Ralph & Linda Moore v. Dannie Christmas

• Court: Court of Appeals of Tennessee
• Decided: November 29, 1999
• Docket: 03A01-9903-CV-00118
• Status: Published

Opinion

IN THE COURT OF APPEALS AT KNOXVILLE

FILED November 29, 1999

Cecil Crowson, Jr. Appellate Court Clerk

RALPH MOORE, LINDA MOORE, ) ROANE COUNTY WAYNE MOORE, AND REBECCA MOORE ) 03A01-9903-CV-00118 ) Plaintiffs-Appellees ) ) ) v. ) HON. RUSSELL SIMMONS, JR. ) JUDGE ) DANNIE CHRISTMAS ) ) Defendant-Appellant ) REVERSED AND REMANDED

GREG LEFFEW OF ROCKWOOD FOR APPELLANT

RALPH MOORE, LINDA MOORE, WAYNE MOORE, AND REBECCA MOORE, PRO SE

O P I N I O N

Goddard, P.J.

This is an appeal from the Circuit Court’s order

requiring Dannie Christmas to pay towing and storage costs for

Page 1 the Appellees’ automobiles, boats, and other towed items.

Dannie Christmas, Defendant-Appellant, raises the following

issues:

I. Is Tennessee Code Annotated Section 29-15-124 limited solely to actions for ejectment and inapplicable to actions for unlawful detainer?

II. In an unlawful detainer action, should the costs of removing and storing a defendant’s personal property be borne by the defendant?

The background of this case arises from an unlawful

detainer action filed by Dannie and Sharon Christmas against

Ralph and Linda Moore in the Roane County General Sessions

Court. A judgment was entered for the Christmases to gain

possession of the real estate. The Moores appealed the

judgment against them to the Roane County Circuit Court. The

Circuit Court and this Court affirmed the judgment against the

Moores. See Christmas v. Moore, an unreported opinion of this

Court, filed in Knoxville on July 6, 1998.

The facts pertinent to this appeal occurred between

May 7, 1997 and May 9, 1997. The Roane County Sheriff’s

Department served the writ of possession on May 7, 1997.

After service of the writ, the Moores had adequate time to

remove their belongings. The Moores did not remove their

belongings or their automobiles and boats. On May 8, 1997,

the Moores’ automobiles, boats, and other items were towed by

Goldston’s Wrecker Service pursuant to Mr. Christmas’ request.

On May 9, 1997, the Moores’ furniture and other personal

Page 2 belongings were removed from the house.

The Moores sued for damages sustained to their

personal property which was removed from the house and placed

near the street while it rained. Additionally, the Moores

prayed for damages, depreciation, towing and storage costs for

the items towed. The lower court denied damages for the

personal property removed from the house. Relying upon

Tennessee Code Annotated section 29-15-124, the lower court

awarded towing and storage costs to the Moores for the items

towed. The lower court found Mr. Christmas did not provide

the Moores with the option provided in the Code and,

therefore, he was responsible for the towing and storage

costs.

The Tennessee Code provides for the disposition of

contents upon execution as follows:

(a) In executing a writ of possession after judgment in an action of ejectment, the person being ejected shall have the option of having his personal property removed to a local warehouse for storage or having it removed from the property as has been the procedure of the sheriffs prior to March 28, 1976. (b) All storage fees and transportation costs incurred are to be paid by the owner of the stored property.

Tenn. Code Ann. § 29-15-124 (1998)(emphasis added).

When interpreting a statute, the appellate court’s standard of review is de novo

without a presumption of correctness. See Browder v. Morris,

975 S.W.2d 308, 311 (Tenn. 1998). “The cardinal rule of

statutory construction is to effectuate legislative intent,

with all rules of construction being aides to that end.”

Page 3 Browder, 975 S.W.2d at 311. In ascertaining legislative

intent, we look to the plain language of the statute. “Courts

are restricted to the natural and ordinary meaning of the

language used by the legislature in the statute, unless an

ambiguity requires resort elsewhere to ascertain legislative

intent.” Browder, 975 S.W.2d at 311. Where the statute is

clear in expressing the legislature's intent, there is no need

to resort to auxiliary rules of construction and we need only

enforce the statute as written. Browder, 975 S.W.2d at 311

(citations omitted).

From the clear language of the statute, this section

only applies to “an action of ejectment.” This case involves

an unlawful detainer action. The language of the statute is

clear and unambiguous. The lower court erred in applying this

section to an unlawful detainer action.

The second issue raised by Mr Christmas involves his

liability for the towing and storage costs of the towed items.

In Simmons v. O’Charley’s, Inc., 914 S.W.2d 895, 903 (Tenn.

Ct. App. 1995), this Court held that “the injured party is

entitled to damages sustained by virtue of the unlawful

detention of the premises.” Only those damages proximately

caused by the defendant are recoverable. Simmons, 914 S.W.2d

at 903.

Mr. Christmas argues that he should not be

responsible for the towing and storage expenses when the

Page 4 Moores had adequate time to remove the towed items. We agree.

Because the Moores failed to remove their property after

adequate notice and adequate time to act, the Moores are

responsible for the towing and storage expenses.

For the foregoing reasons the judgment of the

Circuit Court is reversed and the cause remanded for

collection of costs below, which are, as are costs of appeal,

adjudged against the Appellees.

Houston M. Goddard, P.J.

CONCUR:

Herschel P. Franks, J.

Charles D. Susano, Jr., J.

Page 5