               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              November 20, 2014 Session

BORLA PERFORMANCE INDUSTRIES, INC. v. UNIVERSAL TOOL AND
                 ENGINEERING, INC.

               Appeal from the Circuit Court for Washington County
                       No. 27603   Thomas J. Seeley, Judge



                No. E2014-00192-COA-R3-CV-FILED-MAY 26, 2015


Borla Performance Industries, Inc. (Borla) entered into two contracts with Universal Tool
and Engineering, Inc. (UTE), by the terms of which UTE was to repair and refurbish six
of Borla‟s pipe bending machines, which machines are used in Borla‟s business of
designing and manufacturing automobile exhaust systems. Borla later sued UTE for
breach of contract, negligent misrepresentation, and violation of the Tennessee Consumer
Protection Act (TCPA). Borla alleged that as a result of UTE‟s failure to timely repair
and deliver the machines, which are also known as “benders,” Borla incurred lost profits
in the amount of $486,166. After a four-day bench trial, the court dismissed Borla‟s
negligent misrepresentation and TCPA claims; the court did grant Borla a judgment for
$11,839.98 on its breach of contract claim. The trial court held that Borla failed to prove
that it incurred lost profits as a result of a breach of contract by UTE. Borla appeals the
trial court‟s judgment denying its claims for lost profits. Borla also appeals the court‟s
judgment dismissing the TCPA claim. UTE appeals the judgment against it for breach of
contract. We affirm.

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

CHARLES D. SUSANO, JR., C.J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.


Mark S. Dessauer, Kingsport, Tennessee, for the appellant, Borla Performance Industries,
Inc.


                                            1
Arthur M. Fowler and Arthur M. Fowler, III, Johnson City, Tennessee, for the appellee,
Universal Tool and Engineering, Inc.

                                       OPINION

                                            I.

       In 2006, Borla decided to relocate its Michigan and California facilities to a new
plant in Johnson City. In manufacturing vehicle exhaust systems, Borla uses pipe
bending machines. The benders are roughly 20 feet long, four to five feet wide, four feet
tall, and weigh about 8,000 pounds. In October of 2007, UTE sent its sales
representative, Bill Swartz, to Borla‟s California plant to evaluate three benders. On
October 27, 2007, Swartz sent an estimate to Borla for the cost of repairing and
refurbishing these benders. Borla issued a purchase order on May 2, 2008 for upgrading
the three benders, describing the work as follows:

             Upgrade Tube Bending Machine: Replace all existing or
             missing original controller[s] with new UTE Windows XP
             based controllers.     Dismantle and Replace Electrical
             components using existing electrical panels where feasible.
             Add new servo[]s to carriage. Convert chain drive to rack
             and pinion. Add new remote operator ped[e]stal and console.
             Add new safety mats (01 per machine). Paint (brush and roll)
             each machine to match original colors. Black oxide tool
             holders.

The purchase order also stated “estimated completion 3-4 weeks” and listed the “date
required” as May 30, 2008. The price for the repair work on the three benders was set at
$115,000. Borla shipped the three benders (the California benders) to UTE‟s plant in
Johnson City, and they arrived on April 17, 2008.

        At an earlier time, in January of 2008, Borla entered into another contract with
UTE to service three benders that were located in Michigan. One of these benders was
determined to be in such poor condition that it was not economically feasible to salvage
it, so UTE was ultimately required to do work on only two of the Michigan benders (the
Michigan benders). Borla shipped the Michigan benders to UTE‟s Johnson City plant in
January 2008. A purchase order for the work was issued on January 16, 2008, and
revised on March 12, 2008. The revised purchase order states: “Borla Owned Machinery
to be Evaluated and serviced for minor repairs. All Machinery to be cleaned[,] stripped[,]
and re-painted.” Regarding one of the two Michigan benders, the purchase order further
specifies that work “Includes Touch Screen and Clips, repair and replace exposed wiring
                                            2
and frayed hoses, and Labor. This machine to be Delivered to Tennessee Borla Facility
in 2 weeks.” The “date required” on the purchase orders was listed as “TO BE
DETERMINED.” (Capitalization in original.)

       UTE worked on the Michigan Benders and had them ready to ship to Borla‟s
Tennessee plant on April 15, 2008. Borla picked up the Michigan benders on April 21,
2008. According to Borla, the Michigan benders were able to power up, but “they would
not operate such that they could be used by Borla in production.” Borla hired James
Garen to come to its Tennessee plant, get the Michigan benders in working order, and
train Borla‟s workers to operate the benders. Garen performed that work in early June of
2008, and the Michigan benders were operational on June 9, 2008. Garen charged Borla
$11,839.98 for his work.

       On June 12, 2008, Borla visited the UTE plant to inspect the California benders.
Borla requested UTE to do a full evaluation of the California benders and report back as
to what was needed to get them fully operational. On June 17, Borla authorized UTE to
do the additional work suggested by UTE. After this work was completed in July of
2008, the parties discovered that the three-inch cylinders on the California benders were
not big enough to bend the pipe that Borla needed in order to make parts. Borla then
authorized UTE to install four-inch cylinders. On October 28, 2008, one of the
California benders was delivered to the Borla plant, inspected, and found acceptable by
Borla.

