                     IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                                          October 16, 2003 Session

 SHAWN T. VINEYARD v. BILL VARNER DBA FOUNTAIN CITY AUTO
                           SALES

                             Appeal from the Circuit Court for Knox County
                              No. 3-78-02   Wheeler A. Rosenbalm, Judge

                                         FILED NOVEMBER 25, 2003

                                        No. E2003-00436-COA-R3-CV


Shawn T. Vineyard (“the plaintiff”) purchased a 1991 Nissan automobile from Bill Varner, doing
business as Fountain City Auto Sales (“the defendant”). Later, the plaintiff sued the defendant
alleging a fraudulent misrepresentation and a violation of the Tennessee Consumer Protection Act
(“the TCPA”) in connection with the sale. In addition to other relief, the plaintiff sought
compensatory damages; in the alternative, he asked for rescission of the sale agreement. After the
trial court denied the defendant’s motion for summary judgment, this matter proceeded to trial before
a jury. The jury, in response to interrogatories, found the defendant guilty of violating the TCPA,
but found no damages. The jury also found that the defendant had committed a fraudulent
misrepresentation in connection with the sale of the automobile and assessed the plaintiff’s damages
at $2,100.1 In response to post-trial motions, the trial court decreed rescission and awarded the
plaintiff the purchase price of $2,100. Defendant appeals, arguing that the trial court erred (1) in
denying his motion for summary judgment; (2) in decreeing rescission and otherwise modifying the
jury’s verdict; and (3) in awarding attorney’s fees of $12,000 to the plaintiff. We affirm.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS , J.,
and WILLIAM H. INMAN , SR. J., joined.

David L. Bacon, Knoxville, Tennessee, for the appellant, Shawn T. Vineyard.

Luis C. Bustamante and Robert L. Vance, Knoxville, Tennessee, for the appellee, Bill Varner.

                                                      OPINION




       1
           The jury also found the d efendant was no t liable for punitive dama ges.
                                                          I.

       The issues presented for our review raise questions of law. Therefore, our scope of review
is de novo with no presumption of correctness as to the trial court’s conclusions of law. See The
Bank/First Citizens Bank v. Citizens and Assoc., 82 S.W.3d 259, 262 (Tenn. 2002) (citing
Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001));
Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996) (citing Tenn. R. App. P. 13(d);
Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993)).

                                                          II.

       The defendant argues on appeal that the trial court erred in denying his motion for summary
judgment. It is well-settled that “[a] trial court’s denial of a motion for summary judgment,
predicated upon the existence of a genuine issue of material fact, is not reviewable on appeal when
a judgment is subsequently rendered after a trial on the merits.” Bradford v. City of Clarksville, 885
S.W.2d 78, 80 (Tenn. Ct. App. 1994); see also Hobson v. First State Bank, 777 S.W.2d 24, 32
(Tenn. Ct. App. 1989); Mullins v. Precision Rubber Products Corp., 671 S.W.2d 496, 498 (Tenn.
Ct. App. 1984); Tate v. County of Monroe, 578 S.W.2d 642, 644 (Tenn. Ct. App. 1978). The
meager record before us2 does not reflect the trial court’s rationale for denying the defendant’s
motion. Apparently, the trial court believed there was a genuine issue of material fact that precluded
summary judgment. This being the case, the propriety of the trial court’s denial of the defendant’s
summary judgment motion cannot be raised in this appeal in view of the fact “a judgment [was]
subsequently rendered after a trial on the merits.” Bradford, 885 S.W.2d at 80. Accordingly, we
decline to address the merits of this issue.

                                                         III.

        The jury in this case returned a verdict in favor of the plaintiff, determining, by way of a
special verdict form, that (1) the defendant was liable to the plaintiff for violating the TCPA; (2) the
plaintiff suffered no damages as the result of the defendant’s violation of the act; (3) the defendant
was liable to the plaintiff for a fraudulent misrepresentation; and (4) the plaintiff was entitled to
$2,100 in compensatory damages for the defendant’s fraudulent misrepresentation.3 The defendant
filed a motion for judgment notwithstanding the verdict. Thereafter, the plaintiff filed a response
and motion, in which the plaintiff asked the trial court (1) to alter or amend the judgment and (2) to
award him attorney’s fees. The plaintiff specifically requested, in relevant part, that the trial court
rescind the contract; order the defendant to refund the purchase price of the automobile; and award
him reasonable attorney’s fees and costs. On January 24, 2003, the trial court entered judgment on
the jury verdict. A week later, on January 31, 2003, the trial court entered an “order of judgment,”


         2
             Missing from the record is an order addressing the defendant’s summary judgment motion.

         3
         W hile there is no transcript or statement of the evidence, it appears from the pleadings that the fraudulent
misrepresentation pertained to the accuracy of the Nissan’s odometer.

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resolving the parties’ post-trial motions by denying the defendant’s request for judgment
notwithstanding the verdict and by granting the plaintiff’s request for rescission. The court ordered
the plaintiff to return the 1991 Nissan automobile to the defendant; directed the defendant to refund
to the plaintiff the $2,100 purchase price; and awarded the plaintiff $12,000 in attorney’s fees and
costs.

                                                    IV.

       The defendant’s second argument on appeal is that the trial court erred in decreeing rescission
and otherwise modifying the jury’s verdict.

