IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

May 15, 2015 Session

ROBERT MCCOLLUM, ET AL. v. DARRELL PETERS

Appeal from the Circuit Court for Washington County

No. 31032 Thomas J. Seeley, Jr., Judge

No. E2014-02082-COA-R3-CV – Filed July 23, 2015

Robert and Kimberly McCollum (Plaintiffs) sued Darrell Peters (Defendant) for damages 

incurred after a garage he built partially collapsed. Their complaint alleged multiple 

claims for relief including breach of contract, violations of the Tennessee Consumer 

Protection Act (the TCPA), various forms of fraud and/or intentional misrepresentation 

and negligence. Following a bench trial, the court ruled in favor of the Plaintiffs. The 

court held that, with respect to his construction of the garage, Defendant was guilty of 

promissory fraud, made fraudulent misrepresentations in violation of the TCPA, and 

acted recklessly by consciously acting contrary to his representations. The trial court 

entered judgment awarding Plaintiffs a sum total of $56,103.50 including compensatory 

damages, punitive damages, and attorney‟s fees. Defendant appeals. We affirm. 

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

Affirmed; Case Remanded for Further Proceedings

CHARLES D. SUSANO, JR., C.J., delivered the opinion of the court, in which D. MICHAEL 

SWINEY and JOHN W. MCCLARTY, JJ., joined.

Thomas A. Peters, Kingsport, Tennessee, for the appellant, Darrell Peters. 

Jason S. Shade, Johnson City, Tennessee, for the appellees, Robert McCollum and 

Kimberly McCollum. 

OPINION

I.

Plaintiffs filed suit against Defendant on November 9, 2012, followed by an 

amended complaint in January 2013. Their amended complaint alleges, in part, as 

follows:
2

[P]rior to January 22, 2008, Plaintiffs and the Defendant 

entered into extensive negotiations with respect to the 

construction of a detached, three car garage . . . located at the 

Plaintiffs‟ residence. . . . During these conversations, 

Defendant represented to the Plaintiffs that he was insured 

and that he had a valid contractor‟s license for the state of 

Tennessee. 

As a result of these assurances, Plaintiffs and the Defendant 

entered into a contract on or about January 22, 2008, for the 

construction of a detached, 24‟ x 36‟ three car garage at the 

Plaintiffs‟ Residence. . . . 

Among other things, the Contract stated and the Defendant 

represented that the Garage would be constructed with a (1) 

“4” concrete floor with 6” x 6” wire mesh or fiber” and (2) 

“12” block below ground level with concrete and steel.” In 

addition, the Contract stated that the Defendant would . . . 

furnish materials and labor to complete the construction of the 

Garage for a price of $21,194.00. 

Throughout the Winter and Spring of 2008, Defendant 

worked on the Garage. During the construction, and given 

the representations of the Defendant, Plaintiffs were under the 

impression that the Garage was being built and constructed 

pursuant to the specifications of the Contract. As a result, 

Plaintiffs paid the Defendant $21,194.00 for the construction 

that they thought Defendant had performed. 

On or about July 22, 2012, the rear masonry wall of the 

structure failed and collapsed into the Garage which resulted

in a considerable amount of damage to the Garage as well as 

the Plaintiffs‟ personal property including, but not limited to, 

three vehicles, tools and a motorcycle. 

Subsequent to the collapse of the rear masonry wall, Plaintiffs 

discovered that the Garage was not constructed in a 

workmanlike manner and was not constructed pursuant to [] 

either the specifications enumerated in the Contract or the 

representation made by the Defendant. Among other things, 
3

it was discovered that the Garage: (1) was not constructed 

with a “4” concrete floor with 6” x 6” wire mesh or fiber,” (2) 

was not constructed with “12” block below ground level with 

concrete and steel,” and (3) was incorrectly constructed with 

the drain pipe resting above the footers with no gravel around 

it. As a result of such construction, the masonry wall 

collapsed given that it could not withstand the lateral earth 

pressure exerted by the retained soil.

In addition, and subsequent to the collapse of the rear 

masonry wall, Plaintiffs discovered that Defendant was not a 

licensed Tennessee contractor as was represented prior to and 

during the construction of the Garage. 

