Beatty v. McGraw

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE FILED December 10, 1998 GUY BEATY, ) ) Cecil W. Crowson Plaintiff/Appellee, ) Appellate Court Clerk ) Fentress Circuit ) No. 6969 VS. ) ) Appeal No. ) 01A01-9701-CV-00046 BOBBY McGRAW and ) STEVE BROWN, ) ) Defendants/Appellants. )

APPEAL FROM THE CIRCUIT COURT FOR FENTRESS COUNTY AT JAMESTOWN, TENNESSEE

THE HONORABLE CONRAD E. TROUTMAN, JUDGE

For Plaintiff/Appellee: For Defendants/Appellants:

John D. Agee James P. Smith, Jr. Cooley, Cooley & Agee Crossville, Tennessee Kingston, Tennessee Patrick T. Phillips Knoxville, Tennessee

AFFIRMED IN PART; VACATED IN PART AND REMANDED

WILLIAM C. KOCH, JR., JUDGE

OPINION

This appeal involves a dispute over the sale and repossession of a drilling rig. The seller filed suit against the purchasers in the Fentress County General S essions Court seeking immedia te possession of the rig and damages. Following the purchasers’ de novo appeal, the Circuit Court for Fentress County awarded the seller possession of the rig but held that the purchasers could recover the rig by paying the seller the outstanding balance of the purchase price. On the purchasers’ appeal, this court held that the seller was entitled to a judgment for the unpaid purchase price but that the seller had not been entitled to repossess the rig. Acc ordingly, this court remanded the case to determine the purchasers’ damages for the seller’s wrongful detention of the rig. The purchasers asserted on remand that the appropriate measure of their dam ages had already been d etermined in a similar Roane County proceeding between the same parties. The trial court disagreed and aw arded the purchasers $26,021 for the seller’s wrongful detention of the rig and $8,000 in attorney’s fees under Tenn. Code Ann. § 29-30-110 (1980). All parties have appealed. The purchasers assert that the trial court should have used the same me asure of d amages u sed in the R oane Co unty proceeding and that they should have been awarded exemplary damages under Tenn. Code Ann. § 29-30-210 (1980). The seller asserts that the evidence preponderates against the trial court’s damage award and that the purchasers were not entitled to recover their attorney’s fees. We have determined that the trial court correctly calculated the purchasers’ damages but that the case must be remanded for further consideration of the award of attorney’s fees to the purchasers.

I.

In January 198 6, Three G ’s Drilling Company sold a 1978 Drilltech Type SME drilling rig to Bobby McGraw and Steve Brown for $50,000. Messrs. McGraw and Brown paid $25,000 down a nd agreed to pay the balan ce in four $ 6,250 installm ents due between April 1, 1986 and Janu ary 1, 1987. M essrs. McG raw and Brown took poss ession of th e rig but failed to execute a written contract or to make any of their payments. On March 13, 1992, Guy Beaty, one of the partners in Three G’s Drilling Company, filed suit in the Roane County General Sessions Court seeking immediate possession of the rig. The general sessions court awarded Mr. Beaty a writ of immediate possession, and sheriff’s deputies took possession of the rig and turned it over to Mr. Beaty in March 1992.

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Messrs. McGraw and Brown resisted the Roane County suit and, in March or April 1992, convinced the general sessions court to dismiss Mr. Beaty’s suit for improper venue. For some reason not apparent in the record, the general sessions court overlooked ordering that the rig be returned as contemplated by Tenn. Code Ann. § 29-30-208 (1980). M essrs. McGraw and Brow n perfected a de no vo appea l to the Circu it Court for R oane Co unty because the Roan e Coun ty General Sessions C ourt had declined to ord er Mr. Beaty to return the rig when it dismissed his case.

On April 2, 1992, M r. Beaty filed suit in the Fentress Coun ty General Sessions Co urt seeking possession of the rig and damages. His application of the writ of possession recited that Mr. Beaty already had possession of the rig but that he was “in need of an order conferring the right to possession.” The Fentress County General Sessions Court issued a writ of possession on April 3, 1992. After the entry of an order in Mr. Beaty’s favor on June 2, 1992, M essrs. M cGraw and Brown perfected a de novo appeal to the Circuit Court for Fentre ss Cou nty.

Thus, by April 1992, the parties were pursuing similar issues in both the Circuit Court for Roane C ounty and the Circuit Co urt for Fen tress Coun ty. In the Roane Coun ty proceeding, Messrs. McGra w and Brown again moved to dismiss Mr. Beaty’s suit for improper venue. On October 5, 1992, the Circuit Court for Roane County dismissed Mr. Beaty’s suit but, to Messrs. McGraw’s and Brown’s consternation, made no ruling on which party was entitled to possession of the drilling rig and declined to consider their claim for exemplary damages because they were pursuing a claim for exemplary damages in the Fentress County pro ceeding. O n Februa ry 24, 1993, the Circuit Court for Fentress County entered a final order find ing that M r. Beaty was e ntitled to posse ssion of the drilling rig but that Messrs. Mc Graw and Brow n could ob tain possess ion of the rig by paying M r. Beaty $25,000 within thirty days. The court did not awa rd Messrs. Mc Graw and Brown ex emplary damages.

