IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 27, 2011 Session
SYBIL LEO
v.
ROBERT GEORGE GARDNER, II
v.
EDDIE PORTER AND CARMEN PORTER
An Appeal from the Circuit Court for Davidson County
No. 09D-639 Carol Soloman, Judge
No. M2010-02616-COA-R3-CV - Filed: February 10, 2012
This appeal involves a divorce action that includes a claim against third parties. The wife
filed a divorce complaint against the husband, and the husband counterclaimed for divorce.
Later, the husband amended his divorce counterclaim to add claims against third parties as
defendants, alleging that they took personal property from the marital home with the wife’s
acquiescence. Later, the divorce claims were dismissed, but the claims against the third
parties remained. After a hearing, the trial court awarded the husband compensatory and
punitive damages as to the property taken. As to one item, however, the third parties were
ordered to deliver the item to the court to be donated to a local charity. The third parties now
appeal. We affirm the trial court’s finding as to the value of the property taken, remand for
findings of fact and conclusions of law under Rule 52.01 as to the monetary judgment, and
vacate the order requiring the donation of an item of property.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is
Affirmed in Part, Vacated in Part, and Remanded
HOLLY M. KIRBY, J., delivered the opinion of the Court, in which DAVID R. FARMER, J., and
J. STEVEN STAFFORD, J., joined.
Jonathan L. Miley, Nashville, Tennessee, for the Appellants, Eddie Porter and Carmen
Porter1
Lewis A Williams, Nashville, Tennessee, for the Appellee Robert George Gardner, II
MEMORANDUM OPINION2
On March 4, 2009, Plaintiff Sybil Leo (“Wife”) filed a complaint for divorce against her
husband, Defendant/Appellee Robert George Gardner, II (“Husband”).3 On May 19, 2009,
Husband filed a counterclaim for divorce.
On February 5, 2010, Husband filed a motion to amend his counterclaim to add Appellant
Nicoletta Carmen Porter, Husband’s ex-wife, and her husband at the time, Eddie Porter
(collectively, “the Porters”), as defendants.4 Husband alleged that, after he and Wife
separated, the Porters came to the marital home while Wife was at home and left with
several items of personal property from the home that were subject to equitable division in
the divorce matter. A few days later, Wife voluntarily dismissed her divorce petition.
On February 12, 2010, the trial court conducted a hearing on Husband’s motion to add the
Porters as defendants to his counterclaim.5 An order granting the motion was entered on
February 22, 2010.
On March 10, 2010, Husband amended his pleadings to describe in more detail the personal
property allegedly taken by the Porters. Husband asserted that the Porters took, among other
things, “approximately twenty (20) Hummell [sic] Figurines, a PlayStation video-game and
1
Mr. Miley did not represent the Appellants in the trial court.
2
Rule 10 of the Rules of the Court of Appeals of Tennessee states:
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. When a case is decided by memorandum opinion it shall
be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited
or relied on for any reason in any unrelated case.
3
On July 24, 2009, Wife amended her complaint to include additional grounds for divorce.
4
Although the parties and the trial court at times referred to the Porters as “third-party defendants,” they are
not actually “third-party defendants” impleaded pursuant to Rule 14.01 of the Tennessee Rules of Civil
Procedure, but simply defendants.
5
A transcript of that hearing was not included in the appellate record.
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accessories, [and] multiple PlayStation games.” In their answer, the Porters claimed that the
Hummel figurines and the PlayStation unit, games, and accessories “were given to the both
of the Porters as reimbursement from [Wife] in April of 2009, while at the home of [Wife and
Husband].”
On April 7, 2010, Husband filed a notice of voluntary nonsuit as to his counterclaim for
divorce. The trial court entered an order dismissing Husband’s divorce claim and clarifying
that the dismissal of the divorce claim against Wife did not affect the remaining claim against
the Porters.
On October 26, 2010, the trial court conducted a hearing on Husband’s claim against the
Porters. The record does not include a transcript of the hearing; instead we have a Statement
of the Evidence approved by the trial court pursuant to Rule 24(c) of the Tennessee Rules of
Appellate Procedure.6 According to the Statement of the Evidence, Husband, Wife, and the
Porters testified at the hearing.