In his answer, Defendant generally denied Plaintiff‟s allegations. He asserted that 

Plaintiffs‟ complaint was barred by the statute of repose, see Tenn. Code Ann. § 28-3-202

(2000), and should be dismissed. Further, Defendant denied “that the garage was not 

constructed in workmanlike manner in accordance to the contract,” and denied that he 

“does not have a license from the State of Tennessee.” As to the parties‟ contract, 

Defendant asserted that it “speaks for itself.” Lastly, Defendant averred that the garage 

was built on Plaintiffs‟ property, with all work and materials visible to them during 

construction. 

After a hearing, the trial court denied Defendant‟s motion to dismiss. In February 

2014, the case was mediated, but without success. In June 2014, after the first trial judge 

recused herself, Defendant filed a second motion to dismiss which again alleged that the 

cause of action was barred by the statute of repose. After a hearing before the new trial 

judge, the motion to dismiss was again denied. 

Trial was held on July 17, 2014. In addition to Plaintiff Robert McCollum and 

Defendant, the court heard testimony from Harold Ioerger, an expert in the field of civil 

and geotechnical engineering, and Wayne Bailey, a licensed general contractor. 

Generally summarized, the proof shows that the parties contracted for the construction of 

a garage with reinforced concrete block. Defendant took the position, however, that such 

was neither requested by Plaintiffs nor required, so he instead used hollow blocks. After 

the back wall of the garage collapsed, Plaintiffs employed Mr. Bailey‟s company to 

demolish the existing structure and rebuild the garage. The garage was rebuilt to the 

original specifications at a cost of $35,700. Mr. Bailey used concrete and steel reinforced 

blocks, footers, and drainage. Mr. Bailey testified he “wouldn‟t even think about” 

building the garage, without using reinforced concrete blocks given the slope of the land 

and the influx of water at the site. 
4

In its September 14, 2014 final judgment and order, the trial court found that the 

underlying facts were as stated in the complaint. In support of its ruling in favor of 

Plaintiffs, the trial court further found, in pertinent part, as follows:

Defendant supplied false information to Plaintiffs in relation 

to the Contract and the construction of the garage. 

Specifically, Defendant intentionally misrepresented material 

facts with respect to the method of construction including that 

the Garage would be constructed with 12” block below 

ground level with concrete and steel. Defendant made a 

promise to the Plaintiffs that he was going to put concrete and 

steel in the rear masonry wall of the Garage which was a 

material matter in relation to the construction of the wall. At 

the time the representation was made, Defendant did not 

intend to perform his obligations as represented to the 

Plaintiffs and as enumerated in the Contract. In fact, at the 

time the garage wall was built, the Defendant merely was

going to build the Garage comparable to all of his other 

garages and not reinforce the back wall. The Plaintiffs were 

unaware that Defendant did not intend to perform as 

promised. The Plaintiffs justifiably relied upon the 

Defendant‟s misrepresentations by executing the Contract and 

continuing a business relationship with the Defendant. The 

Plaintiffs were justified in relying on the promise and 

representations made by the Defendant and, as result of 

relying on the promise and representations, they sustained 

damages as set forth below. 

Defendant argues that the Court should dismiss the Amended 

Complaint filed against him due to the fact that Plaintiffs‟ 

Complaint is barred by the statute of repose enumerated in 

Tenn. Code Ann. § 28-3-202. Notwithstanding the language 

of [Section] 28-3-202, Plaintiffs can maintain a cause of 

action against the Defendant given the language contained in 

Tenn. Code Ann. § 28-3-205(b) . . . . In this instance, 

Defendant is guilty of promissory fraud in that he engaged in

fraudulent conduct with respect to the construction of the 

Garage as set forth herein. 
5

In addition, Defendant was not a licensed Tennessee 

contractor as was represented prior to and during the 

construction of the Garage. Although Defendant maintained 

a business license issued through Sullivan County[,] he did 

not possess a valid Tennessee contractor‟s license. As such, 

Defendant violated the [TCPA]. As a result of the 

aforementioned violations, Plaintiffs sustained damages as set 

forth below. 

As a direct, proximate and forseeable result of the 

misrepresentations and the actions of the Defendant . . ., 

Plaintiffs[] sustained the following damages:

a. $25,006.00 for the removal and replacement of the 

Garage; and

b. $6,000.00 for the depreciation in value for the Porsche 

928, Porsche 911 and Infinity automobiles.

In addition, pursuant to § 47-18-109(e)(1) of the [TCPA], 

Plaintiffs are entitled to receive their reasonable attorney‟s 

fees and costs in bringing this action in the amount of 

$15,097,50.