       Frustration mounted on both sides. UTE complained that Borla frequently took
parts off the California benders, or “cannibalized” them, while they were at UTE‟s plant,1
in order to allow Borla‟s other benders to function. UTE alleged that Borla took the
“servo valves” from the two remaining California benders, which were essential parts,
and that Borla did not provide the tooling necessary to properly test the benders. Borla
expressed frustration at the delays in repairing the benders and UTE‟s perceived inability
to get them in functioning order. Borla paid only $75,000 of the $115,000 invoice for
UTE‟s work on the California benders. UTE kept possession of the two remaining
California benders for the next several years. Borla did not provide the servo valves
allegedly necessary to make the benders work until it was ordered to do so by the trial
court.

       Borla filed its complaint on May 4, 2009. UTE answered and counterclaimed for
breach of contract. A bench trial began on August 15, 2013, and ended on August 20,
2013. In support of its claim for lost profit damages, Borla presented the testimony of its
chief financial officer, Allan Stoner. He explained that Borla‟s plan for smoothly
       1
          Apparently, the distance between UTE‟s facility and Borla‟s plant in Johnson City was only
about ten miles.
                                                 3
transitioning its manufacturing facilities from California to Tennessee depended upon
Borla having the Michigan benders operational and timely delivered to Borla‟s Johnson
City plant so Borla could train its employees on the benders. Borla ceased production at
its California plant around July 1, 2008. Stoner summarized Borla‟s claim as follows:

             had we had those machines here earlier from Michigan, we
             would have been able to train in the controlled environment,
             and then those employees that were trained would have been
             able to provide the bending ‒ bent materials earlier providing
             additional capacity and – or if we had those three machines
             from California at all able to provide additional capacity, we
             would have been able to add an amount of product that we
             could have sold to our customers.

Stoner testified that if everything had gone according to Borla‟s timetable and plan, Borla
would have been able to sell an additional one million dollars‟ worth of products. After
deducting the estimated costs of producing the additional parts, Stoner opined that a total
of $486,166 in lost profits was “attributable to UTE‟s failure to perform under the . . .
bending machine contracts related to Michigan and California.”

       UTE argued that it had fully and timely performed its duties under the contracts,
and that any delays in getting the benders repaired as agreed were the result of Borla‟s
actions. On the lost profits claim, UTE presented the expert testimony of Richard Ray,
who concluded that Borla‟s “damages calculation is speculative and clouded by factors
other than the actions of [UTE].” Ray opined that, while it was undisputed that Borla lost
a great deal of money in 2008 ‒ a total of $3,403,736 according to Stoner‟s 2008 income
statement ‒ the losses were likely caused by other factors, including the general sharp
economic downturn, the initially inefficient operation of the new plant, and unrelated
labor issues. Ray testified that Stoner‟s estimate of $1,000,000 additional revenue was
speculative and unfounded in his view.

      At the end of trial, the court dismissed Borla‟s claims for negligent
misrepresentation and violation of the TCPA, finding that Borla failed to satisfy its
burden of proof to establish those claims. The court delivered a memorandum opinion in
which it found and held as follows:

             Let me talk about the two Michigan benders first and the
             contract there, the purchase order from Borla says Tube
             Bender Evaluation and that‟s what was required of UTE. We
             know that those benders were delivered to Borla on April 21,
             2008, and I know there was testimony concerning the fact
                                            4
they didn‟t work well or did not work, and . . . there was
testimony that as far as UTE was concerned they weren‟t
transported correctly. They were picked up in a rollback
fashion and they weren‟t delivered on a ‒ I think they called it
an air truck. In any event, Mr. Garen was called and came
from California to get the machines in operation and also to
train the employees, and he did that, and he was out of there
by June 9, 2008. His bill was $11,839.98.

I think the proof is sufficient that some more work needed to
be done. There may have been loose wiring and other minor
things that were basically damaged in transport, but the Court
feels there‟s sufficient proof to find in favor of Borla on that
and will find that UTE is responsible to Borla for $11,839.98.

With respect to the two California benders still in possession
of UTE, . . . I do believe that the cannibalization did occur.
I‟m going to find the proof is sufficient to find that those
machines do not have the two servo valves.

[T]his is what I‟m going to order: That Borla supply the two
servo valves needed for those two California benders. If there
are any other parts missing, UTE is responsible for replacing
those parts to make it operable. And after getting the servo
valves and any other parts that UTE has to get, if the
machine[s are] up and running, then Borla shall pay the
remainder due on the contract. No interest, no nothing. If
after Borla supplies the two servo valves, . . . the two
machines are not working, they‟re not up and running, then
they‟ll be returned to Borla as is and Borla will be refunded
the difference between the cost of fixing one machine, which
was somewhere in the neighborhood of $38,000, $39,000 –
that will be deducted from the $75,000 and UTE will be
responsible for reimbursing Borla the difference. As I said, if
the machines are up and running and the two servo valves are
supplied by Borla, Borla will owe the rest of the money, the
$40,000.

. . . I do think basically UTE has a lien on them until they‟re
paid. But again, they‟re not going to get paid until they‟re up

                               5
                and running and that basically means the servo valves and
                any other parts that are needed on them.

