placed her horses on the leased property.
The Defendant has appealed from a jury verdict awarding compensatory and punitive damages for his conversion of seven saddle horses.
In May, 1992, the Plaintiff-Appellee, Julie Harlan and Defendant-Appellant James F. Lovett entered into an oral lease agreement whereby Mr. Lovett leased to Ms. Harlan a tract of farm land containing approximately 83 acres located in the 5th Civil District of Sullivan County. The lease was on a month-to-month basis for which Ms. Harlan was to pay $ 275 per month in advance. The land was fenced and had a barn located on it. Ms. Harlan was to have the use of the barn and was to make necessary repairs to the fence. She owned five horses and a pony. Her minor son, James K. Hunt, II, owned a joint interest with her in one of the horses. At the time the lease was entered into Ms. Harlan stated her purpose in leasing the property was for breeding, raising, and training jumping horses.
Ms. Harlan paid her first month's rent in advance on May 27 when she made her lease with Mr. Lovett but there were delays in the payment of the June, July, and August rents. She paid the rent for these months except for $ 25 on the August rent and she did not pay any rent after the partial payment for August.
Immediately after signing the lease agreement, Ms. Harlan moved her five horses and the pony onto the property. Approximately a month later the Plaintiff-Appellee, Sonja Blackburn, with the consent of Ms. Harlan, but without the knowledge of Mr. Lovett, moved two of her saddle horses onto the property. Although Mr. Lovett was aware of the fact that two additional horses had been placed on the property, he assumed they belonged to Ms. Harlan or members of her family.
After Ms. Harlan stopped paying rent on the property, Mr. Lovett called her on the telephone requesting payment. She promised to get back in touch with him, but never did. On October 27, 1992, he wrote her a certified letter stating he would turn the matter over to his attorney if she did not pay her rent within five days. She did not respond. Also, by October most all the grass on the property had been grazed off by the horses and they began breaking through the fence on the property, apparently in search of food. They were getting on the property and into the fields of adjoining property owners as well as on the greens and fairways of Rock Creek Golf Course, which was located nearby, and damaging the golf course.
Mr. Lovett continued his efforts to establish communications with Ms. Harlan. He called her residence but she would not return his calls. It reached the point where he would call and when his voice was apparently recognized, the party would "hang up." Mr. Lovett did not know Ms. Blackburn nor did he know two of the horses belonged to her, so she was never called. Ms. Blackburn testified she made her arrangements with Ms. Harlan and not Mr. Lovett to put her horses on Mr. Lovett's property. The record also shows that, although Ms. Blackburn fed her horses regularly, by December, 1992, the horses belonging to Ms. Harlan had become so poor and emaciated "you could count their ribs."
Mr. Lovett testified he was fearful he would be liable for damages which might be caused by the horses to other properties, both private and public. He was fearful they might injure some child or other person or they might get on the highway and be involved in an accident. He further contended he had concluded that, since Ms. Harlan would not return his calls and the horses had gotten in such poor condition, she had decided to abandon them, and he decided to send them to the stockyard for sale. He called Mr. Dennis Widener, who hauled livestock and told him he had some horses for sale and asked him to take them to the stockyard. Mr. Widener went to the premises and Mr. Lovett sold them to him for $ 1,200. Mr. Widener picked the horses up on December 2, 1992, and took them to the stockyard where he sold them for $ 1,750.
After the horses had been taken to the stockyard and sold by Mr. Widener, Ms. Blackburn went to the premises where the horses had been kept and discovered they were missing. Ms. Blackburn reported to Ms. Harlan the horses were missing and Ms. Harlan gave her Mr. Lovett's telephone number and suggested she call him, which she did. Mr. Lovett told her he had sold the horses to Mr. Widener. Ms. Blackburn, in turn, called Mr. Widener and then went to the stockyard in search of the horses, but they could not be located. Some two or three weeks later, the pony and one of the horses belonging to Ms. Harlan were located and returned to her. In the interim, Mr. Lovett deducted $ 850 for rent from the $ 1,200 which he had gotten from the sale of the horses and sent Ms. Harlan a check for the balance.
Ms. Blackburn and Ms. Harlan each filed separate suits against Mr. Lovett. Ms. Harlan also brought suit on behalf of her infant son, James K. Hunt, II, who was co-owner with her of one of the horses. The Plaintiffs alleged in their complaints that the Defendant, by selling their horses, had wrongfully converted them to his own use and benefit. They each asked for compensatory and punitive damages and demanded a jury to try the cause.
The Defendant, for answer, filed a general denial of the allegations in the complaints. As an affirmative defense, he alleged that the Plaintiffs' failure to keep their animals within the confines of the fence and letting them run at large subjected him to damages.
An agreed order of consolidation of the cases for trial was entered and after pretrial depositions were taken the Plaintiffs each filed motions for partial summary judgment on the issue of liability pursuant to Rule 56, TRCP. In support of the motion, they relied upon the pleadings, the affidavits of the Plaintiffs, and the deposition of the Defendant.
The Defendant filed a response to the motions for summary judgment denying the Plaintiffs were entitled to summary judgment because there were genuine issues of material facts for trial. He also filed an affidavit in support of his response.
The affidavits of the Plaintiffs stated they were the respective owners of the horses. They had not given the Defendant permission to sell their horses and they did not know they were going to be sold.
