### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE November 8, 1999 Session
BILLY and MARY MILLIKEN v. CRYE- LEIKE REALTORS, ET AL.
Direct Appeal from the Circuit Court for Smith County

No. 4119 Clara Byrd, Judge

No. M1999-00071-COA-R3-CV - Filed July 5, 2001

The buyers of a new residence filed this action aga inst the builder and their realtor after discovering that the house was defective. The claims against the realtor

alleged negligent misrepresentation and violations of the Tennessee Consumer Protection Act based in part on the agent’s representation that the builder was licensed. The jury, using a jury verdict form, found that the realtor had committed
a deceptive act

or practiceprohibited by the Consumer Protection Act, but determined that the buyer s hadsuf f ered no loss therefrom. The jury also found the realtor liable for ne gligent misrepresentation, calculated the damages re sulting from the r ealtor's neg

ligent misrepre

sentation, and ap

portio ned faul t at 10% to the buyers, 10% to the realtor, and 80% to the builder, a nonparty . On appeal, the buyers argue that the verdict was inconsistent and challenge the assessment of costs and the failure to award attorney fees. We

affirm the verdict, thedenial of attorney’s fees, and the apportionment of court costs. We vacate the denial of discretionary costs and remand for de termination of that issue. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed in Part, Vacated in Part, and Remanded

P ATRICIA J. C OTTRELL , J., delivered the o pinion of the court

, in which B EN H. C ANTRELL , P.J., M.S., and W ILLI

AM B. C AIN , J., joined. W. Gary Blackburn and Ca

thy C. Speers , Nashville, Tenne ssee for the appe

llants, Billy

and Mary Milliken.

J

. Russell Farrar a

nd Kristin Ellis Ber

exa, Nashville, Te

nnessee for the a

ppellees, Crye-L

eik e Realtors and Brenda White.
OPINION
This appeal arises f

rom the purchase of a new residence. The house was built by T erry Mason, d/b/a M & M Construction, and sold to Billy and Mary Milliken. Brenda White, a real estate agent employed by Cry

e-Leike Realtors, showedthe Millikens the house and was the listing agent for the sale. During their init ial discussion, Mrs.

Milliken asked Ms. Wh

ite whether the builder was1 Ms. White did not deny that s he told t he Milli kens tha t Mr. Mason was licensed and repu table. In an affida vit, she explained that she met Mr. Mason through a friend wit h whom she was consider ing a development proje ct in Wilson County. As they discussed the poss ibili ty of Mr. Mason working on the pro ject, Ms. W hite stated that W ilson Coun ty required contractors to be licensed. Mr. Mason purportedly stated that he was not li censed, but a young man who was with him sta

ted that they wer e in the process of

getting their l

icense. Ms. White stated that when she made the statement to the Millikens, she

believe d that Mr. Mason

had recei

ved his l icense by

then becau se the l

icensi ng process

usuall y took only one or two months. It is undi sputed that t he house purchased by t he Millikens was

located in Smit

h County, whic

h did not req uire contrac tors to be licen sed.

2 The record shows that Mr. Mason had constructed only two homes pr ior to building t he Millikens'

residence, but Ms. W hite stated she w as aware o f several other houses he w as constructin g at the same tim e. -2- a reputable, licensed contractor. Ms. White answeredaffi rma tiv ely. 1 According to Mrs. Milliken, Ms

. White alsostated that she ha d seen the builder

's work and had u

sed him before. Ms . White related that of the other homes he had built, she had hea

rd no complaints. 2 The Millikens toured the house only on

ce before makin

g an offer on it.
When the Millikens signedthe contract to purchase the house for $129,900 in November 1996, it was still incomplete. Ms. White made various entries on the form contract reflecting the fact that the house was new

ly construct ed. In a space fo llowing lan guage that stated, “Seller will make the following specific repairs,” Ms. White wrote “None-New House.” I n the spa ce f

ollowing language stating, “Repair Limitation: Seller agrees to make repairs which may be re quired by Lender and/ oru nder Paragraphs 8 and/or 9 hereof or to pay for such repairs up to but not to exceed an aggregate total cost of _____,” Ms. White wrote “None-New House.” Ms. White also wrote in the “Special Provisions” section, “One-year warranty provided by builder pe r r equirement of the Tennessee Contractor Licensing Board.”
The original closing date was extended because the house was unfi

nished. At some poin

t in February, after signing

the contract, but before closing, the Millikens moved into the house. They noticeda number of proble ms and had discussion

s with Ms. White about t

he problems. Ms. White had Mr. Mason go t

o the house to discu

ss the issues with the

Millikens. Closing occurr ed on March 5, and at that time the Millikens submitted a “punch list” of unfinished items or problems w hich needed to be

comp leted or repair. Ms. White had told the Millikens to make this list and bring it to the cl os ing, and that they would make it part of the contract. This punch list, dated March 5, 1997, was attached t o the contract at closing. The list includednumerous items including waterproofing the deck, installing the water lineto the ice maker, repairing a crack in thebathtub, covering the water line ditch, removing brush and grading the y ard. The list stated that most of these items were “to be completed as soon as possible when the weather clears.” According to Mrs. Milliken, Ms. White assured her that if Mr. Maso n did not finish, he would have his license taken away.
The Millikens had a number of conversations wi th Mr. Mason about completing the work that needed to be done. At one point, Ms. White called the Board for Licensing Contractors and had them send complaint forms to the Millikens.3 After calling Mr. M ason as their first wit ness and con ducting a brief examination of him, t he Millikens nonsuited

their claims a

gainst Mr. Mason and M & M Builders. There appears to be no dispute that the counts of breach of implied w arranty

of workmanlike construction, fraudulent m isrepresenta tion, breach of contract, quantu m meru it , and fraud were dismiss

ed. In addi

tion, t hose porti

ons of th e Consumer Prot

ection Act count

relati ng solel y to Mr. Mason were also d ismissed.
-3- Ms. Milliken testified that Mr. Mason came over to thehouse shortly after the closing and told her he had

