                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                    May 10, 2001 Session

         KANTA KEITH, ET AL. v. GENE ERVIN HOWERTON, ET AL.

                       Appeal from the Circuit Court for Knox County
                          No. 1-685-98 Dale C. Workman, Judge

                                   FILED AUGUST 28, 2001

                                 No. E2000-02703-COA-R3-CV


In this appeal from a judgment of the Knox County Circuit Court the Plaintiffs/Appellants, Kanta
Keith, Darlene Keith and Walter Jackson, contest the Trial Court's ruling that the
Defendants/Appellees, Gene Ervin Howerton and Easy Money, Inc., did not violate the Tennessee
Consumer Protection Act of 1977 with respect to pawn transactions entered into with the Plaintiffs.
The Plaintiffs also contest the amount of damages awarded by the Trial Court for property belonging
to them which was stolen while in possession of the Defendants. We affirm in part as modified,
reverse in part, and remand for proceedings not inconsistent with this opinion. We adjudge costs
of the appeal against the Defendants, Gene Ervin Howerton and Easy Money, Inc.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part as
                       Modified; Reversed in Part and Remanded

HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
D. MICHAEL SWINEY, JJ., joined.

Donald Kelly Vowell, Knoxville, Tennessee, for the Appellants, Kanta Keith, Darlene Keith and
Walter Jackson.

Craig Lawrence Garrett, Maryville, Tennessee, for the Appellees, Gene Ervin Howerton and Easy
Money, Inc.

                                            OPINION

        This is an appeal from a judgment of the Knox County Circuit Court. The
Plaintiffs/Appellants, Kanta Keith, Darlene Keith and Walter Jackson contest the Trial Court's ruling
that the actions of the Defendants/Appellees, Gene Ervin Howerton and Easy Money, Inc., did not
constitute violation of the Tennessee Consumer Protection Act of 1977. The Plaintiffs also contest
the amount of damages awarded to them by the Trial Court in consequence of the theft of their
property while in possession of the Defendants.
       The Defendant Gene Ervin Howerton is owner of the Defendant Easy Money, Inc., a
corporation which, at the time of this lawsuit, did business as Big Easy Auto Pawn at three locations
in Knox County and at one location in Morristown.

       On November 3, 1997, the Plaintiff Walter Jackson went to a Big Easy Auto Pawn shop
located on Asheville Highway in Knox County and entered into a pawn/loan transaction pursuant
to which he pawned a mens gold ring with chip diamonds. The pawn contract signed by Mr. Jackson
shows a loan amount of $50.00, a pawn shop charge of $11.00 and specifies that the "actual cash
value of merchandise pawned" is also $50.00. The contract is dated November 3,1997, and bears
a due date of December 3,1997.

         On December 1, 1997, Mr. Jackson returned to the Defendants' Asheville Highway location
and paid the $61.00 required under the agreement for redemption of his ring. Mr. Jackson testified
that after accepting payment the Defendants' employee advised him that the shop had been
burglarized1 and that his ring had been among the items stolen. The Defendants' employee then
offered Mr. Jackson the option of choosing substitute merchandise of similar value, whereupon Mr.
Jackson proceeded to the Defendants' shop on Clinton Highway in an endeavor to find a replacement
item. Mr Jackson avers that when he was unable to find a satisfactory replacement item at the
Clinton Highway shop the Defendants' employee at that location advised him that he could go to the
Defendants' Morristown shop and look there for replacement merchandise. Mr. Jackson attests that
at this point he informed the employee that "I didn't want anything in their store, that I wanted my
ring or my money back." There is no evidence in the record that Mr. Jackson was offered a
monetary reimbursement at that time and he advised the Defendants' employee that he intended to
retain legal counsel and "take it up from there".

