### IN THE CO URT OF APPEALS OF TE NNE SS EE AT NASHVILL E Ass ig ne d o n B rie fs Octo be r 8, 2 00 8

MEGAN GRI SWO LD v. J OSH WI LLI AMS, E T A L


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Appeal f rom the Chancer y Court for Rutherford County No. 04-9240 CV Robert E. Corlew, III, Chan cellor

No. M2007- 01007-COA-R 3-CV - F iled Jul y 24, 2009

Sellers of truck appea l awa rd of damag es and attorney s fee s awa rded to purcha ser based on finding that sellers vi o l at ed t h e Tenne ssee Consumer Protection Act. Finding no err or, we aff irm the decision of the tr ial court.

Tenn. R. App . 3 Appeal as of Right; Judgme nt of th e Chancer y Court Affi rm ed

R I C H A R D H. D I N K I N S , J
., delivere d the opinion of the court, in which P A T R I C I A J

. C O T T E L L , P.J
., M.S., and F R A N K G. C L E M E N T , J R ., J ., joined.

J osh Wi lliams and Richard Willi ams, Dowe lltown, Tennessee , Pro Se.

Be njamin D. Groc e, Murf ree sboro, Tenne ssee, f

or the a ppellee, Me g an Gr iswold.

MEMORAN DUM OP INION 1

I. Background

J osh Wil liams and his fathe r Richard Wil liams (“the Wil liams”) buy and repa ir damag ed and/or salva g ed vehic les for pur poses of re sale. They purcha sed a truck which had bee n damag ed in an acc ident for $4,000.00 and, at the time of their purcha se, had no hood, headlig hts, front fende r

or radia tor. The truck had been totaled in the acc ident and the title the Wil liams rec eived, issued by the State of Geor g ia, showed the vehicle to be a “salva g e” vehicle. The Wil liams pe rfor med some repa ir work to the t ruck and, in contemplation of selling the t ruck, applied for a new certificate of

T e n n

. R

. C t

. A p p

. 1 0 s t a t e s : 1

T h i s C o u r t , w i t h t h e c o n c u r r e n c e o f a l l j u d g e s p a r t i c i p a t i n g i n t h e c a s e , m a y a f f i r m , r e v e r s e o r m o d i f

y t h e a c t i o n s o f t h e t r i a l c o u r t b y m e m o r a n d u m o p i n i o n w h e n a f o r m a l o p i n i o n w o u l d h a v e n o p r e c e d e n t i a l v a l u e

. W h e n a c a s e i s d e c i d e d b y m e m o r a n d u m o p i n i o n i t s h a l l b e d e s i g n a t e d

“ M E M O R A N D U M O P I N I O N
, ” s h a l l n o t b e p u b l i s h e d
, a n d s h a l l n o t b e c i t e d o r r e l i e d o n f o r a n y

r e a s o n i n a n y u n r e l a t e d c a s e

.title issued by the S tate of Tennessee . The Te nnessee title they rec eived did not contain a salvag e notation.

J osh Wil liams adver

tised the t ruck for sale on a bull etin board at his place of employ ment with an asking price o f $8,350.00. Meg an Griswold, whose brother worke d with J osh Wil liams, beca me interested in the truck. Ms. Griswold and her fathe r inspected and test drove the truck. Ms. Griswold asked about problems with the vehicle and was advised by J osh Wil liams that the body had been repa ired due to damag es sustained in a previous wre ck. Ms. Griswold subsequently purcha sed the truck f

or 8,250.00.

A few day s afte r the purcha se, both oil lines on the truck beca me disconnec ted, ca

using all the oil to leak. Ms. G riswold’s fathe r took the truck to a friend who had a lift, a s a result of which they lear ned that the car had been involved in a serious acc ident. Mr. Griswold then consulted the “Carf ax” service and lear

ned of the previous “salva g e” title issued in Geor g ia. Mr. Griswold then 2
contac ted J osh Wi lliams to resolve the matter, but they wer e unable to ag ree

.