“shorted” her 150 feet of field line in the septic tank. He asserted that nothing had to be fixed, however

. Ms. Milliken calle

d Ms. White about that

conversati

on, an d Ms. White advised her to co

ntact the health d

epartment.
Mrs. Milliken testified t

hat the deck was n

ever waterpro

ofed and, by

the time of trial, it was warped and rotting, the nails were backing out, and the mitred ends of boa rds did not meet. Mr s. Milliken complained that in her eighteen-

month-old house

the nails were backing out on the interior floors, causing the carpet to lump, the floor was sagging in the kitchen, the fireplace was ne ver trimmed out, water poured int o the house through the chimney during rain storms, the air conditioner didnot cool the upstairs and broke during the first several months of use, the dishwasher would not drain, andthe stove emitted black smoke which ruined the surface because it had not been hooked up properly. In addition, she reported that the ice maker

was never hooke

d up, the bathtub wa

s still cracked, the sin gle exterior spigot leaked, and no grading or landscaping was e ver done on the pro pert y.
When the Millikens at

tempted to

lodge a complaint against Mr. Mason with the Board for Licensing Contractors, they were informed that Mr. Mason's license could not be f ound. After contacting their realtor to find Mr. Mason's license number they discovered that Mr. Mason did not have a license. Both Mr. and Mrs. Milliken testified that if they had known Mr. Mason was unlicenced, they would not have purchased the house. SmithCounty, where the house was located, had no licensing

requirements fo

r builders. Upon realizing that

the Board

for Licensing Contractors could provide them with no relief, the Millikens commenced this ac tion against the b

uilder, his wife, h

is company, a

nd Ms. White and her employer, Crye-L

eike. Their complaint alleged seven claims, only two of which are re levant to this appeal. 3 One was a tort claim of negligent misrepresentation, alleging that M s. White failed to exercise reasonable care in obtaining or communica ting information to the Millikens and consequently

gave them

false information regarding the competency and credentials of the builder, inducing them to purchase t he residence. T

hey asked f

or comp ens atory damages for all financial losses incurred as a result of purchasing the residence. The other claim was an alleged violation of the Tennessee Consum

er Protection Ac

t (TCPA). As origi

nally filed,

that count alleg

ed specific conduct by Mr. Mason and also included general allegations that “Defendants” violated the Act by engaging in unfair and deceptive act s in violation of Tenn. Code Ann. § 47-18-104(27). They requested actual damages and asserted they were entitled to treble damages pursuant to Tenn. Code Ann § 47-18-109(a)(3) and (4) for Defendants’ knowing and willful violations of the Ac t, as well as rescission, at

torney’s f ees and costs.-4-

The case was tried for

three days in November 1998. After the evidence and arguments were presented, the trial court instructed the jury on the Tennessee Consumer Protection Act and the tort of negligent misrepresentation. The court then provided the jury with the verdict form below, which the jury com

pleted as follows:
1. Do you find that Defendant Brenda White engaged in acts or practices which were dece ptive to Pla intif fs in v iolat ion of the Te nness ee Co nsume r Prot ecti on Ac t? Yes XNo__
2. Did the Plaintiffs su

ffer a loss of money, pr

operty or th

ing of value as a

result of the unfair or deceptive act or practice? Yes ___ No X
If you answered NO to question number 2, you a re not required to answer the remaini ng questions. If you answered YES to question number 2, procee d to question number 3.
3. Did Ms. White wilfully and /o r knowingly violate the Tennessee Consumer Protection Act? Yes ____ No ____

4. Do you find

that Defendant B

renda White eng

aged in negligent misrepresentation as the Court has de

fined it? Yes X No ___
5. If your answer to I

nterrogatory No. 1, No. 3 or No. 4 is “Yes,” did Plaintiff suffer damages as a r

esult? Yes X No __

6. If you found any

party to be at fault, considering the fault of one hundred percent (100%), what per

centage of fa

ult do you attr

ibute to each of th

e parties? Plaintiffs . . . (0-100%) 10 % Defendant Crye-Leike/B . White . . . (0-100%) 10 % Defendant Mason (the builder) . . . (0-100%) 80%

7. Decide the amount

of damages sustained by the plaintiffs - taking into account any failure on behalf of th

e pl aintiffs to mitiga

te their damage

s. Do not reduce th

ose damages by any percentag e of fault you may have a

ssigned to the plaintiffs. It is the responsibility

of the Judge, after you return y our verdict, to reduce the damages you award, if any, by the percenta ge of fault you

assign to plaintiffs. What amount of damages, if an

y, do y ou find were susta

ined by the p

laintiffs?
TOTAL DAMAGES $ 12,500.00

As indicated, the form itself instructed the jury that a “no” answer to question 2 ended their task. However, duringits deliberations, the jury inqu

ired about the ver

dict form, “By answering no to Question No. 2, which questions do we need to pass over and which questions do we need t o4 This is the Millike ns’ phra sing. We note that

recovery

of damage s under the T CPA re quires an asc ertainable loss as well as a deceptive act or practi ce. Tenn. Code Ann. §§ 47-18-109 (a)(1).
5 The distinction between the two claims is important for t wo reasons. First, under the TCPA, a plaintiff who proves a willful or knowing vi olation with damages may, under certain circumst ances, receive treble damages and attorney fees, Tenn. Code Ann. § 47-18-109(a) (4), -109( e)(1) , while an u

nintenti onal tort cl

aim carries n

o enhanced penalties. Sec ond, dam ages unde r the TCP A are not su bject to a co mparative fault analysis.
-5- answ er?” After consulting with counsel, the court responded: “I

f answer to Quest

ion 2 is no, skip to No. 4 and answer 4, 5, 6, and 7.”