       The Plaintiffs, Kanta Keith and Darlene Keith, entered into six pawn/loan contracts with the
Defendants during October and November of 1997 which set forth, inter alia, the information
itemized below:

Customer           Item Pawned       Loan Amount Pawn Charge              Date of Agreement Due Date

Kanta Keith         mens diamond         $200.00             $44.00           10/17/97        11/01/97
                     ring

Darlene Keith ladies diamond             $200.00             $44.00            10/17/97       11/16/97
               ring

Darlene Keith ladies gold coin            $50.00             $11.00             11/04/97      12/04/97
               ring




       1
           The record shows that the Defendants' shop was burglarized on November 10, 1997.

                                                       -2-
Darlene Keith ladies cluster                  $60.00              $13.20                10/31/97             11/30/97
               necklace

Darlene Keith ladies opal                     $50.00              $11.00                11/04/97              12/04/97
               ring

Darlene Keith guitar and                      $50.00              $11.00                 11/04/97              12/04/97
               case

       The contract regarding the mens diamond ring was signed by Mr. Keith and the remaining
contracts were signed by Ms. Keith. The same figure is shown for "Amount of Loan" as for "Actual
Cash Value of Merchandise Pawned" in each of the contracts.

        On November 28, 1997, Ms. Keith went to the Big Easy Auto Pawn shop on Asheville
Highway to redeem the ladies gold coin ring pawned on November 4, 1997. After accepting Ms.
Keith's payment of the $50.00 loan amount plus the pawn charge of $11.00, the Defendants'
employee advised her that the items of property pawned by the Keiths had been stolen in the burglary
of the shop.

       The record reflects that there is a dispute between the Keiths and the Defendants as to what
happened after Ms. Keith was advised of the theft. The Defendants contend that their employee gave
Ms. Keith a receipt for the gold coin ring and that she took the receipt to another of the Defendants'
shops where she received replacement merchandise of her choice. Ms. Keith denies that she received
replacement merchandise and asserts that she rejected the offer of replacement merchandise. Ms.
Keith further asserts that she was not offered the option of monetary reimbursement for the stolen
property.

        On November 5, 1998, the Keiths and Mr. Jackson filed their complaint against the
Defendants in the Circuit Court for Knox County. The complaint asserts that, by failing and
refusing to pay the value of the pawned items, by failing to offer any recourse other than replacement
merchandise and by accepting finance charges on the pawned property knowing that it was stolen,
the Defendants are guilty of fraud, breach of contract, outrageous conduct and unfair or deceptive
practices. The complaint further asserts that the Defendants' actions constitute violations of both the
Truth in Lending Act and the Tennessee Consumer Protection Act and, in consequence, request is
made for compensatory and punitive damages as well as treble damages, attorney fees and costs.

       The case came on for non-jury trial on July 10, 2000, after which the Trial Court rendered
its memorandum opinion. The Court found that the Plaintiffs had failed to support a cause of action
with respect to fraud, violation of the Federal Truth in Lending Act2 or violation of the Tennessee
Consumer Protection Act. The Court, however, did find that the Plaintiffs should receive the fair


         2
            In this appeal the Plaintiffs do not contest the Court's ruling with respect to their causes of action for fraud
or for violatio n of the Fed eral Truth in Lending A ct.

                                                            -3-
market value of their stolen property and, therefore, granted Mr. Jackson and the Keiths damage
awards in the respective amounts of $1,100.00 and $2,250.00. Separate judgments in those amounts
were entered on August 11, 2000. On September 7, 2000, the Plaintiffs filed their notice of appeal.

       The following issues, which we restate, are presented for our review:

        1. Whether the Plaintiffs suffered an ascertainable loss which would entitle them to a cause
of action under the Tennessee Consumer Protection Act.

        2. Whether the Defendants' failure to offer the Plaintiffs monetary reimbursement for their
stolen property constitutes a violation of the Tennessee Pawnbrokers Act of 1988 and, therefore, a
violation of the Tennessee Consumer Protection Act.

       3. Whether the Keiths should be denied recovery for any pawned property with respect to
which they had not made requisite redemption payments under the pawn contracts.

        4. Whether the Trial Court erred in its determination of the amount of damages to which the
Plaintiffs are entitled.

       Other issues raised in this appeal are pretermitted by our conclusions stated hereinafter.

