                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  September 5, 2002 Session

           WILLIAM HAMER, ET AL. v. ROBERT C. HARRIS, ET AL.

                    Appeal from the Chancery Court for Cheatham County
                         No. 9810    Allen W. Wallace, Chancellor



                   No. M2002-00220-COA-R3-CV - Filed November 6, 2002


Homeowners sued a builder for defective construction. The trial court awarded damages for breach
and attorney’s fees under the Tennessee Consumer Protection Act. We reverse the award of
attorney’s fees based upon no proof of deceptive, misleading or unfair conduct by the builder.

          Tenn. R. App. P. 3 Appeal as a Right; Judgment of the Chancery Court
                                Reversed and Remanded

ELLEN HOBBS LYLE , Sp.J., delivered the opinion of the court, in which WILLIAM B. CAIN and
PATRICIA J. COTTRELL, JJ., joined.

Todd E. Panther, Nashville, Tennessee, for the appellant, Robert C. Harris.

Ashley N. Arnold, Nashville, Tennessee, for the appellees, William Hamer and June Hamer.

                                             OPINION

        This litigation arises out of defects in the construction of a new home. The plaintiff
homeowners sued for breach of contract and warranty, fraud in the inducement and violation of the
Tennessee Consumer Protection Act. The trial court dismissed the plaintiffs’ claims for fraud and
a willful violation of the Act but found that the home had not been built in a good and workmanlike
manner and awarded $16,590.00 in actual damages. The trial court also found that the defendant’s
actions violated the Tennessee Consumer Protection Act and awarded attorney’s fees of $15,813.00.

        The defendant has appealed the award of attorneys fees. The sole issue is whether there was
a violation of the Tennessee Consumer Protection Act.

         Having concluded that the proof does not support a finding of violation of the Act, we reverse
the trial court’s award of attorneys fees.
       The plaintiffs entered into a contract to build a new home in the Bluffs of the Harpeth
subdivision.

        After construction was completed and the plaintiffs moved into the home, they discovered
leaks in the basement, that the home was not in compliance with codes, that there was a structural
defect in the basement wall, and that the brick veneer was separating from the foundation. Although
the defendant performed punch list work and some repairs on the leaking basement, he denied
responsibility for the remaining problems. When the defendant did not respond to a March 5, 1998
letter detailing the problems, the plaintiffs hired a structural engineer and home maintenance
company who performed waterproofing, installation of French drains, reinforcement of the basement
walls, repair of the brick veneer and brought the home into compliance with codes. The plaintiffs
then filed this lawsuit to recover their damages.

        In concluding that the Tennessee Consumer Protection Act had been violated and that
attorneys fees should be awarded, the trial court found that there were extensive defects in the
plaintiffs’ new home and that the defendant’s actions were unfair and a violation of the Act because
he had received notice of the defects within one year of the closing on the plaintiffs’ home but had
not adequately addressed those defects.

        The Tennessee Consumer Protection Act was enacted to “protect consumers and legitimate
business enterprises from those who engage in unfair or deceptive acts or practices in the conduct
of any trade or commerce in part or wholly within this state . . . .” TENN. CODE ANN . § 47-18-102(2)
(2001). Section 47-18-104(b) specifically identifies “representing that goods or services are of a
particular standard, quality or grade, or that goods are of a particular style or model, if they are of
another,” is a violation of the Act. Erroneous denial of a claim, however, unaccompanied by deceit
or other misleading conduct, does not constitute deception or unfairness. Myint v. Allstate Ins. Co.,
970 S.W.2d 920 (Tenn. 1998). There must be some deception, misrepresentation or unfairness in
addition to a breach.

        In the case at bar, we conclude that neither the findings of the trial judge nor a review of the
proof reveals an unfair or deceptive practice. The defendant refused to perform repairs and warranty
items because he determined that it was not his responsibility under the terms of his contract. He
was adjudged erroneous in that determination, held by the trial judge to be in breach of his
obligations and assessed damages for that breach. But like Myint the record reveals no evidence of
deception or unfair action.

       We therefore reverse the award of attorney’s fees and remand this matter to the trial court.
The costs of this appeal are taxed to the plaintiffs.



                                                        ___________________________________
                                                        ELLEN HOBBS LYLE, SPECIAL JUDGE


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