# FILED

December 15, 1998

Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE

BRAXTON D. DIXON, ) ) Plaintiff/Appellee, ) Sumner Circuit No. 1 6102-C ) v. ) ) STEVE BRYAN, ) Appeal No. 01A01-9707-CV-00371 ) Defendant/Appe

llant. )

APPEAL FROM THE CIRCUIT COURT OF SUMNER COUNTY

AT GALLATIN, TENNE SSEE

THE HONORABLE THOMAS GOODALL , JUDGE

For the Plaintiff/Appellee : For the Defendant/Appellant : C. Tracey P

arks William Kennerly Burger Gallatin, Tennessee Murfreesboro, Tennessee

AFFIRMED

HOLL Y KIR BY LI LLA RD, J.

CONCURS: W. FRANK CRAWFORD, P. J., W.S.

ALAN E. HI GHERS, J.OPINION

This is an action brought

under the Tennes see Consumer Prote ction Act. The suit

arose out of a contract to sel

l an antebellum log home to be dismantled and moved. Thetrial court found that th e defendant knowin

gly engaged in a de

ceptive trade pr

actice, and awa

rded the plaintiff

treble damages and attor

ney’s fees. We

affirm. In June 1995, Defendant/Appel lant Stev e Bryan (“Bryan”) placed an advertisement in a publication, the Traders Post , reading in pertinent part: “2 story Cedar Dog Trot Log House - To be moved - $5000 . . .” The home, bui lt in approximately 1820, was located in Bedford County. Plaintiff/Appellee Braxton Dixon (“Dixon”) responded to the advertisement. Dixon is a builder and

a designer who specializes in the restoration, preservation, and relocation of an

tebellum structur

es. Dixon and Bryan discusse d the sale of the lo

g home. Dixon alle

ges that Bryan told him that he owned the log home and “signed a statement to that effect.” The parties orally

agreed that Dixon would purchase the home for $4000. Dixon tendered $2000 in cash to Bry an and agreed to pay the remainder after the house was dismantled. To document the transaction, Dixon signed a sales agreement entitled “Agreement and Bill of Sale,” (“Agreement”). The Agreement listed Mrs. W. D. Haynes (“Haynes”) as the “seller.” Haynes had not signed the Agreement. Dixon arranged to resell the log home to a purchaser in Texas and made preparations for the home’s dismantling and ship ment. At the site of

the log home, befo

re the dism

antling was completed, Dixon was confronted by a local realtor. The realtor told Dixon that Haynes owned the homeand that the real

tor had liste

d the property for

sale. Dixon immedia

tely stopped his preparations for dismantling and transporting the log home. Dixon later learned that Bryan had been trying for some time to purchase the ho me fr om Haynes. Bryan’s draft purc hase contracts, submitted to Haynes, had been rejected. After Bryan obta ined the $2,000 deposit from Dixon, he had a $1,000 cashier’s check drawn to Hayne s an d soughtto meet with her to o btain permission to s

ell the log home and consummate the transaction. Bryan was unable

to meet with Hayne

s. In addition to the $2,000 paid to Bryan, Dixo n incu rred expenses originally estimated at $863. Bryan agreed to return the $2,000 to Dixon and pay him $863 in expenses incurred. Bryan2

repaid the $2,000 deposit t

o Dixon but did not pay

the expenses. Dix

on later determin

ed that his expenses totaled $1,038,66. Dixon filed this action in Sumner County Ge neral Sess ions court to recover his damages from Bryan’s alleged breach of contract and misrepresentation. Dixon also sought treble damages and attorney’s fees under the Tennessee Consumer Protection Act (“Consumer Protection Act”) See T enne ssee Code Annotated §§ 47-18-101 et seq. (1995 & Supp. 1997). Default judgment was entered in General Sessions court, and the case was appealed to Circuit Court. Following a bench t

ri al, the trial court found that Dixon suffered damages totaling $1,038.77. The trial court also found that Bryan “knowingly engaged in a deceptive trade practice. ” Consequently, the trial court awarded Dixon treble damages and

attorney’s fees under the Consumer Protection Act. The trial court, however, found that Dixon was negligent in not carefully reading the Agreement, and reduced Dixon’s damages by ten percent. Thus, Bryan was awarded a total of $2,804.68, plus $775

in attorney’s fe

es. From this order

, Bryan appeals. On appeal, Bryan contends that treble damages under the Consumer Protection Act were inappropriate. Bryan asserts that since the record contains no proof of any actual intent to deceive or mislead, and tha

t the trial court e

rred by awardin

g treble damages

. Our review of the findings of fact by the trial court is de novo upon the record, accompanied by a presumption of correctness unless the preponderance of the evidence is otherwise. T e nn. R. Civ. P. 13(d). Questions of law are de novo with no presumption of correctness. Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). The Consumer Protection Act, enacted in 1 977, is “to be liberally construed to protect

consumers and others from th ose who engage in

deceptive acts o

r practic es.” Morris v. Mack’s Used Cars , 824 S.W.2d 538, 540 (Tenn. 1992) (citing Haverlah v. Memphis A viation, Inc. , 674 S.W.2d 297, 305 (Tenn. App. 1985). Persons harmed as a resu lt of “an unfair or deceptive act or practice declared to be unlawful” by the Act may recover

actual damages. Tenn. Code Ann. § 47-18- 109(a)(1) (1995). The trial court may also award attorney’s fees. Id. § 47-18-109(e)(1). If the trial court finds that the defendan t “willful[ ly] or knowing[ly]” violated the Act, the plaintiff may be awarded treble damages. Id. § 47-18-109(a)(3). Factors to be considered in determining whether1 In Ganzevoort v. Russe ll , 949 S.W.2d 293, 297-98 (Tenn. 1997), the Tennessee Supre me Courtheld that the Cons um er Protection Ac t does not apply to the