       The parties complied with the trial court‟s order after trial. Borla provided the
servo valves, and after the benders were tested, it paid UTE the balance due on the
contract and took possession of the California benders. This aspect of the trial court‟s
judgment ‒ the disposition of the California benders ‒ has not been appealed. Regarding
the claim for lost profits, the trial court held as follows:

                What‟s significant to me is, of course, Borla has the burden of
                proof on that issue. Borla contends that they weren‟t really
                subject to the downturn that occurred starting in 2007 and
                took a sharp decline in 2008, and I think we all know that that
                decline was felt to a greater extent possibly by the auto
                industry than most other industries, and I understand Borla‟s
                position that they have a niche market and they don‟t think
                that that decline would affect them as much. I don‟t really
                know, but I know there was a general decline across the
                country in 2008. It was a sharp decline. I know that plant
                relocations cost money and I know Mr. Ray talked about the
                decline in California sales. . . . [I]t seems like the best proof
                of lost sales, are sales that Borla lost because they couldn‟t
                meet the demand, cancelled sales that they say they lost ‒ and
                that‟s basically what they said they lost as a result of the
                lateness in these machines going on line.

                There‟s no documentation of any lost sale; there‟s no
                documentation of any cancelled sale.               There‟s no
                documentation of any order that could not be filled, and that‟s
                the best evidence, it seems, to show this court that there really
                were some lost sales. It‟s pointed out by UTE the three
                benders that remained in California were here and on line
                sometime in the summer.2 They were here in July 2008, and
                they had the two Michigan benders working at that time.
                Also, the problem Borla had with training local workers had
                to adversely affect Borla‟s reaching full capacity production.
                That was a significant problem that contributed to lost profits.


        2
          Borla had at least three other benders at its California plant that were not involved in the UTE
contract and were shipped to the new Tennessee plant as part of the transition.
                                                      6
             I find basically that with respect to lost profits that Plaintiff
             has not proved with reasonable certainty that the decline in
             their gross revenues and net profit between 2007 and 2008
             was attributable to any actions of UTE. There‟s no question
             they sustained a loss between 2007 and 2008, but the proof is
             lacking that that loss occurred as a result of the actions of
             UTE in delaying getting these machines on line. The Court‟s
             going to find there‟s no loss of profits by Borla.

(Footnote added.) Borla timely filed a notice of appeal.

                                             II.

      Borla raises the following issues, as quoted from its brief:

             1. Did the trial court err in concluding that Borla failed to
             meet its burden of proof and in failing to award Borla lost
             profit damages?

             2. Did the trial court err in concluding that Borla failed to
             meet its burden of proof on its claim under the Tennessee
             Consumer Protection Act and in dismissing such claim?

UTE raises the following additional issue:

             Did the trial court err in holding that UTE breached the
             contract relating to the Michigan benders?

                                             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). “When the resolution of an issue depends upon the credibility of
witnesses, „[t]he weight, faith, and credit to be given to any witness‟s testimony lies in
the first instance with the trier of fact, and the credibility accorded will be given great
weight by the appellate court.‟ ” In re Conservatorship of Tate, No. M2010-01904-
COA-R3-CV, 2011 WL 6935342 at *3 (Tenn. Ct. App. M.S., filed Dec. 29, 2011). 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).

                                              7
                                              IV.

                                              A.

       Borla argues that the trial court erred in refusing to award it lost profits as a part of
its damages for breach of contract. As both parties and the trial court recognized, this
Court set forth the principles governing a claim for lost profits damages in Waggoner
Motors, Inc. v. Waverly Church of Christ, 159 S.W.3d 42, 58-59 (Tenn. Ct. App. 2004):

              [A]n injured party may recover lost anticipated profits when
              their nature and occurrence have been established with
              reasonable certainty. Baker v. Hooper, 50 S.W.3d 463, 470
              (Tenn. Ct. App. 2001); Tire Shredders, Inc. v. ERM–North
              Cent., Inc., 15 S.W.3d 849, 857 (Tenn. Ct. App. 1999); 1
              RECOVERY OF DAMAGES FOR LOST PROFITS § 1.4, at 9.

              The reasonable certainty standard applies chiefly to the
              evidence regarding the existence of damages. 1 RECOVERY
              OF DAMAGES FOR LOST PROFITS § 1.6, at 17. It is a flexible
              standard that permits the courts to take the particular facts of
              each case into consideration. The existence of damages has
              been proven with reasonable certainty when the mind of a
              prudently impartial person is satisfied that the injured party
              has been damaged.

              Once an injured party proves that it has been damaged, the
              amount of the damages need not be proved with certainty or
              mathematical precision. McClain v. Kimbrough Constr. Co.,
              806 S.W.2d 194, 200 (Tenn. Ct. App. 1990); see also
              Authentic Architectural Millworks, Inc. v. SCM Group
              USA, Inc., 262 Ga. App. 826, 586 S.E.2d 726, 731 (2003).
              After the fact of damages ha[s] been established, less
              certainty is required with regard to the amount of the
              damages. The amount of lost profits damages may be based
              on estimates. While definite proof regarding the amount of
              damages is desirable as far as it is reasonably possible, it is
              even more desirable that an injured party not be deprived of
              compensation merely because it cannot prove the extent of
              the harm suffered with complete certainty. Restatement
              (Second) of Torts § 912 cmt. a (1979). This principle is
              based on the policy that defendants should not be permitted to
                                               8
              complain about the lack of exactness or precision in the proof
              regarding the amount of damages when their wrongdoing
              created the damages in the first place. Walgreen Co. v.
              Walton, 16 Tenn. App. 213, 223, 64 S.W.2d 44, 50 (1932); 1
              RECOVERY OF DAMAGES FOR LOST PROFITS § 5.2, at 385.