Because Ms. White and her em

ployer, the

only remain

ing defendants , were liable for only 10 % of the dama

ges, the Plaintiffs were awarded $1,250. After the trial court’s denial of various post-judgment

motions, the plaintiffs appeal, contending tha t the ver dicts were inconsistent and irreconcilable. They also a ssert that the tr

ia l court erred in allowing the jury to apportion fault on the negligent

misrepresentati

on claim, and that t

he court improper

ly assessed

costs.
I.
Our review of this case is governed by Tenn. R. Civ. P. 13(d), which permits findings of fact by juries in civil actions to “be set aside only if there is no material evidence to support the verdict.” Tenn. R. Civ. P. 13(d). This highly def erential standa

rd of review re

quires us “to take

the strongest legitimate view of the evidence in favor of the verdict, assu

me the truth

of all the evidence in support the reof, allow all reasona ble inferences

to sustain the verd

ict and disrega

rd all to the contr

ary. ” Johnson v. Cargill, Inc. , 984 S.W.2d 233, 234 (Tenn. Ct. App.1998). “Where the record contains material evidence suppor ting the verdict

, the judgment ba

sed on th a t verdict will not be disturbed on appeal.” Reynolds v. Ozark Motor Lines, Inc ., 887 S.W.2d 822, 823 (Tenn. 1994).
Well-settled law requires co urts to construe the terms of a verdict in a manner that upholds the jury's fin

dings, if it is able to do so. Briscoe v. Allison , 290 S.W.2d 8 64, 868 (T enn. 1956 ). We must presume that

the jury followed the instructions given. Perkins v. Sadler , 826 S.W.2d 439, 443 (Tenn. Ct. App. 1991).

II. I nconsistent Verd

icts
The Millikens arguethat the trial court should have granted their motion for new trial on the basis the jury re

ndered a verdic

t that was i

nconsistent and irreconcilable because, on the same set of facts, it found no damages as a result of the TCPA violation, 4 but found damages of $12,500 for the negligent misrepresentation. 5 Based on that argument, the Millikens contend t hat the verdict must be set aside.
The Mill ikens are correct in their statement that a verdict which is inconsistent and irreconcilable cannot be permitted to stand. Our Supreme Court has stated:-6-

Litigants are entitled to have the ir rights settled by a consistent and in

telligible verdict concurred in by

the trial judge a

nd free from the

vice or caprice

or whim on the part of

the jury. . . .

Where a judgmen

t is bas ed u pon inc ons ist ent fin din gs by a jury it is the duty

of the appellate

court to reverse

and remand the c

ase for a new tr

ial.
Milliken v. Smith , 405 S.W.2d 475, 477 (Tenn. 1966) (quoting Penley v. Glover , 205 S.W.2d 757, 759 (Tenn. Ct. App. 1947)); see also Concrete Spaces v. Sender , 2 S.W.3d 901, 911 (Tenn. 1999). In determining whether a verdict is irreconcilable and inconsistent, [i]t is the duty of

the court in const

ruing verd icts to give them th e most favorable in terpretation and to give effect to the intention of the jurors if that intention be permissible

under the law and ascertainable from the phraseology of the verdi ct. If after an examination of the terms of the verdict the cou rt is able to place a construction thereon that will uphold it, it is encumbent upon the court to do so. Hogan v. Doyle , 768 S.W.2d 259, 263 (T enn. Ct. App. 1988) (quoting Templeton v. Quarles , 374 S.W.2d 654, 660 (Tenn. Ct. App. 1963)). The Millikens submit that the jury “could have found that Ms. White’s misrepresentations proximately

caused no damag es to Ap pellants. But [it] could not logically find that the very deceptive act up

on which the statuto

ry claim was premised caused damages only sounding in tort. The proximate cause a

nalysis was identical in both claims.” They contend “the misrepresentations
were the very deceptive acts upon which the Consumer Protection Act claim was premised.” In light of this court’s duty under Hogan v. Doyle , we must analyze this argument considering the causes of action involved, the claims and evidence regarding the conduct supporting those causes of action, and the verdict f

orm and instruction

s. Important to this analysis, however, is some discussion of the effect of t he Mi llikens’ decision to nons u it their claims against the builder, Mr. Mason, and his company after a brief examination of him as their first witness. As explained earlier, a number of the counts in the complaint were specific

to Mr. Mason. I

n his opening state

ment, counsel for the Millikens explained that Mr. Mason had made some mistakes, but that the Millikens were not saying he was a bad person. He was “an

old boy” who

started the house for himself, but later enlarged it without making necessary adjustments to his plans, and he had not told anyone he was a licens ed contractor. The Millikens did inform the jury , however, that th

eir claim again

st Mr. Mason had to do with his warranty, “asking him to stand behind that.”
The remainder of theopening was devoted to describing the problems with the house and the
reasonfor the lawsu it aga inst Ms. W hite a nd Crye -Leike . In particular, counsel mentioned negligent misrepresentationand the Consumer Protection Act. He mentioned two sepa rate acts of misrepresentation by Ms. White: originally telling the Millikens that Mr. Mason was licensed and the wording on the contract that the buyers had a one-ye

