Tenn. R. Ct. App. 10 states:

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This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify

the actions of the trial court by memorandum opinion when a formal opinion would have no

precedential value. When a case is decided by memorandum opinion it shall be designated

“MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any

reason in any unrelated case.

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 14, 2005 Session

EDWARD H. TENISON v. THE PENN WARRANTY CORPORATION

Appeal from the Circuit Court for Lewis County

No. 3593 Robert E. Lee Davies, Judge

No. M2004-02605-COA-R3-CV - Filed November 22, 2005

This appeal involves interpretation of a warranty contract for used cars. Since the contract provided

no exclusion for an inaccurate odometer, we affirm the trial court’s enforcement of the warranty.

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

Affirmed

PATRICIA J.COTTRELL,J., delivered the opinion of the court, in which WILLIAM B.CAIN and FRANK

G. CLEMENT, JR., JJ., joined.

Michael L. Weinman, Jackson, Tennessee, for the appellant, Penn Warranty Corporation.

James R. Tomkins, Nashville, Tennessee, for the appellee, Edward H. Tenison.

MEMORANDUM OPINION1

The Penn Warranty Corporation (“Penn”) appeals the judgment of the trial court enforcing

its warranty contract with Mr. Edward Tenison to cover mechanical defects in a 1983 Mercedes

Benz. Penn claims its warranty language excluding coverage on cars with an “inoperative odometer”

renders the contract void when a car’s odometer had been rolled back without the knowledge of its

owner.

The facts are not significantly in dispute. In April of 2003, Mr. Tenison bought a 1983

Mercedes Benz 240D from his son’s used car dealership. When Mr. Tenison purchased the car, the
Whether attorneys fees are allowed under Magnuson Moss was not raised on appeal. 2

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odometer showed 71,350 miles. Unbeknownst to Mr. Tenison or his son, the mileage was actually

around 250,000. This discrepancy arose because a third party had previously tampered with the

odometer and rolled it back.

Penn had an arrangement with Mr. Tenison’s son for him to act as its agent to sell warranty

contracts on cars sold at his used car dealership. Pursuant to that arrangement, Mr. Tenison’s son

sold him a warranty issued by Penn acting as its agent. The son testified that before entering into

the contract, he called Penn to alert them that he was selling a warranty on a 20 year old car.

According to the son, Penn expressed no objection to the transaction.

During the warranty period, the car needed covered repairs totaling $9,522.18. Penn denied

coverage based upon the tampered odometer claiming it was an “inoperative odometer” and was thus

expressly excluded by the terms of the warranty contract. Mr. Tenison filed suit in General Sessions

Court which found that Mr. Tenison was entitled to recover on the warranty on January 15, 2004.

Penn then appealed to Circuit Court. Mr. Tenison filed an Amended Complaint on May 6, 2004,

seeking to recover damages under the warranty contract and attorney’s fees under the Magnuson

Moss Warranty Act, 15 U.S.C. § 2301 et seq. (“Magnuson Moss”). After a hearing, the trial court

found Mr. Tenison was not aware of the odometer problem and made no misrepresentations. The

court also found that while the contract provided that an “inoperative odometer” would void

coverage, an inaccurate odometer was a different issue and did not void coverage. Mr. Tenison was

awarded $9,522.18 for his repair costs and $3,700 in attorney’s fees under Magnuson Moss.2

Penn appealed and argues, alternatively, that its “inoperative odometer” exclusion clearly

voided coverage, that the exclusion was ambiguous making the contract void, and, finally, that the

exclusion was so ambiguous as to nullify the meeting of the minds of the contracting parties, thus

rendering the contract void.

II. STANDARD OF REVIEW

We review this case de novo on the record with a presumption of correctness of the trial

court’s findings of fact, unless the preponderance of the evidence is otherwise. Tenn. R. App. P.

13(d);Brooks v. Brooks, 992 S.W.2d 403, 404 (Tenn. 1999). No presumption of correctness attaches

to the trial court’s decisions regarding questions of law. Wilson v. Wilson, 984 S.W.2d 898, 900

(Tenn. 1998), cert. den.; Oakley v. Wilson, 528 U.S. 822, 120 S.Ct. 68, (1999).

II. ANALYSIS

We begin by examining the contract language and the meaning of “inoperative odometer.”

The warranty contract provided that an “inoperative odometer” rendered the contract void. The

interpretation of a contract term is generally a question of law since the words are definite and

undisputed. Planters Gin Company v. Federal Compress & Warehouse Company Inc., 78 S.W.3d
Penn also raised as a defense misrepresentation by Mr. Tenison. The trial court heard the witnesses and found 3

no misrepresentation existed. The trial court is in the best position to determine credibility and courts of appeal give

great weight to the trial court’s assessment. See Burton v. Warren Farmers Co-op, 129 S.W.3d 513 (Tenn. Ct. App.

2002); Bowman v. Bowman, 836 S.W.2d 563 (Tenn. Ct. App. 1991). Penn raised no evidence in the record that would

preponderate against the trial court’s finding that Mr. Tenison made no misrepresentations.

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885, 889-90 (Tenn. 2002). If the contract language is unambiguous, the “literal meaning of the

language controls the outcome of contract disputes.” Planters Gin, 78 S.W.3d at 890; Campora v.

Ford, 124 S.W.3d 624, 628 (Tenn. Ct. App. 2003). In construing contracts, the terms should be

given their usual, natural and ordinary meanings. Planters Gin, 78 S.W.3d at 889-90.

The warranty contract provided it was void if the car has an “inoperative odometer.” The

phrase is not ambiguous. If the odometer is not working, then it is inoperative. Penn introduced

no proof that the Mercedes Benz odometer did not work. Mr. Tenison testified that the odometer

seemed to work fine. There is a difference between an inoperable odometer and an inaccurate one.

Mr. Tenison could determine if the odometer worked before buying Penn’s warranty to determine

whether to buy it. If Penn had wanted to void the contract due to an inaccurate or rolled back

odometer, it could have done so by inserting language in the contract to that effect. If Penn had

excluded coverage based on an inaccurate, altered, or tampered with odometer, then a person buying

the warranty would understand that although the odometer works, ifit is inaccurate then the warranty

contract is void. Penn’s exclusion, however, was expressly limited to an inoperative odometer that

is easily verifiable by the purchaser of the warranty. Therefore, the risk that the odometer was

inaccurate rested with Penn and not Mr. Tenison.

Given that the contract warranty language is clear and unambiguous, we affirm the trial

court. Costs of this appeal are taxed to Penn Warranty Corporation for which execution may issue 3

if necessary. The matter is remanded to the trial court for a determination regarding whether Mr.

Tenison is entitled to his attorney’s fees on appeal under applicable authority and the amount of such

fees.

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PATRICIA J. COTTRELL, JUDGE