Husband testified that, after he and Wife separated, Wife continued to live in the marital
home. In April 2009, while the parties were separated, Wife called Husband and said that
the Porters had come to the marital home and had taken several things, including the Hummel
figurines and the PlayStation items. Husband said that he owned twenty-two Hummel
figurines, kept on display in the living room of the marital home, and that the Porters took
eighteen of them. Husband said that six figurines were returned to him at the hearing,
leaving twelve still with the Porters. Husband asserted that he also owned the PlayStation
equipment and games taken from the home by the Porters, and that these were not returned.7
Husband testified about the value of the Hummel figurines. He described himself as a life-
long collector of the figurines and said that collecting them was a tradition in his family. He
said that they were produced at only one factory in Germany, beginning in the early 1930s,
based on concepts taken from paintings by a nun. Some of the Hummel figurines were given
to Husband by his great-grandmother and great-aunts, who escaped from Germany during
the Holocaust and fled to America.
Husband estimated that the twelve figurines that remained in the Porters’ possession had an
approximate monetary value of $4,221.40. He arrived at this figure by using the value
6
Initially, the Porters filed a proposed statement of the evidence. Husband objected and submitted his own
proposed statement of the evidence. The trial court approved the statement of the evidence filed by Husband.
We note that the statement of the evidence that was approved by the trial court is “the official record of the
proceedings in the trial court for purposes of appeal.” Ledford v. Ledford, No. 01A01-9701-CH-00029, 1998
WL 736664, at *2 (Tenn. Ct. App. Oct. 23, 1998).
7
Husband also testified that the Porters took a Tiffany lamp, but the lamp is not at issue on appeal.
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estimates in an old Hummel collectors’ guidebook, coupled with the knowledge he had
acquired from his great-grandparents and other family members, and through reading and
talking with other Hummel collectors. Husband testified that the figurines taken by the
Porters would be worth considerably more today on the open market than the $4,221.40
listed in the old Hummel collectors’ guidebook. He said that the sentimental and personal
value of the figurines to him made them irreplaceable, as they were the only items he had
remaining from his great-grandmother’s family; he claimed he would not sell the figurines
for three times his estimated value.
Wife also testified at trial. She said that, on the day in question in April 2009, Mrs. Porter
“showed up uninvited” at the marital home; Wife did not know why, but nevertheless
allowed her into the home. After Mrs. Porter had been there about an hour, Mr. Porter
arrived, and Wife allowed him in as well. Wife explained that, during this visit, Mrs. Porter
told her that the Hummel figurines belonged to her, and that the PlayStation items were
purchased with money stolen from the Porters by Mrs. Porter’s children,8 at Husband’s
behest. Wife said that Mrs. Porter took all of the Hummel figurines and told Wife that she
would return them to Husband if he gave her $3,000, the amount she believed the children
stole from her. Wife stated that she did not stop the Porters from leaving with the Hummel
figurines and the PlayStation items because she was upset and confused. Afterward, Wife
stated, she felt badly about the Hummel figurines. She left messages with Mrs. Porter,
offering to pay her $3,000 if she would return them; this offer was refused. Likewise,
demands by Wife’s attorney that the Porters return the items were rebuffed.
The Porters told a different story. Mrs. Porter testified that, on that day in April 2009, Wife
called her “out of the blue” and wanted to talk to her about her divorce from Husband, so
Mrs. Porter went to the home. She said that Mr. Porter arrived about ten minutes later.
Similar to Wife’s testimony, Mrs. Porter said that she believed that Husband had talked the
children into stealing money from her and Mr. Porter, and that she and Mr. Porter discussed
this with Wife. Mrs. Porter stated that Wife gave them a black satchel containing the
PlayStation, a white bag containing the PlayStation games, and another bag containing the
Hummel figurines. Mrs. Porter claimed that she did not realize that they had been given the
figurines until she and Mr. Porter returned home.
Finally, Mr. Porter testified. He stated that he went to Wife’s house in April 2009 because
Wife had asked Mrs. Porter to visit, and Mrs. Porter asked him to meet her there. He said
that the three of them discussed Wife’s marriage to Husband. Mr. Porter claimed that, during
the visit, Wife handed him a black bag containing the PlayStation equipment, and a red bag
8
The children who allegedly stole from the Porters were those born to Mrs. Porter and Husband during their
relationship.
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containing the Hummel figurines, telling the Porters that the items would not repay the
money that was allegedly stolen by the children, but that “the Hummel figurines were a
start.”