ar warranty per requirements of the Board6 At the hearing on the defendants’ motion for directed verdict , the Millikens stated they would not t ake the issue of whether M s. White’s statement t hat Mr. Mason was “reputabl e” to the jury

and had presented no proof on t hat issue.
-7- for Licensin

g Contractors. 6

Mr. Mason testified that

he did not have a c

ontractor’s lice

nse and that he had never applied for one. He also stated he had never represented himself as holding a license. He testified that

he signed the sales contract without reading all of it. However, he knew when he s igned it, becau

se Ms. White told him, that he was giving the Millikens a one-year warranty . He denied any know ledge of the wording regarding th e licensing boa

rd or its effect.

He was, nonethel

ess, unwavering

in his testimony that he agreed to a one-y ear warranty for his work on the house.
After examination of Mr. Mason, co uns el for the Mi llikens an nounced th ey were taking a voluntary dismissal pursuant to Tenn. R. Civ. P. 41 as to Mr. and Mrs. Mason and that the Millikens would “proceed aga

inst the corporat

ion [Crye-L

eike] and Ms. White.” It is apparent from the record that the parties and the trial court proceeded with the trial wi th the u nderstanding that only two
causes of action remained against the remaining defendants, Ms. White and Cry e-Leike. Those were described, in fact, in plaintiffs’ opening statement: negligent misrepresentation and violation of the TCPA. Statements at the jury instruction conference also make it clear that those were the only two remaining caus es of

action. No intentio

nal torts remaine

d, and no request f

or punitive damag

es. Discussion was had at that time regarding the requirement that the jury find any acts const ituting a violation of

the TCPA to have been willful and knowing before the possibility of treble damages was triggered. In closing argument, it was again made clear that the Millikens had two claims. Regarding the first, the Millikens argued that Ms. White was liable for negligent misrepresentation because (1) she had told the Millikens that Mr. Mason was a licensed contractor when they first asked, prio

r to their signing the sales contract, and (2)she had included in the contrac t a “One-y

ear warranty provided by builder

per requirement of the Tennessee Contractor Licensing B oard.” The jury was specifically

told, “That repre

sentation [the war

ranty lang uage] is another

misrepresentati

on because it’s made in Ms. White’s handwriting herself with an absolute indifference

to what the truth was.” The Millikens also argued that Ms. White had violated the TCPA by the deceptive acts of (1) telling the Milliken s that Mr. Mason was lice nsed and (2) rep

resenting that t

he Millikens had a w

arranty that didn’t exist. Violations of three subsections of the Act were argued: dece

ptive acts or pra

ctices; causing likelihood or

confusion as to the affiliation with or certification by another, as evidenced by Ms. White’s statementthat Mr. Mason was licensed; repre

senting that a

warranty confers or involves rights or remedies whic

h it does not have or in

volve, as evidenc

ed by the lan

guage writte

n in by Ms. White regarding the warranty; and the c atchall, any other a

ct o r practice which is deceptive to the consumer, as evidenced by the representation that Mr. Mason was lice nsed.
These facts are important to thequestion before us of whe ther the jury ’s verdict is inconsistent. We conclude that the verdict is consistent with the facts as presented and argued and withthe law as charged. As noted by the Defendants,

the two claims are distinct causes of action7 The recor d shows that

the ju ry was inst ructe d as to t he ele ments of each

clai m. -8- withdifferent eleme

nts 7 and there were at

least two separate acts by Ms. White upon which the jury could have based a finding of either negligent misrepresentation or a violation of the TCPA. Regarding negligent misrepresentation, this court has held:
One pursuing a claim

of negligent

misrepresentation must prove by a preponderance of the evidence that the defendant supplied information to the plaint iff; th e information w a s false; the defendant did not exercise reasonable care in obtaining
orcommunicating the information; and the plaintiff justifiably relied on th e information.
Hill v. John Banks Buick, Inc ., 875 S.W.2d 667, 670 (Tenn. Ct. App. 1993) (citations omitted). Our Supreme Court has described the tort as “recognized . . . in connection with business or professional persons who carelessly or negligently supply false information for the guidance of o ther s in their business transactions.” Houghland v. Security Alarms & Servs., Inc. , 755 S.W.2d 769, 774 (Tenn. 1988).

An individual may bring a private action for violation of

the Tennessee Consumer Protection Act, and, to be successful, must prove an unfair or deceptive act or practice affecting the conduct of trade or commerce and an ascertainable loss. Anypers on who suffers an ascertainable

loss of money

or property

, real, persona

l,
or mixed, or any other article, commodity, or thing of value . . . as a result of

the use or employment by another person of an unfair or deceptive act or practice declared to be un lawful by this part, may bring an a ction individually to recover actual damages.