        In a non-jury case such as this one our standard of review is de novo upon the record with
a presumption that the findings of the Trial Court are correct absent a preponderance of the evidence
to the contrary. See Tenn.R.App.P. 13(d). No such presumption exists as to the Trial Court's
conclusions of law. See Hawk v. City of Westmoreland, 960 S.W.2d 10 (Tenn. 1997).

        The first issue we examine in this case questions whether the Plaintiffs suffered an
ascertainable loss necessary to sustain a cause of action under the Tennessee Consumer Protection
Act. The relevant portion of that Act is set forth at T.C.A. 47-18-109(a)(1) as follows:

                 (a)(1) Any person who suffers an ascertainable loss of money or property,
         real, personal, or mixed, or any other article, commodity, or thing of value
         wherever situated, as a result of the use or employment by another person of an
         unfair or deceptive act or practice declared to be unlawful by this part, may bring
         an action individually to recover actual damages.

        At the close of the argument in this case the Trial Court concluded that the Plaintiffs should
receive the full fair market value of their stolen property. The Court then reasoned that, because it
was awarding them the full fair market value of their property, the Plaintiffs had not ultimately
suffered an ascertainable loss necessary to sustain a cause of action under the Consumer Protection
Act. We respectfully disagree.




                                                 -4-
        It is our finding that the Plaintiffs suffered an ascertainable loss at the moment that the
Defendants refused to offer them monetary reimbursement for their stolen property and that the
Plaintiffs continued to suffer that loss at the time they filed their complaint on November 5, 1998.
We believe the reasoning of the Trial Court is self contradictory in that it acknowledges an
ascertainable loss as the basis for its award of compensation and then denies that loss as a result of
its award of compensation. It appears to us that a determination of ascertainable loss only after
judgment has been rendered, rather than at the time of the asserted statutory violation, would
effectively preclude a plaintiff from ever raising a cause of action under the Act. We do not believe
that our Legislature intended such an interpretation of T.C.A. 47-18-109 and we do not find that the
Plaintiffs in this case failed to show ascertainable loss as required by the statute.

       The next issue before us questions whether the Defendants' failure to offer the Plaintiffs any
recourse other than replacement merchandise constituted a violation of the Consumer Protection Act.

       We agree with the finding of the Trial Court that whether there has been a violation of the
Consumer Protection Act in this case hinges upon the interpretation given to the Tennessee
Pawnbrokers Act of 1988 which is set forth at T.C.A. 45-6-201 et seq. T.C.A. 45-6-212 prohibits
the pawnbroker from engaging in certain designated actions and, at subsection 5, specifies that a
pawnbroker shall not:

                 (5) Fail to return pledged goods to a pledgor upon payment of the full
         amount due the pawnbroker on the pawn transaction. In the event such pledged
         goods are lost or damaged while in the possession of the pawnbroker, it shall be
         the responsibility of the pawnbroker to replace the lost or damaged goods with
         like kind or kinds of merchandise. In the event the pledgor and pawnbroker
         cannot agree as to replacement with like kind or kinds, the pawnbroker shall
         reimburse the pledgor for the agreed upon value of the article as recited under
         section 45-6-209(b)(4);

       T.C.A. 45-6-209(b)(4) states as follows:

         (b) The pawnbroker shall, at the time of making the pawn transaction and/or buy-
         sell transaction, enter upon the pawnshop copy of the records as well as on the
         pawn ticket, and/or buy-sell ticket, the following information, which shall be
         typed or written in ink and in the English language:
         ...
         (4) The exact value of property as stated by pledgor who pledges same.

        The Plaintiffs assert that the Defendants violated T.C.A. 45-6-212(5) by failing to offer them
monetary reimbursement when the Plaintiffs refused to accept the offered remedy of replacement
merchandise. Both Mr. Jackson and Ms. Keith testified at trial regarding the Defendants' failure in
this regard.