Messrs. McG raw an d Brow n appe aled bo th circui t court ju dgme nts. The Roane County case was the first to reach the Court of Appeals. A panel of Western Section judges, sitting in Knoxville, held that Messrs. McGraw and Brown were entitled to damages for M r. Beaty’s wrongful taking of the drilling rig and remanded the case with directions to assess these damages once the circuit court d etermined that it had sub ject matter jurisd iction to decide the claim.1 See Beaty v. McGraw, No. 03A01-9211-CV-00417, 1993 WL 119799

1 Mr. Beaty had contended that a private act gave the Roane County General Sessions Court (continued...)

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(Tenn. Ct. App. Apr. 16, 1993) (No Tenn. R. App. P. 11 application filed). In the second decision, a panel of Middle Section judges affirmed the Circuit Court for Fen tress County’s judgment awarding Mr. Beaty $25,000 plus prejudgmen t interest but also found that M r. Beaty had w rongf ully detain ed the d rilling rig . Acc ordingly, the court rem anded the case to the circuit court for the consid eration o f dam ages. See Beaty v. McGraw, No 01A01-9312- CV-00544, 1994 WL 440897 (Tenn. Ct. App. Aug. 17, 1994) (No Tenn. R. App. P. 11 applica tion filed ).

At this point, both the Roane County and the Fentress County actions had been remande d to their respective trial c ourts with in structions to determine the dama ges due to Messrs. McGraw and Brown for Mr. Beaty’s wrongful detention of the drilling rig. In the Roane County pro ceeding, the circuit court was to assess the damages from March 13, 1992 through April 3, 1992 – the time that Mr. Beaty held the rig under the aegis of the writ of possession issued by the Roane County G eneral Sess ions Cou rt. In the Fentre ss Coun ty proceeding, the circuit court was to assess the damages from April 3, 1992 through mid- Augus t, 1994 – the time that Mr. Beaty held the rig under the writ of possession issued by the Fentres s County G eneral Sess ions Cou rt.2

On October 28, 1994, the Circuit Court for Roane County entered an order finding that it had subject matter jurisdiction and awarding Messrs. McGraw and Brown $1,885 in damages for the wrongful detention of the drilling rig from March 13 to April 3, 1992. The circuit court based its award on the fair monthly rental value of the drilling rig.3

During the hearing before the Circuit Court for Fentress County, Messrs. McGraw and Brown asserted that the court should calculate their damages using the same calculation that had been used in the Roane County proceedings. The circuit court chose instead to ba se its damage calculation o n the actual i ncome Messrs. McGraw and Brown earned from the drilling rig in 1991.4 After determining that Mr. Beaty had wrongfully detained the drilling

1 (...continued) concurrent jurisdiction with the Circuit Court for Roane County on matters of replevin. Therefore, he had argued that Messrs. McGraw and Brown’s appeal from the Roane County General Sessions Court should have been to the Court of Appeals rather than to the circuit court. 2 After this court’s decision in the second appeal, Mr. Beaty returned the drilling rig to Messrs. McGraw and Brown. 3 The circuit court found that the rig’s fair monthly rental value was $5,000. After deducting $2,500 representing the monthly expenses for operating the rig, the court prorated the $2,500 net income based on the three weeks that Mr. Beaty had the rig in his possession. 4 The circuit court determined that Messrs. McGraw and Brown earned $10,500 from the rig (continued...)

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rig under the writ of possession issued by the Fentress County General Sessions Court for twenty-nine month s, the circuit cou rt awarded Messrs. M cGraw and Bro wn $26 ,021 in damages plus $8,00 0 in attorney’s fees under Tenn. C ode An n. § 29-30 -110. Bo th Mr. Be aty and Messrs. Mc Graw and Brown ha ve appealed from the Circuit Court for Fe ntress County’s April 25, 1996 order. Thus, we consider this dispute for the third time.

II. T HE C OLLATERAL E STOPPEL I SSUE

We turn first to the collateral estoppel issue. Messrs. McGraw and Brown assert that Mr. Beaty is collaterally estopped to advance any measure of damages for his wrongful detention of the drilling rig other than the fair rental value of the rig during the time it was detained b ecause tha t was the m easure of d amages a dopted by the Circuit Court for Roane Cou nty. Mr. Beaty responds that Messrs. McGraw and Brown are imperm issibly seeking to use the doctrine of collateral estoppel offensively. Both sides are mistaken.

A.

