ARKANSAS COURT OF APPEALS

WENDELL L. GRIFFEN, JUDGE

NOT DESIGNATED FOR PUBLICATION

DIVISION II

CA01-483

November 28, 2001

JOHN L. SEYMORE AN APPEAL FROM JEFFERSON

APPELLANT COUNTY CHANCERY COURT

[E99-2076-1]

V. HON. EUGENE HARRIS, CHANCELLOR

SHARON Y. SEYMORE

APPELLEE AFFIRMED

John L. Seymore brings this appeal to challenge a Jefferson County chancellor's decision that granted appellee, Sharon Y. Seymore, a judgment against him for the sum of twelve thousand six hundred twenty-five dollars ($12,625). On appeal, appellant contends that the evidence did not support the chancellor's finding that he converted or damaged property belonging to appellee. He also argues that appellee failed to produce evidence of the value of the property to support the chancellor's judgment. We affirm.

The parties were granted a divorce on July 18, 2000. The divorce decree directed the parties to divide their personal property according to a list provided to the chancellor by appellee. Specifically, all highlighted or checkmarked items on the list were awarded toappellee, with the remaining items awarded to appellant. The decree also listed various other items that were awarded to each party.

On August 18, 2000, appellee filed a petition for contempt against appellant, alleging that although she was to receive fifty-one items pursuant to the divorce decree, she had received only twenty-one items, of which thirteen items were damaged or destroyed. Appellee stated that the estimated value of the missing property was twenty-three thousand dollars ($23,000), and that the estimated value of the damaged property was four thousand five hundred dollars ($4,500). A trial occurred on November 30, 2000, in which the court heard testimony from both parties, Richard Boykin, and Helen Hughes.

Appellant testified that he gave appellee everything that belonged to her, regardless of whether the item was mentioned in the divorce decree. He stated that to his knowledge none of the items was damaged. Appellant admitted having a yard sale in November 2000, but testified that he did not knowingly sell any of appellee's property at the yard sale. He testified that appellee asked him to box her things up and to put the items in the driveway for her to pick up the following day. Appellant admitted that he loosely packed appellee's crystal and china in the heaviest boxes he could find. He also testified that some of appellee's clothing were already in boxes, and that he did not inspect them.

The chancellor also heard testimony from Richard Boykin, appellee's fiancee, who testified that he went with appellee to pick up her property from appellant's residence. Boykin testified that he loaded approximately fifteen to twenty boxes, and that he helped appellee unpack the boxes. He testified that twelve of the boxes contained trash and werethrown away. Boykin also testified that the crystal was chipped, and that other items were damaged. Boykin identified a shoe with a broken heel as one of the items that was damaged. He testified that appellant told appellee that she was not getting any books or a drill box, and that appellant stated he had no knowledge about other items that were missing.

Appellee testified that she did not receive all of her personal property from appellant, and that of the items she did receive, all but eleven items had a part missing or a part broken. She testified that appellant refused to give her certain items pursuant to the decree, including an industrial drill-bit set and her books. She also testified that many of her heirlooms were missing or damaged. In particular, she contended that videotapes and audiotapes of her children, photographs of her family, a diamond ring, a fountain pen that belonged to her grandfather, and a pocketknife that she inherited from her father were missing. She told the court that thirty-two articles of clothing and twenty-five pairs of shoes valued at $1,500 were mildewed. Appellee testified that although appellant told her he had given her all of her property, she discovered some of her property in boxes labeled "yard sale" in appellant's garage. She contended that many of the missing items were priceless. Appellee also testified that a piece of a closed stock of china was missing. She testified that because the stock was closed, a person could not replace a particular piece, and instead had to purchase the entire set. Appellee testified that upon opening the boxes containing crystal and china, she discovered that the pieces were not wrapped in any type of paper, but were placed loosely into boxes. She testified that many pieces of her crystal and china were broken as a result. Appellee introduced into evidence photographs of the missing items, as wellas a list of all items that were missing or damaged. She placed the total value of missing property at $23,000, and the total value of damaged property at $4,500. Appellee based the prices on receipts from the items, sales catalogs, sales brochures, and from going store to store to get prices. She testified that she attempted to give each item its cost at value and its present value, after fairly depreciating the item.

Helen Hughes, appellee's mother, testified that she recognized several handmade afghans that she made for appellee and her children in a photographic exhibit labeled "items awarded to defendant and sold by plaintiff at yard sale." She also testified that appellee never received several original photographs of her ancestors, a fruit bowl, depression glass, a crest, and a diamond ring.

After the parties presented closing arguments, the chancellor ruled that he would enter a judgment against appellant because of appellant's exclusive possession of the home since December 1999. The chancellor noted that the value given some of the items by appellee was speculative, and that some of the items may have been lost or damaged prior to the parties' divorce. He then concluded that a judgment would be entered against appellant in the amount of twelve thousand six hundred twenty dollars ($12,620), which would be offset against the eighteen thousand seven hundred forty-nine dollars ($18,749) previously awarded appellant in the divorce decree, after all expenses had been paid regarding the sale of the marital home.

