# FILED Dec. 30, 1996 Cecil Crowson, Jr . Appellate Court Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

________________________________________________ MILTON SCHACTER, Complaina

nt-Appellant, Vs. C.A. No. 02A01-9603-CH-00060 Shelby Chancery No. 103900-3 FRIENDLY

CHEVROLET CADILLAC TOYOTA, INC., et al, Defendant-Appellee.

___________________________________________________________________________

FROM THE SHE

LBY COUNTY CHANCERY COURT THE HONORABLE D. J. ALISSANDRATOS, CHANCELLOR

Ira M. Thomas of Me

mphis For Appellant Fred M. Ridolphi, Jr. , of Memph is For Appellee
REVERSED AND REM ANDED Opinion filed:

W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S.

CONCUR: DAVID R.FARMER,

JUDGE HEWITT P. TOM LIN, JR., SE NIOR JUDGE
This is a breach

of contract case. The plaintiff, Milton Schachter, appeals from the order of the Shelby

County Chancer y Court dismissing his complaint against the defendants, Hugh1 The Chalmers are the owners of the ca r dealership in question. The dealership does business as Friendly Chevrolet. In this opinion, the defendants will be referred to as Friendly.

2 Friendly u sed a sta

ndard co ntract f

orm for mo st custome

rs. Howe ver, the se customers generally purchased cars a nd trucks that were part of Friendly’s inventory. 2 Chalmers, Sr., Hugh Chalmers, Jr., and Hugh Chalmers Chevrolet-Cadillac-Toyota, Inc. 1 In September 1993, Schachter began shopping for a new car and decided to purchase a Chevrolet Suburban. He couldn’t find exactly what he wanted so he decided to custom order a Suburban from the G

M factor y. Schac hter con

tacted th e Gwatne y Chevrol et deale

rship in Memphis and con figured an ideal vehicle. Gwatney printed a f our-page computer printout listing the features and

the options and quoting a price of $27,651.00. Schachter wanted a better price and left with the Gwatney computer printout of his ideal Suburban. On October 28, 1993, Schachter approached Friendly, with whom he had met before, and discussed the computer printout with Arthur Dolittle, a Friendly salesman, and Rick Helper, the sales manager. Friendly is located in West Memphis, Arkansas. Friendly i nitially pr oposed to beat the Gwatney price by $100.00. Schachter eliminated some of the options from his ideal car and agreed upona trade-in credit for his minivan. After su btractin g the optio ns and the trade- in credit, Schachter and Friendly agreed upon a custom-orde r price of $22,934.00. Schachter

also agreed to pay any

increa se in the G

M factor y price t o Friendly . The cos ts of option s t o b e subtracted, the amount of the trade-in, and the resulting price were written in red ink on the Gwatney computer printout. Schachter, Helper, and Dolittle all signed the agreement by signing the Gwatney computer printout. Schachter testified that he asked for a contractual piece of paper butwas told that the signed printout would suffice. 2 Helper w as author ized to bi nd Friendl

y to
a contract but Dolittle did not have that authority. Dolittle testified that he signed the computer printout as a witness to the deal between Helper and Schac hter. Friendly required a deposit for

the custom-order Suburban and requested $1,000.00. The parties agreed upon a $400.00 dep osit which Schachter paid by check with “deposit on fourwheel drive Suburban total price of $22,934 net of trade” in the memo space at the bottom of the check. Friendly ordered the Suburban for Schac hter. While waiting for the o

rder, Schachter

called D olittle

at Friendly and was able to change the color of

the interior of

the Suburban. In addition, Schachter called Dolittle multiple times3 Schachter received a $5,995.00 trade -in allowance for his minivan for the second

Suburban that had a list price of $31,602.54. The resulting purchase price was $25,607.54. 3 to check on the progress of production. On January 27 or 28, 1994, after

waiting three mo nths, Schachter receiv ed a call from Dol

ittle notifying

him that the

car had arrive d. Shortly

thereafter,
on January 28, 1994, Schachter received another call fro m Friendly

stating tha

t they couldn’t sell him the Suburban at that price. Dolittle testified that Hugh Chalmers, Jr. told him he couldn’t sell the Suburban at the agreed upon price because Friendly would make more money selling the Suburban wholesale to another dealer. Friendly claimed that they could not find any r ecords of the comput er printout or the deposit. However, Dolittle had a copy of the agr eement, w hic h Friendly conf iscat ed from him. Later in the day, Dolittle called Schachter from a pay phone
awa y from the F

riendly p remises a nd stated that he knew they h ad a dea l and that Frie ndl y wasn’t going along with it. When Schachter called Friendly to ask for Helper, he was told that Helper was no longer