Collateral estopp el is an iss ue prec lusion d octrine d evised by the co urts. See Dickerson v. Godfrey, 825 S.W .2d 692, 69 4 (Tenn. 1 992); Goeke v. Woods, 777 S.W.2d 347, 349 (Tenn. 19 89); Morris v. Esmark Apparel, Inc., 832 S .W.2d 563, 56 5 (Ten n. Ct. A pp. 1991). Like other preclusion doctrine s, its purposes are to conse rve judicial res ources, to relieve litigants from the cost and vexation of multiple lawsuits, and to encourage reliance on judi cial dec isions b y preven ting inco nsistent decisio ns. See Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 41 4-15 (1980); Disimone v. Browner, 121 F.3d 1262, 1267 (9th Cir. 1997).

Judge Friendly succinctly explained issue preclusion when he observed ov er thirty years ago that “[w]here the litigants have once battled for the cou rt’s decision, the y should neither be required, nor without good reason permitted, to battle for it again.” Zdanok v. Glidden Co., 327 F .2d 944 , 953 (2 d Cir. 19 64). Thus, as our courts have construed the collateral estoppel doctrine, it bars the same parties or their privies from relitigating in a second suit issues that w ere actually raised and determ ined in an earlie r suit. See Ma ssengill v. Scott, 738 S.W.2d 629, 631 (Tenn. 1987); Collins v. Greene County Bank, 916 S.W.2d 941, 945 (Tenn. Ct. App. 1995). Stated another way, when an issue has been actually and

4 (...continued) in 1991.

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necessarily determine d in a form er action be tween the parties, that dete rmination is conclusive against them in subs equen t litigation . See King v. Brooks, 562 S.W.2d 422, 424 (Tenn. 19 78); Allied Sou nd, Inc. v. Ne ely, 909 S.W.2d 81 5, 820 (Tenn. C t. App. 1995).

The party seeking to rely on the doctrine of collateral estoppel has the burden of proof. See Dickerson v. Godfrey, 825 S.W.2d at 695. To invoke the d octrine succe ssfu lly, the party must demonstrate: 1. that the issue sought to be precluded is identical to the issue d ecided in the earlier suit; 5

2. that the issue sought to b e preclude d was ac tually litigated and decided on its merits in th e earlier suit; 6

3. that the judg ment in the earlier suit has b ecome f inal; 7

4. that the party against whom collateral estoppel is asserted was a party or is in privity with a party to the earlier su it;8 and

5. that the party agains t whom collateral estop pel is asserted had a full and fair opportunity in the earlier suit to litigate th e issue now sought to be precluded.9

At common law, the collateral estoppel doctrine required mutuality of the parties and could only be used defensively. Thus, a defe ndant traditio nally employed th e doctrine to prevent a plaintiff from relitigating a claim that the plaintiff has previously litigated against the defen dant an d lost. T he United States Supreme Court expanded the application of the collateral estoppel doctrine in federal courts when it discarded the common-law mu tuality of parties require ment. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326-333, 99 S. Ct. 646, 649-653(1 979).

The federal courts and many state co urts now permit the offensive use of the collateral estoppel doctrine in two ways. First, the doctrine can be used when a plaintiff seek s to

5 See Tennessee Farmers Mut. Ins. Co. v. Moore, 958 S.W.2d 759, 767 (Tenn. Ct. App. 1997); Scales v. Scales, 564 S.W.2d 667, 670 (Tenn. Ct. App. 1977). 6 See Dickerson v. Godfrey, 825 S.W.2d at 694-95; A.L. Kornman Co. v. Metropolitan Gov’t, 216 Tenn. 205, 213, 391 S.W.2d 633, 637 (1965). 7 See Frank Rudy Heirs Assocs. v. Sholodge, Inc., 967 S.W.2d 810, 813 (Tenn. Ct. App. 1997); Morris v. Esmark Apparel, Inc., 832 S.W.2d at 565. 8 See Blue Diamond Coal Co. v. Holland-America Ins. Co., 671 S.W.2d 829, 832 (Tenn. 1984); Shelley v. Gipson, 218 Tenn. 1, 13, 400 S.W.2d 709, 714 (1966). 9 See Jenne v. Snyder-Falkinham, 967 S.W.2d 327, 330 (Tenn. Ct. App. 1997); Morris v. Esmark Apparel, Inc., 832 S.W.2d at 566; Restatement (Second) of Judgments § 29 (1982).

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foreclose a defend ant from re litigating an issue that the defendant had previously litigated unsucce ssfully in another a ction again st the same p laintiff. This form of collateral estoppel is commonly referred to as “mutual offensive collateral estoppel” because the parties in the two proceedings are the same. Second, the doctrine can be us ed whe n a plaintiff s eeks to foreclose a defendant from relitigating an issue that the defendant had previously litigated unsucce ssfully in another action against a different party. This form of collateral estoppel is commonly known as “nonmutual offensive collateral estoppel.” See United States v. Mendoza, 464 U.S . 154, 159 n .4, 104 S. C t. 568, 571 n .4 (1984); Parkland Hosiery Co. v. Shore, 439 U.S. at 326 n.4, 99 S. Ct. at 649 n.4; Chicago Truck Drivers, Helpers and Warehouse Union (Indep.) Pension Fund v. Century Motor Freight, Inc., 125 F.3d 526, 530 n.3 (7th Cir. 1997).

