                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                           Assigned on Briefs October 4, 2010

           DONALD M. MERRIWEATHER v. LUTHER SMITH, JR.

                 An Appeal from the Circuit Court for Shelby County
                    No. CT-003147-07     Lorrie K. Ridder, Judge




               No. W2009-02656-COA-R3-CV - Filed December 2, 2010


This is a personal injury action based on intentional assault. The plaintiff threw a beer bottle
at the defendant, but missed him. As the plaintiff was walking away, the defendant hit the
plaintiff on the back of the head with a beer bottle, causing a head injury. The plaintiff then
sued the defendant. After a bench trial, the trial court held in favor of the plaintiff. The
defendant now appeals. We affirm.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed

H OLLY M. K IRBY, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and J. S TEVEN S TAFFORD, J., joined.

Luther Smith, Jr., Memphis, Tennessee, Defendant/Appellant, Pro Se

Ellen Fite, Memphis, Tennessee, for the Plaintiff/Appellee, Donald M. Merriweather

                                          OPINION

                             F ACTS AND P ROCEEDINGS B ELOW

Defendant/Appellant Luther Smith (“Smith”) owns a rental house on North Dunlap in
Memphis, Tennessee. The house has ten bedrooms, and they are rented to different tenants
on a weekly basis.

Plaintiff/Appellee Donald M. Merriweather (“Merriweather”) is a carpenter by trade.
Sometime in 2006, Merriweather rented a room from Smith in the house on Dunlap. The
first week’s rent was paid by a contractor. After that, Merriweather and Smith entered into
an arrangement whereby Merriweather would be permitted to stay in the house rent-free, and
in exchange Merriweather would repair and replace twelve windows in the house. This
arrangement was to last for as long as it took for Merriweather to replace the twelve
windows.

While Merriweather was staying at the Dunlap house, but before the window work was
completed, Smith accused Merriweather of stealing wood from his property. Consequently,
Smith forced Merriweather to leave the property and told him not to come back for any
reason. Smith has a no-trespassing sign posted on the Dunlap property.

On August 26, 2006, Merriweather returned to the Dunlap property, ostensibly to retrieve
personal belongings left there when Smith forced him to move. While he was standing on
the porch talking with some residents, Smith arrived on the scene. After a verbal
confrontation, Merriweather threw a beer bottle at Smith, but missed him. As Merriweather
walked past Smith and toward the gate to leave, Smith hit Merriweather on the back of the
head with a beer bottle, injuring his head. Merriweather was transported by ambulance to
a hospital and treated in the emergency room. A CAT scan of his head was ordered, and a
laceration was repaired. Merriweather incurred medical bills related to his head injury in the
amount of $3,799.

On March 28, 2007, Merriweather filed a lawsuit against Smith in the Shelby County General
Sessions Court, asserting intentional assault. Merriweather prevailed in the general sessions
court and was awarded a judgment of $24,999. Smith appealed to the Shelby County Circuit
Court for a trial de novo, pursuant to Tennessee Code Annotated § 27-5-108.1

On November 3, 2009, the Circuit Court conducted a bench trial on the matter.2 The trial
court heard testimony from both parties and other witnesses.3

Merriweather apparently called Smith to testify first. Smith testified that, prior to the
incident in question, Merriweather had already retrieved his belongings and did not have
permission to return to the property for any reason. Smith said that, when he arrived at the
Dunlap house on the day of the incident, Merriweather was on the porch drinking with seven
or eight residents of the house. Beer bottles were scattered across the area in front of the
porch. When Smith told Merriweather to leave, Merriweather responded, “I am on your

       1
        Although Smith filed his appeal as an indigent, the trial court granted Merriweather’s motion to
depauperize Smith based on the income Smith receives from rental properties.
       2
           Both parties were represented by counsel in the trial court.
       3
        The appellate record does not include a trial transcript, but it does include a statement of the
evidence.

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porch, not in your house.” When Smith opened the front gate to enter the yard, Merriweather
came off the porch and threw a partially filled forty-ounce beer bottle at him. The bottle did
not hit Smith, but instead skidded across the ground without breaking. Smith testified that
Merriweather then passed him as he was headed out of the open front gate. As Merriweather
passed, Smith hit him on the back of the head with a small beer bottle. Smith claimed that,
at the time, he believed that Merriweather was about to attack him. Smith admitted,
however, that Merriweather has no propensity for violence, and Smith had never known him
to be violent.

Smith called two witnesses on his behalf. David Norwood (“Norwood”) testified that, at the
time of the incident, he was on the porch with four or five other men. Norwood said that it
was his understanding that Merriweather was not supposed to be at the house. Norwood
observed Merriweather “cussing” Smith, and then saw Merriweather throw a beer bottle at
Smith. He said that the beer bottle missed Smith, hit the concrete, and skidded off towards
a flower bed. Then, as Merriweather was on his way out of the front gate, Smith hit him with
a bottle. Another witness, Mike Brim, testified that Merriweather did construction work for
him in November and December of 2006. Brim said that Merriweather did not complain of
headaches at that time.

Merriweather testified on his own behalf. Prior to the incident, Merriweather said, he called
Smith and asked Smith to meet him at the Dunlap property so that Merriweather could
retrieve his belongings. Merriweather then went to the property and waited for Smith for
forty-five minutes. When Smith arrived, Merriweather testified, Smith hit Merriweather on
the head with a beer bottle. Merriweather, knocked to the ground, almost unconscious and
bleeding, got up and walked to a local restaurant, where an ambulance was called. In his
testimony, Merriweather claimed that he continued to suffer from headaches on one side of
his head; he attributed the headaches to the injury inflicted by Smith. In response to the
testimony by David Norwood and Mike Brim, Merriweather testified that he had never seen
Norwood before, and that he had never worked for Brim. That concluded the trial testimony.