Tenn. Code Ann. § 47-18-109(a)(1). Without actual asce rtainable loss

resulting from the unfair or deceptive acts, an action for money damages is precluded. In the case before us, the jury answered “yes” when asked if Ms. White “engaged in practices which were deceptive to Plaintiffs in violation of the Tennessee Consum

er Protection Ac

t,” but answered

“no” when asked

if “Plaintiffs suffer[ed] a loss . . . as a result of the unfair or deceptive act or practice.”
The jury clearly found that the Millikens had not sustaine d a loss as a result of whatever deceptive acts and practices, prohibited b y the TCPA, t hey found ha

d occurred. I

n addition to answering “No” to question number 2 on the form, the jury asked for guidance, “By answering No to Question No. 2, whi ch questions do we need to pass ov er and which que

stions do we need to answer?”
On the other hand, th

e jury then a

nswered “y

es” when asked if

Ms. White had enga

ged in negligent misrepresentation. In response to question 5 (“If y our answer to Interrogatory No. 1, No.8 The Millikens argued the specific provision of the TCPA regarding warranties , and the jury may have been convinced that the l

anguage on the cont

ract was a decepti

ve act as defi

ned in the provis

ion of the TCPA quoted them by the Millikens. B ecause M r. Maso n testified that he ag reed to provide the Milli kens with a one-

year warranty, the jury could have determined tha t the Millikens suffered no loss as a result of the “as required by the Board of Licensing Contractors” language. D uring the con ference on jury instructions, the trial court, outsid e the pre sence of the ju ry, observed that there had been no p roof that such a warranty wa s any better than the warranty the Millikens rec eived. W e are not convinc ed that the lang uage in the co ntract actually ga ve the M illikens anything oth er than a one -year warranty except to the extent

the Board for Licens

ing Contractors

has adopted rules

which more

specif icall y defin e the te rms of
s uch a war ranty. I

n other words, t

he language does not

appear to us to gran

t the Milli

kens any enfor

cement or other rights, but at mo st describes th e type of warr anty. -9- 3, or No. 4 is ‘Yes,’ did Plaintiff suffer damages as a result?”), the jury answered “Yes .” Because the answer to question number 2 was that no loss resulted from deceptive acts proh ibited by the TCPA, the only logical conclusion is that the response to number 5means the jury found that there were damages as a result of the negligent misrepresentation.

It is the fact that the jury found that the Millikens had been damage d by the negligent misrepresentationbut had not sustaine d a loss as a result

of the unfair or d

ecepti ve ac t or practice that forms the basis of the Millkens’ arg ument that the verdict is inconsis tent. The crux of the

ir argument is t hat the sam e con duc t co nst itu ted the sta tut ory violation as well as the tort, and, the proximate

causation analysis being the same, it was inconsistent for the jury to find damages resulted from only the tort.
The flaw in this argument is that the jury was presented with evidence of more than one separate act by Ms. White, either one of which the Millikens argued could sustain either cause of action. In addition to th

e two separate c

auses of action, t

he Mil likens arg ued two separate and distinctacts, on which either claim might be based. The first is Ms. White’s representation, prior to their entering thecontract to purchase the property, that the builder was a license d contractor. The secondis that the Millikens were re ceiving a one-year builder’s warranty per requirement of the Board for Licensing

Contractors. As argued by the Defendants, the jury’s finding regarding either claim could have been based upon either act.
The jury could have found that Ms. White’s representation that the builder was licensed was “negligent”

and caused damages to the Millikens, but did not rise to the lev el of “unfair or deceptive,” while also finding that Ms. White’s representation that Plaintiffs were receivinga oneyear warranty was “unfair or d

eceptive” but tha

t no loss was incurred as a result of that sta tement. 8 Alt erna tiv ely, the jury could have fo und that Ms. White’s statement that Plaintiffs were receiving
a one-year warranty

was “negligent”and damaged the Millikens, but was not “unfair or deceptive,” while also finding that Ms. White’s statement that the builder was a licensed contr actor was “unfa

ir or deceptive” b

ut that the Millikens

suffered no loss

as a result of the

statement. As stated above, if a court can co nstrue the terms of a ve rdict in a m anner that u pholds th e jury's findings, it must do
so. Briscoe v. Allison , 290 S.W .2d at 8 68. We find that under either of the above scenarios, the fin dings of the jury ar

e reconcilable . Because ther e is material evid

ence to support the

verdict, it must be upheld.-10- III. Adequacy

of the Verdict Form
The Millikens maintain that the jury v erdict form was inadequate and confusing. Our Supreme Court has stated, “Even if a verdict is defec

tive in form, it is to

be enforced if i

t sufficiently defines an issue in such a way as to enable

the court to intelligently articulate a judgment.” Concrete Spac es, 2 S.W.3d at 911 (case remanded for a new trial because the verdict form left open “ the possibility

that the j ury wron gly awarded punitive damages in conjunction with the TCPA rather than in connection with a common law claim for recovery”).
The record includes the transcript of the conference on the jury verdict form and instructi

ons. It is clear the trial court and counsel labored to prepare

accurate instructions and verdict form, and hadto revise previous subm issions beca use of the dismissal of Mr. Mason and th

e claims agains

t him. It is also clea

r that the part of

the form to which the Millikens object was the product of a conscious decision to separ ate instructions a

bout and questions r

elated to the two se

parate causes of action. The Millikens assert that the two separate questions about damages confused the jurors by suggestingto them that the damages were “somehow d istinguishable un

der the facts

before them.” The Millikens contendthat the form should have asked whether the plaintiffs suffered damag es in
one ques tion rather than asking the question separately as to each c ause of action. This argument incorrectly

assumes that the damages analysis is the same under both claims. As discussed above, the two claims were separate and distinct causes of action. The verdict form properly

reflected the distinction. The TCPA claim was statutory, based upon “deceptive” acts, and the form included the statutory language re

garding asce

rtainable loss.