Only a small number of states presently continue to adhere to the mutuality of parties requireme nt. See 1B James W. M oore & Jo D. L ucas, Moore’s Federal Practice ¶ 0.441 [3.- 2] (1995 ). Tennessee is one of these states. Our courts have repeatedly declined to approve the use of nonm utual of fensiv e collate ral estop pel. See Gann v. International Harvester Co., 712 S.W.2d 1 00, 101 (T enn. 1986 ); Algood v. Nashville Mach . Co., 648 S.W.2d 260, 261 (Tenn. Ct. App. 1983); see also Leathers v. U.S.A. Trucking, Inc., No. 02A01-9109-CV- 00198, 1992 WL 37146, at *1 (Tenn. Ct. App. Mar. 2, 1992) (No Tenn. R. App. P. 11 application filed); Beama n Bottling C o. v. Benne tt, No. 03A01-9103-CV-00091, 1991 WL 218228, at *2 (Ten n. Ct. App . Oct. 29, 19 91) (No T enn. R. A pp. P. 11 ap plication filed); Carroll v. Times Printing Co., No. 596, 1987 WL 10 332, at *3 (T enn. Ct. App. May 5, 1987) (No Tenn R . App. P. 11 application f iled).

We can, however, find no decision in which an appellate court of this state has addressed the propriety of mutual of fensive co llateral estoppe l – that is, perm itting the plaintiff to foreclose a defenda nt from relitig ating an issu e that the def endant ha d previou sly litigated unsuccessfully in another action against the same plaintiff.10 On the face of it, permitting the use of mutual offensive collateral estoppel seems to provide all the benef its of the issue preclusion doctrine without any of the perceived undesirable consequences of nonmutual offensive collateral estop pel. Recognizing the doctrine will not increase the total amount of litigation, and it will not necess arily be un fair to th e defe ndant. See Leathers v. U.S.A. Trucking, Inc., 1992 WL 37146, at *2 (discussing the undesirable consequences of nonmutual off ensive collateral estoppel).

10 This court may have applied mutual offensive collateral estoppel in a case involving the construction of a will where the parties in the two proceedings were in privity with each other. See Aclin v. Speight, 611 S.W.2d 54, 55 (Tenn. Ct. App. 1980).

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Acc ordingly, we find that trial courts may permit the use of mutual offensive collateral estoppel in proper circ ums tanc es. T his d ecision is discreti onary with the trial court. See Parklane Hosiery Co. v. Shore, 439 U.S . at 331, 99 S . Ct. at 651-5 2; Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 391 (5th Cir. 1998). Mutual offensive collateral estoppel should be permitted only when the alignment of the parties and the legal and factual issues warra nt it. See Nations v. Sun Oil Co., 705 F.2d 742, 74 4-45 (5th Cir. 1983). The trial court’s discretion has its limits, and the tria l court mus t take special c are to ensure that the offensive application of the doctrine does not work a hardship on the party against whom the estoppel is asserte d. See Re mingto n Ran d Cor p. v. Am sterdam -Rotter dam B ank, N .V., 68 F.3d 1478, 14 86 (2d C ir. 1995); Raytech Corp. v. W hite, 54 F.3d 187, 190 (3d Cir. 1995). In exercising its discretion, the trial court may consider (1) whether the plaintiff could have joined the former suit but decid ed instead to adopt a “wait and see” attitude, (2) whether the defendant had an incentive to defend the former suit v igorously, and (3) whether the judgment on whic h the plaintiff seeks to rely is itself in consistent w ith previous judgmen ts against the defen dant. See Parklane Hosiery Co. v. Shore, 439 U.S. at 330-31, 99 S. Ct. at 651-52; Winters v. Diamond Shamrock Chem. Co., 149 F.3d at 391.

B.

Messrs. McGraw and Brown assert that Mr. Beaty should be collaterally estopped from relitigating the issu e of the ap plicable measure of damages for his wrongful detention of the drilling rig because the Circuit Court for R oane Coun ty already a particular measure of damages in the earlier Roane County proceeding. Mr. Beaty responds that Messrs. McGraw and Brown should not be permitted to use the collateral estoppel doctrine offensiv ely. In light of our conclusion that the collateral estoppel doctrine can be used offensive ly when the parties in both suits are the same, we find that Messrs. McGraw and Brown may invoke the collateral estoppel doctrine if they can demonstrate that all the necessary ingredients are present. Accordingly, we must examine the requirements of the collateral estoppel doctrine in light of the facts of this case.

