IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

March 31, 2022 Session

ASHLEY SHEARIN MEADE v. PADUCAH NISSAN, LLC ET AL.

Appeal from the Circuit Court for Williamson County

No. 2020-462 Joseph A. Woodruff, Judge

___________________________________

No. M2021-00563-COA-R3-CV

___________________________________

Wife appeals from the trial court’s decision to dismiss a complaint against the car 

dealership managed by her estranged husband for claims associated with the use of a 

demonstrator vehicle. We affirm the decision of the trial court. 

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

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which ARNOLD B.

GOLDIN and KENNY ARMSTRONG, JJ., joined.

William Kennerly Burger, Murfreesboro, Tennessee, for the appellant, Ashley Shearin 

Meade.

Sye T. Hickey and Austin K. Purvis, Nashville, Tennessee, for the appellee, Paducah 

Nissan, LLC.

OPINION

I. FACTUAL AND PROCEDURAL HISTORY

Plaintiff/Appellant Ashley Shearin Meade (“Appellant”) filed for divorce against 

her husband James Robert Meade, Jr. (“Mr. Meade”) sometime in 2019. While the divorce 

was still pending, Appellant filed a complaint on October 7, 2020, in the Circuit Court for 

Williamson County (the “trial court”) against Defendant/Appellee Paducah Nissan, LLC1

(“Appellee”) and Mr. Meade, in his individual capacity and his capacity as a managing 

agent for Appellee. Because this case was decided on a motion to dismiss, we take the facts

as alleged in the complaint as true for purposes of this appeal. 

 

1 Appellee is an automobile dealership in Kentucky.

06/09/2022
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The genesis of Appellant’s complaint was that Appellant had entered into an oral 

agreement with Mr. Meade and Appellee that resulted in an “effective year-to-year leasing 

of [a] ‘demonstrator’ vehicle, as negotiated with [Mr.] Meade [] at the commencement of 

their parties’ relationship, and effectively renewed each year (following the surrender of 

her personal vehicle at Mr. Meade’s request).” The complaint alleged that such a lease or 

bailment was created under the following circumstances: 

1. [Appellant], for good and valuable legal consideration, and as a result of 

an unwritten, routine practice of the couple, possessed, as an intangible 

marital interest, exclusive dominion and control over a certain 2020 Nissan 

Armada SUV. [Appellant] asserts that throughout the couples’ seven-year 

relationship, she operated a “demonstrator” vehicle through an oral lease, or 

bailment.

2. [Appellant] allowed Mr. Meade to dispose of her unencumbered vehicle. 

A “quid pro quo” (as consideration or detrimental reliance) supported the 

agreement by Mr. Meade and [Appellant]: as a benefit to [Appellee], both 

Mr. Meade and [Appellant] would be provided each year with a new 

“demonstrator,” with a specifically identified vehicle being driven by 

[Appellant], and another (specifically identified) vehicle being driven each 

year by Mr. Meade. That practice never wavered. There was no written 

agreement. There were no conditions for usage; restrictions; compliance 

duties for insurance; and, no forms to sign. Accordingly, [Appellant’s] basis 

for her assertion of lawful “legal and equitable” dominion and control over 

the above-referenced 2020 Nissan Armada was firmly established by 

conduct[.]

Appellant therefore alleged that she had an enforceable agreement as a lessee or bailee.

According to the complaint, however, in 2020, Mr. Meade suffered a series of legal 

setbacks in the divorce proceeding. In addition, in June 2020, Mr. Meade admitted in his 

divorce deposition that he had placed a tracking device on Appellant’s vehicle in late 2019; 

according to the complaint the tracking “occurred on numerous, successive dates over a 

period of months” and was done by Mr. Meade “in furtherance of his management 

position” with Appellee. In July 2020, Mr. Meade requested that Appellant sign a written 

agreement as condition for her continued use of the demonstrator vehicle. According to 

Appellant, the terms were onerous, “high risk” to her, and legally ineffective. She refused. 

The parties’ disputes culminated on September 14, 2020, when Mr. Meade caused 

the 2020 Nissan Armada to be “repossessed.” Appellant was instead left with the keys to 

drive a “much smaller vehicle” that had typically been used by Mr. Meade.2 According to 

 

2 Appellant alleged that Mr. Meade still insisted that she sign the “high risk” agreement to 

use the smaller vehicle.
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Appellant, this action violated both the oral lease or bailment that the parties had agreed to 

abide by and the mandatory injunction put in place in the divorce action.3

Based on these facts, the complaint raised claims of conversion, unlawful vehicle 

tracking, and violations of the Tennessee Consumer Protection Act (“TCPA”). Moreover, 

Appellant asserted that Mr. Meade had utilized his role as a principal and manager of 

Appellee in furtherance of his personal attack upon Appellant, and that Appellee should be 

vicariously liable for the actions of Mr. Meade. Appellant sought compensatory damages 

in the amount of $100,000.00, as well as treble or punitive damages. 

On December 18, 2020, Appellee filed a motion to dismiss, arguing that Appellant 

failed to state a claim upon which relief could be granted against Appellee. Appellant 

responded in opposition. A hearing on the motion to dismiss was held via videoconference

on April 22, 2021, at which time the trial court took the motion under advisement. 

The trial court issued a written order granting Appellee’s motion to dismiss on May 

4, 2021. Therein, the trial court ruled that Appellant’s conversion claim failed because 

Appellant had not alleged an ownership interest in the 2020 Nissan Armada. The trial court 

further ruled that Appellant’s vehicle tracking claim did not meet the requirements under 

either the federal or state statutes cited by Appellant. Finally, the trial court ruled that the 

repossession of the vehicle did not give rise to any claim under the TCPA. 

On June 24, 2021, Appellant filed a notice of voluntary dismissal of the claims 

against Mr. Meade individually. On July 1, 2021, the trial court entered an order dismissing 

the claims against Mr. Meade without prejudice. A final judgment having been entered, 

Appellant appealed to this Court. 