              An award for lost profits damages depends on whether the
              evidence provides a satisfactory basis for estimating what the
              injured party‟s probable earnings and expenses would have
              been had the wrongdoing not occurred. Since lost profits can
              rarely be computed down to the last penny, the evidence
              needed to support an award for lost profits need only provide
              a reasonable or rational basis for calculating what the lost
              profits would have been.

              Anticipated future profits may be reasonably ascertained from
              the past volume of the injured party‟s business and from other
              provable data relevant to probable future sales. The best
              evidence of lost profits is a comparison of the experience of
              the injured party‟s own business before and after the
              wrongdoing.

              Damages for lost profits must be based on net profits, not on
              gross revenues or on gross profits. In cases involving the loss
              of expected profits from the sale of goods, the expected net
              profits equals the expected revenue from the sale of the goods
              minus the cost of the goods sold minus all of the seller‟s
              expenses fairly attributable to the sale of the goods. Thus,
              persons seeking to recover for lost expected profits must
              prove not only the probable income from the sale of the goods
              but also the expenses they would have incurred to produce
              that income.

(Footnotes and internal citations omitted.)

       The trial court quoted Waggoner Motors and discussed and applied the principles
quoted above in deciding the lost profits issue. In support of its assertion that the trial
court erred in refusing to award lost profits, Borla makes the following argument, as
quoted from its brief:



                                              9
              The Trial Court held Borla to too high or an erroneous legal
              standard for lost profit damages by requiring Borla to provide
              documentation of lost or cancelled sales as the “best
              evidence” of lost profits when, under applicable law, Borla
              was only required to provide reasonably certain evidence of
              its lost profits. There is no requirement under Tennessee law
              that lost profits be proven with the “best evidence”, as held by
              the Trial Court.

We believe this argument is based upon a misinterpretation of the trial court‟s statements
and its holding. The trial court did not hold that the “best evidence” of lost profits must
be presented to recover such damages. Nor did the court base its ruling entirely on
Borla‟s failure to present documentation of any lost or cancelled sales in 2008. The trial
court observed that “the best proof of lost sales, are sales that Borla lost because they
couldn‟t meet the demand, cancelled sales that they say they lost . . . as a result of the
lateness in these machines going on line.” Borla‟s failure to provide such proof was an
important factor, but it was not the only factor supporting the trial court‟s decision, nor
was it necessarily the dispositive factor. The trial court‟s decision is supported by a
number of additional factors, as further discussed below.

       As already noted, Borla‟s theory was that the delays in getting the Michigan and
California benders repaired, shipped to its new Tennessee plant, and ready for
production, caused it to lose sales and resulted in lost or cancelled orders for automobile
parts. In support of this theory, CFO Stoner testified:

              The plan that Borla had was that when production ceased in
              California that the Tennessee facility had to be up and . . .
              producing product at volume to satisfy the customer demand
              and to maintain the revenue stream. Therefore, we had to be
              training the [Tennessee] employees on benders and the other
              skill sets prior to having to go live production in order to have
              them experienced enough that they can provide product for
              the customers.

                                      *      *       *

              We did not have the capacity, as I said, for two reasons. The
              fact that we did not get the two Michigan benders early
              enough to start training so that the Tennessee employees were
              up to speed when California shut down. Or if we would have
              had the three California benders to us, we would have been
                                             10
             able to train on that because they were supposed to be there.
             The original plan was that they would be there. . . the end of
             May. Had we had those machines there, we would have been
             also training ‒ ramping up on those, and we would have had
             the ability to build product on that. And . . . if we‟d been able
             to move those up two months, or on the three California
             machines having had them when they were scheduled, we
             would have had them as incremental revenue producing
             machines. We‟re saying that $1 million of revenue was
             possible for ‒ if we had had those events.

                                      *      *      *

             Q: So . . . the amount . . . of lost profit damages, $486,166
             that in your opinion are attributable to UTE‟s failure to
             perform under the two . . . bending machine contracts related
             to Michigan and California?

             A: Yes.

     UTE‟s expert, Ray, testified as follows in support of his opinion that Stoner‟s
“damages calculation is speculative and clouded by factors other than the actions of”
UTE:

             [I]n evaluating the fact of damages, I have three situations . . .
             that really cause me concern as to whether there has been
             proof with reasonable certainty. Those three are: the general
             economic downturn experienced in the U.S.A. in the
             automotive industry. The second is this . . . whole
             overarching issue of the plant relocation, and specifically the
             effect of the failure of [Borla] to execute its relocation
             objective. That‟s number two. And the third point that
             clouds the fact of damages proof is the calculated loss of the
             California customer base.

                                      *      *      *

             I took a look at the Bureau of Economic Affairs report for
             value add[ed] for gross domestic product for 2008 versus
             2007 in the . . . automobiles and parts industry. That industry
             suffered a 33 percent reduction in sales in 2008 compared to
                                            11
              2007. That‟s in line with the reduction in sales that Borla
              experienced from 2008 to 2007. So we have the issue of a
              general economic downturn that has impact in a properly
              calculated “but for” loss determination. One has to take into
              consideration the general economic downturn.

Regarding Stoner‟s estimation of one million dollars in lost sales, Ray stated:

              I don‟t know how the $1 million came up. That‟s my
              problem is I didn‟t see objective basis for the $1 million
              revenue.

                                       *      *      *

              Q: And would you agree with me that Mr. Stoner‟s analysis is
              a reasonable one?

              A: No.

              Q: What about a rational one?

              A: Relative to $1 million lost profit -- lost revenue?

              Q: Yes.