Under certain circumstances, the court could award enhanced penalties, but only

if the jury first found that the plaintiffs had sustained a loss due to the deceptive acts or practices (Question 2) and then found that the deceptive acts were willfully and knowingly made (Question 3).
On the other hand, the negligent misrepresentation claim sounded in tort, was based upon a lack of “reasonable care,” and only allowed for c ompensatory damages. Punitive damages were not at issue. The form properly separated the causes of action and the damages and avoided complications which might have otherwise resulted from a general find ing of damages. See Concrete Spaces, 2 S.W.3d at 911.

In addition, becaus

e the jury a

sked for, and wa

s given, clarif

ica tion on the instructi

ons in answering the special interrogatories, we find no other defe ct in the form which would require a finding it was inadequate or confusing. IV. Comparat

ive Fault
The Millikens maintain that apportionment of fault on the negligent misr epresentation c

laim
was error. They assert that there was no evidence tha t the builder

ever misrepresented his status to them or that they, themselves, were in any way culpable.9 Although a defendant who fa ils t o identif y potentia

l tort feasors who ar

e not already

parties , pursuant

to Tenn. Code Ann. § 20 -1-119(a), can not attribute fault to those no nparties, that rul e does not

apply w here plain tiffs fail to join potential tortfeasors after notice from the defendant. Obviously, where the plaintiff d ismisses a d efendan t, the absence of poten tial defend ant from the litigation is attrib utable to th e plaintiff.
-11- Tennesseeadopted the doctrine of comparative fa ult for negligence actions in McIntyre v. Balentine , 833 S.W.2d 52, 57 (Tenn. 1992) (“In all tri als whe re the issue of co mparative fault i

s beforea jury, the trial court s hall instruct the jury on the effect of the jury 's finding as to the pe rcentage of negligence as between the plaintiff or plaintiffs and the defendant or de fendants.”) The Court has continued to interpret the doctrine in light of its original goals.

We believe that a system wherein a particular defend ant is liable only for the percentage of a plaintiff’s damages that are caused by tha t defendan t’s fault i s the system that best achieves our stated goal in McIntyre v. Balentine of linking liability and fault.
Volz v. Ledes, 895 S.W.2d 677, 680 (Tenn. 1995).

To that end, the doctrine allows the fault of nonparties to the lawsuit to be considered where plaintiffs have a

cause of action against the nonparty. Samuelson v. McMurtry, 962 S.W.2d 473, 475 (Tenn. 1998); Owens v. Truckstop s of Am ., 915 S.W.2d 420, 428 (Tenn. 1996). 9 Because negligent misrepresentati

on sounds in tort, it is s

ubjec t to all the defenses of a negligence action. McElroy v. Boise Cascade Corp. , 632 S.W.2d 127, 136 (Tenn. Ct. App. 1982); see also Glanton v. Beckley , No. 01A01-9606-CV-00283, 1996 WL 709373 at *9 n.4 (Tenn. Ct. App. Dec. 11, 1996) (Koch, J., concurring) (noting that since McIntyre v. Ballantine , the d octrine of comparative f ault applies in negligent misrepresentation cases). The jury wa s properly charged with apporti oning fault among the Millikens, Ms. White/Crye-Leike Realtors, and the builder, Mr. Mason.
Plaintiffs also assert that to allow apportionment here “invites the jury to assess relative d egrees of damages, not fault.” Our Supreme Court has discussed the related concepts o f comparative neg

ligence and co

mparative fault:
The term “comparative negligence” is define d as the measure of the plaintiff’s negli gence

in percentage terms used for the purpose of reducing the plaintiff’s recovery from the defendant in proportion to the percentage of negligence attributed to the plaintiff. It encompasses the system of determining the damages attrib

utable to the plaintiff as ag

ainst the defendants. . . . The term “comparative fault” is defined
as those principles which encompass the determinat ion of how t o “apportio n damage recovery among multiple or

joint tortfeasors

according to th

e percentage

of fault attributed to those actors after reduction for the plaintiff’s percentage of neg ligence.”

Ow ens , 915 S.W.2d at 425 n.7 (citations omitted). Therefore, we find no error in allowing th e apportionment.-12-

To the extent the Millikens’ objection is to the actual allocatio n of fault, we must

uphold the jury’s verdict if there

is any mater

ial evidence to

support it. Turner v. Jordan , 957 S.W.2d 815, 824 (Tenn. 1997) (trial cour

t, inits role as thirtee

nthjuror, lacked authority to reapportion comparative fault); Fye v. Kennedy , 991 S.W.2d 754, 762 (T enn. Ct. Ap p. 1998) (conclud ing that Turner precludes even a partial reallocation of fault). There is evidence in the record from which

the jury coul d have dete

rmined that Ms. White relied on earlier representations of Mr. Mason’s employee that they were

in the process of o

btaining a licen

se when she assur

ed the Plaintif

fs that he was licensed. Later, Mr. Mason signed the agreement assuring that he was providing a warranty pursuant to the requirements of the Tennessee Board for Licens ing Co ntractors, which the jury could have considered

a misrepresentation on his part that he had a license. T he Millikens testified that they interpreted

that provision as a representation that he was licensed. Thus, the evidenc e supports

the jury’s apportionment of fault for the damages incurred to the builder, Mr. Mason. Likewise, a finding of fault

on the part of

the Millikens contributing to the damages they suffered is supported by the evidence. They c

ould have had the home inspected, or they could have delaye d the closing until the repairs they listed had been made. Therefore, we find no error in the trial court’s allowance of apportionment o

f fault.
V. Costs
The trial court split the court costs equally between the parties and denied t h e Millikens' reques t for attor ney fees and discretionary costs. The Plaintiffs appeal, claiming they are the prevailing party

and entitled to court costs, discretionary costs, and attorney fees, based on the jury’s finding that the Defendants had e ngaged in unf

air and deceptiv

e acts in violation of the TCPA and had made negligent misrepresentations.