Ms. Griswold there afte r filed suit ag ainst the Wil liams in Rutherford County Chance ry Cour t alleg ing brea ch of contra ct, fra ud and violation of the Tenne ssee Co n s u me r Pr o te c tion Act (“TCPA”) and seeking resc ission of the sale, damag es and treble damag es pursuant t o the TCPA, punitive damag es based on fra

ud and attorney s fee s. Following a non-jury trial, the court enter ed it s order finding that the Wil liams mad e n egl i gent misrepre sentations reg arding the truck’s history and

v i o l at ed t h e TCPA. The court awa rded actua l damag es in the amount of $2,350.00 jointly and 3

sever ally ag ainst the Wil liams; for violation of the TCPA, the court awa rded Ms. Griswold judgme nt in the amount of $2,350.00 ag ainst Richard Wil liams and treble damag es totaling $7,050.00 ag ainst J osh Wil liams. The court awa rded attorney s fee s in the amount of $14,100.00 ag ainst J osh Wil liams and $4,700.00 ag ainst Richard Wil liams; the court made the awa rd ag ainst Richard Wil liams joint 4 and seve ral.

The Willi ams appe al, stating the following as the issue for revie w:

Whether the trial court err ed in ord er i n g relief under the TCPA beca use the
transac tion was a single transac tion be tween individuals and the Wil liams wer e not in the business of selling vehicles. The only cause of action Griswold proper ly pled in her complaint was that the Wil liams ha d violated the TCPA. There fore
, the trial court’s finding that Griswold wa s en t i t l ed to rec over under the Act is err ed [si c]

C a r f a x i s a n i n t e r n e t

- b a s e d s e r v i c e t h a t p r o v i d e s v e h i c l e h i s t o r y r e p o r t s , i n c l u d i n g h i s t o r y o f v e h i c l e t i t l e s

. 2

S e e w w w

. c a r f

a x

. c o m

.

T h i s a m o u n t r e p r e s e n t e d t h e d i f f e r e n c e b e t w e e n t h e $ 8
, 3 5 0 s a l e p r i c e a n d t h e $ 6
, 0 0 0

. 0 0 f a i r m a r k e t v a l u e 3

o f t h e t r u c k

.

I t a p p e a r s t h a t t h e a m o u n t o f a t t o r n e y s f e e s a w a r d e d a g a i n s t J o s h W i l l i a m s w a s t w o t i m e s t h e T C P A d a m a g e 4

a w a r d a n d t h e a w a r d a g a i n s t R i c h a r d W i l l i a m s w a s t w o t i m e s t h e a c t u a l d a m a g e a w a r d

.
-2-based on Ganzevo o r t v. Russell, 949 S.W .2d 293 (Tenn. 1997) for the proposition

that the TCPA does not apply beca use the tra

nsaction wa s “the isolated sa le of re al
estate betwee n private parties.” The Trial Court followed Ganzev oort and held that the “ca sual sale of a person’ s persona l residenc e (prope rty )” does not fall within the ambit of the Ac t.

Ms. Griswold raises the additional issue of whether this appea l should be dismiss ed for the Wil liams’ failure to file their brie f on appe al in acc ordanc e with Rule 29, Tenn. R. App. P.

II. Stand ard of Review

Be cause this c ase was tried without a jury , our revie w of the trial court’s finding s of fac t is de novo
, acc ompanied by a presumption of correc tness, unless the prepondera nce o f t h e evidence is othe rwise. See Tenn. R. A pp. P. 13(d). Our revie w of the trial court’s deter minations re g arding questions of law is de novo with no presumption of corr ectne ss. See Bain v. W ells
, 936 S.W .2d 618, 622 (Tenn. 1997); Tenn. R. App. P. 13(d). The construction of the TCPA and its application to the fac ts of this case is a question of law. Ganzev oort v. Russell, 949 S.W .2d 293 (Tenn. 1997) ( citing Beare Co. v . Tennessee Dept. Of Re venue , 858 S.W .2d 906 (Tenn. 1993) ).

III. Discussion

A. Dismissal of the Appea l

Ms. Griswold sug g ests that the appea l should be dismiss ed beca use the Wil liams’ brief was not filed within the time limit set forth in Rule 29, Tenn. R. App. P. We note that the Wil liams’ brief was timely

filed in ac corda

nce w ith this court’s or der of April 4, 2008, but that the brief was filed with the Clerk and Master of Rutherford County rathe r than the cler k of this court. Ex erc ising our authority under Rule 2, Tenn. R. App. P
., and in the i ntere st of finality of t he d i spute betwee n the parties, we will consider the a ppeal.

B. Ms. Gr iswold’s TCPA Cl aim

The Willi ams, rely

ing on Ganzev oort v

. Russell
, arg ue that the TCPA doe s not apply since “the transac tion was a s i n gl e t ransa ction betwee n individuals and the Wil liams wer e not in the business of selling vehicles.” We find, howeve r, that, under the fac ts of this case and the applicable law, the sa le of the truc k fell within the provisions of the TCPA.