This appeal implicates the first two requirements for the collateral estoppel doctrine – that the issue sought to be precluded must be identical to the issue actually litigated and decided on the me rits in the earlier suit. We must decide wh ether the choice of the m easure of damages for Mr. Beaty’s wrongful detention of the drilling rig under the writ of possession issued by the Roane County General Sessions Court is the same issue as the choice of the measure of damages for Mr. Beaty’s wrongful detention of the drilling rig under th e later writ

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of possession issued by the Fentress County General Sessions Court. The very formulation of the issue foretells the answ er.

When a party invokes the collateral estoppel doctrine, the court must f irst ascertain what issue or issues were actually d ecided in the fir st proce eding. See Anvan Realty & Management Co. v. Marks, 680 F. Supp. 1247, 1 249 (N .D. Ill. 19 88). For the pu rpose of th is analysis, an “issue” is any disputed point or q uestion raised by the parties’ pleadings concerning which the parties desire a decision. See Paine & Williams Co. v. Baldwin Rubber Co., 113 F.2d 840, 843 (6th Cir. 194 0); Muller v. Muller, 45 Cal. Rptr. 182, 184 (Ct. App. 1965); In re Powers, 493 N.W.2d 166, 169 (Neb. 1992); Commonwealth v. Willow Grove Veterans Home Ass’n, Inc., 509 A.2d 958, 961 (Pa. Commw. Ct. 1986); 1B James W. M oore & Jo D. L ucas, Moore’s Federal Practice ¶ 0.443[2] (1995). The court must then determine what issue or issues are in volved in the second proceeding and must compare the issues in the two proceedings to determine whether they are identical. For the collateral estoppel doctrine to apply, the issue sought to be precluded in the second proceeding must be identical, not merely similar, to the issue de cided in the first p roceed ing. See Farha v. F DIC, 963 F.2d 283, 286 (10th Cir. 1992) ; Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1399 (9th Ci r. 1992 ).

The process for analyzing the identity of an issue will vary depending on whether the issue is a factu al or legal on e. Judge F eikens has explained that [The issue] may concern only the existence or non-existence of certain fact s, or it may c oncern the legal significance of those facts. . . . If the issues are “merely evidentiary”, they need only deal with the same p ast events to b e considere d identical. However, if they concern the legal significance of those facts, the legal standards to be applied m ust also be id entical; different legal standards as applied to the same set of facts create different issues.

Overseas Motors, Inc. v. Import Motors Ltd., 375 F. Supp. 49 9, 518 n.66a (E.D . Mich. 1974). Courts now rely on the following four inquiries taken from the Restatement (Second) of Judgments to guide their analysis of the identity of issues: (1) Is there a substantial overlap between the evidence or argument to be advance d in the seco nd proce eding and that advan ced in the f irst?

(2) Does the new evidence or argument involve the application of the same rule of law as that involved in the prior proceeding?

(3) Could pretrial preparation or discovery related to the matter presented in the first action reasonably be expected to have embraced the matter sought to be presented in the second?

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(4) How closely related are the claims involved in the two proceedings?

Restatement (Second ) of Judgm ents § 27 c mt. c (1982 ); see also Disimone v. Browner, 121 F.3d at 1267; Greene v. United States, 79 F.3d 1348, 1353 (2d Cir. 1996) ; McLaughlin v. Bradlee, 803 F.2d 1197 , 1203 (D.C. Cir. 198 6).

C.

Determinations concerning the amount of damages are factually driven. See Loftis v. Finch, 491 S.W.2d 370, 377 (Tenn. Ct. App. 1972). Thus, the amount of damages to be awarded in a particul ar case i s essen tially a fact q uestion . See Sholodge Franchise Sys., Inc. v. McKibbon Bros., Inc., 919 S.W.2d 36 , 42 (Tenn. Ct. Ap p. 1995); Buice v. Scruggs Equip. Co., 37 Tenn. App. 556, 571, 267 S.W.2d 119, 125 (1953). However, the choice of the proper measure of dam ages is a qu estion of law to be decid ed by the cou rt. See American Trust Inv. Co. v. Nashville Abstract Co., 39 S.W. 877, 88 1 (Tenn. Chan . App. 1896); see also Business Mens’ Assurance Co. v. Graham, 891 S.W.2d 438, 449 (Mo. Ct. App. 1994); Town of Fifield v. State Farm Mut. Auto. Ins. Co., 349 N .W.2d 684, 68 6 (Wis . 1984) .