employed by Friendly. On January 31, 1994, Schachter faxed Friendly a copy of the canceled deposit check. On the same day that he learned Friendly wouldn’t honor the agreement, January 28, 1994, Schachter contacted an at torney. On February 1, 1994, Schachter’s attorney f axed Friendly a letter asking if they were going to honor the agreement. When Friendly did not respond, Schachter’s attorney faxed them a letter dated February 4, 1994 demanding a return of Schachter’s deposit and informing them that a lawsuit would be filed. Hugh Chalmers, Jr. testified that he had no knowledge of the deal made by Helper with Schachter. He called Helper, who no longer was employed by Friendly, to help him understand the terms wr

itten in re d ink on the

computer printout. Helper remembered agree ing to the initial price, but did

notremembe

r the subt racted options or

the trad e-in allo wance. Chalmers claims that, after he received a copy of the canceled check from the bank, he understood the bottom line price, and then he called S chachter to work out their problems. He claims that he called on February 7, 1994, and that Ms. Scha chter, the p laintiff’s wife, told him they had already purchased

a replace ment. Scha

chter decided to purchase another Suburban

but was un able to locate a similar new Suburban. On February 5, 1994, he purch ased a us ed 1994 Suburban with 9,867 miles already on the odometer and paid $25,607.54 for the car
. 3 Schachter demanded his deposit back with interest and filed suit on February 18, 1994.4 Schachter has not appealed the chanc ellor’s ruling on the allegations of fraud and

conversion.

5 The order of dismissal does not specify the particular named de fendants that are contracting parties and no issue is presented in this regard. 4 In the Complaint, Schachte r allege d that Frie

ndly brea ched the agreem ent to sell him acustomorder Sub urban. H e allege d that Frie ndly fra udulently obtained his deposit under the false pretens e of selling him the Suburban and in an eff ort to coe rce him to purchase the Suburban at
a greater price. He also alleged that Friendly v

iolated th e Tenne ssee Cons umer Prot ection Act, T.C.A. § 47-18-101 et seq ., willfully or knowingly by causing confusion or misunderstanding
as related to the authority of Dolittle and Helper. Finally, Schach ter alleg ed that Fr

iendly appropriated

and converted his deposit for their own use and benefit. In their A nswer, Friendly raised v arious de

fenses a nd denied all of the allegati ons. The case was heard before the Chancery Court of Shelby County, sitting without a jury,
on July 13, 19 95. At the

close of Schachte r’s proo f, Friend

ly moved to dismiss the case pursuant to T.R.C.P. 41.02 (2). The chancellor found that Schachter

did not carry his burden of proof as to the allegations of fraud a nd c onversion. 4 The chancellor also found that the Tennessee Consumer

Protectio n Act did n ot apply to the fac ts of the c ase and no relief was available under the Act. Fina

lly, the c hancell or speci fically f ound that Sc

hachter made out a prima fa

cie cas e of breach of contract, but that he failed to prove that the breach of the agreement resulted in any compe nsatory dam ages. In an order dated August 4, 1995, the chanc ellor dismissed the complain t. 5 Schachter appeals from the chancellor’s order dismissing the complaint and presents the issues as follow s: 1) Did the trial c ourt err in finding that although the defendants breached the contract with the pl aintiff t

o sell him a

vehicle , the plai ntiff non etheles s suffer ed “no da mages” under the law, and

2) Did the trial court err in finding that the Tennessee Consumer Protection Act did not apply to the subject transaction because it lacked sufficient “c ontacts” with the State of Tennessee and therefore, unde r conflict of laws, the law of Arkansas applied. F riend ly present s an additional issue: Did the trial court err in finding tha t the Appe llee bre ached it s
co ntract with Appellant to sell him a vehicle. The real issue before this Court is wh ether th e chancellor properly granted Friendly’s motion to dismiss pursuant to T.R.C.P. 41.02(2). If a motion to d

ismiss is made at the close of the plaintiff’s proof in a non-jury case,6 We note t hat the Un

iform Comme

rcial Cod e, which will be ap

plied in thi s case, i s the same in both Arkansas and Tennessee. 5 und er T.R.C.P. 41.02(2), the trial court must impartially weigh and evaluate the evidence j us t
as though it we

re makin g findings of fact a nd conclusions of law after presentation of all the evidence. If the plaintiff's case has not been established by a pre ponderance of the evidence, the
case should be dismissed if, on the facts found in the applicable law, the plaintiff has shown no rightto relief. City of Columbia v. C.F.W. Constr. Co. , 557 S.W.2d 734 (Ten n. 1977); Atkins v. Kirkpatrick , 823 S.W.2d 547, 552 (Tenn. App. 1991). Our scope of review i s pursuan

t to T.R.A.P . 13(d). T

he findin gs of the t

rial cou rt in granting a T.R.C.P. 41.02(2) motion are accompanied by a presumpt ion of cor rectness and, unless the preponderance of the evidenc e is otherwise, those findings must be affirmed. Atkins v. Kirkpatrick , 823 S.W.2d 547, 552 (Tenn. App. 1991). In the case sub judice , the transaction for the custom-order Suburban