Finally, Plaintiffs are entitled to punitive damages in the 

amount of $10,000.00. The Court finds that there is clear and 

convincing evidence that Defendant acted recklessly with 

regard to the representations that were made in connection 

with the construction of the Garage. More specifically, 

Defendant was reckless in that he was aware of the 

representations that were made but consciously disregarded 

those representations and did not have the intent to do what 

was promised and represented to the Plaintiffs with respect to 

the method of construction of the Garage. 

(Italics in original.) Consistent with its findings, the trial court awarded Plaintiffs a 

judgment in the total amount of $56,103.50, plus interest, and taxed costs of the action 

against Defendant. Defendant filed a timely notice of appeal. 
6

II.

As taken verbatim from his brief, Defendant raises the following issues for our 

review:

1. Whether the Trial Court erred in not considering lack of 

mitigation of their damages on the part of the Plaintiffs, in 

awarding Plaintiffs the sum of $25,006.00 in 

compensatory damages. 

2. Whether the Trial Court erred in ruling the Defendant 

recklessly violated the [TCPA].

3. Whether the Trial Court erred in awarding the Plaintiffs 

$10,000.00 in punitive damages.

4. Whether the Trial Court erred in denying the Defendant‟s 

Motion to dismiss due to the Statute of Repose applicable 

in this Cause.

Plaintiffs raise the additional issue of whether they are entitled to an award of their 

reasonable attorney‟s fees incurred in defending this appeal. 

III.

Our review of this non-jury case is de novo upon the record of the proceedings 

below with a presumption of correctness as to the trial court‟s factual findings, a 

presumption we must honor unless the evidence preponderates against those findings. 

Tenn. R. App. P. 13(d); McCarty v. McCarty, 863 S.W.3d 716, 719 (Tenn. Ct. App. 

1992). We review the trial court‟s conclusions of law de novo with no presumption of 

correctness. Oakes v. Oakes, 235 S.W.3d 152, 156 (Tenn. Ct. App. 2007).

IV.

Defendant asserts that the trial court erred in failing to consider a lack of 

mitigation of damages on Plaintiffs‟ part in calculating the award of compensatory 

damages. Defendant contends that, despite experiencing water in the garage, Plaintiffs 

failed to take appropriate remedial action or to notify him of the problem. Defendant 

concludes that as a result of the lack of notice, he had “no opportunity to remedy the 

situation, and mitigate his and the Plaintiffs‟ damages.” 
7

“As a general rule, a party alleging defects in the performance of a contract is 

required to give notice and a reasonable opportunity to cure the defects.” Forrest Constr. 

Co., LLC v. Laughlin, 337 S.W.3d 211, 229 (Tenn. Ct. App. 2009) (citing Carter v.

Krueger, 916 S.W.2d 932, 935 (Tenn. Ct. App. 1995)). The defaulting party is thereby 

allowed the opportunity “„to repair the defective work, to reduce the damages, to avoid 

additional defective performance, and to promote the informal settlement of disputes.‟” 

Id. (quoting Custom Built Homes v. McNamara, No. M2004-02703-COA-R3-CV, 2006 

WL 3613583, at *6 (Tenn. Ct. App. Dec. 11, 2006) (quoting Carter, 916 S.W.2d at 935)).

“There are, however, circumstances in which this duty to give notice and an opportunity 

to cure is excused.” Id. In Forrest Construction Company, we further observed that 

the duty to mitigate includes a “reasonableness” standard. We stated:

The critical factor in determining fulfillment of a plaintiff‟s 

duty to mitigate is whether the method which he employed to 

avoid consequential injury was reasonable under the 

circumstances existing at the time. The rule with respect to 

the mitigation of damages may not be invoked by a contract 

breaker “as a basis for hypercritical examination of the 

conduct of the injured party, or merely for the purpose of 

showing that the injured person might have taken steps which 

seemed wiser or would have been more advantageous to the 

defaulter.” As stated in McCormack, Damages, Sec. 35 

(1935), “a wide latitude of discretion must be allowed to the 

person who by another‟s wrong has been forced into a 

predicament where he is faced with a probability of injury or 

loss. Only the conduct of a reasonable man is required of 

him.”

Id. at 230 (citing Action Ads, Inc. v. William B. Tanner Co., 592 S.W.2d 572 (Tenn. Ct. 

App. 1979) (quoting Tampa Electric Co. v. Nashville Coal Co., 214 F. Supp. 647, 652 

(M.D. Tenn. 1963)). 

