                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE


TIMOTHY W. BURROW,                      )
                                        )                      FILED
            Plaintiff/Appellant,        ) Sumner Circuit No. 18049-C
                                        )                  September 17, 1999
VS.                                     ) Appeal No. 01A01-9806-CV-00311
                                        )                   Cecil Crowson, Jr.
RUSSELL E. BARR, Individually           )                 Appellate Court Clerk
and d/b/a MAIN STREET MOTORS,           )
                                        )
            Defendant/Appellee.         )


           APPEAL FROM THE CIRCUIT COURT OF SUMNER COUNTY
                       AT GALLATIN, TENNESSEE
                THE HONORABLE THOMAS GOODALL, JUDGE




G. KLINE PRESTON, IV
Nashville, Tennessee
Attorney for Appellant



ROLLIE L. WOODALL
Nashville, Tennessee
Attorney for Appellee




REVERSED AND REMANDED




                                                            ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

DAVID R. FARMER, J.

      This lawsuit arises from Timothy Burrow’s purchase of a used car from Russell Barr
(d/b/a Main Street Motors), where, unbeknownst to Burrow, significant mechanical

problems that greatly affected the car’s value existed at the time of sale. In this appeal,

Timothy Burrow appeals the trial court’s sua sponte involuntary dismissal of his claims at

trial, which occurred before Burrow was afforded the opportunity to fully present the facts

and his evidence. Based upon the following, we reverse and vacate the trial court’s

dismissal, and remand this case to the trial court for further proceedings consistent with

this opinion.



                                   FACTS AND PROCEDURAL HISTORY



        This lawsuit was originally commenced in the Sumner County General Sessions

Court by Burrow’s filing of a civil warrant against Barr (hereafter either “Barr” or “Main

Street Motors”), whereby Burrow alleged that Main Street Motors sold to Burrow “a 1988

Acura Legend ... on or about April 12, 1997 ... with defects that were known to [Barr] and

were not known to [Burrow].” Burrow claimed, among other things, that Barr violated the

Tennessee Consumer Protection Act 1 (“the TCPA”), and sought a judgment for actual

damages,2 treble damages,3 and attorney fees. 4 After Burrow’s claims were dismissed

with prejudice in the General Sessions Court after a trial, Burrow appealed to the Sumner

County Circuit Court for a de novo trial. In the circuit court, Barr counterclaimed for the

recovery of any damages incurred, including reasonable attorney fees and costs, that


1. See Tenn. Code Ann. §§ 47-18-101 et seq. (1995 & Supp. 1998). More specifically, Burrow explained at
trial that he claimed Barr had violated Tennessee Code Annotated sections 47-18-104(b)(7) and (b)(27), which
provide:

        [T]he following unfair or deceptive acts or practices affecting the conduct of any trade or
        com mer ce are d eclared to be unlaw ful and in viola tion of this pa rt:
                                                         ...
                    (7) Representing that goods or se rvices are of a particular standard, quality or grade
        . . . if they are of another;
                                                         ...
                    (27) Engaging in any other act or practice which is deceptive to the consumer or to
        any other person.

Tenn. Code A nn. § 47-18-104(b) (Supp. 199 8).

2. See Tenn. Code A nn. § 47-18-109(a)(1) (providing for the recovery of actual damages resulting from “the
use or emp loyment ... of an unfair or deceptive act or practice declared to by unlawful” by the TCPA).

3. See Tenn. Code Ann. § 47-18-109(a)(3) & (4) (providing for the recovery of treble damage s where “the
unfair or deceptive act or practice was a willful or knowing violation” of the TCPA).

4. See Tenn. Code A nn. § 47-18-109(e)(1) (establishing that the trial court may award the person bringing
a TCPA claim reasonable attorney fees and co sts).

                                                        2
resulted from defending this action.5



         Prior to the circuit court trial, Burrow subpoenaed three witnesses: Steve Bowman,

Tim Durbin, and Melanie Barr. 6 Furthermore, he filed a witness list that provided that he

may call any or all of the following witnesses: Burrow, Barr, Steve Bowman, Tim Durbin,

Melanie Barr, Rick Meadows, Phillip Urrutia, and Tony Adgent. On May 21, 1998, the case

came to be heard by the circuit court, at which time each party presented opening

statements, and Burrow began presentation of his case in chief. At this time, Burrow

presented testimony from both Burrow and Steve Bowman.