On November 8, 2010, the trial court entered an order finding in favor of Husband against
the Porters. The trial court found that the Porters were in possession of the twelve remaining
Hummel figurines, and it valued them at $4,221.40. The trial court ordered the Porters to
deliver the figurines to Husband within twenty-four hours of the date of the order. The order
stated that, if the Porters failed to deliver the figurines within the prescribed time, the Porters
would “be responsible for repaying to [Husband], three (3) times the value of said Hummell
[sic] Figurines, for a total judgment of Twelve Thousand Six Hundred Sixty-Four dollars and
Twenty cents ($12,664.20).” The trial court also determined that the Porters were in
possession of the PlayStation equipment and games, and it ordered that the PlayStation items
be “submitted to the Court to be provided to Morningstar Domestic Violence Shelter.” Each
party was held responsible for his or her own attorney fees, and costs were assessed to
Husband. Because the Porters did not deliver the Hummel figurines to Husband within the
stated time limitation, the trial court subsequently entered an order requiring the Porters to
pay Husband $12,664.20 in damages.9 The Porters now appeal the trial court’s decision.
ISSUES ON APPEAL AND STANDARD OF REVIEW
On appeal, the Porters raise the following issues:
(1) Whether the trial court erred in finding that the Porters were in possession
of twelve (12) Hummel figurines valued at $4,221.40?
(2) Whether the trial court erred in ordering the Porters to pay Husband a
punitive amount of $12,664.20, or three times the value of the Hummel
figurines, if they were not returned to Husband twenty-four (24) hours after the
date of the hearing?
(3) Whether the trial court erred in ordering that the PlayStation equipment and
games be turned over to the trial court to be donated to Morningstar Domestic
Violence Shelter?
9
The Porters filed a notice of appeal from the trial court’s November 8, 2010 order. This Court, however,
issued an order requiring the Porters to show cause why the case should not be dismissed for lack of a final
order. Subsequently, on November 21, 2011, the trial court entered a final order in the matter, finding that
the Porters had not, in fact, delivered the Hummel figurines to Husband, and entering a judgment against them
for $12,660.20. The order on appeal is now a final order so as to confer appellate jurisdiction on this Court.
See Bayberry Assocs. v. Jones, 783 S.W.2d 553, 559 (Tenn. 1990).
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(4) Whether the Porters should be awarded their attorney fees incurred both at
trial and on appeal?
Because this was a bench trial, we review the trial court’s findings of fact de novo on the
record, presuming those findings to be correct unless the evidence preponderates otherwise.
Tenn. R. App. P. 13(d); see Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.
1993) (citation omitted). When the trial court’s factual findings are based on its assessment
of witness credibility, we will not reevaluate that assessment absent evidence of clear and
convincing evidence to the contrary. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
Questions of law are reviewed de novo, with no such presumption of correctness. Bowden
v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000).
ANALYSIS
The Porters first argue that the evidence preponderates against the trial court’s determination
that they were in possession of twelve Hummel figurines belonging to Husband that were
valued at $4,221.40, based on their assertion that Husband’s testimony was not credible. The
Porters point out that Husband had averred in his complaint that he had twenty Hummel
figurines, then later testified that he had twenty-two figurines and that the Porters took
eighteen of them. The Porters argue that this discrepancy shows that Husband is “clearly
lying and is simply making up numbers of figurines.” They also point out that, although
Husband testified that the twelve figurines he owned were worth approximately $4,221.40,
he did not provide documentation, proof of purchase, photographs, or other evidence to
substantiate his claims that he actually owned the figurines or that their value was equal to
almost $350 per figurine. The Porters also claim that Husband’s “credibility should have
been seriously questioned” in view of the trial court’s previous finding that Husband had
stolen over $6,000 from Wife. For these reasons, the Porters argue, the evidence
preponderates against the trial court’s factual determination that they had twelve of
Husband’s figurines worth $4,221.40.
As we have stated, when a trial court’s findings of fact are based on witness credibility, those
findings will not be overturned absent clear and convincing proof to the contrary. Clear and
convincing evidence “establishes that the truth of the facts asserted is highly probable . . . and
eliminates any serious or substantial doubt about the correctness of the conclusions drawn
from the evidence.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). Such
evidence “produces in a fact-finder’s mind a firm belief or conviction regarding the truth of
the facts sought to be established.” Id. at 653.