                                                 -5-
Mr. Jackson's testimony was as follows:

         A Okay. I went to the store on Clinton Highway and they didn't have
 anything in there that -- with value of the cost of my ring, what my ring was
 worth. They tried to send me to a -- they had a store in Morristown, I think she
 said. It was a lady I talked to. And, I told them, no, I didn't want nothing else in
 replace of my ring. I wanted my money.

         Q        Then, what happened, anything else? Did you talk to them any
 further?

          A No, I told them I was going to get me a lawyer and to take it up from
 there.

Ms. Keith's testimony reflects a similar experience:

       Q The options, number one, was to go somewhere else and pick out
 something that you --

          A      Of equal value.

          Q      Was there another option?

          A      No.

          Q      What did you tell them you wanted?

          A My jewelry.

        Q And your jewelry wasn't there. So, did your have some further
 discussion with them?

         A Other than the fact that I'd see you in court. My stuff was gone. What
 could I do?

          Q Did they at any time, offer to pay you money?

          A      No.

          ....




                                             -6-
                Q Now, in your discussion with them, did they let you know that this
         option of picking out something of equal value was your only option with regard
         to everything that had been stolen?

                 A    That was the only option they gave me.

         The Defendants observe that T.C.A. 45-6-212(5) requires a reimbursement of "agreed upon
value," but contend that the "agreed upon value" of the Plaintiffs' property has always been a matter
of dispute in that the Plaintiffs deny that the value set forth in the pawn contracts as the actual cash
value of their property is an accurate statement of the true value of their property. The Defendants
argue that since the Plaintiffs would not accept those values set forth in the pawn contracts and the
Defendants do not accept the values placed upon the property by the Plaintiffs in their complaint and
in their testimony at trial, there is no "agreed upon value." The Defendants argue that, because there
was never an "agreed upon value," they could not have reimbursed the "agreed upon value" as
required by the statute and that they should not be found guilty of a consumer protection violation
on the grounds that they did not pay the Plaintiffs "some" money.

       Our review of the record reveals that the Defendants have submitted no evidence that they
gave the Plaintiffs the option of reimbursement when the Plaintiffs rejected their offer of replacement
merchandise. Since the Defendants did not present the option of any reimbursement, the question
of amount of reimbursement was not yet an issue between the parties. The Defendants violation of
T.C.A. 45-6-212(5) does not lie in the fact that they failed to offer the Plaintiffs a certain amount of
reimbursement but in the fact that they failed to offer the Plaintiffs any reimbursement.

         The Defendants further argue that Ms. Keith did, in fact, accept their offer of replacement
merchandise and, therefore, the statutory obligation of reimbursement never arose with respect to
the Keiths. In support of this argument the Defendants presented three documents at trial which they
allege were found stapled together in the Defendants' business records. The Defendants assert that
the first of these, identified as Exhibit 10 at trial, is a receipt which was given to Ms. Keith on
November 28, 1997, when she redeemed the ladies gold coin ring. The document appears to be a
copy of the pawn contract entered into between the parties with respect to that ring. The hand
written notation "STOLEN 11/10/97" followed by the initials "REK" appear on the face of the
document in red ink. The Defendants assert that the initials are those of a former employee who
worked at the Defendants' shop at the time, and Ms. Keith confirmed that this notation was written
on the document when she redeemed the described ring. The document also contains the notation
"Replaced w/ Item #97-2531 ½ carrot Dia marq." handwritten in black ink . Although this notation
is not signed or initialed, Charles Hodge, who was the store manager of the Big Easy Auto Pawn
location on Chapman Highway in November of 1997, testified at trial that he made the latter notation
after Ms. Keith accepted a one-half carat marquise diamond to replace her stolen coin ring. Ms.
Keith denies that she accepted replacement merchandise and attested that she does not know how
the latter notation came to be on the document. The document is neither signed nor initialed by Ms.
Keith.



                                                  -7-
        The other two documents presented by the Defendants in support of their argument that Ms.
Keith accepted replacement merchandise were introduced at trial as Exhibits 13 and 14. Each of
these two documents is designated on its face "SALES RECEIPT" and is dated "11-28-97."