              A: I think it‟s speculative.

              THE COURT: Well, your whole position is, isn‟t it, that the
              fact of actual damages resulting from any act of UTE has not
              been proven with reasonable certainty?

              THE WITNESS: Within ‒ yes, Your Honor, within
              reasonable certainty within the cloud of the overarching
              issues that we described earlier. . . . [W]hen we look at the
              calculation, I just ‒ I cannot subscribe to starting with: Let‟s
              start with a million dollars and figure out what the lost profits
              would be on that. . . . As far as a calculation is concerned, it
              has to be . . . based with convincing best available proof as to
              the rationale behind the million dollars. Where did the
              million dollars come from? I‟m used to seeing product
              numbers, customers, volumes and prices.
                                              12
     Regarding documentation, or lack thereof, of any of Borla‟s alleged lost sales,
CFO Stoner testified as follows:

            Q: Now, during the months of May, June, July, August and
            September of 2008 were there customer orders that Borla was
            unable to fill?

            A: Yes.

            Q: And why could those orders not be filled?

            A: Those orders could not be filled because Borla did not
            have the ability to meet the production in ‒ starting in July.
            We could not meet the production because we did not have
            the bending capacity to provide enough volume to provide
            that tubing to the rest of the final assembly welders and make
            that finished goods. So customers were contacting us. We
            were unable to provide that, so they either cancelled orders or
            did not place orders.

                                    *      *      *

            [B]ecause we did not have the capacity to meet the customers
            when they called and when they say, “I need a product,” if we
            do not have that product available and can confirm we can
            make that product within their time line of when they need it,
            they will not place an order and they will, in fact, go to our
            competitors for the product.

            Q: Okay. You never furnished us with a list of those
            cancelled orders, have you?

            A: I was never asked to.

            Q: All right, sir. The ‒ and you don‟t have a list? You didn‟t
            get a list? You didn‟t compile a list of the cancelled orders to
            come up with this million dollars of lost profits you‟ve
            testified about, have you?

            A: No, I did not.
                                          13
        In reaching its conclusion that Borla did “not prove[] with reasonable certainty
that the decline in their gross revenues and net profit between 2007 and 2008 was
attributable to any actions of UTE,” the trial court quite rationally observed that Borla
would have been well served to provide documentation of the lost or cancelled sales that
it alleged were the cause of its financial losses in 2008. The trial court did not state that
such proof was required to recover lost profits. Neither has this Court made such a
statement; but we did observe in Waggoner Motors that “definite proof regarding the
amount of damages is desirable as far as it is reasonably possible,” and that “[p]arties
seeking to recover lost profits damages would be well advised to provide the best
available proof as to the amount of their loss that the particular situation permits.” 159
S.W.3d at 58 n.29.

       Moreover, the trial court did not find that UTE breached the contract for the
California benders. UTE, in support of its argument that any delays in getting the
California benders were caused by Borla‟s actions, presented the testimony of its design
engineer, Matt Raby, who stated:

              Q: During [UTE‟s] . . . repair or retrofitting these machines,
              did you-all need to do testing on the machines to make sure
              that they would work properly?

              A: Certainly. Yes, sir.

              Q: And . . . where did you get the tooling and the piping to do
              that testing?

              A: That was Borla‟s tooling and pipe.
              Q: Okay. And did you have difficulty getting tooling and
              pipe from Borla to do the testing as you were repairing the
              machines?

              A: Yes, sir. . . . I remember sometimes we would get tooling
              and have it for an hour and then somebody would come and
              get it because they needed it for production at the facility. So,
              yes. And then we may not hear from them for a couple of
              weeks or days or ‒ so yes, it was a difficult process.

              Q: Are you aware of any parts on the California machines
              being removed and taken to the Borla plant?

                                             14
A: Yes, sir.

Q: And how often did that happen?

A: Several times.

Q: And when they had that -- the components of the bending
machines, did that interfere with your ability to repair them?

A: 100 percent.

                       *      *      *

Q: When the machine ‒ California machine was picked up by
Borla and taken to its plant, were the other two machines also
ready to be picked up?

A: I don‟t recall. They were – they‟d had parts taken from
them and some of the bend arm mechanisms and some of the
hydraulic control system to repair machines that were on their
floor. . . . I don‟t recall at the time whether the components
had been taken from the machines and they were operational
because they . . . were many months that they sat there with
the parts that had been taken and not replaced by them.

THE COURT: Who ‒ who took the parts?

THE WITNESS: Borla employees.

THE COURT: Okay. . . . I've heard the term cannibalize. Is
that ‒

THE WITNESS: Accurate, yes, sir.

THE COURT: Is that what you‟re talking about?

THE WITNESS: Uh-huh.

THE COURT: Yes?



                             15
            THE WITNESS: It happens in the industry. If you have
            machines that are idle, you go to repair a machine that you
            need to be functioning, you‟ll take parts from an idle machine
            and it sits aside and it‟s forgotten about.

                                   *      *      *

            Q: And you really have no knowledge, do you, why the other
            two California machines were not delivered to Borla?

            A: Sure I do. They ‒ they didn‟t work. There were parts
            missing from the machine that had been taken to their
            production facility and placed on others.

Robert Rasnake, a UTE machinist who did some of the work on the California benders,
similarly testified as follows:

            Q: [T]ell the Court what you know about the Borla employees
            coming and taking parts off the California machines and
            taking them back to Borla.