Damages for the wron gful deten tion of prop erty may be me asured eithe r by the fair market rental va lue of th e prope rty for the p eriod o f deten tion, see Sta nley v. Donoho, 84 Tenn. 492, 494 (1886 ), or by the n et profi t lost dur ing the d etention period . See American Bldgs. Co. v. DBH Attachments, Inc., 676 S.W.2d 55 8, 562-63 (Tenn . Ct. App. 1984); Summers & Lewis v. Sanderson, 7 Tenn. App. 624, 627-28 (1928). In the Roa ne Cou nty proceeding, the trial court used the fair market rental value of the property to calculate the damages for the three-week detention of the property. In the Fentress County proceeding, the trial court chose the net profit measure of damages. Messrs. McGraw and Brown insist that the doctrine of collateral e stoppel req uired the trial co urt in Fentres s County to use the same measure of damages that the Roane County trial court used. We disagree be cause all the elements n ecessary for th e invocatio n of collateral estopp el do not ex ist with regard to this issue.

Matters adjudged as to one period of time are not necess arily an estoppe l as to other time periods. See International Shoe Machine Corp. v. United Shoe Mach inery Corp., 315 F.2d 449, 455 (1st C ir. 19 63). The valu e of the prope rty’s u se may have bee n less if used over one period of time as opp osed to anothe r. See Stanley v. Donoho, 84 Tenn. at 494. The measure of damages for a long-term deprivation of personal property cannot necessarily be reliably calculated by extrapolating the damag es for a short-term deprivation over a longer term. See Perkins v. Brown, 132 Tenn. 294, 299, 177 S.W. 1158, 1160 (1915) (rejecting the

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calculation of damages for the loss of use of an automobile for twelve weeks based on the rental charge for the autom obile for one we ek).

The doctrine of collateral estoppel does not apply in this case because of the significant factual differences between the three-week detention of the drilling rig under the Roane County writ of attach ment and the 29-mo nth detentio n under th e Fentress C ounty writ of attachmen t. While the nature of the claims in the two proceedings are similar, there is no overlap between the facts adduced in the Roane County proceeding and those adduced in the Fentress Coun ty procee ding. In addition , the Fentress County proceeding called for an application of different legal principles because the ability of Messrs. McGraw and Brown to mitigate their damages would have been greater during the long term, as opposed to the short term. The circumstances surrounding the use of a piece of heavy equipment like a drilling rig that may ver y well be fixed over a short period of a few weeks can easily change over a period of years. P rofit opportunities come and go; planned and unplanned maintenance varies; deployment of the machinery can change; the competitive environment surrounding the use of the equipment can change; and even the tax consequences surrounding the use and depreciation of the equipment can change. Therefore, the factual differences between the period of detention under the Roane County writ of possession and the period of d etention under the Fentress County writ of detention justified the Fentress County trial court’s choice of a measure of damages different from the one employed by the trial c ourt in Roane Co unty.

III. T HE C ALCULATION OF D AMAGES FOR W RONGFUL D ETENTION

Messrs. McGraw a nd Brow n also con tend that the tria l court misca lculated their damages and erred by not aw arding them exempla ry damages. F or his part, Mr. Bea ty asserts that the evidence that M essrs. McGraw and Brow n presented with rega rd to their damages did not sup port the amou nt of da mage s the trial c ourt aw arded. We have determined that the trial court’s damage ca lculation is supported by the facts and that the trial court properly declined to award exemplary damages.

A. C OMPENSATORY D AMAGES

Both parties assert that the trial court did not give appro priate weight to M r. Brown’s testimony about the damages from the wrongful detention of the drilling rig. Messrs.

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McGraw and Bro wn asser t that the trial cou rt did not give enough weigh t to Mr. Brown ’s testimony concernin g their loss of a potential co ntract with th e federal g overnm ent; while Mr. Beaty asserts that the trial court did not give sufficient weight to Mr. Brown’s concession that his in come actually in creased after M r. Beaty re posses sed the drilling ri g.

Compensa tory damage s are intende d to compensate the wronged party for the loss or injury sustaine d by the w rongd oer’s co nduct. See Inland Container Corp. v. March, 529 S.W.2d 43, 44 ( Tenn . 1975) . The goal is to restore the wronged party, as nearly as possible, to the position the party would have been in had the wrongful conduct not occurred. Damages need not be calculated with mathematical precisio n, see Provident Life & Accident Indem. Co. v. Globe Ins. Co., 156 Ten n. 571, 576 , 3 S.W.2d 1057, 10 58 (1928 ); Buice v. Scruggs Equip. Co., 37 Tenn. App. at 571, 267 S.W.2d a t 125; they nee d only be pro ved with reasonab le certainty. See Act-O-Lane Gas Serv. Co. v. Clinton, 35 Tenn. App. 442, 456, 245 S.W.2 d 795, 8 02 (19 51).

Whether the trial court has utilized the proper me asure of damages is a question of law that we review do nov o. See generally S exton v. Sev ier Coun ty, 948 S.W.2d 747, 749 (Tenn. Ct. App. 1997). On the other hand, the amount of damages actually awarded, where the amount is within the limits set by law , is a que stion of fact. See Spence v. Allstate Ins. Co., 883 S.W.2d 586, 594 (Tenn. 1994); Reagan v. Wolsieffer, 34 Tenn. App. 537, 542, 240 S.W.2d 273, 275 (1951). In cases whe re the tria l cou rt is h earin g the case with out a jury, we review the amount of damages awarded by the trial court with the presumption that it is correct, and we will alter the am ount of d amages o nly when the trial court has adopted the wrong measure of damages or when the evidence preponderates against the amount of damages award ed. See Tenn. R . App. P. 13 (d); Armstrong v. Hickman County Highway Dep’t, 743 S .W.2d 189, 19 5 (Ten n. Ct. A pp. 198 7).