       Exhibit 13 lists four video cassettes3 and a ring which is described in the document as "LDS
RNG ½ CAR. MARQ. STONE." The document also shows an amount billed and paid for the four
movies, although there is no amount shown as billed or paid with respect to the ring. The amount
due for all the items listed is shown as zero. The document is neither signed nor initialed by Ms.
Keith nor does her name appear anywhere on the document.

         Exhibit 14 lists three rings and a bracelet which are designated as "10 KYG WILLIAMS
RING"; "14 KYG WILLIAMS RING"; "10 KYG ROPE BRACELET"; and "LDS RNG PK ICE."
Beneath this list the document states, "THESE ITEMS REPLACED FAR [sic] STOLEN
MERCHANDISE FOR ASHEVILLE HWY." The Defendants submitted testimony from Mr. Hodge
that all of these items were given to Ms. Keith to replace her property that was lost in the burglary.
As with Exhibit 13, Exhibit 14 is neither signed nor initialed by Ms. Keith nor does her name appear
anywhere on the document.

      The Trial Court concluded that none of the three documents submitted by the Defendants was
competent to prove that Ms. Keith had received replacement items for her stolen property because
none was signed by her. We agree with and affirm the Trial Court's ruling in this regard.

        It is our finding that the Defendants did violate T.C.A. 45-6-212 by failing to offer the
Plaintiffs monetary reimbursement for those items of their property which were stolen while in the
possession of the Defendants. We further find that the Defendants’ violation of T.C.A. 45-6-212
also constitutes a violation of the Tennessee Consumer Protection Act, T.C.A. 47-18-101, et seq.
One of the stated purposes of the Consumer Protection Act is set forth at T.C.A. 47-18-102(2):

                 (2) 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.

        It is our determination that one of the manifest purposes of T.C.A. 45-6-212 is to insure that
a pledgor is allowed the option of reimbursement under circumstances such as those present in the
case sub judice. The Defendants' failure to provide the option of reimbursement was a denial of the
Plaintiffs' right under the statute and was, therefore, clearly unfair. Furthermore, the Defendants'
failure in this regard was also deceptive in that it would have necessarily led the Plaintiffs to the
erroneous conclusion that their only recourse under the circumstances was to accept substitute
merchandise for their stolen property.




       3
           Although Exhibit 13 d escribes these items as movies, we assum e that they are video cassettes.

                                                          -8-
       The next issue we address is whether the Keiths are precluded from recovering damages as
to any items of their pawned property by reason of the fact that they had not made all requisite
redemption payments due on those items under the pawn contracts.


         The Defendants do not dispute that Mr. Jackson made all payments due for the redemption
of his ring or that Ms. Keith made the payments necessary to redeem her gold coin ring. However,
the Defendants deny that the Keiths ever made any payment on the remaining five pawn contracts.
The Defendants argue that, since T.C.A. 45-6-212(5) conditions the responsibility for replacement
or reimbursement upon "payment in the full amount due the pawnbroker on the pawn transaction,"
they are not liable to the Keiths on the five unpaid contracts.

        The Trial Court made no specific findings as to whether the Keiths were entitled to recovery
with respect to all six of the pawn contracts listed in their complaint. However, we are compelled
to conclude that, given the amount of damages awarded the Keiths and the fact that the Trial Court
did not indicate that damages would not lie for any of the items pawned by the Keiths, the Trial
Court did not find that the Keiths should be disallowed an award of damages for property pawned
under any of the six contracts by reason of non-payment.

       The record shows that, as of November 28, 1997, the only item pawned by the Keiths with
respect to which full redemption payments were made was the gold coin ring. The record also
shows, however, that at that time, redemption payments were not yet due under the three pawn
contracts covering the ladies cluster necklace, ladies opal ring and the guitar and case. And, although
the pawn contracts show that redemption payments on the ladies diamond ring and the mens
diamond ring were past due after November 16,1997, those two items were also still subject to
redemption under T.C.A. 45-6-211(a) which states:

         (a) In every pawn transaction made under a loan of money pawn transaction as
         defined in this part, the pawnbroker shall retain in the pawnbroker's possession the
         pledged goods for thirty (30) days after the maturity date of the pawn transaction.
         Pledged goods not redeemed by the pledgor on or before the maturity date of the
         pawn transaction set out in the pawn ticket issued in connection with any pawn
         transaction may be redeemed by the pledgor within such period of thirty (30) days
         after the maturity date of the pawn transaction by the payment of the originally
         agreed redemption price (interest, fee and loan amount), and the payment of the
         additional interest and fee for the period following the original maturity date due
         on the pawn transaction.