In the present case, the proof showed that in addition to the garage construction, 

Plaintiffs had employed Defendant to do some additional work at their home such as 

installing new windows. Plaintiff Robert McCollum testified that after the garage was 

finished, there was still work to be done at the house and Plaintiffs owed Defendant 

$1,000 for the work he had already completed. The witness testified that Defendant 

never returned to complete the job or to collect payment and failed to respond to 

numerous attempts to reach him. According to Mr. McCollum, Plaintiffs simply 

“couldn‟t get a hold of him; called, e-mailed, nothing.” Then, two to three months after 

the garage was finished, Plaintiffs noticed that water came into the back part of the 
8

garage after a heavy rain. Again, Plaintiffs attempted to reach Defendant by phone, but 

he did not return their call. According to Mr. McCollum, “this was after we couldn‟t get 

him back to finish the other work or get him to respond to calls or emails.” Mr. 

McCollum explained that after nearly two years, and after Plaintiffs had given up any 

hope of Defendant returning their messages, Mr. McCollum installed a sump pump 

himself to take the water out of the garage. He further testified that the “bubbling” water 

he saw was “mainly coming up through the floor.” He said that he had no idea that the 

problem was related to the construction of the back wall. For his part, Defendant testified 

that he decided to forgo the money he was owed after he was unable to satisfy Plaintiffs 

regarding the new windows he installed. Defendant testified, “I figured the best thing I 

do is just forget it.” He added, “I figured I couldn‟t win; I couldn‟t please them,” but 

could not recall whether he ever informed Plaintiffs that he considered the job to be 

finished and would not return. 

The proof shows that Plaintiffs attempted unsuccessfully to contact Defendant 

after observing water at the back of the garage. Ultimately, Plaintiffs believed they 

remedied the problem by installing a sump pump. At trial, the expert engineer testified to 

his opinion that the average person, upon discovering water accumulating in a garage, 

“would sump pump the sucker because that‟s cheaper.” Notably, until the garage 

collapsed some four years later, Plaintiffs were under the impression that the garage was 

constructed with a reinforced wall as stated in the contract. In his brief, Defendant 

suggests that Plaintiffs should have taken other remedial action such as installing 

drainage to keep the water from entering the garage in the first place. At the same time, 

Defendant testified, consistently with Plaintiffs, that even though it was not written into 

the contract, the parties had discussed drainage prior to construction. Defendant testified, 

“I just told them that that‟s the way we normally done it, . . . lay a 12-block wall up and 

we put a drain around the back side of it.” In our view, Plaintiffs acted reasonably under 

the circumstances, given their impressions regarding the incoming water and their 

understanding of the manner in which the garage had been constructed. In addition, 

Defendant failed to offer any proof to the contrary. 

The evidence does not preponderate against the trial court‟s decision to award

Plaintiffs damages without any adjustment for failure to mitigate damages. Therefore, we 

uphold the award of compensatory damages. 

V.

Defendant challenges the trial court‟s finding that he violated the TCPA. He 

asserts that the evidence does not show, and the trial court did not find, that he acted 

intentionally or deceptively to provide substandard work, a finding he says the Act 

requires. 
9

Regarding application of the TCPA, this Court has recently observed: 

The Tennessee Consumer Protection Act, Tennessee Code 

Annotated Sections 47-18-101, et seq. (“TCPA”), prohibits, 

among other things, “unfair or deceptive acts or practices 

affecting the conduct of any trade or commerce.” Tenn. Code 

Ann. § 47-18-104(a). . . . A “deceptive” act or practice is “one 

that causes or tends to cause a consumer to believe what is 

false or that misleads or tends to mislead a consumer as a 

matter of fact.” Tucker v. Sierra Builders, 180 S.W.3d 109, 

116 (Tenn. Ct. App. 2005) (citations omitted). An act or 

practice may be deemed unfair if it “causes or is likely to 

cause substantial injury to consumers which is not reasonably 

avoidable by consumers themselves and not outweighed by 

countervailing benefits to consumers or to competition.” Id. 

at 116-17 (citing 15 U.S.C. § 45(n)). Because the TCPA is 

remedial, courts have determined that it should be construed 

liberally in order to protect the consumer. Id. at 115. In order 

to recover under the TCPA, a plaintiff must prove: (1) that the 

defendant engaged in an unfair or deceptive act; and (2) that 

the defendant‟s conduct caused an “ascertainable loss of 

money or property. . . .” Id. (quoting Tenn. Code Ann. § 47-

18-109(a)(1)); see also Cloud Nine, L.L.C. v. Whaley, 650 

F.Supp.2d 789, 798 (E.D. Tenn. 2009) (“plaintiffs asserting 

claims under the [TCPA] are required to show that the 

defendant‟s wrongful conduct proximately caused their 

injury”). . . .