II. ISSUES PRESENTED

 

3 The injunction that Appellant references in her complaint stems from the following statute:

Upon the filing of a petition for divorce or legal separation, and upon personal service of 

the complaint and summons on the respondent or upon waiver and acceptance of service 

by the respondent, the following temporary injunctions shall be in effect against both 

parties until the final decree of divorce or order of legal separation is entered, the petition 

is dismissed, the parties reach agreement, or until the court modifies or dissolves the 

injunction, written notice of which shall be served with the complaint:

(A)(i) An injunction restraining and enjoining both parties from transferring, assigning, 

borrowing against, concealing or in any way dissipating or disposing, without the consent 

of the other party or an order of the court, of any marital property. . . .

Tenn. Code Ann. § 36-4-106(d)(1).
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On appeal, Appellant contends that the trial court erred in granting Appellee’s 

motion to dismiss her claims for (1) conversion; (2) unlawful vehicle tracking under state 

and federal law; and (3) violations of the TCPA. In the posture of appellee, Appellee seeks 

an award of attorney’s incurred in this appeal under three different theories. 

III. STANDARD OF REVIEW

An essential purpose of a pleading is to give notice of the issues to be tried so that 

the opposing party will be able to prepare for trial. Abshure v. Methodist Healthcare–

Memphis Hosps., 325 S.W.3d 98, 103 (Tenn. 2010). A Tennessee Rule of Civil Procedure

12.02(6) motion to dismiss a complaint for failure to state a claim upon which relief can be 

granted tests the legal sufficiency of the complaint. Lanier v. Rains, 229 S.W.3d 656, 660

(Tenn. 2007). It admits the truth of all relevant and material allegations, but asserts that 

such allegations do not constitute a cause of action as a matter of law. See Riggs v.

Burson, 941 S.W.2d 44, 47 (Tenn. 1997). These motions are not favored and are rarely 

granted in light of the liberal pleading standards contained in the Tennessee Rules of Civil 

Procedure. Dobbs v. Guenther, 846 S.W.2d 270, 273 (Tenn. Ct. App. 1992). Moreover, 

pleas or counts contained in a complaint will be given the effect required by their content, 

without regard to the name given them by the pleader. State By and Through Canale ex

rel. Hall v. Minimum Salary Dept. of African Methodist Episcopal Church, Inc., 477

S.W.2d 11 (Tenn.1972).

When considering a motion to dismiss for failure to state a claim upon which relief 

can be granted, we are limited to an examination of the complaint alone. See Wolcotts Fin.

Serv., Inc. v. McReynolds, 807 S.W.2d 708, 710 (Tenn.Ct.App.1990). The basis for the 

motion is that the allegations in the complaint, when considered alone and taken as true, 

are insufficient to state a claim as a matter of law. See Cook By & Through Uithoven v.

Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn. 1994). Although allegations 

of pure legal conclusion will not sustain a complaint, see Ruth v. Ruth, 213 Tenn. 82, 372

S.W.2d 285, 287 (Tenn. 1963), a complaint “need not contain in minute detail the facts that 

give rise to the claim[.]” Donaldson v. Donaldson, 557 S.W.2d 60, 61 (Tenn. 1977); White 

v. Revco Discount Drug Centers, 33 S.W.3d 713, 718, 725 (Tenn. 2000). Instead, the 

complaint 

must contain direct allegations on every material point necessary to sustain a 

recovery on any legal theory, even though it may not be the theory suggested 

. . . by the pleader, or contain allegations from which an inference may fairly 

be drawn that evidence on these material points will be introduced at trial.

Webb v. Nashville Area Habitat for Human., Inc., 346 S.W.3d 422, 427 (Tenn. 2011) 

(quoting Leach v. Taylor, 124 S.W.3d 87, 92 (Tenn. 2004)).

In short, a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss seeks only 
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to determine whether the pleadings state a claim upon which relief can be granted, and such 

a motion challenges the legal sufficiency of the complaint, not the strength of the plaintiff’s 

proof. Bell ex rel. Snyder v. Icard, 986 S.W.2d 550, 554 (Tenn. 1999). In considering 

such a motion, the court should construe the complaint liberally in favor of the plaintiff, 

taking all the allegations of fact therein as true. See Cook ex. rel. Uithoven v. Spinnaker’s

of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn. 1994). An appellate court should uphold 

the grant of a motion to dismiss only when it appears that the plaintiff can prove no set of 

facts in support of a claim that will entitle him or her to relief. Young v. Barrow, 130

S.W.3d 59, 63 (Tenn. Ct. App. 2003).

Tennessee Rule of Civil Procedure 12.02(6) motions, however, are not designed to 

correct inartfully drafted pleadings. Dobbs v. Guenther, 846 S.W.2d 270, 273 (Tenn. Ct.

App. 1992). However, a complaint should not be dismissed, no matter how inartfully 

drafted, if it states a cause of action. Id. (citing Paschall’s, Inc. v. Dozier, 219 Tenn. 45,

407 S.W.2d 150, 152 (Tenn. 1966); Collier v. Slayden Bros. Ltd. Partnership, 712 S.W.2d

106, 108 (Tenn. Ct. App. 1985)). Nonetheless, there is no duty on the part of the court to 

create a claim that the pleader does not spell out in his complaint. Utter v. Sherrod, 132

S.W.3d 344 (Tenn. Ct. App. 2003). But while we should not endeavor to create claims 

where none exist, we must always look to the substance of the pleading rather than to its 

form. Dobbs, 846 S.W.2d at 273 (citing Donaldson, 557 S.W.2d at 62).

IV. ANALYSIS

A.