        The Keiths contend that once they learned that their property had been stolen and that, upon
payment of the amount necessary for redemption of the ladies gold coin ring, their only recourse was
to be replacement merchandise, it would have been unavailing for them to pay the amounts due
under the remaining five contracts. The Keiths argue that their cause of action should not be



                                                 -9-
precluded because of their refusal to engage in what would obviously have been an exercise in
futility. We agree.

        It seems evident to us that even had the Keiths made the redemption payments required under
the remaining five contracts the Defendants would still have only offered them the option of
replacement merchandise for their stolen property. Under these circumstances the Defendants were
not obligated to pay the amounts outstanding under the remaining contracts as a pre-condition to
their cause of action under T.C.A. 45-6-212. As stated by the Supreme Court of this State in
Richardson v. Tennessee Board of Dentistry, 913 S.W.2d 446 (Tenn.1995), "The law should not
require one to perform useless and futile acts."

        Although the Keiths were not required to pay the amounts due under the remaining contracts
in order to maintain their lawsuit, the Defendants nevertheless remain entitled to payment of these
outstanding amounts and, as provided hereafter in this opinion, we find that any damages awarded
to the Keiths should be offset by payments due under the unredeemed contracts.

        The final issue before us questions whether the Trial Court erred in its award of damages to
the Plaintiffs.

        As previously stated, on August 11,2000, the Trial Court entered final judgments on behalf
of Mr. Jackson and the Keiths in the respective amounts of $1,100.00 and $2,250.00. Our review
of the Trial Court's memorandum opinion reveals that these amounts represent the Trial Court's
determination of the fair market value of the Plaintiffs' stolen property.

       Ms Keith testified at trial that the total value of the stolen property belonging to her and her
husband was between $5,825.00 and $6,025.00. Mr. Jackson testified that the value of his stolen
ring was $1,700.00. The Defendants did not offer evidence of value at trial and maintain that they
were unable to do so because the property was unavailable for valuation, the employee who made
the pawn contracts with the Plaintiffs was not available to testify and there was no information
available as to the cut, clarity, exact size or quality of the items of jewelry stolen.

        The Plaintiffs contend that the Trial Court should have accepted the values they attested to
because there was no opposing evidence of value presented by the Defendants. The Plaintiffs further
contend that the Trial Court offered no reason for its refusal to accept the values placed on the
property by the Plaintiffs and that the values assigned by the Court are arbitrary and unsupported.
The Defendants argue that the credibility of the Plaintiffs' testimony regarding value was undermined
during cross examination and, therefore, the Court was justified in rejecting that testimony. The
Defendants also maintain that Ms. Keith was not competent to testify as to the value of the mens
diamond ring because it did not belong to her but to her husband. The Defendants argue that the
values that the Trial Court should have adopted are the amounts stated on the face of the contracts
as the actual cash value of the pawned items.




                                                 -10-
         We first address the Defendants' assertion that Ms. Keith was not competent to testify as to
the value of the mens diamond ring which belonged to Mr. Keith. Rule 701 of the Tennessee Rules
of Evidence specifies that, "A witness may testify to the value of the witness's own property or
services." However, Tennessee case law provides that a witness who is married to the owner of the
property and who has intimate knowledge of such property is qualified to give a lay opinion as to
the value of the property. See State v. Mills, an unpublished opinion of the Court of Criminal
Appeals filed in Nashville on September 15, 2000. It is undisputed that Ms. Keith is married to the
owner of the property in question. Also, she has intimate knowledge of the property having
personally purchased it as a gift for Mr. Keith. We, therefore find that Ms. Keith is competent to
testify as to her opinion of the value of her husband's diamond ring.