Whether a particular representation or act is “unfair” or 

“deceptive,” within the meaning of the TCPA, is a question of 

fact, Id. at 116 (citation omitted), which we review de novo 

upon the record with a presumption of correctness, unless the 

evidence preponderates otherwise. Tenn. R. App. P. 13(d). 

Furthermore, when the resolution of an issue in a case 

depends upon the truthfulness of witnesses, the trial judge 

who has had the opportunity to observe the witnesses and 

their manner and demeanor while testifying is in a far better 

position than this Court to decide those issues.
10

Borla Performance Indus. v. Universal Tool & Eng’g, Inc., No. 2014-00192-COA-R3-

CV, 2015 WL 3381293, at *12-13 (Tenn. Ct. App. E.S., filed May 26, 2015) (citing

Audio Visual Artistry v. Tanzer, 403 S.W.3d 789, 809-10 (Tenn. Ct. App. 2012)).

In the present case, the trial court found that Defendant violated the TCPA by 

representing to Plaintiffs prior to and during construction of the garage that he had a 

Tennessee contractor‟s license. More specifically, the trial court found that the 

Defendant‟s “fraudulent misrepresentations constituted unfair, misleading and deceptive 

acts or practices” pursuant to Tenn. Code Ann. § 47-18-104(b) (21), -(35), and, 

“possibly,” -(47) (Supp. 2014) and resulted in the Plaintiffs‟ sustained damages. En route 

to its ruling, the trial court found that intent was not an element required to establish a 

claim under the TCPA. As the trial court put it, “[i]f there‟s a violation of the provisions 

of the [TCPA], then it‟s a violation of the Act.” The cited subsection of Section 47-18-

104(b), as referenced by the trial court, are as follows: 

(b) The following unfair or deceptive acts or practices 

affecting the conduct of any trade or commerce are declared 

to be unlawful and in violation of this part:

* * *

(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;

* * *

(35) Representing that a person is a licensed contractor when 

such person has not been licensed as required by § 62-6-103 

or § 62-6-502; or, acting in the capacity of a contractor as 

defined in § 62-6-102(4)(A), § 62-6-102(7) or § 62-6-501, 

and related rules and regulations of the state of Tennessee, or 

any similar statutes, rules and regulations of another state, 

while not licensed;
11

* * *

(47) A home improvement services provider:

(A) Entering into a contract for home improvement services 

without providing to the residential owner in written form:

(i) That it is a criminal offense for the person entering into 

the contract for home improvement services with a residential 

owner to do any of the prohibited acts set out in § 39-14-

154(b), by writing out the text of each prohibited act, and 

providing the penalty and available relief for such; and

(ii) The true and correct name, physical address and 

telephone number of the home improvement services 

provider; or

(B) Having complied with subdivision (b)(47)(A), failing to 

provide to the residential owner in written form a correct 

current or forwarding address if the person changes the 

physical address initially provided to the residential owner 

and any or all work to be performed under the contract has 

not been completed[.]

In arguing against the trial court‟s finding that he violated the TCPA, Defendant takes the 

position that he holds a business license issued by Sullivan County, and as such considers 

himself a “licensed contractor.” At trial, Defendant used the terms “business license” and 

“contractor‟s license” interchangeably and testified, “[i]f you ask me if I‟m a licensed 

contractor to work in the state of Tennessee, yes.” On questioning by Plaintiffs‟ counsel, 

Defendant testified as follows:

Q: So in your mind, it‟s okay to advertise that you‟re a 

licensed contractor and not explain the difference if 

somebody calls and specifically asks you that. Yes or no?

A: Yeah, its - - I done it a thousand times, so I don‟t see a 

problem. 