Appellant first argues that the trial court erred in dismissing her claim for 

conversion. It is well-settled that in order to establish a conversion, the plaintiff must show 

the following elements: “(1) an appropriation of another’s tangible property to one’s use 

and benefit; (2) an intentional exercise of dominion over the chattel alleged to have been 

converted; and (3) defiance of the true owner’s rights to the chattel.” White v. Empire Exp., 

Inc., 395 S.W.3d 696, 720 (Tenn. Ct. App. 2012) (citing River Park Hosp., Inc. v. 

BlueCross BlueShield of Tenn., Inc., 173 S.W.3d 43, 60 (Tenn. Ct. App. 2002)). The trial 

court dismissed this claim on the basis that Appellant’s complaint did not establish the 

required element that Appellee’s retaking of the automobile was in “defiance of the true 

owner’s rights to the chattel.” Id.

We agree with the trial court. Here, Appellant’s complaint makes clear that Appellee 

remained at all times the true owner of the automobiles that she was allowed to drive.

Indeed, Appellant admits that the vehicle at issue was “lawfully titled” to Appellee. But 

Appellant asserts that this fact is immaterial where her complaint sufficiently alleged that 

she and Appellee entered into a bailment or lease that entitled her to full use and possession 

of a demonstrator vehicle of comparable quality to one she had given to Appellee as 
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consideration years earlier.4 According to Appellant, Appellee’s action in retaking 

possession of her current vehicle without her consent through self-help was therefore an 

unlawful conversion. Because Appellant alleged that she had genuine possessory rights in 

the vehicle and Appellee’s action was in defiance of those rights, she contends that the trial 

court was wrong to dismiss her claim for conversion at this early stage of proceedings. 

In support of this argument, Appellant cites various law concerning the 

requirements to establish a lease or bailment, as well as governing repossessions generally. 

The problem with Appellant’s argument, however, is that she does not cite a single case in 

which a lease or bailment was sufficient to meet the final element of conversion set forth 

above. Nor has our research revealed a single Tennessee case that reaches that conclusion.5

Instead, Tennessee law provides that lessees and bailees are not owners of the property, 

but merely temporary possessors. See generally Aegis Investigative Grp. v. Metro. Gov’t 

of Nashville & Davidson Cnty., 98 S.W.3d 159, 162–63 (Tenn. Ct. App. 2002) (“A 

bailment is a delivery of personalty for a particular purpose or on mere deposit, on a 

contract expressed or implied, that after the purpose has been fulfilled it shall be redelivered to the person who delivered it or otherwise dealt with according to his direction 

or kept until he reclaims it.”); Bailment, Black’s Law Dictionary 162 (9th ed. 2009) 

(“Unlike a sale or gift of personal property, a bailment involves a change in possession but 

not in title.”); Lease, Black’s Law Dictionary at 972 (“To grant possession and use to (land, 

buildings, rooms, movable property, etc.) to another in return for rent or other consideration 

. . . .”). Indeed, some Tennessee caselaw uses the same language used in the context of 

conversion, the term “true owner,” to describe the bailor in a bailment situation, not the 

bailee. See Dispeker v. New S. Hotel Co., 213 Tenn. 378, 388, 373 S.W.2d 904, 909 (Tenn. 

1963) (quotation marks and citation omitted) (emphasis added) (“It is uniformly held that 

a delivery of bailed property by the bailee to one not the true owner and not authorized by 

the bailor to receive it is, of itself, a conversion and breach of the contract of bailment for 

which the law imposes an absolute liability upon the bailee for loss or damage occasioned 

thereby[.]”). This caselaw confirms that, in the typical case, the true owner of a property 

subject to a bailment is the bailor, not the bailee. 

Turning to Appellant’s complaint, she alleged that she entered into a valid oral lease 

or bailment with Appellee despite the fact that such agreement was “vague,” “indefinite,” 

and “broad.” Indeed, her complaint even goes so far as to allege that the purported 

 

4 At times, Appellant also uses the term “license” to describe her alleged rights in the vehicle at 

issue. There is no dispute that a license does not transfer ownership of property to the licensee. See generally 

License, Black’s Law Dictionary 1002 (9th ed. 2009) (“A permission, us[ually] revocable, to commit some 

act that would otherwise be unlawful[.]”).

5 Tennessee law is rife with examples of conversion claims against the bailee See, e.g., Breeden v. 

Elliott Bros., 173 Tenn. 382, 118 S.W.2d 219, 220 (1938) (“Conversion of property by a bailee may be 

committed in two ways: By acts in derogation of the bailor’s title, or by acts in derogation of the bailor’s 

possessory rights.”); Colyar v. Taylor, 41 Tenn. 372, 376 (1860) (finding a bailee guilty of conversion).
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agreement was riddled with “unlawful vagueness.” Clearly, the question of whether a valid 

lease or bailment was created is a good one. Cf. United Am. Bank of Memphis v. Walker, 

No. 3, 1986 WL 11250, at *2 (Tenn. Ct. App. Oct. 10, 1986) (“It is a fundamental rule of 

law that an alleged contract which is so vague, indefinite and uncertain as to place the 

meaning and intent of the parties in the realm of speculation is void and unenforceable.”). 

Still, Tennessee law has made clear that possession is not sufficient to establish a 

conversion, defiance of the true owner’s rights must be alleged. See White, 395 S.W.3d at 

720. But as the caselaw above shows, a bailee or lessee is simply not a true owner of 

property in his or her possession by virtue of a bailment or lease. Thus, even assuming 

arguendo that a valid contract for continued possession of the personalty existed, Appellant 

has not alleged an ownership interest of any kind sufficient to meet the true owner element 

of the tort of conversion. At best, her allegations implicate breach of contract establishing 

a bailment, lease, or license, which Appellant did not raise in her complaint or in this 

appeal. As such, the trial court did not err in dismissing Appellant’s conversion claim.

B.