       We next address the Plaintiffs' argument that the Trial Court was bound to accept those
values attested to by the Plaintiffs at trial because the Defendants did not present their own
contradictory evidence as to value.

        The Trial Court made it quite clear in its memorandum opinion that it made its own
independent determination of the value of the Plaintiffs' stolen property because it did not believe
that the Plaintiffs' testimony in that regard was credible:

                 The Court is not satisfied and cannot accept the Plaintiffs' impression as
         to the value of the property here. The Court just doesn't -- can't accept that that
         is accurate. I know I had a chance to look at them, listen to them, and watch them,
         and I've got to deal with credibility here. Observing them and listening to them in
         a couple of things they did, I just can't believe they've given me an accurate
         appraisal of fair market value of this property.

        The law is well established that this Court does not pass on the credibility of witnesses. A
trial court, having seen and heard the witnesses testify, is in the best position to determine the
witnesses' credibility. See Bowman v. Bowman, 836 S.W.2d 563 (Tenn. Ct. App. 1991). We also
note that, with respect to expert testimony, this Court has held that such testimony, even if
uncontradicted, is purely advisory and the trier of fact may draw upon its common knowledge and
arrive at a different conclusion. See England v. Burns Stone Co., Inc., 874 S.W.2d 32 (Tenn. Ct.
App. 1993). If a trial court is not bound by the uncontradicted testimony of an expert, it stands to
reason that it should not be bound by the uncontradicted opinion testimony of lay witnesses such as
the Plaintiffs in the matter sub judice.

        Although the Trial Court does not set forth its specific reasons for refusing to accept the
Plaintiffs' testimony as to value, we find that the Trial Court's decision is sufficiently supported by
the record. For instance, Mr. Jackson testified that the fair market value of his ring was $1,700.00
which was the price of the ring when it was purchased and he allowed for no diminishment of value
in consequence of the fact that the ring was used. Similarly, Ms. Keith testified that the guitar was
purchased used for $150.00 and the Guitar case was purchased new for $80.00 for a total purchase
price of $230.00; however, she testified that the current fair market value of these items at the time


                                                 -11-
of trial was $225.00, allowing a diminishment in value from the purchase price of only $5.00. The
assuredness of Ms. Keith's opinion as to value is also called into question by the conflict between
the values presented by her trial testimony and the values stated in her complaint. In her complaint
Ms. Keith valued the guitar and case at $150.00 while she testified at trial that the value of the guitar
and case was $225.00. And, although in her complaint she valued the ladies cluster necklace at
$1,800.00, at trial she valued that item at between $400.00 and $500.00.


        In view of the foregoing and the record as a whole it is our conclusion that the Trial Court
did not err by failing to accept the values attested to by the Plaintiffs and the Plaintiffs' argument
that the Trial Court was bound to accept those values is without merit.

        We next address the Defendants' contention that the Plaintiffs should be bound by the value
set forth as "Actual Cash Value of Merchandise Pawned" in each of the pawn contracts.

        The Defendants contend that by enacting T.C.A. 45-6-212(5) to require that the pawnbroker
reimburse the pledgor for the agreed upon value of lost merchandise, the Legislature contemplated
that the parties would be free to contract up front as to agreed upon value. The Defendants assert
that the actual cash value of each item of property is clearly and plainly stated as such on the face
of the contract, that the Plaintiffs freely signed the contracts and that the Plaintiffs should, therefore,
be bound by the contractual amounts.

         Although T.C.A. 45-6-212(5) requires that the pawnbroker reimburse the "agreed upon
value" of the pledgor's lost property, it is specifically the "agreed upon value" as recited at T.C.A.
45-6-209(b)(4). The latter section mandates that the value to be listed in the pawn contract shall be
"the exact value of property as stated by pledgor who pledges same" Evidence presented at trial in
this case clearly establishes that the amount set forth as "Actual Cash Value of Merchandise Pawned"
was not the value stated by the Plaintiffs because the Plaintiffs were never consulted as to the value
of their property. Instead, as stipulated at trial, the Defendants’ practice in this case, and as a general
matter, was to merely re-list the amount of the loan as the "Actual Cash Value of Merchandise
Pawned."

