Lee v. Bell

379 S.E.2d 464, 237 Va. 626, 5 Va. Law Rep. 2366, 1989 Va. LEXIS 73
CourtSupreme Court of Virginia
DecidedApril 21, 1989
DocketRecord 870176
StatusPublished
Cited by11 cases

This text of 379 S.E.2d 464 (Lee v. Bell) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lee v. Bell, 379 S.E.2d 464, 237 Va. 626, 5 Va. Law Rep. 2366, 1989 Va. LEXIS 73 (Va. 1989).

Opinions

WHITING, J.,

delivered the opinion of the Court.

[628]*628The principal questions in this case are whether a tenant’s creditor, or its landlords, has the initial burden of going forward with evidence that: (1) replacement fixtures to be purchased by the landlords have a greater value than the fixtures wrongfully removed by the creditor; and (2) the replacement costs exceed the diminution in market value of the realty resulting from their removal. An additional issue is whether the landlords’ evidence of the cost of replacing the fixtures was clear and uncóntradicted.

On March 31, 1981, William Lee and Janice J. Lee (the landlords) leased their commercial/industrial building in the City of Salem to Bell-Moody Foundry, Inc. (Bell-Moody) for use as a foundry and metal fabricating plant. Later, Bell-Moody became indebted to J.C. Bell (Bell) and, on February 1, 1983, it secured that indebtedness by a chattel lien upon all its machinery, equipment, and other personal property located on the demised premises. In July 1985, when Bell-Moody became bankrupt, its trustee disclaimed any interest in the above-mentioned property.

On August 26, 1985, the landlords filed this declaratory judgment action against Bell, seeking an adjudication that certain of Bell-Moody’s equipment constituted fixtures and, therefore, became the property of the landlords. On March 19, 1986, the circuit court held that most of the equipment had not been sufficiently affixed to the realty so as to become property of the landlords. The court did find, however, that most of the electrical panels, transformers, wires, “and so forth” in the walls and ceilings had become a part of the realty and, therefore, should not be removed.

The court allowed Bell to remove Bell-Moody’s property, and ordered him to repair any damages caused by such removal, within 75 days, and to pay the sum of $650 per month as rent during that time. Bell did not remove the equipment within the 75-day period and, on August 28, 1986, the court required Bell to remove it within the following 10 working days and increased the rent from $650 per month, or $21 per day, to $60 per day. The court ultimately awarded the landlords the sum of $1,860 as rent for the 30-day period Bell occupied the premises after August 28, 1986.

Contrary to the court’s direction, Bell removed virtually all the electrical panels, transformers, and wires from the walls. At a hearing on September 26, 1986, the court found that Bell had wrongfully removed the electrical fixtures. Douglas W. Feller, an [629]*629experienced electrician, testified for the landlords that it would cost $6,760 to replace a three-phase 400 amp 208 volt panel, conduit, and wire, $1,600 to replace the conduit, breakers, and wire to feed the master control panel, and $2,100 to replace the conduit, breakers, and wire to feed the disconnects to three air compressors. Bell introduced no evidence to contradict Feller’s estimate, or to show that the removed items had depreciated. The court awarded the sum of $1,000 for these claims, which totaled $10,460.

The landlords contend that the circuit court’s award of damages was inadequate in two respects as a matter of law.

First, they assert they should have been awarded the difference in the rent they would have received had they been able to rent the building to another tenant for the period of one year, and the amount actually paid by Bell. The prospective tenant testified that although he was interested in leasing the property, he had not been inside the building to determine “if it was open space and I could put up some type of storage racks and have gotten around inside of it with a forklift.” The landlords offered no proof to show that the interior of the building would have met those conditions. Thus, we cannot say that the trial court erred in finding that the landlords failed to prove their claim for damages in the loss of the prospective lease.

Next, the landlords claim that, as a matter of law, they established their right to recover $10,460 because of Bell’s wrongful removal of the electrical fixtures. Bell argues that the trial court properly awarded only $1,000 on this claim. We find no merit in the following contentions made by Bell, and conclude that the trial court erred in limiting these items of the landlords’ damages.

First, Bell contends that the landlords did not introduce evidence appropriate to the proper measure of damages. The trial court so reasoned in reducing the landlords’ claim. According to Bell, the proper measure of damages in this case is the diminution in the fair market value of the realty because of the removal of these fixtures, not the cost of replacing them. That may have been the appropriate measure of damages in this case, if evidence had been introduced showing that the replacement cost of the fixtures would exceed such difference in fair market value. There was no such evidence introduced, and the burden was upon Bell to do so. See Green v. Burkholder, 208 Va. 768, 771, 160 S.E.2d 765, 767 (1968); Richmond v. Cheatwood, 130 Va. 76, 86-87, 107 S.E. [630]*630830, 834 (1921); Jeffress v. Virginia Ry. & P. Co., 127 Va. 694, 730-32, 104 S.E. 393, 405 (1920).

Second, Bell argues that no evidence was introduced as to the value of the electrical fixtures at the time of their removal, taking into account depreciation. In effect, Bell argues that because of depreciation, the replacement fixtures have a value greater than those fixtures he wrongfully removed, so that the landlords will gain a windfall if they recover their full replacement costs.

The question is, essentially, which party has the initial burden of showing depreciation or “betterment.” Counsel cite no Virginia cases on the point, and we find none.1 We do find, however, a few cases from other jurisdictions. Boston Fish Market Corp. v. Universal Insurance Co., 388 F.2d 773, 776 (1st Cir. 1968) (proof of cost of repairs of personal property makes prima facie showing of loss and casts burden of production on defendant to show prior depreciation to reduce the damage claim); Pasadena State Bank v. Isaac, 149 Tex. 47, 52, 228 S.W.2d 127, 129 (1950) (proof of cost of repair of damaged personal property constituted prima facie evidence of loss, and shifted burden to defendant to show repairs would result in betterment).

We have, however, analogous precedent in Virginia. We have said that a defendant has the burden of proof , as to mitigation of damages. Foreman v. Caligari, Inc., 204 Va. 284, 290, 130 S.E.2d 447, 451 (1963); Land Corporation v. McFarland, 203 Va. 387, 393, 124 S.E.2d 212, 216 (1962); Paddock v. Mason, 187 Va. 809, 818-19, 48 S.E.2d 199, 203-04 (1948). And if a special benefit is conferred upon a plaintiff by a defendant’s tortious act, evidence of that benefit may be considered by the jury in mitigation of damages.

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Lee v. Bell
379 S.E.2d 464 (Supreme Court of Virginia, 1989)

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Bluebook (online)
379 S.E.2d 464, 237 Va. 626, 5 Va. Law Rep. 2366, 1989 Va. LEXIS 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-bell-va-1989.