Here, although Husband’s testimony shifted about how many Hummel figurines he owned,
the Porters were free to point out such discrepancies to the trial court to factor into its
evaluation of Husband’s credibility. However, Husband’s testimony clearly establishes his
belief that twelve Hummel figurines were taken by the Porters, and that the value of the
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figurines was at least $4,221.40 based on his collector’s handbook and his personal
knowledge about the value of his property. We note that the Porters did not deny taking
numerous Hummel figurines from the marital home; rather, they now dispute the number
taken. Moreover, they offered no countervailing evidence as to the figurines’ value. Based
on the record before this Court, we do not find clear and convincing evidence to suggest that
the trial court erred in crediting Husband’s testimony on these matters. Therefore, we affirm
the trial court’s finding that the Porters were in possession of twelve Hummel figurines
belonging to Husband, and that the figurines were worth $4,221.40.
The Porters next argue that the trial court erred in ordering them to pay Husband $12,664.20
in damages, three times the cumulative value of the Hummel figurines. They assert that this
damage award was punitive in nature. The Porters note that punitive damages are
appropriate only in the most egregious cases and must be supported by clear and convincing
evidence that the defendant acted intentionally, fraudulently, maliciously, or recklessly.
Hodges v. S.C. Toof, 833 S.W.2d 896, 901 (Tenn. 1992). They assert that the record does
not contain clear and convincing evidence to support a finding that the Porters acted with the
requisite intent, so the trial court’s damage award must be reversed.
The Porters correctly identify the standard for awarding punitive damages as set out in
Hodges v. S.C. Toof, that punitive damages may be awarded only if clear and convincing
evidence supports a finding of intentional, fraudulent, malicious, or reckless conduct. As we
have indicated, clear and convincing evidence leaves “no serious or substantial doubt about
the correctness of the conclusions drawn from the evidence.” Id. at 901 n.3.
We agree with the Porters that the trial court’s award of three times the value of the Hummel
figurines was punitive in nature. The trial court did not, however, make any factual findings
that would support an award of punitive damages in this case. In fact, the trial court’s order
is devoid of any specific findings resolving the conflicts in the parties’ testimony on this
point.
Rule 52.01 of the Tennessee Rules of Civil Procedure, as amended in 2009, mandates that,
after a bench trial, the trial court “shall find the facts specially and shall state separately its
conclusions of law . . . .” Tenn. R. Civ. P. 52.01 (emphasis added). Thus, under Rule 52.01,
even if no request for such findings of fact and conclusions of law is made, the trial court is
nevertheless obligated to issue them. Here, the trial court did neither, and instead simply
awarded a judgment of $12,664.20 without stating the factual findings or legal conclusions
supporting such a judgment.
In view of the starkly contrasting testimony on the Porters’ intent in taking the figurines, and
the absence of findings of fact and conclusions of law supporting the award of $12,664.20,
we are unable to perform a meaningful review on appeal. Therefore, we must remand the
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case to the trial court with instructions to make specific findings of fact and conclusions of
law, as per Rule 52.01 of the Tennessee Rules of Civil Procedure.
The Porters also challenge the trial court’s decision insofar as it required them to turn over
the PlayStation equipment and games to the trial court to be donated to a domestic violence
shelter. They argue that “[s]uch action by the trial judge goes beyond what is acceptable
under the discretionary function of the court.”
Husband takes no position on this issue in this appeal.10 Although Husband claimed that the
Porters wrongfully took the PlayStation items from the marital home, on appeal he does not
claim an ownership interest in the property.
We find no authority for the trial court to order the Porters to give the PlayStation items to
an entity that is a stranger to this litigation. For this reason, we vacate the trial court’s
decision as it relates to the PlayStation items.
The Porters argue that they are entitled to attorney fees for those fees incurred in the trial
court and in this Court. Husband also argues that he is entitled to attorney fees incurred in
this appeal, because the appeal was frivolous and without merit. Respectfully, we exercise
our sound discretion and hold that all parties are responsible for their own attorney fees.
10
Husband claims that, although he raised the question of ownership of this equipment in his complaint, he
merely requested that the Porters show cause why the property should not be returned. Because the
PlayStation equipment and games belonged to a child who was not a party to the case, Husband states, he
does not assert an ownership interest in the property and has no stake in the resolution of this issue on appeal.
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CONCLUSION
The decision of the trial court is affirmed in part, vacated in part, and remanded for further
proceedings consistent with this Opinion. Costs on appeal are to be taxed equally to
Appellants Eddie and Carmen Porter and their surety, and to Appellee Robert George
Gardner, II, for which execution may issue, if necessary.
_______________________________________
HOLLY M. KIRBY, JUDGE
______________________________________
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