The TCPA makes it unlawful to represent that goods or services are of a particular 

standard if they are another, or to engage “in any other act or practice which is deceptive 

to the consumer or to any other person.” This Court has stated that a “deceptive act need 

not be knowing or intentional to be the basis for a TCPA claim,” as follows:
12

The Tennessee Consumer Protection Act does not impose a 

single standard applicable to all cases for determining 

whether a particular act or practice is deceptive for the 

purpose of Tenn. Code Ann. § 47-18-104(b)(27). To be 

considered deceptive, an act is not necessarily required to be 

knowing or intentional. Negligent misrepresentations may be 

found to be violations of the Act. A deceptive act or practice 

is, in essence, “a material representation, practice or omission 

likely to mislead . . . reasonable consumer[s]” to their 

detriment. 

Signature Designs Group, LLC v. Ramko, No. M2011-01086-COA-R3-CV, 2012 WL 

2519037, at *14 (Tenn. Ct. App. 2012) (quoting Fayne v. Vincent, 301 S.W.3d 162, 177 

(Tenn. 2009)) (internal citations omitted; emphasis added). 

Simply stated, Defendant misrepresented that he was a “licensed contractor,” a 

term understood to mean that he was licensed pursuant to the provisions of Tenn. Code 

Ann. § 62-6-101, et seq. (2014), covering licensing requirements for general contractors, 

or § 62-6-501 (2014) covering licensing requirements for home improvement contractors. 

In fact, by Defendant‟s own testimony, the only license he has ever held is a countyissued business license. We therefore uphold the trial court‟s finding that Defendant 

thereby engaged in a deceptive act or practice in violation of the TCPA. 

VI. 

A.

Defendant challenges the trial court‟s award of $10,000 in punitive damages to 

Plaintiffs. In short, Defendant submits that the trial court did not find that he committed 

willful misconduct and, absent such a finding, no punitive damages should be allowed. 

Defendant further contends, without elaboration, that “under the circumstances,” both 

punitive damages and attorney‟s fees should not be allowed. 

B.

The trial court reasoned that punitive damages were justified in the present case as 

follows:

I am not going to award . . . treble damages in this case for 

this reason: I have serious reservations about whether or not 

[Defendant] actually intended to deceive. Apparently the 
13

contract he uses, . . . he just doesn‟t follow his own contract. 

And, having said that, his testimony was that this is the way 

he builds all the garages. That may be correct and maybe 

he‟s not building a very good garage or retaining wall when 

he does that, but I don‟t think there‟s any malice . . . – it‟s 

close to recklessness.

[F]or punitive damages, I‟m going to find recklessness. I 

think if you make a promise to somebody, and that‟s what a 

contract is, it‟s a promise, . . . and I don‟t think he had the 

intent to deceive them, but he certainly had the intent not to 

do what he promised to do. I think that‟s reckless behavior 

and I‟m going to award $10,000.00 punitive damages. 

The trial court thereby found that Defendant acted recklessly. In this state, it has 

been long-held that a court may award punitive damages “only if it finds a defendant has 

acted either (1) intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly.” 

Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992). As relevant in this case, “[a] 

person acts recklessly when the person is aware of, but consciously disregards, a 

substantial and unjustifiable risk of such a nature that its disregard constitutes a gross 

deviation from the standard of care that an ordinary person would exercise under all the 

circumstances.” Id. Moreover, “because punitive damages are to be awarded only in the 

most egregious of cases, a plaintiff must prove the defendant‟s intentional, fraudulent, 

malicious, or reckless conduct by clear and convincing evidence.” Id. Lastly, a trial 

court‟s award of punitive damages should be based on consideration of a list of factors to 

include the following: 

(1) The defendant‟s financial affairs, financial condition, and

net worth;

(2) The nature and reprehensibility of defendant‟s 

wrongdoing, for example

(A) The impact of defendant‟s conduct on the plaintiff, or

(B) The relationship of defendant to plaintiff;

(3) The defendant‟s awareness of the amount of harm being 

caused and defendant‟s motivation in causing the harm;
14

(4) The duration of defendant‟s misconduct and whether 

defendant attempted to conceal the conduct;

(5) The expense plaintiff has borne in the attempt to recover 

the losses;

(6) Whether defendant profited from the activity, and if 

defendant did profit, whether the punitive award should be in 

excess of the profit in order to deter similar future behavior;

(7) Whether, and the extent to which, defendant has been 

subjected to previous punitive damage awards based upon the 

same wrongful act;

(8) Whether, once the misconduct became known to 

defendant, defendant took remedial action or attempted to 

make amends by offering a prompt and fair settlement for 

actual harm caused; and

(9) Any other circumstances shown by the evidence that bear 

on determining the proper amount of the punitive award.

Id. at 901-02. 