        We conclude that the Legislature's intent in enacting T.C.A. 45-6-209(b)(4) was to insure
that the pledgor would receive the full value of his or her pawned property should it be lost while
in the pawnbroker's care. Statutes are a manifestation of the public policy of this State. See Cary
v. Cary, 937 S.W.2d 777 (Tenn. 1996). It would be against the public policy reflected in T.C.A. 45-
6-209(b)(4) to limit the Plaintiffs' damage award to the amounts set forth in the contracts as the
actual cash value of their property when those amounts are nothing more than a restatement of the
loan amounts. Accordingly, it is our finding that the Plaintiffs' damage award should not be limited
to the amounts shown as the actual value of their property in the contracts.

        The Trial Court does not specifically state what factors it considered in reaching its decision
as to the value of the Plaintiffs' property. Ms. Keith testified that the total value of her and her


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husband's property was between $5,825.00 and $6,025.00, while Mr. Jackson testified that the value
of his ring was $1,700.00. The Defendants did not submit proof of value other than the pawn
contracts which showed a total value of $610.00 for the Keiths' property and a value of $50.00 for
Mr. Jackson's ring. The Trial Court assigned a total value of $2,250.00 to the Keiths' property and
a value of $1,100.00 to Mr. Jackson's property. The values set by the Trial Court are within the
range of values presented by the parties and we do not find that the evidence preponderates to the
contrary.

        Next, the Defendants assert that they are entitled to a setoff for the loan payments and fees
which remain due under the five unredeemed pawn contracts between themselves and the Keiths.
We agree. The Keiths will receive a windfall if they are allowed to recover the fair market value of
their property and are at the same time absolved of their obligations to repay the money loaned and
the pawn charges due under the contracts. Although the Keiths contend that the Trial Court may
have already allowed the Defendants a setoff in its award of damages, we find no evidence in the
record which compels us to agree with that contention. Adding the outstanding loan amounts and
pawn charges due under the unredeemed contracts as set forth earlier in this opinion, we find that
there is a remaining balance due the Defendants under those contracts in the sum of $683.20.
Accordingly, we find that the Defendants should be allowed a setoff in the amount of $683.20,
thereby reducing the award of damages to the Keiths from $2,250.00 to $1,566.80.

        As a final matter relative to the issue of damages we address the Plaintiffs' assertion that they
should receive treble damages and attorney fees pursuant to T.C.A. 47-18-109(a)(3) and (4) which
state as follows:

                 (3) If 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 award
         three (3) times the actual damages sustained and may provide such other relief as
         it considers necessary and proper.
                 (4) In determining whether treble damages should be awarded, the trial
         court may consider, among other things:
                          (A) The competence of the consumer or other person;
                          (B) The nature of the deception or coercion practiced upon the
                 consumer or other person;
                          (C) The damage to the consumer or other person; and
                          (D) The good faith of the person found to have violated the
                 provisions of this part.

        We agree with the Plaintiffs' assertion that the Defendants' failure to offer reimbursement was
knowing and willful; however, because the Trial Court did not find the Defendants' actions to be a
violation of T.C.A. 47-18-109, the Court did not address the question of whether the Plaintiffs are
entitled to treble damages and attorney fees under that statute. Accordingly, we remand the case to
the Trial Court so that it may determine whether the Plaintiffs should receive treble damages and
attorney fees.


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       For the foregoing reasons the judgment of the Trial Court is affirmed in part as modified,
reversed in part and remanded for further proceedings not inconsistent with this opinion. Costs of
appeal are adjudged against the Defendants, Gene Ervin Howerton and Easy Money, Inc.



                                             _________________________________________
                                             HOUSTON M. GODDARD, PRESIDING JUDGE




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