Appellant next asserts that the trial court erred in dismissing her claims for unlawful 

vehicle tracking under both a federal and a Tennessee statute. To the extent that Appellant’s 

argument requires that we consider the proper construction of statutes, we keep the 

following principles in mind: 

Our role is to determine legislative intent and to effectuate legislative 

purpose. The text of the statute is of primary importance, and the words must 

be given their natural and ordinary meaning in the context in which they 

appear and in light of the statute’s general purpose. When the language of 

the statute is clear and unambiguous, courts look no farther to ascertain its 

meaning. When necessary to resolve a statutory ambiguity or conflict, courts 

may consider matters beyond the statutory text, including public policy, 

historical facts relevant to the enactment of the statute, the background and 

purpose of the statute, and the entire statutory scheme. However, these noncodified external sources cannot provide a basis for departing from clear 

codified statutory provisions.

Mills v. Fulmarque, Inc., 360 S.W.3d 362, 368 (Tenn. 2012) (citations and quotation 

marks omitted). 

We begin with the federal statutory scheme cited by Appellant, 18 U.S.C. § 2510, 

et. seq. As the basis for her claim for damages related to the alleged vehicle tracking, 

Appellant relies on 18 U.S.C. § 2520, which provides that “any person whose wire, oral, 

or electronic communication is intercepted, disclosed, or intentionally used in violation of 

this chapter may in a civil action recover from the person or entity, other than the United 

States, which engaged in that violation such relief as may be appropriate.” 18 U.S.C. § 
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2520(a) (noting some exceptions not relevant here). Thus, in order to recover under this 

statute, the wire, oral, or electronic communication of Appellant must have been 

intercepted, disclosed, or intentionally used by Appellee. 

There appears to be generally no dispute that neither wire nor oral communications 

are at issue here. Certainly, Appellant does not discuss either wire communications or oral 

communication in her appellate brief. So the issue here is whether Appellee intercepted, 

disclosed, or intentionally used an electronic communication of Appellant’s. The term 

“electronic communication” is defined by 18 U.S.C. § 2510(12) as “any transfer of signs, 

signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or 

in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects 

interstate or foreign commerce[.]” But the definition specifically exempts several arguable 

communications from within its definition, including “any communication from a tracking 

device (as defined in section 3117 of this title)[.]” In turn, a tracking device is defined as 

“an electronic or mechanical device which permits the tracking of the movement of a 

person or object.” 18 U.S.C. § 3117(b).

Here, the factual basis for Appellant’s vehicle tracking claim is as follows:

B. Over an approximate four-month period (estimated), Mr. Meade 

has acknowledged that he placed an electronic location tracking device on 

the vehicles (one or more) that had been assigned to [Appellant] (effectively 

by lease or license) as a “demonstrator vehicle,” but lawfully titled to 

[Appellee].

C. Based upon a specific malicious motive specified in the events 

described above, Mr. Meade placed a tracking device on a previously leased 

car and the 2020 Nissan Armada being driven exclusively by [Appellant], 

without her knowledge or permission.

D. Mr. Meade asserts his equal ownership in the legal-title, holding 

[Appellee], as his authority to place the tracking device on the demonstrator 

vehicle orally leased to [Appellant].

E. The unlawful tracking produced no incriminating evidence against 

[Appellant], with the device being removed, by Mr. Meade’s admission, 

shortly before his deposition.

F. Upon the factual premises outlined above, [Appellant] reasonably 

enjoyed an expectation of privacy, based upon the protections of common 

law (invasion of privacy) and the above federal and state criminal codes 

applicable to Mr. Meade’s conduct.

So the basis of Appellant’s complaint is that Mr. Meade placed a vehicle tracking device 

on the automobile that she was granted possession of without her consent. But the very 

thing that Appellant alleges occurred here—the placement of an “electronic location 

tracking device”—does not constitute an electronic communication under the federal 
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statute at issue. As such, 18 U.S.C. § 2520 simply does not serve as a basis for liability 

related to nonconsensual vehicle tracking. And Appellant has alleged no other interception, 

use, or disclosure by Appellee for which liability could attach under 18 U.S.C. § 2520. 

Moreover, the two federal cases Appellant relies on in this appeal, neither of which involve 

location tracking devices, are inapposite to this case and in no way mandate a contrary 

result. See United States v. Jones, 542 F.2d 661, 663 (6th Cir. 1976) (involving a claim 

that a husband intercepted the telephone communications of his estranged wife); Klumb v. 

Goan, 884 F. Supp. 2d 644, 645 (E.D. Tenn. 2012) (involving a claim that a wife installed 

spyware on the computer of her ex-husband). The trial court therefore did not err in 

dismissing Appellant’s claim under federal law. 

Appellant also alleges that placement of the vehicle tracking device violates 

Tennessee law, which entitles her to damages. We agree with Appellant that nonconsensual placement of a vehicle tracking device on a leased vehicle violates Tennessee 

law. Particularly, Tennessee Code Annotated section 39-13-606 provides as follows:

(A) Except as provided in subsection (b),[6] it is an offense for a person to 

knowingly install, conceal or otherwise place an electronic tracking device 

in or on a motor vehicle without the consent of all owners of the vehicle for 

the purpose of monitoring or following an occupant or occupants of the 

vehicle.

(B) It is an offense for a person who leases a motor vehicle to knowingly 

install, conceal, or otherwise place an electronic tracking device in or on the 

motor vehicle without the consent of the lessee of the vehicle.

Tenn. Code Ann. § 39-13-606(a)(1). The term “lease” as it is used in section 39-13-606 is 

defined as “the grant of use and possession of a motor vehicle for consideration, whether 

or not the grant includes an option to buy the vehicle[.]” Tenn. Code Ann. § 39-14-

147(a)(1). 