In this case, the trial court found that Defendant acted recklessly in making 

representations regarding the method of construction he would employ that he never 

intended to follow. There is no dispute that the Defendant prepared the contract between 

the parties for construction of the 24 x 36 garage. Among the specifications is a 

provision for “12[-inch] block below ground level with concrete and steel.” 

Notwithstanding this specification for a reinforced wall, Defendant denied that he and 

Plaintiffs ever discussed the use of reinforced concrete at all. Defendant explained that 

he inserted the specification for reinforced concrete in the contract only because, initially, 

he believed the project was located in Sullivan County where the building code required 

“12-inch block with a one half-inch piece of steel every 6 foot. . . .” Because the garage 

was actually built in Washington County, he did not, in fact, insert rebar every six feet

and pour concrete in the blocks as first contemplated. Defendant testified he never 

informed Plaintiffs of the change because, he insisted, they never asked for reinforced 

concrete. Defendant further disagreed with Plaintiff‟s expert witness that the structural 

integrity of the back wall would have been enhanced by the use of reinforced concrete. 
15

We agree with the trial court‟s conclusion that despite what the parties‟ contract 

provided, Defendant always intended to build the Plaintiffs‟ garage to his customary 

standard and his understanding of what the county building code required, and no more. 

Defendant so testified, in relevant part, as follows:

I have worked construction all my life. [. . . .] I know what a 

retaining wall is and how to build it properly, but . . . in 

residential construction, you know, I mean, this is the real 

world. [W]e aren‟t all talking about some big commercial 

company that, . . . I mean, yeah, I could do it on every garage 

if the people want to pay 50-, 60,000 bucks for a garage. I 

mean, we‟re building a garage for a residential person. 

* * *

I go by what I have done in the past 30 years, . . . that I have 

always done. . ., a 12-inch block 6 foot high, I mean – more 

than likely, 95 percent of the houses around here, you don‟t 

see people pumping 12-inch block. [. . . .] No dirt – no 

concrete in them; nobody does that. I mean, you have got to 

be within people‟s budget, and a 12-inch block, according to 

all the building county inspectors and everything else, is fine. 

. . . 

On our review of the evidence, we conclude that there is clear and convincing 

evidence to support the trial court‟s award of punitive damages based on its finding of 

Defendant‟s “reckless behavior” in the construction of the garage. In particular, 

Defendant, in an apparent effort to keep costs down, misrepresented the method of 

construction he intended to and did utilize without notice to Plaintiffs, who relied on 

Defendant‟s assertions to their detriment. The award of $10,000 in punitive damages is 

affirmed. 

C.

As we earlier noted, the trial court awarded both punitive damages and attorney‟s 

fees to Plaintiffs. As to the latter award, the trial court held that “pursuant to § 47-18-

109(e)(1) of the [TCPA], Plaintiffs are entitled to receive their reasonable attorney‟s fees 

and costs in bringing this action in the amount of $15,097.50.” Defendant offers nothing 

in support of his position that Plaintiffs should not receive both awards “under the 

circumstances.” Plaintiffs respond that the award of both punitive damages and attorney‟s 
16

fees under the TCPA is not duplicative or otherwise improper given the differing 

purposes of the two types of awards. In short, we agree with Plaintiffs‟ position. 

As noted by Plaintiffs, the Supreme Court has essentially resolved this issue in 

their favor. In Miller v. United Automax, 166 S.W.3d 692, 697 (Tenn. 2005), the Court 

held as follows: 

The Tennessee Consumer Protection Act provides that once a 

trial court finds that there has been a violation of the Act, the 

court may award the plaintiff “reasonable attorney's fees and 

costs.” Tenn. Code Ann. § 47-18-109(e)(1) (1995). Unlike an 

award of treble damages under the Tennessee Consumer 

Protection Act, attorney‟s fees are not punitive in nature. 

“The potential award of attorney‟s fees under the Tennessee 

Consumer Protection Act is intended to make prosecution of 

such claims economically viable to plaintiff.” Killingsworth 

v. Ted Russell Ford, Inc., 104 S.W.3d 530, 535 (Tenn. Ct. 

App. 2002) (citation omitted). On the other hand, punitive 

damages are designed to punish wrongful conduct and to 

deter others from such conduct in the future. See Concrete 

Spaces, 2 S.W.3d at 906-07. Because the purpose of the 

attorney‟s fees and costs provision is different from the 

purpose of punitive damages, an award of attorney‟s fees and 

costs under the Tennessee Consumer Protection Act is not 

duplicative of punitive damages.