         During the course of Burrow’s direct examination by his counsel, Burrow testified

that, prior to April 12, 1997, he spoke with Tim Durbin, who is an employee at Main Street

Motors. Burrow asked what kind of shape the 1988 Acura Legend was in, and Durbin

stated that it was in good shape.7 On April 12, 1997, Burrow went to Main Street Motors

and met with Rick Meadows, who is another Main Street Motors employee. While there,

Burrow looked at another vehicle, a Mercedes, at which time the following oral exchange

occurred:

                  And Rick Meadows -- I said to Rick, “I’m a little concerned about the
         maintenance of the car.” He said, “Yeah.” He said, “That kind of concerns
         me, too.” He said, “Well, you know how much you’ll have to pay in
         maintenance on an Acura.” And I said, “How much?” And he said,
         “Nothing.”
                  And, you know, I realize that was sales puffing; but still, it was
         consistent with Tim Durbin’s statement that it was a good car.
                  So I was kind of eager to drive the car. And also, Mr. Meadows
         volunteered information that they had bought the Acura from Gary Force
         [Acura].
                                                ....
                  So then I thought, well, why did Gary Force sell it? And so I asked
         him if Gary Force only sells cars that they don’t want, or do they sell all their
         old cars? He said, “Oh, they sell all of them.” So I thought, all right, that’s
         fine, it could still be an excellent car.



5. See Tenn. Code Ann. § 47-18-109(e)(2) (establishing that the trial court may award a defendant any
damages incurred, including reasonable attorney fees and costs, resulting from the defense of a T CPA claim
that was “frivolous, without legal or factual merit, or brought for the purpose of harassme nt”).

6. Pres um ably, M elanie Barr is Ru sse ll Barr ’s wife , who supp ose dly dro ve the Acu ra Le gen d dur ing th e tim e
period when it was in Main Street Motors’s possession.

7. The mileage of the 1988 model car did, however, exceed 136,000 miles. Further, Burrow later admitted
during cross-examination that he assumed that Durbin’s characterization (that he thought it was a good car)
was jus t Durbin’s o pinion.

                                                           3
During this exchange, the 1988 Acura Legend had been out being test driven by another

potential customer. After the car was returned, Burrow test drove it. “It drove well. ....

[I]t really ran very smoothly.” Meadows did, however, inform Burrow, “there’s a CV joint

that needs to be replaced.” Thereafter, Burrow negotiated an agreement, whereby “the

final deal was: $5,400 if they fixed the CV joint and if they put stripes on it. .... Plus tax,

it was $5,788.50.” At the time of the purchase, Burrow received an “invoice and bill of

sale” that stated “AS-IS.” Moreover, Burrow signed a “buyers guide” that was attached to

the bill of sale, which stated:

       IMPORTANT: Spoken promises are difficult to enforce. Ask the dealer to put
       all promises in writing.
                                     ....
              AS IS - NO WARRANTY

       YOU WILL PAY ALL COSTS FOR ANY REPAIRS. The dealer assumes no
       responsibility for any repairs regardless of any oral statements about the
       vehicle.
                                           ....
       PRE PURCHASE INSPECTION: ASK THE DEALER IF YOU MAY HAVE
       THIS VEHICLE INSPECTED BY YOUR MECHANIC EITHER ON OR OFF
       THE LOT.

       SEE THE BACK OF THIS FORM for important additional information,
       including a list of major defects that may occur in used motor vehicles.

The back of the signed “buyers guide” stated, “Below is a list of some major defects that

may occur in used motor vehicles,” and set forth an exhaustive list of potential defects,

including transmission and suspension problems. The day Burrow purchased the vehicle,

he left it at Main Street Motors for the agreed CV joint repair and the stripe work. Three

days later, he picked up the vehicle and, while the engine was cold, he “put it in reverse

[and] it had a very loud sound” that lasted five to ten seconds.      He then put the car in

reverse in front of Rick Meadows, inquiring what the noise was, to which Meadows stated,

“Well, I’ve never heard that before.” At that point, Burrow recognized that he didn’t “have

any proof that it didn’t happen just now or yesterday,” and he drove away with the car.

Thereafter, the problem did not go away, and the sound “happened every single time you

put it in reverse when it was cold.” Furthermore, the next day or two days later, Burrow

noticed another clicking sound that occurred when the engine is cold. As soon as Burrow

was able, he contacted Rick Meadows about the problems and requested to return the car.