We have alrea dy conclude d that the trial co urt was fre e to select the measure of damages most appropriate to the facts of this case and th at the trial court did not err by choosing to calculate Messrs. McGraw’s and Brown’s damages based on their net lost pro fits during the twenty-nine months that Mr. Beaty had the drilling rig. Thus the only remaining area of inquiry concerns the factual support for the trial court’s damage award.

The trial court app ears to have given relative ly little weight to Mr. Brown’s testimony concerning the anticipated contract with the federal governm ent. Instead, the trial court’s memorandum opinion shows that it placed greater weight on Mr. Brown’s 1991 federal income tax return. Trial courts are not bound to accept any particular witness’s testimony

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concerning dama ges. See Cole v. Clifton, 833 S.W .2d 75, 77 (Tenn. C t. App. 1992); Tennessee Farmers Mut. Ins. Co. v. Hinson, 651 S.W.2d 23 5, 238 (Tenn. C t. App. 1983). While the record may very well support a different damage award, we cannot say that the trial court erred by discounting Mr. Brown’s testimony about his anticipated profits and by basing its damage award on the amount of income th at Mr. Bro wn wa s actually earning with the drillin g rig be fore M r. Beaty re posses sed it.

Mr. Brown also testified that he and Mr. McGraw spent “probably five thousand dollars” to return the drilling rig to the conditio n it had bee n in before Mr. Bea ty repossessed it and that it would take an additional “five to ten thousand” dollars to complete the repairs. Howeve r, he cou ld prod uce rep air bills fo r only $75 9.02 . The trial court awarded Messrs. McGraw and Brown $646.21 after deducting what appear to be itemized fuel expenses from the repair b ills that M r. Brow n prod uced. In light of M r. Brown ’s inability to substan tiate the other repair costs, we cann ot say that the trial court erred by failing to award Messrs. McGraw and Brown more damages for repairs to the drilling rig.

B. E XEMPLARY D AMAGES

Messrs. McGraw and Brown also contend that the trial court should have awarded them exemplary dam ages in light o f the man ner in wh ich Mr. B eaty obtained th e writ of possession from the Fentress County General Sessions Court. Tenn. Code Ann. § 29-30- 210(a) permits awarding e xemplary damages for wrongfully obtaining a writ of possession if the wrongdoer’s actions have departed from the type of conduct that society has the right to expec t. See Huckeby v. Spangler, 563 S.W.2d 55 5, 558-59 (Tenn . 1978). An exemp lary damage award must be preceded by an award for actual dama ges. See Whittington v. Grand Valley Lakes, Inc., 547 S .W.2d 241, 24 3 (Ten n. 1977 ). The decision to award exe mplary damages rests with the trial cou rt’s discre tion. See Foster v. Jeffers, 813 S.W.2d 449, 454 (Tenn . Ct. Ap p. 1991 ).

When Mr. Beaty sought a writ of possession from the Fentress County General Sessions Court, he alleged that Messrs. McGraw and Brown had reneged on their promise to sign a written contract for the purchase of the drilling rig and had failed to pay the balance due on the drilling rig. H e also alleged that “the drilling rig was obtained by misrepresentation insofar as the defendant Bobby McGraw represented that he and [M r.

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Brown] would comp lete the tra nsactio n.” 11 Even though neither the order granting the possessory writ nor the writ itself is in the record, we assume that the general sessions court issued the writ on the ground that Messrs. McGraw and Brown obtained the writ through misrep resenta tions.

After the case was rem anded to the trial court for the assessment of dam ages, Mr. Beaty was asked “Now, with respect to Mr. Brown and Mr. McGraw, have either of them misrepresented anything to you in their conduct towards you?” Mr. Beaty responded, “No, they’ve not in any way. I mean, just that they wasn’t paying.” Messrs. McGraw and Brown have seized on this answe r as a basis for insisting that they are entitled to collect exemp lary damages because Mr. Beaty knowingly made untrue statements in his application for the writ of possession.

Looking at the trial record as a whole, we cannot say that this brief exchange between Mr. Beaty and c ounsel co ntradicts the statemen ts in Mr. Be aty’s sworn ap plication for a writ of possession. During the same line of questioning, Mr. Beaty was also asked if he had “any reason to believe that an action for the recovery of this drilling rig was the proper action to take.” He replied , “Well, we had a contract an d [Mr. B rown] ke pt saying he w ould get it signed. I thought we had a legal right to pick [the rig] up anywhere it was.” This response is completely consistent with the allegations in Mr. Beaty’s application for a writ of possession.