In the present case, the evidence does not preponderate against the trial court‟s award of 

attorney‟s fees at the trial court level to Plaintiff. Accordingly, we uphold the award of 

$15,097.50 in attorney‟s fees. 

VII.

Tenn. Code Ann. § 28-3-202 is the statute of limitations that governs actions based 

on defects to improvements in real property. The statute provides, in relevant part, that 

such action shall be brought “against any person performing or furnishing the design, 

planning, supervision, observation of construction, construction of, or land surveying in 

connection with, such an improvement within four (4) years after substantial completion 

of such an improvement.” As earlier set forth, Defendant completed construction of the 

Plaintiffs‟ garage in April 2008, and Plaintiffs filed suit against Defendant in November 

2012. At trial, Defendant renewed his motion to dismiss Plaintiffs‟ complaint as being 

time-barred. In denying the motion, the trial court found, in relevant part, as follows:
17

Notwithstanding the language of Tenn. Code Ann. § 28-3-

202, Plaintiffs can maintain a cause of action against the 

Defendant given the language contained in Tenn. Code Ann. 

§ 28-3-205(b) which provides, in relevant part, as follows: 

The limitation hereby provided shall not be 

available as a defense to any person who shall 

have been guilty of fraud in performing or 

furnishing the design, planning, supervision, 

observation of construction, construction of, or 

land surveying, in connection with such an 

improvement, or to any person who shall 

wrongfully conceal any such cause of action. 

In this instance, Defendant is guilty of promissory fraud in 

that he engaged in fraudulent conduct with respect to the 

construction of the Garage as set forth herein. 

Defendant maintains that there was no evidence to support the trial court‟s finding 

of fraud in connection with Defendant‟s representations to Plaintiffs and his actual 

construction of their garage. Defendant concedes that if this Court disagrees with his 

position, and upholds the trial court‟s ruling, his argument that the statute of repose 

applies becomes moot. 

Earlier in this opinion, we upheld the trial court‟s finding that Defendant “engaged 

in fraudulent conduct with respect to construction of the Garage. . . .” As a result, the 

exception for fraud contained in Section 28-3-205(b) applies in this case to remove the 

action from the four-year limitations period. Accordingly, the trial court properly denied 

Defendant‟s motion to dismiss. 

VIII.

Lastly, Plaintiffs have requested an award of the additional attorney‟s fees and 

costs they have incurred in defending this appeal. See Killingsworth v. Ted Russell 

Ford, 205 S.W.3d 406, 411 (Tenn. 2006) (providing that “a plaintiff seeking to recover 

reasonable attorney‟s fees generated during an appeal of a case brought under the TCPA 

must set forth his or her intention to do so in his or her appellate pleadings”). In 

Killingsworth, the Supreme Court addressed awards of attorney‟s fees under the TCPA 

as follows: 
18

Additionally, the TCPA allows an award of attorney‟s fees to 

a plaintiff only where the trial court has found that one of the 

Act‟s provisions “has been violated.” Tenn. Code Ann. § 47-

18-109(e)(1). If an appeal ensues, the wronged plaintiff‟s 

monetary judgment is at risk of being consumed by the 

resulting appellate attorney‟s fees unless they are also subject 

to being awarded. A plaintiff successful at trial is therefore at 

risk of being “de-remedied” if unable to collect his or her 

reasonable appellate legal fees. Given the broad remedial 

goals our legislature determined to pursue with the TCPA, we 

do not think the General Assembly intended that result. As 

this Court has previously recognized, a potential award of 

attorney‟s fees under the TCPA is intended to make the 

prosecution of such claims economically viable to a plaintiff. 

The same concern with economic viability applies equally to 

appellate attorney‟s fees.

205 S.W.3d at 410 (internal citations omitted.) Consistent with the principles set forth in 

Killingsworth, we conclude that Plaintiffs should be awarded their reasonable attorney‟s 

fees incurred on this appeal. Accordingly, on remand the trial court will hold a hearing to 

determine Plaintiffs‟ reasonable attorney‟s fees on appeal. 

IX.

The judgment of the trial court is affirmed. This case is remanded, pursuant to 

applicable law, for further proceedings as directed herein and for the collection of costs 

assessed below. Costs on appeal are assessed against the appellant, Darrell Peters. 

 

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 CHARLES D. SUSANO, JR., CHIEF JUDGE