            A: We were trying to get the three machines running and two
            of them, they kept coming and robbing different parts off, and
            we could ‒ we got them to a point that we could – you know,
            we needed the parts and we could never get those parts back.

            Q: Okay. And did that slow down your-all‟s work?

            A: On two of the machines, yes.

            Q: [W]hat about the tooling? Did ‒ could you get the
            necessary tooling when you needed it from Borla to do the
            work?

            A: They would bring us tooling and they would be right
            behind with another guy to pick it up saying they needed that
            to run production, and they would bring it by that evening or
            that night and then be there first thing the next morning to
            pick the tooling up again saying they needed it for production
            again. It was very hard to get tooling available to actually do
            a runoff.
                                          16
              Q: Now, . . . describe the tooling that was brought.

              A: A lot of times it was mix matched. It was wore out.
              Sometimes it would be decent tooling, but we wouldn‟t even
              ‒ we would be starting to put it on the machine and they
              would come by and take it off and have to take it back to the
              plant.

              Q: Now, the ‒ was one of the pieces of equipment that was
              taken called a servo valve?

              A: Yes, sir.

              Q: And what does a servo valve do?

              A: It controls the bend arm. It‟s a – it‟s basically an
              electronic hydraulic valve that controls the bend arm.

              Q: Now, without that can you operate the machine?

              A: No, sir.

              Q: How many of those servos did Borla come and take from
              those machines?

              A: Two of them.

The trial court found that “the cannibalization did occur” and ordered that “Borla supply
the two servo valves needed for those two California benders.” The trial court was
prepared to enforce the California benders contract, but did not hold that either party
breached it. Consequently, because UTE did not breach the California benders contract,
it cannot be held liable for Borla‟s lost profits allegedly due to the delays in getting the
California benders fixed and in production.

       CFO Stoner testified that the alleged $486,166 in lost profits “are attributable to
UTE‟s failure to perform under the two . . . bending machine contracts related to
Michigan and California,” but when he was asked, “in coming up with these damages,
lost profit that you‟ve come up with, you did not segregate the two contracts, the
Michigan benders contract and the California benders contract, did you?”, he answered,
“I did not.” This failure to separate damages attributable to the alleged breach of the
                                            17
Michigan contract, vis-à-vis the California contract, introduces another variable of
significant uncertainty into Borla‟s lost profits claim.

       The trial court also found that Borla‟s unrelated labor problems at its new
Tennessee plant likely contributed as a cause of its lost profits. The evidence does not
preponderate against this finding. UTE presented the testimony of John Thompson, a
bureau chief with the Johnson City Press, who in March of 2009 interviewed Alexander
Borla, CEO and owner of Borla Performance Industries, Inc., for a newspaper article.
Thompson testified:

              Q: Did [CEO Borla] talk to you about a couple of crises that
              ha[d] occurred at the plant?

              A: Yes.

              Q: And what were those crises?

              A: I remember him talking about the work force that he
              initially received was not adequate and he had to step into the
              matter and pick more capable workers.

                                      *      *      *

              Q: [A]s far as the work force issue, does that refresh your
              memory?

              A: Yes. I did have some memories from those that did need
              to be refreshed. I remember him talk ‒ talking about that and
              it was kind of distressing to me to hear that East Tennessee
              workers were not up to ‒ up to par for him.

              Q: And so what did he say he did?

              A: He found better workers.

              Q: Okay. He ‒ I think you say in [the newspaper article] he
              cleaned house.

              A: Yes.

Alexander Borla testified as follows regarding the labor problems at the startup plant:
                                            18
             Q: Now, after you started operations here, . . . did you have
             to come in personally and clean house and start rehiring?

             A: We had ‒ we had a greater turnover in the beginning
             which is fairly customary and usual in all companies starting
             in a new area. I hired a general manager who was familiar
             with the area and I wasn‟t. He was familiar with the customs
             and the work force and the culture, and he basically improved
             our employee base significantly.

             Q: Did you ever have to come in and clean house?

             A: He‟s the one who cleaned house, sir.

             Q: All right, sir. And he did that in 2008, didn‟t he?

             A: Yes, sir.

             Q: All right, sir. In the . . . first group of employees that you
             got, they were sent over by the economic development
             people, [weren‟t] they?

             A: Some were, yes, sir.

             Q: And they couldn‟t meet your production levels, could
             they?

             A: They could not meet our attendance level, sir.

                                       *    *       *

             Q: And you mentioned that with certain employees or certain
             personnel you had to clean house ‒ used the word “clean
             house.” I don‟t know if those were your words or Mr.
             Fowler‟s, but did you mean that you let everybody go?

             A: No, sir. We probably had a 20, 25 percent turnover.

      In order to prevail on its claim for lost profits, Borla had the burden to present
evidence that “provides a satisfactory basis for estimating what [its] probable earnings
                                            19
and expenses would have been had the wrongdoing not occurred.” Waggoner Motors,
159 S.W.3d at 58-59. The trial court held that Borla failed to prove with reasonable
certainty that its lost profits were caused by UTE‟s breach, finding that other factors
likely caused the losses, including (1) the sharp general economic downturn in 2008; (2)
Borla‟s labor problems and costs associated with its plant relocation; and (3) Borla‟s
actions that resulted in delays getting the California benders repaired and in production.
The trial court also heard, and apparently credited, Ray‟s expert testimony opining that
the estimate of Borla‟s lost sales revenue was unreasonable and speculative. Finally, the
court considered as a factor Borla‟s failure to provide documentary evidence of any lost
sales. Considering the totality of these factors and the circumstances as a whole, the
evidence does not preponderate against the trial court‟s judgment declining to award
Borla lost profits as part of its damages.