Section 39-13-606 is primarily a criminal statute, as a violation of the statute 

constitutes a Class A misdemeanor. Tenn. Code Ann. § 39-13-606(d). Appellant, however, 

seeks to enforce this statute as a private right of action. “A private right of action is the 

right of an individual to bring suit to remedy or prevent an injury that results from another 

party’s actual or threatened violation of a legal requirement.” Hardy v. Tournament 

Players Club at Southwind, Inc., 513 S.W.3d 427, 433 (Tenn. 2017) (footnote and citation 

omitted). “Some statutes provide a private remedy by their express terms; others define 

legal duties and ‘are silent about whether an individual may bring suit to enforce them.’” 

Id. (citation omitted). Pursuant to Tennessee Code Annotated section 1-3-119, unless a 

private right of action was recognized prior to 2012, no statute confers a private right of 

action in the absence of express statutory language conferring such a right:

 

6 Subsection (b) is not relevant to this case. 
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(a) In order for legislation enacted by the general assembly to create or confer 

a private right of action, the legislation must contain express language 

creating or conferring the right.

(b) In the absence of the express language required by subsection (a), no court 

of this state, licensing board or administrative agency shall construe or 

interpret a statute to impliedly create or confer a private right of action except 

as otherwise provided in this section.

(c) Nothing in this section shall be construed in any way to impair the ability 

of a court to:

(1) Recognize a private right of action that was recognized before July 1, 

2012, by the courts of this state as arising under a statute, unless the statute 

is amended after July 1, 2012, to expressly bar the private right of action[.]

Subsection (a)(1)(B) prohibiting the nonconsensual placement of tracking devices on 

leased vehicles was not enacted until 2016. See 2016 Tenn. Laws Pub. Ch. 860 (H.B. 2095), 

eff. July 1, 2016. As such, section 1-3-119 mandates that a private right of action must be 

expressly conferred or created by the statute in order for it to be privately enforced. 

Appellant contends that a private right of action was indeed conferred by the 

legislature, citing Tennessee Code Annotated section 39-13-603:

(a) Except as provided in § 39-13-601(b)(4), any aggrieved person whose 

wire, oral or electronic communication is intentionally intercepted, 

disclosed, or used in violation of § 39-13-601 or title 40, chapter 6, part 

3 may in a civil action recover from the person or entity that engaged in 

that violation the following relief:

(1) The greater of:

(A) The sum of the actual damages, including any damage to personal or 

business reputation or relationships, suffered by the plaintiff and any profits 

made by the violator as a result of the violation; or

(B) Statutory damages of one hundred dollars ($100) a day for each day of 

violation or ten thousand dollars ($10,000), whichever is greater;

(2) Punitive damages; and

(3) A reasonable attorney’s fee and other litigation costs reasonably incurred.

Thus, like under the federal statute, Appellant is entitled to compensation if she can show 

that Appellee intentionally intercepted, disclosed, or used a wire, oral, or electronic 

communication in violation of the statutory scheme. And the fatal flaw in Appellant’s claim 

is that tracking devices are once again exempted from the definition of electronic 

communications. Specifically, Tennessee Code Annotated section 40-6-303 provides 
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several definitions to be used in construing section 39-13-603. See Tenn. Code Ann. § 40-

6-303 (stating that the definitions contained therein applied to “this part and §§ 39-13-

601 – 39-13-603 unless the context requires otherwise”). Among these definitions is the 

following:

“Electronic communication” means any transfer of signs, signals, writing, 

images, sounds, data or intelligence of any nature transmitted in whole or in 

part by the aid of wire, radio, electromagnetic, photooptical or 

photoelectronic facilities, but does not include:

* * *

(C) Any communication from a “tracking device” as defined in 18 U.S.C. § 

3117[.]

Tenn. Code Ann. § 40-6-303(7). 

Here, Appellant cites the same basis for violation of section 39-13-606 as she cited 

as a violation of federal law: that Mr. Meade placed a tracking device on her loaner vehicle 

without her consent. But section 40-6-303 makes clear that this action does not involve an 

electronic communication. So Appellant has not alleged any use, interception, or disclosure 

of an electronic communication that would bring her within the ambit of section 39-13-603 

for purposes of awarding her damages.7In the absence of allegations of this kind, her claim 

to compensation under section 39-13-606 must fail. The trial court therefore did not err in 

dismissing this claim.8

C.

Appellant finally asserts that she is entitled to damages under the TCPA. One of the 

central purposes of the TCPA is to “protect consumers and legitimate business enterprises 

from those who engage in unfair or deceptive acts or practices in the conduct of any trade 

or commerce in part or wholly within this state[.]” Tenn. Code Ann. § 47-18-102(2). Under 

the TCPA, 

Any person who suffers an ascertainable loss of money or property, real, 

personal, or mixed, or any other article, commodity, or thing of value 

wherever situated, as a result of the use or employment by another person of 

an unfair or deceptive act or practice described in § 47-18-104(b) and 

declared to be unlawful by this part, may bring an action individually to 

 

7 And again, Appellant does not reference a wire or oral communication that was intercepted, 

disclosed, or used. 

8 Because we resolve this issue on Appellant’s failure to allege the interception, use, or disclosure 

of an electronic communication, we need not resolve any dispute as to whether a lease was actually 

established here.
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recover actual damages.

Tenn. Code Ann. § 47-18-109(a)(1). If the violation was willful or knowing, the court may 

award treble damages. Tenn. Code Ann. § 47-18-109(a)(3). 

The TCPA delineates several actions that “are declared to be unlawful and in 

violation of [the TCPA].” Tenn. Code Ann. § 47-18-104(b). Three of these actions are at 

issue in this appeal:

(12) Representing that a consumer transaction confers or involves rights, 

remedies or obligations that it does not have or involve or which are 

prohibited by law;

* * *

(14) Causing confusion or misunderstanding with respect to the authority of 

a salesperson, representative or agent to negotiate the final terms of a 

consumer transaction;

* * *

(21) Using statements or illustrations in any advertisement which create a 

false impression of the grade, quality, quantity, make, value, age, size, color, 

usability or origin of the goods or services offered, or which may otherwise 

misrepresent the goods or services in such a manner that later, on disclosure 

of the true facts, there is a likelihood that the buyer may be switched from 

the advertised goods or services to other goods or services[.]