Ultimately, however, Main Street Motors refused to allow Burrow to rescind the purchase.



                                              4
After recalling that Main Street Motors had originally purchased the vehicle from Gary

Force Acura, Burrow contacted Gary Force Acura and learned that the problem, which was

a transmission problem, had existed even before Main Street Motors purchased the

vehicle. Burrow further learned that other problems existed with the car that had not been

repaired, including among other things the need for ball joints to be replaced. Ultimately,

Burrow traded in the Legend eight months after he had purchased it (and after he had

increased its total mileage by approximately 10,000 miles) for $1,500.



       At the end of Burrow’s direct examination, Burrow explained to the circuit court that

his “main witness” had not been present at the general sessions trial, and that he hadn’t

expected to prevail if his “main witness did not show up.” Thereafter, Barr’s counsel began

cross-examining Burrow. Before he was through, however, and (more importantly) prior

to Burrow having any opportunity for his counsel to conduct any redirect examination, the

circuit court judge curtailed cross-examination, stating the following:

       I have a suggestion. [Burrow] has said that he has a very good witness that
       was not heard. I’d like to hear from that witness, then I will allow you to
       cross-examine more if you need to.

Neither party expressed any objection to this procedure, and, therefore, Burrow’s counsel

called Steve Bowman to testify. During direct examination, Bowman testified that he was

a service manager at Gary Force Acura, that he was personally familiar with the 1988

Acura Legend that was the subject of this suit, and that the car’s transmission made a loud

grinding sound that lasted 10 to 15 seconds when he had moved the car prior to its sale

to Main Street Motors. Gary Force Acura “had already checked the car out” and had come

up with a $2,300 estimate for varying repair work, excluding the internal transmission

“grinding.” Repairing the transmission was estimated to cost over $2,000 more. Based

upon the car’s overall condition, Bowman recommended that Gary Force Acura

“wholesale” the car, rather than put the car on its lot for sale. During direct examination,

Bowman also opined that the “repairs” of which he was aware would “affect the value of

the vehicle.” He further opined that the grinding transmission problem that appeared when

the engine is cold would not have disappeared for the subsequent one month period of

time during which Main Street Motors had the car in its possession.



                                             5
       The transcript of proceedings from the May 21, 1998 trial does not indicate whether

Burrow’s counsel completed his direct examination of Steve Bowman. The following,

however, is the remaining exchange that occurred immediately following Bowman’s

testimony on direct examination:

              THE COURT: I think we need to take a break.

              (Break in proceedings.)

              THE COURT: Mr. Woodall [who was Barr’s trial counsel], I’ve heard
       enough proof to make a decision, and I dismiss both actions. I hope it’s not
       considered that I’m tired or weary, but this doesn’t fit into the criteria of that
       exhibited under the Consumer Protection Act.

            The original action is dismissed and the cross-action is dismissed. Mr.
       Woodall, would you prepare the order, please?

              MR. WOODALL: Certainly, sir.

                                   (End of Proceedings.)

Accordingly, on June 1, 1998, the circuit court entered a judgment that provided:

               After hearing the testimony presented and considering the exhibits
       admitted into evidence, the Court was of the opinion and found that ...
       Burrow take nothing from ... Barr ... ; that ... Barr ... take nothing from ...
       Burrow; and that the costs of this cause should be adjudged against ...
       Burrow.
               IT IS, THEREFORE, ORDERED, ADJUDGED, and DECREED by the
       Court that this action should be, and is hereby, dismissed as to all parties
       with all costs of this cause taxed against ... Burrow, for which execution may
       issue, if necessary.

On appeal, Burrow contends that “the trial court erred in sua sponte ordering the

involuntary dismissal” of Burrow’s claims, and further contends that “the evidence

presented at trial preponderated against the trial court’s decision.”




                                          ANALYSIS



       In Burrow’s brief, he states,

       The trial judge dismissed the action before [Burrow] had completed
       presenting his proof. In fact, [Burrow] still had two witnesses under
       subpoena and [Barr] who remained to be called to testify. The trial court . .
       . dismissed [Burrow’s] action prior to the presentation of all [Burrow’s] proof
       . . . . [Burrow] had not rested or closed his proof.