The trial court had the discretion in the first instan ce to determ ine wheth er the facts of this case warranted aw arding exemplary damages against Mr. Beaty. The trial court heard all the evidence and was not convinced that Mr. Beaty swore falsely in his application for the writ. While the cited pass ages from Mr. Bea ty’s testimony could be re ad m ore than one way, we will not, from this distance, p lace the trial cou rt in error for its in terpretation of Mr. Beaty’s testimo ny. Hav ing con sidered the argu ments o f Me ssrs. McGraw and Brown, we cannot say that the trial erred by determining that this was not a case for exemplary damages under Tenn. C ode Ann. § 2 9-30-210(a).

IV. T HE A WARD OF A TTORNEY’S F EES

11 One of the statutory grounds for obtaining a writ of possession is that the property was obtained by misrepresentation. See Tenn. Code Ann. § 29-30-106(1)(B)(I) (1980).

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As a final matter, we turn to the propriety of the trial court’s decision to award Messrs. McGraw and Bro wn $8,0 00 in attorne y’s fees. Mr. B eaty takes issue with this award because the proof concerning the reasonableness of these fees does not differe ntiate between the time spent unsuccessfully defending Mr. Beaty’s breach of contract action and the time spent pursuin g their o wn w rongf ul poss ession c laim.

Tenn. Code Ann. § 29-30-110 permits a trial court to award a party reasonable attorney’s fees as exemplary damages for the “wrongful suing out of [a] possessory action or in the event that the plaintiff fails to prose cute the actio n after it has been instituted.” In the earlier appeals of this case, this court held that Mr. Beaty had failed to prosecute the Roane Coun ty action, see Beaty v. McGraw, 1993 WL 11 9799, at *4 , and that M r. Beaty lacked any basis for instituting th e posse ssory actio n in Fen tress Co unty. See Beaty v. McGraw, 1994 WL 440897, at *2-3. These findings gave the trial court sufficient justification to award attorney’s fees in its discretion. However, even though Messrs. McGraw and Brown might have been entitled to attorney’s fees for their successful action for wrongf ul possessio n, they were n ot entitled to atto rney’s fees fo r unsucce ssfully defending against Mr. Beaty’s breach of contract claim. Mr. Beaty prevailed on that claim. See Beaty v. McGraw, 1994 W L 440 897, at * 3.

Messrs. McGraw and Brown had the burden of proving the amount of their legal fees for vindicating their rights to possession of the drilling ri g. See In re Estate of Perlberg, 694 S.W.2d 304, 309 (Tenn. Ct. App. 1984) (holding tha t the burden of establishin g a reason able attorney’s fee is on the party claiming it); Cook & Nichols, Inc . v. Peat, M arwick, M itchell & Co., 480 S.W.2d 542, 545 (Tenn. Ct. App. 1971). When a party substantiates a claim for attorney’s fees, the trial cou rt has a d uty to aw ard a rea sonab le fee. See Taylor v. T & N Office Equip., Inc., No. 01A01-9609-CV-00411, 1997 WL 272444 4, at *4 (Te nn. Ct. App. May 23 , 1997) (No T enn. R . App. P . 11 app lication f iled).

We are significantly handicapped in considering the propriety of the attorney’s fee award in this case because Messrs. McGraw and Brown failed to provide records making it possible to determine the amo unt of time their lawyers devoted to defend ing Mr. Beaty’s breach of contract action and the amount of time the ir lawyers spent prosecuting their wrongful possession claim. The fee awarded by the trial court likewise cannot be traced back to the time the lawyers representing Messrs. McG raw and Brown devoted s olely to their clients’ w rongf ul poss ession c laim.

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With the record in its present state, we are unable either to determine that the trial court’s decision to award Messrs. McGraw and Brown $8,000 for the legal expenses was reasonab le or to make an award of reasonable attorney’s fees ourselves. Therefore, we have no choice other than to vacate this portion of the judgment and remand the case for the reconsideration of the attorney’s fee issue. The trial court should set a reasonable fee based on the time that the lawyers for Messrs. McGraw and Brown spent on their wrongful possession claim and should evaluate the requested fee in light of the factors found in Tenn. S. Ct. R. 8 , DR 2 -106(b ). See Taylor v. T & N Office Equip., Inc., 1997 WL 272444, at *5.

V.

We affirm all portions of the judgment except for the $8,000 award of attorney’s fees which we vacate and remand for further proceedings in accordance with this opinion. We tax the costs of this appeal in equal prop ortions to G uy Beaty and, jointly and s everally, to Bobby McGraw and Steve Brown and their surety for which execution, if necessary may issue.

____________________________ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________________________ HENRY F. TODD, PRESIDING JUDGE , M.S.

_________________________________ SAMUEL L. LEWIS, JUDGE

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