Id. Tennessee courts have previously held that TCPA provisions of this type confer a 

private right of action. See Brown v. Tennessee Title Loans, Inc., 328 S.W.3d 850, 855 

n.3 (Tenn. 2010) (“[T]he legislature expressly granted a private right of action in 

the TCPA.”). But see Mini Sys. Inc. v. Alexander, No. W2019-01871-COA-R3-CV, 2020 

WL 6892010, at *3 (Tenn. Ct. App. Nov. 24, 2020) (noting that unlike the other provisions, 

enforcement of subsection (27)’s catch-all provision, which is not at issue here, is vested 

exclusively with the office of the attorney general). 

On appeal, Appellee’s argument against these claims is two-fold. In addition to

arguing that each claim fails individually, Appellee contends that all of Appellant’s TCPA 

claims must fail because a repossession is not a consumer transaction protected by the 

TCPA. See Tenn. Code Ann. § 47-18-104(b)(12) (involving representations made in the 

course of “a consumer transaction”); (14) (involving confusion or misunderstanding as to 

authority related to “a consumer transaction”). The trial court agreed with this argument, 

citing Pursell v. First Am. Nat. Bank, 937 S.W.2d 838 (Tenn. 1996), and Davenport v. 

Bates, No. M2005-02052-COA-R3-CV, 2006 WL 3627875 (Tenn. Ct. App. Dec. 12, 

2006).

In Pursell, the Tennessee Supreme Court held the actions of a bank following 
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repossession of collateral securing a loan did not constitute a violation of the TCPA 

because the actions did not occur in the course of “trade, commerce, or a consumer 

transaction[.]” Pursell, 937 S.W.2d at 841–42. The court noted, however, that its holding 

was “confined to the facts and circumstances of this case,” and stated that it did “not, by 

this Opinion, generally exempt banking activities from the [TCPA].” Id. at 842. This Court 

followed Pursell’s holding in Davenport and declined “the opportunity to extend the 

coverage of the Consumer Protection Act to this repossession.” Davenport, 2006 

WL 3627875, at *18. Instead, we held that the TCPA “did not extend to a dispute arising 

over repossession of collateral securing a loan.” Id. Based on these authorities, Appellee 

urges us to affirm the trial court’s ruling that Appellant has no cognizable claim under the 

TCPA in this case.

Appellant’s argument against the trial court’s application of this caselaw is minimal 

at best. Specifically, Appellant argues that while the repossession was among the facts 

making up its claim, the true TCPA claim results from the events that led to the 

repossession: Appellee’s decision to unilaterally change the terms of the parties’ 

agreement. Still, we are somewhat reluctant to dismiss Appellant’s claim in such broad 

strokes. For one, both Purcell and Davenport involved a repossession of property that 

served as collateral securing a loan. Davenport, 2006 WL 3627875, at *18; Pursell, 937 

S.W.2d at 841–42. The allegations in this case make clear that no such secured loan was at 

issue here. Moreover, the Tennessee Supreme Court has recently cautioned that Pursell

should not be read too broadly. Rather, the Court opined that “Pursell cannot be interpreted 

to say that no collection activities are covered by the Act. Collection activities can be 

covered, provided they ‘affect[ ] the conduct of any trade or commerce.’ Tenn. Code Ann. 

§ 47-18-104(a). This is a fact-intensive inquiry.” Franks v. Sykes, 600 S.W.3d 908, 915 

(Tenn. 2020). However, because we conclude that each of the TCPA claims alleged by 

Appellant fails on its own merits, we need not address the trial court’s conclusion that the 

TCPA was wholly inapplicable to this case. See Bobo v. City of Jackson, 511 S.W.3d 14, 

26 n.14 (Tenn. Ct. App. 2015) (“[W]e are entitled . . . to affirm the entry 

of summary judgment on grounds that differ from those forming the basis of the trial 

court’s decision.”). We will therefore consider each allegation in turn. 

In addressing Appellant’s allegations, however, we keep in mind that claims under 

the TCPA must meet the particularity requirements of Rule 9.02 of the Tennessee Rules of 

Civil Procedure. Glanton v. Bob Parks Realty, No. M2003-01144-COA-R3-CV, 2005 WL 

1021559, at *6 (Tenn. Ct. App. Apr. 27, 2005) (citing Harvey v. Ford Motor Credit Co., 8 

S.W.3d 273, 275-76 (Tenn. Ct. App. 1999); Humphrey v. West End Terrace, Inc., 795 

S.W.2d 128, 132 (Tenn. Ct. App. 1990)) (holding that TCPA “claims must be stated with 

the particularity of common-law fraud claims under Tenn. R. Civ. P. 9.02”). Rule 9.02 

provides that “[i]n all averments of fraud or mistake, the circumstances constituting fraud 

or mistake shall be stated with particularity.” “Despite Rule 9.02’s particularity 

requirements, we must determine the sufficiency of the claims in light of Tenn. R. Civ. P. 
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8.01’s liberal pleading standards.”9 Harvey, 8 S.W.3d at 275–76 (citing Dobbs v. 

Guenther, 846 S.W.2d 270 (Tenn. Ct. App. 1992)). 

