                     IN THE COURT OF APPEALS OF TENNESSEE
                                  AT JACKSON
                                        November 19, 2008 Session

           GENE ANDERSON, ET AL. v. LAMB’S AUTO SERVICE, INC.

                       Direct Appeal from the Circuit Court for Shelby County
                              No. CT-001227-05     Jerry Stokes, Judge



                         No. W2008-01305-COA-R3-CV - Filed March 5, 2009


Plaintiffs/Appellees bring this case pursuant to the Tennessee Consumer Protection Act and a
negligent bailment theory. They allege that auto service center made poor cosmetic repairs to
interior of their car and that exterior of the car was damaged while at the service center. Finding no
violation of the Tennessee Consumer Protection Act and that Defendant/Appellant failed to
overcome presumption of negligent bailment, we affirm in part and reverse in part.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which ALAN E. HIGHERS, P.J., W.S., and
J. STEVEN STAFFORD , J., joined.

John W. Leach, Memphis, Tennessee, for the appellant, Lamb’s Auto Service, Inc.

Kevin A. Snider, Germantown, Tennessee, for the appellees, Gene Anderson and Dorothy Anderson.

                                                      OPINION

                                                Procedural History

        In 2003, Plaintiffs/Appellees Gene and Dorothy Anderson (together “the Andersons”) sought
to have their 1993 BMW (“the car”) refurbished. On September 8, 2003, they had the exterior of
the car painted at Dobbs Collision, and a month later they brought the car to Defendant/Appellant
Lamb’s Auto Service, Inc., (“Lamb” or “Lamb’s Auto”) for interior renovations. Although the
parties disagree about what repairs, specifically, Lamb’s Auto was to make to the car, both parties
concede that the Andersons requested Lamb’s Auto to replace two interior door panels, replace the
headliner,1 and re-cover the two front seats. When Lamb’s Auto returned the car, the Andersons
were displeased with Lamb’s work. Subsequently, the Andersons commenced this suit against


       1
           The headliner is the fabric that adheres to the inside roof of an automobile.
Lamb’s Auto in the General Sessions Court of Shelby County alleging breach of contract, fraud, and
violation of the Tennessee Consumer Protection Act. The general sessions court entered judgment
in favor of the Andersons, and Lamb’s Auto appealed to circuit court.

        The circuit court held a bench trial on July 11, 2007, and entered judgment for the Andersons.
The court found that Lamb’s Auto breached its contract with the Andersons and violated the
Tennessee Consumer Protection Act. The court awarded the Andersons $5,241.52 in compensatory
damages and $5,221,50 for attorney fees, but it denied treble or punitive damages. Upon request for
findings of fact and conclusions of law, the court adopted the oral rulings it made at the conclusion
of proof on July 11, 2007. Specifically, the court found that Lamb’s Auto engaged in a deceptive
trade practice, “namely in the use of parts which were not stated in the invoice.” Lamb’s Auto filed
a timely notice of appeal to this Court on May 21, 2008.

                                                 Issues Presented

         On appeal, Lamb’s Auto alleges three separate issues:

         (1)      The [trial] court was led into error in finding any violation of the Tennessee
                  Consumer Protection Act,

         (2)      The [trial] court erred in awarding damages for any “overspray”2 of the
                  vehicle, and

         (3)      The [trial] court erred in awarding attorney’s fees in practically an equal
                  amount of the compensatory damages.

In addition, the Andersons argue that the trial court erred by not awarding the full amount of
attorney’s fees that they incurred. The Andersons also request attorney fees for this appeal.

                                               Standard of Review

        Because the trial court adjudicated this case without a jury, we review the decision de novo
upon the record and presume the correctness of the trial court’s factual findings. Tenn. R. App. P.
13(d); Fowler v. Wilbanks, 48 S.W.3d 738, 740 (Tenn. Ct. App. 2000). We will not reverse the trial
court’s factual findings unless they are contrary to the preponderance of the evidence. Berryhill v.
Rhodes, 21 S.W.3d 188, 190 (Tenn. 2000). If the trial court’s factual determinations are based on
its assessment of witness credibility, this Court will not reevaluate that assessment absent clear and
convincing evidence to the contrary. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). If the trial
court fails to make findings of fact, however, our review is de novo with no presumption of
correctness. Archer v. Archer, 907 S.W.2d 412, 416 (Tenn. Ct. App.1995). On the other hand, we


         2
           Overspray is paint and clear coat that flies in the air when painting a car, that may land on and coat objects
in the surrounding area. It causes the paint on nearby cars to appear dull.