The rele vant provision of the TCPA, Tenn. Code Ann. § 47-18-109( a)( 1), provides a private

cause of ac tion to:

-3-Any person who suffe rs an asce rtainabl e l o s s of m oney or property , rea l, persona l,

or mix ed,

. . . as a result of the use or employ ment by any person of an u n fa i r or dece ptive act or

prac tice dec lare d to be unlawf ul by this part

. . . .

5

I n Ganzev oort , an action in which the purcha ser of a home broug ht suit under the TCPA
ag ainst the seller of the home and the seller’ s rea l estate ag ent for defe cts in the home, the Tenne ssee Supreme Court held that the TCPA was not applicable t o the seller, since he was not g ener ally
eng ag ed in the sale of rea l proper ty ; the court foun d t h e T CPA otherwise applicable to the
transac tion. The court distinguished the “isolated sale” of the owner of the home in that case from the statute’s lang uag e that one purpose of the TCPA i s t o m aint ain “ethica l standards of dealing betwee n persons engaged in business and the consuming public.” Ganzev oort , 949 S.W .2d at 298 (quoting Tenn. Code Ann. § 47- 18-102(4) (empha sis in original).

The trial court in this case found as a fac t that the Wil liams wer e eng ag ed in the prac tice of buy ing salvag ed and damag ed vehicles, repa iring them, and placing them for sale and that the sale of the truck to Ms. Griswold was one of sever al simil ar transac tions. We have revie wed the rec ord and find that the preponde ranc e of the evidenc e supports the trial courts finding in this reg ard. The eff ect of this finding is that the Wi lliams were, in the la ng uag e of the statute, “pe rsons eng ag ed in business,” and that the sale of the truck was not an isolated one. The court proper ly held that the TCPA applied to the transac tion at issue.

The Wil liams also arg

ue that the trial court err ed in finding them “g uilty of dece ptive and unfair a cts based on their failure to disclose the fa ct that the vehic le had a previous salva g e title.” They asser

t that Ms. Griswold had means to acquir e the knowledg e on her own and that, in response to her questions, the Wil liams g ave “informa tion of the previous damag e to the body of the vehicle.” The trial court’s fin d i n gs rela tive to the knowledg e and actions of the Wil liams rela tive to the damag e to the truck and the titles issued by Geor g ia and Tenne ssee are exhaustive and are fully supported by the preponde ranc e of the evidenc e. As found by the trial court, Ms. Griswold’s relianc e

on the response s to her questions was rea sonable; howeve r, the information she rec eived from the 6 Wil liams was k

n o w in g ly in c o mp le te and dece ptive and did not disclose fac ts known to the Wil liams. I n this reg ard, we note that the trial court expres s ed some conce rn reg arding J osh Wil liams’

cre dibilit y

. Be cause the trial court observe s the witnesses as they testify
, it is in the best position to

assess witness cre dibilit y

. Frazier v. Frazier
, No. W2007-00039-COA-R3-CV, 2007 WL 2416098, *2 (Tenn. Ct. App. Aug

. 27, 2007) (citing W ells v. Tenn. Bd. Of Rege nts , 9 S.W .3d 779,783 (Tenn. 1999)). There fore
, we g ive g rea t defe renc e to the court’s deter minations on matter s o f wi t n ess

cre dibilit y

. Id

.

T h e l i s t o f d e c e p t i v e p r a c t i c e s i s s e t f o r t h a t T e n n

. C o d e A n n

. § 4 7

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. 5

T h e r e a s o n a b l e n e s s o f a p a r t y ’ s r e l i a n c e o n a n o t h e r p a r t y ’ s m i s r e p r e s e n t a t i o n s i s a q u e s t i o n o f f a c t

. C i t y S t a t e 6

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. D e a n W i t t e r R e y n o l d s , I n c

. , 9 4 8 S

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. 2 d 7 2 9
, 7 3 7 ( T e n n

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.

-4-IV. Conclusion

For the re asons set for

th above, the de cision of the Chanc ery Court is AFF I RMED.

Costs are assessed ag ainst J osh Wil liams and Richard Wil liams, jointly and s ev er al l y , for which execution may

issue if nec essar

y

.

___________________________________

RI CHARD H. DI

NKI NS, J UDGE

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