                                           B.

       We next address UTE‟s assertion that the trial court erred by finding it breached
the Michigan benders contract. As already stated, the purchase order for the work on the
Michigan benders states: “Borla Owned Machinery to be Evaluated and serviced for
minor repairs. All Machinery to be cleaned[,] stripped[,] and re-painted,” and further
specifies that work on one of the benders “Includes Touch Screen and Clips, repair and
replace exposed wiring and frayed hoses, and Labor.” UTE engineer Raby testified as
follows about the Michigan benders agreement:

             Q: [W]hat was UTE to do on the first two machines that
             came in from Michigan?

             A: I think it‟s best summed up with three words, repair and
             replace. Our understanding ‒ my understanding of this
             contract when it came into our shop was to make a pit stop for
             these machines. They were to be functioning machines. We
             were to make them pretty because they were going into the
             new facility, so I included a paint job. Inspect them for minor
             mechanical wear. Look them over. If there were any major
             mechanical wear and identify it and then take action after
             consulting with them. Replace hydraulic hoses that may have
             worn with age. Inspect for any wiring damage and replace if
             necessary. And it was more of a maintenance pit stop.

                                     *      *      *



                                           20
             [W]e were given those machines as working machines. We
             were ‒ we were essentially painting. I equate it to putting
             your car in the body shop for a paint job and then getting mad
             at them because your engine stopped. That‟s kind of how I
             feel that went down is that ‒ you know, it was a pit stop, look
             them over, make sure they‟re okay, paint them, get them
             ready to go on our floor. We‟re taking them out of
             production here. We‟re going to stop them here for a couple
             of weeks just to let you look them over and put them on our
             floor. And that didn‟t turn out to be the case. They had some
             serious problems. Well, they had problems big enough that
             would keep them from going into production and I questioned
             whether they were in Michigan.

The trial court heard conflicting testimony about the condition of the Michigan benders
when they arrived at the Borla plant on April 21, 2008. Tim Lovelady, a Borla employee,
testified as follows:

             Q: [A]fter their delivery, did the two [Michigan] bending
             machines operate such that they could be used by Borla in
             production?

             A: No, sir.

             Q: And what problems or deficiency were with the machines
             that precluded their use in production?

             A: Basically, we just couldn‟t get them to run. We could get
             them to power up, but we couldn‟t get them to operate. That
             was fundamentally the problem with them. And then when
             we did get them to get them moving a little bit, we couldn‟t
             get them to repeat and so they were inoperable to us.

             Q: What do you mean by repeat?

             A: When the machine would bend a certain degree, it couldn‟t
             bend that same bend repeatedly. It may bend one at 90
             degree, the next time it may be, you know, 110 degrees or
             less or something like that. It couldn‟t bend the same bend
             over and over and over.

                                           21
             Q: And given the condition or the operation of the machines
             as you describe, were you able to train anybody to operate
             them?

             A: No, sir.

             Q: And did UTE send out any representative to work on the
             machines?

             A: Yes, sir.

             Q: Were they able to get them operational so you could put
             them in production?

             A: No, sir.

                                     *      *      *

             Q: All right, sir. Now, after Mr. Garen came and finished
             training ‒

             A: Yes, sir.

             Q: ‒ and he left, those machines worked fine, didn‟t they?

             A: Yes, sir.

Darrell Adams, a repair and maintenance technician for Borla, testified as follows:

             Q: And were you present at Borla on 4/21/08 when the two
             machines arrived?

             A: Yes.

             Q: And do you recall any wires being loose on the machines?

             A: No, sir.

             Q: Do you recall any damage that had occurred in transit of
             the machines from UTE to Borla?

                                            22
              A: No, sir.

              Q: And did you power up the machines?

              A: Yes, sir.

              Q: And after their delivery did the two machines operate such
              that they could be put in production?

              A: No, sir.

              Q: And what problems did you discover with the machines as
              to why they would not operate?

              A: The double stack [bender] had a bad Y motor. The single
              stack [bender] had some voltage problems to be adjusted.

                                      *      *     *

              Q: Could you take a look [at] the two Garen and company
              invoices. Were you present when Mr. Garen did his work on
              the two Michigan benders?

              A: Yes, sir.

              Q: And after he performed his work, was Borla able to use
              those two benders in production?

              A: Yes, sir.

Finally, Alexander Borla testified as follows:

              Q: [W]hat was intended by Borla with respect to requesting
              UTE to do a tube bender evaluation?

              A: Basically to inspect them, repair them as necessary.

              Q: Was there any time that any repair work . . . that UTE
              identified was necessary on these machines refused by Borla?



                                            23
             A: No. . . . as a matter of fact, we would encourage UTE to
             find more things wrong with the machine so they could repair
             more things [so] that we could rely on the machine to a
             greater degree on the floor.

             Q: And if you could turn to . . . the two Garen Company
             invoices.

             A: Yes.

             Q: And the work that [Garen] describes in his notes on the
             two invoices, did you consider that work to be within the
             scope of the work you had requested UTE to perform on the
             Michigan benders?

             A: Yes. As the absence of this work prevented these
             machines from working and we expected a fully working
             piece of equipment from UTE. Yes.