As a general rule

, litigants pay

their own attorne

y fees abse

nt a statu te or an agreement prov iding otherwise. Haverlah v. Memphis Aviation, Inc. , 674 S.W.2d 297, 305 (Tenn. Ct. App

. 1984). The Millik

ens cl aim their entitlement to such fees under the TCPA, stating that the court “should award reasonable costs and attorney fees t o Plaintiffs who establish that a Defendant engaged in practices whic

h were deceptiv

e to Plaintiffs in

violation of” that A

ct. Tenn. Code Ann. § 47-18-109(e)(1) provides that “upon a finding by the court that a provision of this part has been violated, the court

may award . . . reasonable attorney fees and costs.” The Millikens contend that the jury’s finding that Ms. White “engaged in acts or prac tices which weredeceptive . . . in violation of the Tennessee Consumer Protection Act,” entitled them to attorney fees, obviously equating the jury’s finding of

one element of

the cause of action with the statute’s requirement of a violation of the Act.

We do not agree. As explained earlier, recovery in a private actionunder the TCPA requires both unfair or

deceptive acts and an ascertainable loss attributable to those acts. Tenn. Code Ann. § 47-18-109(a)(1). Because the jury spec ifically found

no loss attributable to deceptive acts, the plaintiffs have failed to pro ve the elements necess ary for aw

ard of damage

s. We think the same reasoning applies to an award of attorney fees. Beca use the plaintiffs have failed to prov e the statutory elements entitling them to damages, they have similarly failed to show their eligibility for10 See also Kline v. Benefiel , No. W1999-00918-COA-R3-CV, 2001 WL 25750 (Tenn. Ct.App. Jan. 9, 2001) (perm . app. den ied Ma y 21, 20 01).
-13- an award of attorney

fee s under the statute. We think recovery of either damages or a ttorney fees is limited to those persons who demonstrate an ascertainable loss resulting from the deceptive act.
T.C.A. § 47-18-109 confers a private right of action on an individual who suffers an ascertainable

loss as a result of an unlawful prac tice under the Act. A plaintiff’s recovery is normally limited to actual damag es and reasonable attorney’s fees . . .
Haverlah , 674 S.W.2d at 305 (quoting Brungard v. Caprice Records, Inc ., 608 S.W.2d 585, 591 (Tenn. Ct. App 1980)). The trial court herein found no grounds for an award of attorney’s fees, and we affirm.

We also note that a party who is awarded damages under the Act is not automatically entitled to attorney’s fees. The statutory language is “the court may award.” In viewof the jury’ s verdict in this case, there is no basis for determining that the trial court acted outside the broad discretion given it by that lang

uage, even if p

laintiffs were e

ligible for an a

ward of attorne

y fees. 10

For the same reasons, plaintiffs ’ reliance on the TCPA for an award of costs is misplaced. However, another basis for an award of cost

s exists, specifically, Tennessee Rule of Civil Procedure 54.04. That rule pr

ovides in pertinen

t part: (1 ) Costs included in the

bill of costs prepa

red by the c

lerk shall be allow

ed to th e prevailing party unless the court otherwise directs . . . (2) Costs not included in t he bill of costs

prepared by

the clerk are a

llowable only

in the court's discretion. Discretionary costs allowable are : reaso nable and necessary court reporter expense

s for deposi

tions or trials, reasonable and necessary expert witness fees for depositions or trials, and guardian ad litem fees; travel expenses are not allowable discretionary costs. . . .
Tenn. R. Civ. P. 54.04.
The rule distinguishes between “costs included in the bill of costs prepared by the clerk,” or court costs, and “discretionary costs.” While the rule appears to distinguish slightly in the standards appliedby the cou

rt (court cos ts are allowed to t he prevailing p

arty unless

the court direct

s otherwise; discretionary costs are available only in the court’s discretion), such a distinction has not always bee

n clearly m

ade by the c

ourts.
Our courts have inter

preted the rule a

s giving the tria

l court discretion

in the award of

both court costs and discretionary costs. See Noland Co. v. Crye , 726 S.W.2d 531, 532 (Tenn. Ct. App. 1986) (decision to awa

rd court costs is

within the “sound discretion of the trial judg

e”); Sanders v.-14-

Gray , 989 S.W.2d 343, 345 (Tenn. Ct. App. 1998) (“trial courts are free to a ppo rti on [ dis cret ion ary] costs between the litigants as the equities of each case demand”).
We, then, review the trial court’s decisions regarding costs for an ab use of that discretion. That standard requires u s to consider (1) whether the decision has a sufficient evidentiary foundation, (2) whether the court correctl

y identi fied and properly applied the appropriate

legal principle

s, and (3) whether the decision is within the range of acceptable

alternatives. While we will set aside a discretionary decision if it rests on
an inadequate evidentiary foundation or if it is contrary to the governing law, we will notsubstitute

our judgment for that of the trial court merely because we might have chosen another alternative. State ex rel. Vaughn v. Kaatrude , 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000) (citations omitted).