purchase of re

al estate from a seller who is not “in the business of selling property as owners or brokers.” This issue was not raised to the trial court and the record does not indicate whether Bryan was in the business of selling log homes or whether the log home would be considered realty. Consequently, we will not address the applicability

of the Consumer Protection Act in this appeal. Cf. Murvin v. Cofer , No. 03A01-9702- CH-00055, 1997 WL 752648, at *5 (Tenn. App. Dec. 8, 1997) (in a case that was tried before the Ganzevoort

decision, the def

endants, who did no

t raise the issue of the Act’s inapplicab ility at trial, didnot waive raising the issue on appeal, since the defendants’ Answer “had the effect of de nying each and every element of the plaintiffs’ alleged cause of action”). 3 to award treble damages include: (A) The competence of the consumer or other person; (B) The nature of the dec ept ion or coercion practiced upon the consumer or other person; (C) The damage to the consumer or other person; and (D) The good fait

h of the person fo

und to have violate

d the provisions of t

his part. Id. § 47-18-109(a)(4). Bryan does not argue that the trial court erred in awarding Dixon actual damages under the Consumer

Protection Act. 1 Bryan contends that the record does not indicate that he “willful[ly] and knowing[ly]” violated the Act, and that therefore the trial court erre

d in awarding treble

damages. Id. § 47-18-109(a)(3). The linchpin of Bry an’s argument is

that Dixon signed the Agreement, which l isted Haynes, rather than Bryan, as the seller. At trial, Dixon testified that he did not read the Agreement

before signing it. However, Bryan notes that Dixon correcte

d the spelling of his

name in the document. In addition, Bryan argues that Mary Ann McConnell (“McConnell”), a consultant of Dixon, testified at

trial that she “questioned” thedocument. Bryan asserts that Dixon’s signing of the Agreement imputes him with notice that Haynes, not Bryan, was the seller. Bryan notes case law holding that, in the absence of fraud, a person who: fails to read the contract or otherwise to learn its contents, . . . signs the same at his peril and is estopped to d

eny his obligation, [and th us] will be conclusively presumed to know the contents of the contract, and must suffer the consequences of his own negligence. Giles v. Allstate Ins. Co. , 871 S.W.2d 154, 156 (Tenn. App. 1993) (quoting Beasley v. Metropolitan Life Ins. Co. , 190 Tenn. 227, 232, 229 S.W.2d 146, 148 ( 1 950)). Bryan also cites the axiom that “n o man c an recover upon the theory of fraud or mistake with respect to any matter of fact about which he has actual kno

wledge or legally

impute d knowled ge.” Hill v. John Banks Buick, Inc. , 875 S.W.2d 667, 670 (Tenn. App. 1993). Bryan reasons that since Dixon had legal notice of the fact2 Bryan’s brief appears to suggest that attorney’s fee

s are not appropr

iate unless

the evidence demonstrates a “willfull or knowing violation.” Tennessee Code Annotated § 47-18-109(e)(1) does notrequire a showing that the defendant’s actions were a “willful or knowing violation” in order for attorney’s fees to

be awarded. Cf. Tenn. Code Ann. § 47-18-109(a)(3) (1995). It simply requires a showing that a provision of the Consumer Protection Act has been violated. Id. § 47-18-109(e)(1). 4 that Haynes was the real owner, by virtue of the Agreement, Bryan could not have been deceptive and, thus, was not li

able under the Ac

t. However, in the cases cited by Bryan, the issue was whether the contract should be enforced,

as “where one who has negligently signe d a contact wi thout reading it, se eks to avoid his obligati on....” Giles , 871 S.W2d at 157; see, e.g., Beasley , supra ; Cravens v. Cravens , 54 Tenn. App. 487, 392 S.W.2d 825 ( 1965); Hermitage Health & Ins. Co. v. Buchignani , 49 Tenn. App. 223, 354 S.W.2d 94 (1961). Her e , there is no issue regarding whether the contract should be enforced. Rather, the issue is whether Bryan should be immunized from liability under the Consumer

Protection Act, regardless of any decepti ve or fraudulent actions that he may have perpetrated. In this case, there was evidence from which the trial court could conclude that Bryan affirmatively

misrepresented

that t he owned he log home and that, c onsequently, he ha

d the authority to sell it. The terms of

the Consumer Prote

ction Act are quit

e broad and are to be liberally construed to protect the consumer. See Tenn. Code Ann. § 47 -18-104 (1995); Morris , 824 S.W.2d at 540. Under these circumstan

ces, the fact that Haynes was listed in the Agreement as the owner of the log home does not immuniz

e Bryan from liabi

lity for Dixon’s da

mages. No issue on appeal has been raised regarding the trial court’s reduction of damages awarded to Dixon based on Dixon’s negligence in failing to read the Agreement. In this case, there is ample evidence from which the trial court could conclude that Bryan willfully and knowingly engaged

in deceptive practices. The trial court was in the best position to consider the credibility of

witnesses and, thu

s, its findings ar

e entitled to

“considerable deference.” Tenn-Tex Properties v. Brownell-Electro, Inc., 778 S.W.2d 423, 425-26 (Tenn. 1989). The preponderance

of the evidence supports the trial court’s finding that Bryan “knowing ly engaged

in

a deceptive trade practice.” Consequently, the awar ding of treble damages and attorney’s fees 2 was appropriate

in accordance with the Consumer Protection Act. Tenn. Code Ann. § 47-18-109(a)(3) & (e)(1) (1995).5

The decision of the tr

ial court is affir

med. Costs on appea

l are taxed to the

Appella nt, fo r which execution may issue if necessary.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRANK CRAW

FORD, P. J., W.

S.

ALAN E. HIGHERS, J.