The chancellor directed appellee's counsel to prepare a precedent. He then entered an order on January 10, 2001. Six days following entry of the order, appellant filed a motionrequesting the court to make specific findings of fact. In a letter to the parties dated March 6, 2001, the chancellor denied appellant's motion. The court initially noted that the matter came to trial on November 30, 2000, and that the order was entered approximately forty-five days later. It observed that no request for specific findings of fact was made before or during the trial or during closing arguments or immediately after the court's ruling. It further observed that appellant failed to object that the precedent prepared by appellee's counsel at the request of the court did not include specific findings of fact. Appellant now appeals the January 10, 2001 order.1

Standard of Review

Chancery cases are reviewed de novo on the record. See Norman v. Norman, 342 Ark. 493, 30 S.W.3d 83 (2000). Findings of fact are not reversed absent a determination that the finding is clearly erroneous, i.e., we are left with a definite and firm conviction that a mistake has been committed. See id.

Finding of Liability

When seeking to recover damages from the wrongful conduct of another, the party seeking damages must prove wrongful conduct and that the wrongful conduct caused the injury. See Christmas v. Raley, 260 Ark. 150, 539 S.W.2d 405 (1976). Also, there must be a causal connection between the act complained of and the damages sought. See id.

In the present case, appellant argues that appellee was not credible and that the evidence was not sufficient to establish that appellant damaged, converted, or destroyed herpersonal property. He contends that his relationship to the items was that of a gratuitous bailee2 and that absent proof of negligence or willful conduct, the chancellor's decision is clearly erroneous. We disagree.

As observed by the chancellor, appellee left the marital home in 1999, and appellant retained sole possession of the home. By his own testimony, appellant admitted that he packed appellee's possessions, and that he packed her crystal and china loosely. Appellant also admitted that he had a yard sale, and did not dispute appellee's claim that some of her personal items were sold at the sale. At trial, appellee introduced into evidence photographs of items that were to be returned but never were, as well as items that were awarded to her, but sold by appellant at the yard sale. She also introduced evidence as to the condition of her personal items that were returned. The chancellor had the opportunity to hear the testimony of the parties and to observe their demeanor in an attempt to resolve conflicting testimony. The chancellor's decision indicates that he found appellee credible and that he found appellant's actions causally connected to appellee's missing or damaged items. Based on the evidence presented, we cannot say that the chancellor erred in finding appellant liable.

Award of Damages

Next, appellant argues that the chancellor erred in awarding damages to appellee, because appellee's valuation was conjectural at best. The measure of damages for personal property possessed for the comfort and well being of its owner is based on the value of the property's use to the owner who suffers from being deprived of the property. See Cecil v.Headley, 237 Ark. 400, 373 S.W.2d 136 (1963). If personal items are not totally lost but only damaged, the owner is entitled to the fair value of the property. See Minerva Enter., Inc. v. Howlett, 308 Ark. 291, 824 S.W.2d 377 (1992). Fair value is not the saleable or second-hand value of the personal item. See id. Instead, to reach the fair value, the court should ascertain the reasonable value of the property to the owner for her own use, by considering the original cost, replacement cost and the owner's past and future use of the property. See id. The party asserting damages bears the burden of proving damages, and the party's proof must consist of facts and not mere speculation. See id. Also, an owner is entitled to give her opinion as to the value of the damaged personal property. See id.

When there has been a total loss of property such that there is no salvage value and no possibility of repair, the owner is entitled to recover the fair market value of the property immediately before the loss occurred. See Minerva, supra. Fair market value is said to be that price that the property would bring between a willing seller and a willing buyer in an open market after negotiations. See Minerva, supra.

In the present case, when asked how she arrived at the value given certain items, appellee testified that she based the value on price receipts from the items, sales catalogs, sales brochures, and from going store to store to obtain prices. She presented an extensive list of the items which included the value she attributed to each item. Additionally, appellee presented a list introduced during the divorce proceeding that listed the cost value and the present value of various items, after depreciation. However, she admitted that many of her heirlooms that were missing or damaged were priceless.

In rendering its ruling the chancellor noted:

The court has gone through the list exhaustively, has reviewed all the testimony and what little independent evidence there is, and has concluded there will be a judgment entered against Mr. Seymore. . . . The value of many of the items is entirely speculative. Some of them, literally, have no independent value. . . . The court has considered that some items may well have been misplaced or lost or possibly damaged sometime ago and nobody ever noticed it until now. They may have been damaged without fault by anyone. They may have been damaged by Mr. Seymore when he packed them. Obviously, items such as china and crystal, one must be very careful with. In considering all these things, the court has concluded that the court will enter a judgment in the amount of $12,625 against Mr. Seymore.

Appellee was competent to testify as to the reasonable value that she assigned to her personal property and gave a rational basis for her valuation testimony. She testified that she attempted to give a before and after value of several items after taking into consideration a fair depreciation. Appellee also acknowledged that the majority of her heirlooms were worthless to appellant, but were totally priceless to her. The chancellor agreed, and his ruling indicates that he considered the speculative nature of some of the values assigned by appellee, as well as the fact that some of the items had no independent value, prior to assigning a total value for appellee's loss at $12,625. This amount represents less than half of the amount originally sought by appellee. Given the chancellor's careful consideration of the evidence presented, we cannot say that the value the chancellor placed on appellee's personal items was clearly erroneous. Accordingly, we affirm.

Stroud, C.J., and Pittman, J., agree.

1 On appeal, appellant does not challenge the chancellor's ruling regarding his request for specific findings.

2 Appellant did not present a gratuitous bailee argument at trial. Consequently, we are precluded from addressing it for the first time on appeal.