It is apparent from our review of the record that Burrow indeed had not rested or completed



                                               6
his case in chief. Quite simply stated, Burrow was not afforded an opportunity to attempt

to fully present the facts and his evidence (subject to objections as to the admissibility of

evidence). The trial judge simply curtailed any further opportunity for Burrow either to

attempt to introduce additional testimony prior to the completion of his case in chief, or

even to explain why further testimony might be necessary and/or appropriate. In reviewing

the propriety of the trial court’s sua sponte dismissal at this stage in the proceedings, we

find ourselves guided, in part, by Harris v. Baptist Memorial Hospital, 574 S.W.2d 730

(Tenn. 1978), wherein the Tennessee Supreme Court reviewed the propriety of a trial

court’s sua sponte dismissal after hearing only opening statements from counsel. In

Harris, our supreme court stated the following:

               Although Rule 41.02 does not expressly so provide, we are of the
       opinion that a trial court may under certain circumstances and upon
       adequate grounds therefor, sua sponte order the involuntary dismissal of an
       action. However, this power must be exercised most sparingly and with
       great care that the right of the respective parties to a hearing shall not be
       denied or impaired. It must be remembered that Rule 41.02(3), Tennessee
       Rules of Civil Procedure, provides that all dismissals, except those for lack
       of jurisdiction, improper venue or lack of an indispensable party, shall
       operate as an adjudication upon the merits unless the court in its order of
       dismissal otherwise provides. In short, the occasions for the proper exercise
       of this power are considered by this Court to be few indeed.

                We are of the opinion, however, that the trial judges of this State are
       not authorized to order the involuntary dismissal of an action at trial upon the
       sole basis of the opening statements of counsel. Such a practice was not
       recognized in this State prior to the adoption of the Tennessee Rules of Civil
       Procedure and we find nothing in those rules to countenance such a practice
       now. The applicable rule is Rule 41.02(2), governing involuntary dismissals
       at trial, which provides:

              "After the plaintiff, in an action tried by the court without a jury, has
              completed the presentation of his evidence, the defendant, without
              waiving his right to offer evidence in the event the motion is not
              granted, may move for dismissal on the ground that upon the facts
              and the law the plaintiff has shown no right to relief. The court as trier
              of the facts may then determine them and render judgment against
              the plaintiff or may decline to render any judgment until the close of
              all the evidence; in the event judgment is rendered at the close of
              plaintiff's evidence, the court shall make findings of fact if requested
              in writing within three days after the announcement of the court's
              decision."

               Clearly, this rule contemplates that the plaintiff's evidence shall be
       heard and evaluated by the court prior to an involuntary dismissal order at
       trial. We note also that Rule 50.01 governing the granting of a directed
       verdict in a jury trial also limits the power of the court to do so to that point in
       the trial " . . . at the close of the evidence offered by an opposing party or at
       the close of the case."

              Of critical importance here is the nature of opening statements. They

                                                7
       are intended merely to inform the trial judge and jury, in a general way, of the
       nature of the case and to outline, generally, the facts each party intends to
       prove. Such statements do not amount to stipulations and certainly are not
       a substitute for the pleadings or for evidence. See 75 Am.Jur.2d Trials s 202
       (1974). It is easy to see that an involuntary dismissal upon the basis of the
       opening statements of counsel alone may effectively deny the litigants the
       opportunity to be heard or to fully present the facts and evidence in the case.
       For this reason, we are unwilling to expand the provisions of Rule 41.02 to
       authorize trial judges to order involuntary dismissals upon opening
       statements only.

574 S.W.2d at 731-32 (emphasis added). While Harris clearly recognizes “that a trial court

may . . . sua sponte order the involuntary dismissal of an action,” it further sets forth the

proposition that a litigant should not be denied the opportunity to be heard or to fully

present the facts and evidence in the case. While Harris undoubtedly involved a more

egregious denial of a plaintiff’s opportunity to fully present the facts and evidence, we

nonetheless find that, under the circumstances of this case, the trial court similarly erred

by denying Burrow the opportunity to fully present the facts and his evidence.




                                        CONCLUSION



       Accordingly, we hereby reverse the trial court’s dismissal, and remand this case to

the trial court for further proceedings consistent with this opinion. Costs on appeal are

taxed to Barr, for which execution may issue if necessary.




                                              8
                           HIGHERS, J.



CONCUR:




CRAWFORD, P.J., W.S.




FARMER, J.




                       9