Appellant first alleged that Appellee violated subsection (12), which provides that 

it is a violation of the TCPA to represent that a consumer transaction confers or involves 

rights, remedies, or obligations that it does not have or involve or which are prohibited by 

law. Tenn. Code Ann. § 47-18-104(b)(12). On appeal, Appellant argues that the basis for 

this claim is that she believed that she “had a safe, secure and predictable arrangement 

based upon the promises of the management of [Appellee]. She did not, and the 

manifestation of that ambiguous setup by [Appellee] was the eventual illegal seizure of a 

vehicle which it had no right to seize without a Court order.” According to Appellant, 

Appellee “falsely seduced” Appellant into “that position of assurance.” In support of this 

argument, Appellant cites to pages 3–4, 8, and 12 of her complaint. 

A review of these portions of Appellant’s complaint does not reveal any particular 

misrepresentations made by anyone that are attributed to Appellee. Instead, Appellant 

alleges that the agreement she alleged was “established by conduct” rather than actual 

negotiations. Indeed, Appellant’s complaint does not contain recitation of a single 

statement actually made by Appellee or its agents related to this purported agreement. And 

Appellant admits that whatever agreement was reached was “admittedly vague” and 

“indefinite.” 

Thus, this case is analogous to another case in which we held that the trial court 

correctly dismissed the plaintiff’s TCPA claim: 

The exact misrepresentation(s) in this case are difficult to discern from the 

Complaint. While Appellants state that there were misrepresentations 

concerning the enforceability of partnership contracts and concerning the 

financial status and condition of the projects, the particular 

misrepresentations are not elucidated in the Complaint. Because the 

particular misrepresentations are not specifically set out in the complaint, it 

is also difficult (if not impossible) to determine which of the Appellees 

should be charged with these utterances. In short, without information as to 

what representations were made and by whom, these pleadings are vague and 

do not satisfy the liberal pleading requirements of Tennessee Rule of Civil 

Procedure 8.01 (for negligent misrepresentations), much less the heightened 

requirements of Tennessee Rule of Civil Procedure 9.02 (for intentional or 

fraudulent misrepresentations).

PNC Multifamily Cap. Institutional Fund XXVI Ltd. P’ship v. Bluff City Cmty. Dev. 

 

9 Rule 8.01 provides that a claim “shall contain (1) a short and plain statement of the claim showing 

that the pleader is entitled to relief, and (2) a demand for judgment for the relief the pleader seeks.”
- 15 -

Corp., 387 S.W.3d 525, 549 (Tenn. Ct. App. 2012). The same is true here. Appellant has 

alleged that the parties had an understanding based on conduct and that Appellee’s conduct 

did not conform to her expectations under that agreement. But she simply has not alleged 

that Appellee or its agents made any representations concerning the rights, remedies, or 

obligations in that contract. And to the extent that she alleges she was to be provided an 

automobile of “comparable quality” she has not indicated who made that representation to 

her or what that individual’s authority may have been. In other words, while Appellant 

appears to have certainly believed that her understanding with Appellee would continue 

indefinitely regardless of any breakdown in the relationship between herself and Mr. 

Meade, there is absolutely nothing in the complaint stating what statements or conduct by 

Appellee or its agents specifically induced Appellant to come to this conclusion. Indeed, 

Appellant’s complaint focuses almost entirely on what Appellant believed, rather than what 

Appellee did to lead her to these purportedly false impressions. Under these circumstances, 

we must conclude that Appellant’s complaint fails to meet the heightened pleading 

standard under Rule 9.02. 

Appellant next contends that she may recover under subsection (14), which provides 

that it is unlawful for a defendant to cause confusion about the authority of a salesperson, 

representative, or agent, to negotiate the final terms of a consumer transaction. Tenn. Code 

Ann. § 47-18-104(b)(14). As noted above, Appellant’s recitation of any conversations or 

negotiations with Appellee in the course of entering into the purported lease are few and 

far between. But even more importantly, Appellant’s complaint contains no allegations that 

Appellee’s actions caused her to be confused or to misunderstand the authority of any 

person connected with the transaction. Certainly, Appellant contends that the purported 

agreement was vague and unclear. But she simply has not alleged that Appellee engaged 

in any behavior to cause confusion about the authority of its employees or agents. As such, 

this claim lacks merit. 

Finally, Appellant proceeds under subsection (21). This provision states that it is 

unlawful to use “statements or illustrations in any advertisement” that create a false 

impression of the goods or misrepresent the goods or services such that the buyer would 

not have chosen the goods or services. Tenn. Code Ann. § 47-18-104(b)(21). The flaw with 

Appellant’s claim under this subsection is that nowhere in her complaint does she assert 

that her decision to use the automobile at issue was influenced by any advertisement made 

by Appellee or that she would have taken a different route in the absence of such 

advertisement.10 Indeed, Appellant’s complaint does not mention an advertisement of any 

kind. As Appellee points out in its brief, Appellant attempts to side-step this flaw by 

omitting the term “advertisement” from her quotation of the statutory provision at issue.11

 

10 This Court has previously characterized subsection (21) as prohibiting a “bait and switch” type 

of scenario. Glanton, 2005 WL 1021559, at *6.

11 Appellant’s quotation of this provision is as follows:

(21) ... the creation of a false impression about the status of the parties’ arrangement 
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While the TCPA should be construed liberally to protect consumers, see Tucker v. Sierra 

Builders, 180 S.W.3d 109, 115 (Tenn. Ct. App. 2005), we are simply not at liberty to ignore 

the words contained in a statute. See Coleman v. State, 341 S.W.3d 221, 241 (Tenn. 2011) 

(citing In re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005)) (“[W]e may not overlook 

or ignore any of the words in a statute . . . .”); see also Pursell, 937 S.W.2d at 842 (holding 

that even in interpreting the TCPA, where “the language contained within the four corners 

of a statute is plain, clear, and unambiguous, there is no room for interpretation or 

construction, and we must apply the words of the statute”). In the absence of any allegation 

that an advertisement contained a misrepresentation or created a false impression, as 

required by the plain language of this subsection, this claim must fail. Thus, although we 

rely on different grounds than those cited by the trial court, we affirm the trial court’s 

decision to dismiss Appellant’s claims under the TCPA. 