was comp leted in its entirety in Arkansas. The agreement was ne gotiated and signed in Arkansas, an d the Suburban was delivered to Arkans as. In their brief, Friendly argues that the law of Arkansas controls
. Howeve

r, Friend ly did not pr

ove or sho w the law s o f Arkan sas th at control the outcome of this dispute. In the absence of a showing to the contrary, we presume that Arkansas law is the same as that of Tennessee. 6 Shepard & Gluck v. Thomas , 147 Tenn. 338, 347, 246 S.W. 83 6 (1 922); John J. Heirigs Constr. Co. v. Exide , 709 S.W.2d 604, 609 (Tenn. App. 1986). Although not arguedby either party, w e believ e that the transac tion in que stion is a sale of goods that is governed by Chapter 2 of the Un if orm Commercial Code, T.C.A. §47-2-101 (1996) et seq . An agreemen t for the delivery of an automobile falls under the provisions of Chapter 2 of the Te nnessee UCC: (1) “Goods” means al l things ( inclu ding spec ially manufactured

goods) which are moveable a t the time of identification to the c ontract for sale other tha

n the mone

y in which the price is to be paid . . . . (2) Goods must

be both existing and identified before any interest in them can pass. Goods which are not both existing and identified are “future goods.” A purported present sale of future goods or o f any inte

rest ther ein oper ates as a contract to sell. T.C.A. § 47-2-105 (1996). Obviously, automobiles are moveabl e goods. In this case, we are6

dealing with a “future” good because the Suburban had not yet been manufactured. However, it is sti ll treated

as a cont

ract to se ll goods und

er the UC C, and, the

refore , the Frie

ndly transac tion will be

governe d by the Te

nnessee UCC. Friendly originally argued that a contract was not formed, and therefore, there

could be no breac h. The Te

nnessee UCC provid

es as fol lows: (1) A contr act for sale of goods may be made in any manner sufficie nt to show agreement, including conduct b y both parties w hich rec ognizes t

he existe nce of su ch a con

tract. (2) An agreement sufficient to constitute a contract for salemay be fo und ev en though the momen

t of its mak

ing is undetermined. (3) Even though one (1 ) ormore terms are left open a contract for sale does not

fail for indefinit eness if the parties have intended to make a

contract and ther

e is a reasona bly cert ain basis for giving an appropriate remedy. T.C.A. § 47-2-20

4 (1996). The proo f shows tha t Schac hter, He

lper, an d Dolittle intended t o make a contract

and agreed

by signing the computer printout. An enforceable contract e xisted that provided for delivery of the custom-made Suburban to Schachte r, and Fri endly bre ached th is contract when they refused to deliver the Suburba n to him. The c hancery court held that Schachter suffe red no damages. The Tennessee UC C provides for the measure of damages under the he ading “Buyer ’s damages for nondelivery or repudiation”: (1) Su bj ect to the provisions of this chapter with respect

to proof of market price

(§ 47-2-723), the measure of damages for nondelivery or repud

iation by th

e seller is the difference

between the market price at the time when the buyer lear ned of the breach and the contract price together with any inciden t al and consequential damages provided in this chapter (§ 47-2-715), but less expenses saved in consequence of the se ller’s breach. (2) Market pr ice is to be determined as of the place for tender or, in ca ses of re

jection a fter ar riv al o r revocation of acceptance, as of the place of arrival. T.C.A. § 47-2-713 (1996). The proof showed that Friendly did not want to deliver the Suburban to Schachter

because they coul d recei ve more m oney by se

lling it who lesale to

another dealer. There was obviously a difference between the ma rket price when Schachter lear ned of the breach and the contr

act pric e for wh

ich Sc hachter hadnegotiat ed. Ther efore, we must re spectfu lly disagree with the chancellor that Schachter did not sustain any dama

ges. We m

ust remand this case back to the chancery c ourt to hear Friendly’s proof. Schachter also argues that the chancery court er red in its ruling th at the Tennessee7

Consumer

Protection Act (TCPA), T.C.A. § 47-18-101 (1995) et seq. , did not apply. The TCPA
was enacted to “protect consumers . . . from those who enga ge in unfair or decept

iv e acts or practices in the conduct of any trade or commerce in part or wholly within this state.” T.C.A. § 47-18-102 (1995). The transaction in question took place wholly within Arkansas. In addition, the chancel lor found tha t there was no fraud or deception, a ruling that Schac hter has not appealed. The chancery court was corr ect in holding that the TCPA i s not applica ble to the se facts. Accordingly, the orde r dismissin g plainti ff’s co mp laint is re versed, and the c ase is remanded to the trial court for defendants’ proof and such other pr oceedings as may be necessary. The costsof this appeal a re asse ssed one- half aga

inst appellant and

one-half agains t appellee.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:

_________________________________ DAVID R.FARMER,

JUDGE

_________________________________ HEWITT P. TOMLIN, JR. SENIOR JUD GE