          A trial court has discretion with respect to the type of relief it will grant for violations of the
TCPA. See Tenn. Code Ann. § 47-18-109(1), (a)(3) (2001); Lorentz v. Deardan, 834 S.W.2d 316,
319 (Tenn. Ct. App. 1992); Smith v. Scott Lewis Chevrolet, Inc., 843 S.W.2d 9, 13 (Tenn. Ct. App.
1992). Specifically, under the TCPA, “[i]f the court finds that the use or employment of the unfair
or deceptive act or practice was a willful or knowing violation of this part, the court . . . may provide
. . . relief as it considers necessary and proper.” Tenn. Code Ann. § 47-18-109(a)(3) (emphasis
added). It is well-settled that the equitable remedy of rescission is an appropriate remedy under the
TCPA. Lorentz, 834 S.W.2d at 318; see also Smith, 843 S.W.2d at 13; Haverlah v. Memphis
Aviation, Inc., 674 S.W.2d 297, 304-05 (Tenn. Ct. App. 1984); Brungard v. Caprice Records, Inc.,
608 S.W.2d 585, 591 (Tenn. Ct. App. 1980). Further, a plaintiff who is granted rescission is
“entitled to recover the purchase price paid” under the contract. Smith, 843 S.W.2d at 13; see also
True v. J.B. Deeds & Son, 151 Tenn. 630, 633, 271 S.W. 41, 42 (1925).

         The decision to grant or deny rescission is a matter resting within the sound discretion of the
trial court, and we will not disturb a trial court’s decision with respect to this matter absent an abuse
of that discretion. See Vakil v. Idnani, 748 S.W.2d 196, 199-200 (Tenn. Ct. App. 1987). Under the
abuse of discretion standard, “‘[a]n appellate court should not reverse . . . a discretionary judgment
of a trial court unless it affirmatively appears that the trial court’s decision was against logic or
reasoning, and caused an injustice or injury to the party complaining.’” Marcus v. Marcus, 993
S.W.2d 596, 601 (Tenn. 1999) (quoting Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996))
(citations omitted).

        The defendant argues that the trial court committed “clear error” by altering the judgment of
the jury to grant rescission and award damages under the TCPA. We find nothing here to persuade
us that the trial court abused its discretion in granting rescission and awarding the plaintiff a
judgment for the $2,100 purchase price. Under the TCPA, a trial court has the discretion to award
“necessary and proper” relief when a defendant willfully violates the TCPA. See Tenn. Code Ann.
§ 47-18-109(a)(3). Here, the jury found that the defendant violated the TCPA and committed a
fraudulent misrepresentation. As a result, the jury’s findings establish that the defendant’s actions
constituted a “willful or knowing” violation of the terms of the TCPA. Therefore, the trial court was
vested with authority under the TCPA to grant the relief that it determined to be “necessary and
proper” in this case. Further, the defendant is incorrect in his assertion that the trial court awarded


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damages under the TCPA. This is not what happened; rather, the court, based upon the jury’s
findings, decreed rescission and ordered the defendant to return the $2,100 purchase price to the
plaintiff. We find no abuse of discretion in the trial court’s action.

                                                         V.

       The defendant’s third argument on appeal is that the trial court erred in awarding attorney’s
fees under the TCPA.

        A trial court may award “reasonable attorney’s fees and costs” to a plaintiff under the TCPA
“[u]pon a finding by the court that a provision of this part has been violated.” Tenn. Code Ann. §
47-18-109(e)(1) (2001) (emphasis added)4; see also Killingsworth v. Ted Russell Ford, Inc., 104
S.W.3d 530, 533 (Tenn. Ct. App. 2002). The decision to award attorney’s fees rests within the
discretion of the trial court. Haverlah, 674 S.W.2d at 306. We review an award of attorney’s fees
under an abuse of discretion standard. Id.

         The defendant argues that the jury “of necessity found that the [TCPA] did not . . . apply”
in this case because of the jury’s finding that the plaintiff did not suffer actual damages under the
TCPA. Specifically, the defendant argues that attorney’s fees may not be awarded in this case
because the jury did not find the plaintiff was due any damages under the TCPA. He points out that
damages were awarded in this case in connection with the trial court’s finding of a fraudulent
misrepresentation, a tort for which attorney’s fees are not available as a part of the remedy.
Although the defendant is correct that, generally speaking, attorney’s fees may not be awarded in
cases involving common law actions such as a claim for a fraudulent misrepresentation, Pullman
Standard, Inc. v. Abex Corp., 693 S.W.2d 336, 338 (Tenn. 1985), we do not find persuasive the
defendant’s argument that the TCPA is not implicated in this case. The defendant’s position flies
in the face of the jury’s special verdict expressly finding that he violated the TCPA. Because the
defendant violated the TCPA, the trial court acted within its authority when it awarded attorney’s
fees and costs under that statutory scheme. See Killingsworth, 104 S.W.3d at 533. We find no
abuse of discretion in the trial court’s award of attorney’s fees.

                                                        VI.

         The judgment below is affirmed. This case is remanded to the trial court for enforcement of
the trial court’s judgment and for collection of costs assessed below, all pursuant to applicable law.
Costs on appeal are taxed to the appellant, Bill Varner.




        4
           The purpose of “[t]he potential award of attorney’s fees under the [TCP A] is intended to make prosecution
of such claims economic ally viable to [the] plaintiff.” Killingsworth v. Ted Russell Ford, Inc., 104 S.W.3d 530, 535
(Tenn. Ct. App. 2002 ) (quoting Adkinso n v. H arpeth Ford-M ercury, Inc., App. No. 01A01-9009-CH00332, 1991 WL
17177 , at *9 (Tenn. Ct. App. M.S., filed February 15 19 91)).

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      _______________________________
      CHARLES D. SUSANO, JR., JUDGE




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