D.

As a final matter, Appellee seeks attorney’s fees incurred in this appeal under three 

alternative theories. First, Appellee contends that it is entitled to damages incurred in 

defending against Appellants’ TCPA claim under Tennessee Code Annotated section 47-

18-109(e), which provides as follows:

(1) Upon a finding by the court that a provision of this part has been violated, 

the court may award to the person bringing such action reasonable attorney’s 

fees and costs.

(2) In any private action commenced under this section, upon finding that the 

action is frivolous, without legal or factual merit, or brought for the purpose 

of harassment, the court may require the person instituting the action to 

indemnify the defendant for any damages incurred, including reasonable 

attorney’s fees and costs.

As the Tennessee Supreme Court recently explained: 

This provision:

is designed to discourage consumers from using the [TCPA] to 

file frivolous or baseless claims. It is not intended to punish 

plaintiffs who can demonstrate wrongful acts on the part of 

defendants, but who are unable to prevail on their claims for 

other reasons. Too strict an application of this subsection 

 

(“or which may otherwise misrepresent the goods or services in such a manner that later, 

on disclosure of the true facts, there is a likelihood that the buyer may be switched from 

the advertised goods or services to other goods or services; ...”

(Emphasis removed). 
- 17 -

would result in a “winner take all” situation, regardless of the 

circumstances, that would undermine the purpose of protecting 

the consumer.

Glanton v. Bob Parks Realty, M2003-01144-COA-R3-CV, 2005 WL 

1021559, at *9 (Tenn. Ct. App. Apr. 27, 2005), perm. app. denied, (Tenn. 

Oct. 24, 2005). Therefore, the statutory phrase “‘without legal or factual 

merit’ does not mean without sufficient merit to prevail.” Id. (quoting Tenn. 

Code Ann. § 47-18-109(e)(2)). Rather, it refers to a TCPA claim “so utterly 

lacking in an adequate factual predicate or legal ground as to make the filing 

of such a claim highly unlikely to succeed.” Id.

Milan Supply Chain Sols., Inc. v. Navistar, Inc., 627 S.W.3d 125, 160 (Tenn. 2021). 

In a similar vein, Appellee asserts that this Court should award it attorney’s fees 

incurred in defending against a frivolous appeal under Tennessee Code Annotated section 

27-1-122, which provides as follows:

When it appears to any reviewing court that the appeal from any court of 

record was frivolous or taken solely for delay, the court may, either upon 

motion of a party or of its own motion, award just damages against the 

appellant, which may include, but need not be limited to, costs, interest on 

the judgment, and expenses incurred by the appellee as a result of the appeal.

“A frivolous appeal is one that presents no justiciable question, and which is so devoid of 

merit on its face, that there is no reasonable possibility that it can succeed.” Sadler v. 

Tennessee Bd. of Prob. & Parole, No. M2001-02341-COA-R3CV, 2001 WL 1386090, at 

*5 (Tenn. Ct. App. Nov. 8, 2001). 

It is true that Appellant did not succeed in any of her arguments on appeal. However, 

we do not consider Appellant’s claims so utterly lacking merit as to be frivolous. As such, 

we decline to characterize Appellant’s claims either, under the TCPA or on appeal as a 

whole, as frivolous. We therefore decline to award damages and fees under either section 

47-18-109(e) or section 27-1-122.

Appellee raises one additional claim to attorney’s fees that is not based on frivolity: 

a claim for fees under Tennessee Code Annotated section 20-12-119(c), which provides in 

relevant part as follows:

[I]n a civil proceeding, where a trial court grants a motion to dismiss pursuant 

to Rule 12 of the Tennessee Rules of Civil Procedure for failure to state a 

claim upon which relief may be granted, the court shall award the party or 

parties against whom the dismissed claims were pending at the time the 
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successful motion to dismiss was granted the costs and reasonable and 

necessary attorney’s fees incurred in the proceedings as a consequence of the 

dismissed claims by that party or parties. The awarded costs and fees shall 

be paid by the party or parties whose claim or claims were dismissed as a 

result of the granted motion to dismiss.

Tenn. Code Ann. § 20-12-119(c)(1). Appellee notes that it requested these fees in the trial 

court following the dismissal of Appellant’s complaint, but that pursuant to the statute, that 

claim has not yet been finally adjudicated. See Tenn. Code Ann. § 20-12-119(c)(3) (“An 

award of costs pursuant to this subsection (c) shall be made only after all appeals of the 

issue of the granting of the motion to dismiss have been exhausted and if the final outcome 

is the granting of the motion to dismiss. The award of costs and attorneys’ fees pursuant to 

this section shall be stayed until a final decision which is not subject to appeal is 

rendered.”). Regardless, Appellee asks this Court to award costs and fees incurred on 

appeal under this statute. 

We cannot. Recently, this Court held that section 20-12-119(c) does not authorize 

attorney’s fees based on appeal due to its intent to provide only limited relief to litigants. 

See First Cmty. Mortg., Inc. v. Appraisal Servs. Grp., Inc., No. W2020-01246-COA-R3-

CV, ---S.W.3d---, 2021 WL 5561053, at *9–10 (Tenn. Ct. App. Nov. 29, 2021), perm. app. 

denied (Tenn. Mar. 24, 2022). So regardless of the propriety of this request at this stage of 

proceedings, we are not permitted to award attorney’s fees incurred on appeal under section 

20-12-119(c). 

V. CONCLUSION

The judgment of the Williamson County Circuit Court is affirmed, and this cause is 

remanded to the trial court for further proceedings in accordance with this Opinion. Costs 

of this appeal are taxed to Appellant Ashley Shearin Meade, for which execution may issue, 

if necessary.

S/ J. Steven Stafford 

 J. STEVEN STAFFORD, JUDGE