Even considering the

discretion give

n to the trial court

, appellate cour

ts have establis

he d
someguidelines by

which we review those decisions. In Sanders v. Gray , this court discussed the factors to be con

sidered in awar

ding discretiona

ry costs as f

ollows:
Gen eral ly, trial courts awa rd such [discretion

ary] costs to w

hichever party

ultimately preva ils in the lawsuit, provid ed the prevailing

party has f

iled a timely, properly supportedmotion. The successful p arty is not, h

owever, automat

ically entit

led to an award of costs. Instead, trial courts are free to apportion costs between the litig

ants as the equities of each case de mand. According

ly, if any equitable basis a

ppears in the record which will support the trial court’s apportionment of c osts, this court must affirm. Moreover, on appeal, the appellant bears the burden of showing that the trial court abused its di

scretion in its asse

ssment of costs. Sanders v. Gray , 989 S.W.2d at 345 (citations omitted). Discretionary

costs are not punitive, but are merely another method of making the prevailing party whole. Even though the prevailing party is not automatical ly entitle d to an award of discretionary

costs simply because it prevailed, courts generally award discretionary costs if they are reasonable

and if the party requesting them has filed a timely , properly supported motion satisfying the requirements of Tenn. R. Civ. P. 54.04(2). Stalsworth v. Grummons , 36 S.W.3d 832, 835 (Tenn. Ct. App. 2000); Turner v. Turner , No. 01A01-9506-CV-00255, 1997 WL 136448 at *17 (Tenn. Ct. App. Mar. 27, 1997) (no Tenn. R. App. P. 11 application filed). Similarly, the language of Tenn. R. Civ. P. 54.04 (1) imp

lies that a preva

iling party

will generally

be awarded cou

rt costs. Thus, identification of the prevailing party is a r elevant factor

in assessing cost

s. This court has determined thatan award of less than the amount of damages sought does not negate the plaintiff’s status as a prevailing party. Sanders v. Gray , 989 S.W.2d at 34 5. Simil arly, we have-15-

previously

rejected an argument that costs should be assessed according to the fault assigne d. Hollifield v. City of Morristown, No. 03A01-9605-CV-00172, 199 6 WL 539766 at *2 (Tenn. Ct. App. Sept. 25, 1996) (no

Tenn. R. App. P. 11 a

pplication filed)

(rejecting the

argument that in

every case where comparative fa

ult is determined th

at costs must be pre

cisely base

d on the degree

of fault of each defendant). Thus, where there are no counterclaims

or crossclaims

involved, a plaintiff who is awarded damages is generally c onsidered to be the prevailing party.
The trial court in this case split court costs equal ly ba sed upon the jury 's finding that b

oth parties were equally at fault, i.e., 10% each. We disag ree with this reasoning as a basis for failing to award court cos

ts to the plaintiffs.

The only judg

ment awarded in th

is c ase was again

st the defendants, Ms. White and Crye-Leike, thereby making the

Millikens the preva

iling party . While
a trial court has dis

cretion in apport

ioning court cos

ts, a denial of costs to th

e prevailing pa

rty must be based upon reaso

ned grounds. How

ever, on appeal

, a plaintiff must show extraor dinary circumstances to overcome the trial court’s award of court costs in view of the discretion given the court in that area. Lewis v. Bowers , 216 Tenn. 414, 423, 392 S.W.2d 819, 823 (Tenn. 1965); Rogers
v. Russell , 733 S.W.2d 79, 8 8 (Tenn. Ct. App. 1986) (such determinations will be reviewed on appeal under “very

extraordinary circumstances”). We do not find such extraordinary circumstances herein, nor do we find the trial court’s apportionment inequitable in view of the plaintiffs’ voluntary dismissal of the other

defendant on the first day of trial. Undoubtedly , some of the court

costs were applicable

to that defendant

’s participation i

n the litigation up

to his dismiss al. Under these circumstances,

we do not find it ineq

uitable for the trial court to refuse to tax all court costs to the one remaining defendant.
The trial court denied the plaintiffs’ request for discretionary costs, and the record does not reflect the reasoning of the

court. The Millikens were the prevailing party and presente d a ti mel y, supportedmotion for discret ionary cost

s. Where the record

does not include any basis for denial of the costs, we have reversed the trial court’s denial and remanded for a determination of whether the costs were reasonable. Dent v. Holt , No. 01A0 1-9302-CV

00072, 199

4 WL 440916 at *3 (Tenn. Ct. App. Aug. 1 7, 1994) (modified on rehearing, 1994 WL 503891 (Tenn. Ct. App. Sept. 16, 1994) )

. In the exercise of its

discretion, the trial court should have made a determination as to whether the discretionary

costs were reasonable and necessary, and we fail to find such examination or its results in the record. Again, we are aware that reasons may exist for the trial court’s decision to apportion court costs and to deny some of the discretionary c osts as unreasonable or

unnecessa

ry. Primarily, the Millikens’ decision to nonsuit the ir claims a ga inst Mr. Mason on the first day of

trial presents a situation where many of the discretionary costs may be deter mined unreasonable or

unnecessary

to the Millikens’ claims

against Ms. White

and Crye-L

eike. However,

the record prov

ides us no basis upon which to

make that

determination. We v

acate the trial c

ourt’s denial of a

ll discretionary

costs andremand for a determination of the reasonableness of the costs, and whether any or all of them should be awarded.-16- VI. Conclusion

For the reasons stated above, we affirm the jury's verdict, the trial co urt's denia l of attorn ey's fees, and the trial court’s apportionment of court co sts, but vacate the denial of any discretionary costs. We remand this cas e to the trial court fo

r further consid

eration consiste

nt with this opinion. Costs of this appeal are taxed one half to the Millikens and onehalf tothe Defendants, Ms. White and Crye -Lei ke R eal tor s, f or w hic h ex ecut ion may i ssu e ifnece ssa ry.

__________________________________ PATRICIA J. COTTRELL, JUDGE