In Mr. Lovett's deposition, he admitted he sold the horses to Mr. Widener for $ 1,200 and he was not the owner of the horses.
Upon the hearing, the court found there was no genuine issue as to the material facts concerning conversion of the horses, and sustained the motions for summary judgment.
Upon the trial of the case, the court instructed the jury he had previously held the Defendant was liable for damages and it was their duty to determine the amount of those damages.
As pertinent, Ms. Blackburn testified one of her horses was a 14-year-old thoroughbred quarter horse which had won a number of ribbons as a show horse and was worth $ 5,000 on December 2, 1992, the day he was sold. Her other horse was a dappled gray Arabian saddlebred cross four years old, who had a lot of training and had a value of $ 10,000 at the time he was sold.
Ms. Harlan testified as to the value of the five horses she had on the farm at the time they were sold and listed them by their names as follows: Tiny - a dappled gray registered English Shire stallion, $ 13,500; White Oak - a thoroughbred two-year-old quarter horse, $ 8,000; Chesty - a 14-year-old crossbred brood mare, $ 3,000; Black Star - a nine-month- old filly, $ 5,000; Valor - a young horse owned jointly with her son, $ 2,500, for a total of $ 32,000.
There was considerable disagreement among the witnesses as to the physical condition of Ms. Harlan's horses on the date of sale. She testified they were in good condition at the time she last saw them two days before they were sold. Other witnesses who saw them shortly before the sale and those who saw them on the date of the sale testified they were in very poor condition. The Defendant introduced a picture of Tiny, the registered stallion, which was made after the sale. It depicted him in extremely poor condition, having lost about 50% of his normal weight. A veterinarian testified his condition was the result of starvation. Ms. Harlan insisted this weight loss had occurred during the two or three weeks between his sale and when he was returned to her. Other witnesses testified that was his condition at the time of the sale.
At the close of Plaintiffs' proof, Defendant moved for a directed verdict as to the complainant's claim for damages for the loss of Tiny, the registered Shire stallion, because she had reclaimed the horse and had offered evidence only as to his value as of the date of the sale.
The court overruled the motion and over Defendant's objection permitted counsel for the Plaintiff to recall Ms. Harlan to testify as to the difference in the value of the horse between the date of sale and the date she recovered him.
On recall, Ms. Harlan testified that on the date of sale he had a value of $ 13,500; when he was returned he had a value of $ 7,000.
At the conclusion of all the proof, the court again charged the jury he had found the Defendant liable in damages to the Plaintiffs and it was their duty to fix the amount of damages. The jury was given special verdicts to fix the amount of compensatory damages for the conversion of each horse. They were also asked to say "yes" or "no" to the question of whether by clear and convincing evidence the Defendant was liable for punitive damages. Upon consideration of the issue of punitive damages, the jury found the Defendant liable for punitive damages in the following amounts: To Ms. Harlan $ 10,000, to John K. Hunt, II, $ 50, and to Ms. Blackburn $ 3,500. Judgments were entered in keeping with the jury verdict.
The Defendant filed a motion for a new trial, which was overruled, and he has appealed, presenting the following issues for review: 1. "Did the trial court err when it entered summary judgment for the Plaintiffs against the Defendant finding that the Defendant converted the horses of the Plaintiffs when in fact and law the Defendant had a lien on said horses for his rental for pasturage?" 2. "Was the charge to the jury as presented by the trial court stated in language that was at such an elevated educational level that a jury of average intelligence would be unable to comprehend and follow its instructions all to the detriment of the Defendant in this case?" 3. "Did the trial court err in charging the jury regarding the proper measure of damages when the trial court failed to explain how the jury could determine fair market value as opposed to diminution of value?"
We find no reversible error in any of the issues presented, and affirm for the reasons hereinafter stated.
In support of Appellant's insistence that the court was in error in holding he had converted the horses when, in fact, he had a lien on the horses for rental pasture, he relies upon TCA s 66-20-101 which provides:
Pasturage lien.-- When any horse or other animal is received for pasture for a consideration, the farmer shall have a lien upon the animal for the farmer's proper charges, the same as the innkeeper's lien at common law; and in addition the farmer shall have a statutory lien for six (6) months.
The Appellant, in his brief, presents a persuasive argument, supported by good authority, that the holder of a lien under the statute quoted above has priority over the owner of the property. Under the facts in the case at bar, however, the reliance by the Appellant upon the statute is misplaced. The Appellant did not "receive to pasture for a consideration" the horses of the Plaintiffs. He leased his 83-acre tract of land to the Plaintiff, Ms. Harlan, for her to breed, train, feed and pasture her horses.
There is another compelling reason, however, why the Appellant cannot prevail on this issue. He did not raise this issue in the trial court and raises it for the first time on appeal, which cannot be done. Thomas v. Noe, 42 Tenn.App. 234, 301 S.W.2d 391 (1956: Tops Bar-B-Q, Inc. v. Stringer, Tenn.App., 582 S.W.2d 756 (1977) Moran v. City of Knoxville, Tenn.App., 600 S.W.2d 725 (1979); Harrison v. Schrader, Tenn., 569 S.W.2d 822 (1978).
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The issues are found in favor of the Appellees. The judgment of the trial court is affirmed. The cost of this appeal is taxed to the Appellant and the case is remanded to the trial court for any further necessary proceedings.
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