On November 12, 2009, the trial court entered an order finding in favor of Merriweather.
The trial court commented that neither party was particularly credible, but it found that
Smith’s version of events was “slightly more credible than Merriweather’s version, as
Merriweather offered no credible reason for the altercation.” However, the trial court did not
credit Smith’s assertion that he was afraid Merriweather was about to attack him, because,
at the time Smith hit Merriweather, Merriweather no longer had anything in his hands and
Merriweather was passing by Smith to leave the property. The trial court also noted that the
location of Merriweather’s head wound indicated that Merriweather’s back was to Smith at
the time Smith hit him. The trial court also relied on Smith’s acknowledgement that
Merriweather did not have a propensity for violence.

                                             -3-
For these reasons, the trial court held in favor of Merriweather and awarded him $3,799 in
medical expenses and $16,000 in compensatory damages. From this order, Smith now
appeals, pro se.

                      ISSUES ON A PPEAL AND S TANDARD OF R EVIEW

On appeal, Smith argues that the preponderance of the evidence weighs against the trial
court’s decision, because the evidence showed that he was acting in self defense when he hit
Merriweather, and that his conduct was based on a reasonable fear that Merriweather
intended to cause him bodily harm. Smith further argues that Merriweather should be denied
any recovery because Merriweather lied to the trial court about the incident in question,
“cajoled” Norwood into “keeping quiet” about what he witnessed, and concealed the fact that
he and Norwood conspired against Smith at trial.4 Finally, Smith argues that the judgment
against him is excessive because, among other things, it is based on fraud, i.e., the untruthful
testimony of Merriweather regarding his ability to work.

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). We review questions of law de novo, without such a presumption
of correctness. See State v. Levandowski, 955 S.W.2d 603, 604 (Tenn. 1997).

                                          A NALYSIS

We first address Smith’s argument that the preponderance of the evidence shows that he
established a defense to Merriweather’s claim of assault, namely, that he had a reasonable
fear of bodily harm. He relies on established law that “[s]elf-defense is a complete defense
to civil liability for assault and battery.” Dent v. Holt, No. 01A01-9302-CV-00072, 1994
WL 503891, at *1 (Tenn. Ct. App. Sept. 16, 1994) (order on rehearing).

From our review of the evidence at trial as set forth in the statement of the evidence, Smith
testified that Merriweather threw a beer bottle at him when he arrived at the Dunlap house,
and that Merriweather then “headed out of the open gate when [Smith] hit Merriweather on
the head with a small beer bottle.” Smith asserted that he “felt like Merriweather was going
to attack him,” and the evidence shows that Merriweather threw a beer bottle at Smith and
missed him, thus initiating the physical aspect of the altercation. However, it is undisputed
that Merriweather’s injury was on the back of his head, and the trial court reasonably inferred
from this that Merriweather was walking away from Smith when Merriweather was struck.


       4
       Although Norwood was called to testify by Smith, Smith was apparently dissatisfied with
Norwood’s testimony.

                                              -4-
Under these circumstances, we agree with the trial court that the evidence does not support
Smith’s assertion that he acted out of fear for his person or in protection of his property.
Therefore, we must reject Smith’s argument that the evidence preponderates against the trial
court’s finding on this point.

Smith next argues that the judgment against him must be reversed because Merriweather
committed fraud on the trial court in connection with his testimony and in his collaboration
with Norwood. Smith does not cite to any evidence of such allegations in the record, and the
record does not reflect that this argument was raised in the trial court. This Court will not
consider issues or claims raised for the first time on appeal. See Crossley Constr. Corp. v.
Nat. Fire Ins. Co. of Hartford, 237 S.W.3d 652, 656 (Tenn. Ct. App. 2007). Therefore, we
must conclude that this issue is waived on appeal.

Smith also argues that the damages awarded to Merriweather were excessive. He asserts that
the trial court’s decision was based on Merriweather’s testimony about his earnings prior to
the injury, and that Merriweather was not truthful in his testimony. Smith contends that the
excessive judgment violates his rights under the Eighth Amendment to the United States
Constitution, prohibiting excessive fines and cruel and unusual punishment.

Smith’s first argument is essentially that the trial court erred in crediting Merriweather’s
testimony regarding his previous earnings and his ability to work after his injury. We note
that the statement of the evidence in the appellate record does not include the testimony on
which the award of damages was based, but we must infer from the record that the trial court
credited Merriweather’s testimony on his damages. This Court will not reevaluate a trial
court’s credibility determinations absent clear and convincing evidence to the contrary.
Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999). The record in this case
contains no evidence contrary to Merriweather’s claimed damages. Under these
circumstances, there is no basis in the record for a reversal of the trial court’s decision on this
point.

Smith’s argument based on the Eighth Amendment to the United States Constitution must
be rejected because there is no indication that it was raised in the first instance in the trial
court. As we have stated, the appellate court will not consider issues raised for the first time
on appeal. See Crossley Constr. Corp., 237 S.W.3d at 656. For these reasons, the decision
of the trial court must be affirmed.




                                                -5-
                                     C ONCLUSION

The decision of the trial court is affirmed. Costs on appeal are to be taxed to Appellant
Luther Smith, Jr., and his surety, for which execution may issue, if necessary.




                                                 _________________________________
                                                 HOLLY M. KIRBY, JUDGE




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