        UTE did not dispute that the Michigan benders needed more work to properly
function after they were delivered to the Borla plant. UTE‟s witnesses testified to the
effect that the additional work needed was beyond the scope of its contract with Borla;
that the repairs needed were relatively minor “tweaks” that did not take Garen long to fix;
that some of the mechanical issues were caused by Borla‟s improper transportation of the
benders; and that most of Garen‟s time was spent training Borla workers on the
machines, not fixing them. The trial court resolved the conflicting testimony on this issue
in Borla‟s favor, and found UTE liable for the amount charged by Garen for his work on
the Michigan benders, $11,839.98. The evidence does not preponderate against the trial
court‟s ruling regarding UTE‟s breach of the Michigan benders contract, and we affirm it.

                                            C.

       Borla argues that the trial court erred in dismissing its TCPA claim. As 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
                                            24
             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.

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

      The trial court held as follows at the close of trial:

             the Court‟s not going to find any negligent misrepresentation,
             nor am I going to find any violation of [the] Tennessee
             Consumer Protection Act. I think this is a breach of contract
             case. The damages would be approximately the same
             whether it‟s negligent misrepresentation or as far as
             consequential damages or compensatory damages, be the
                                              25
             same under the [TCPA] without the penalties that the [TCPA]
             has. But generally when you think about the [TCPA], you‟re
             talking about basically fraudulent or deceptive practices, and I
             don‟t find there‟s sufficient proof of any fraudulent or
             deceptive practices on behalf of . . . UTE. Of course, on all
             of those issues Borla has the burden of proof and I don‟t think
             you sustained the burden of proof with respect to negligent
             misrepresentation or a violation of the Tennessee Consumer
             Protection Act.

Borla argues that the trial court erred in its legal analysis, in that the TCPA “does not
require proof of fraud nor is it coterminous with fraud or fraudulent conduct.” Borla
asserts that the TCPA “is much broader than fraud[,] and a consumer under the TCPA
can recover without meeting the burden of proof that is required for common law fraud,”
citing Tucker v. Sierra Builders, wherein we stated,

             The scope of the TCPA is much broader than that of
             common-law fraud. Under the TCPA, a consumer can obtain
             recovery without having to meet the burden of proof that is
             required in common-law fraud cases, and the numerous
             defenses that are available to the defendant in a common-law
             fraud case are simply not available to the defendant in a
             TCPA case. Misrepresentations that would not be actionable
             as common-law fraud may nevertheless be actionable under
             the provisions of the little FTC acts, including the TCPA.
             Claims under the TCPA are not limited to misrepresentations
             that are fraudulent or willful. Smith v. Scott Lewis Chevrolet,
             Inc., 843 S.W.2d 9, 12–13 (Tenn. Ct. App. 1992). Instead,
             the TCPA applies to any act or practice that is unfair or
             deceptive to consumers. Tenn. Code Ann. §§ 47–18–104(a),
             –104(b)(27).

                                     *      *      *

             The concept of deceptiveness is a broader, more flexible
             standard of actionable merchant misconduct than the
             traditional remedy of common-law fraud. 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 to a matter of fact. Thus, for the purposes of the

                                           26
              TCPA . . . the essence of deception is misleading consumers
              by a merchant‟s statements, silence, or actions.

180 S.W.3d 109, 115, 116 (Tenn. Ct. App. 2005) (footnotes and internal citations
omitted).

        As Tucker illustrates, Borla is obviously correct in its assertion that a TCPA claim
is broader than a common-law fraud claim, and thus the trial court‟s statement that
“generally when you think about the [TCPA], you‟re talking about basically fraudulent or
deceptive practices” was a bit loose in this regard. But we have carefully reviewed the
record and have found no evidence of deceptive or misleading conduct on the part of
UTE, and the court therefore correctly found no cause of action under the TCPA. Borla
did not appeal the trial court‟s dismissal of its negligent misrepresentation claim, likely
because there is no proof that any agent of UTE made any material or actionable
misrepresentation. In its brief, Borla identifies several statements made by UTE
employees that Borla says were unfair or misleading, which we quote: (1) “UTE claimed
itself as a specialist with the ongoing ability to repair, rebuild and refurbish bending
machines”; (2) “Nowhere did Mr. Raby state that he may have to consult outside expert
advice or that UTE was not qualified to conduct all required work”; (3) “it was deceptive
for UTE to represent deadlines when it could not knowingly deliver the services by the
contractually agreed upon dates”; (4) UTE “never advised Borla that it was „impossible‟
to complete the work on the California benders by the end of May, 2008”; (5) “UTE
stated to Borla on December 12, 2007 that „we‟ll take good care of your machines and
will present all costs fairly.‟ ” None of these statements, taken either separately or
together, is actionable under the TCPA. Assuming, arguendo, that these statements were
made, they are not false, deceptive, misleading, or unfair; nor did they result in an
ascertainable loss by Borla. See Morrison v. Allen, 338 S.W.3d 417, 440 (Tenn. 2011)
(“A private cause of action under the TCPA is only available where a plaintiff can show
“ascertainable loss of money or property . . . as a result of the use or employment by
another person of an unfair or deceptive act or practice.”).

                                            V.

       The judgment of the trial court is affirmed. Costs on appeal are assessed to the
appellant, Borla Performance Industries, Inc. The case is remanded to the trial court for
enforcement of the judgment and collection of costs assessed below.


                                          ____________________________________
                                          CHARLES D. SUSANO, JR., CHIEF JUDGE

                                            27