                                                          -2-
review the trial court’s application of law de novo with no presumption of correctness. Bowden v.
Ward, 27 S.W.3d 913, 916 (Tenn. 2000). Similarly, we review mixed questions of law and fact de
novo, with no presumption of correctness. State v. Thacker, 164 S.W.3d 208, 248 (Tenn. 2005).

                                                     Testimony

        At trial Mrs. Anderson testified that she brought her car to Lamb’s Auto because she wanted
the interior to look like new. When she delivered the car she spoke to Mr. Ellidge,3 the shop
manager. Either Mr. Ellidge, the store manager, or Mr. Lamb, the President of Lamb’s Auto, wrote
out Mrs. Anderson’s invoice. The invoice was written on a Lamb’s Auto Service ticket and the
following was the handwritten notation of the work to be done:

                           Recover [sic] 2 bucket seats 1200
                           Headliner & Ring             365
                           L & R door pads              300

Mrs. Anderson testified that her understanding was that Lamb’s Auto would replace the headliner,
replace the interior with new factory door panels, and re-cover the two front seats. But at trial, Mrs.
Anderson also explained that she had not really discussed specifics regarding what Lamb’s Auto was
to do to the door panels.4 In addition, she explained that although she had picked out the color, she
was unsure what quality material the front seats were to be re-covered with.5 Mr. Lamb testified, on

       3
           Apparently, there is some uncertainty about the pronunciation and spelling of the shop manager’s name.
       4
           Mrs. Anderson testified to the following at trial:

       Question:           Okay, so you actually signed this invoice at the time of the contract, which there’s
                           a date on there of October 13 of ‘03?
       Answer:             That’s correct.
       Question:           Okay. And what, based upon your discussions in this document, what was your
                           understanding of specifically what they were going to do?
       Answer:             Well, the headliner was to be changed – – was to be changed out, he was going to
                           replace the headliner, and he was going to replace the door panels and the two front
                           seats.
       Question:           Now, did y’all talk specifics in regard to the door panels as to what would be done?
       Answer:             Yes, he was supposed to replace the door panels.
       Question:           Okay. With leather, plastic, what, or did y’all discuss it?
       Answer:             Well we didn’t really discuss it.
       5
           Mrs. Anderson also stated,

       Question:           But you recall picking - - selecting the color to recover [sic] the seats, that’s
                           correct?
       Answer:             Yes.
       Question:           All right. And you understood it was going to be vinyl, didn’t you? You didn’t
                           think you were going to get leather, did you?
       Answer:             I’m not sure what he - - what it is supposed to be, all I know is it was supposed to
                                                                                                          (continued...)

                                                          -3-
the other hand, that the written invoice indicated that the headliner, front seats, and door panels were
all to be re-covered. A notation written on Lamb’s copy of the invoice indicated the color Mrs.
Anderson had selected to put on the seats, which was available as a vinyl material.

         In total, Mrs. Anderson had her car serviced at Lamb’s Auto four times. She first noticed her
dissatisfaction with Lamb’s work after she paid her $ 2,637.51 bill and brought her car home. She
noticed that the interior door panels were sticky, as though they had been painted and not replaced,
and the headliner ring looked as though it had been crookedly pieced together. Mrs. Anderson
testified that she returned the car to Lamb’s Auto, for the second time, on the following day. When
she picked the car up, Mrs. Anderson noticed that the door panels appeared to have been replaced,
but they were fastened to the interior of the door with screws. Mr. Ellidge told Mrs. Anderson to
bring the car back a third time so that he could fix the headliner ring around the sunroof. Mrs.
Anderson explained that when she got the car back the third time, Lamb’s Auto had taped the
headliner up, and Mr. Ellidge told her to keep it taped up for a few days because he needed to re-glue
it. For the fourth time, Mrs. Anderson sent her husband to drop the car off, but no one was available
to work on it at that time. Thereafter, the Andersons demanded a refund of the $2,637.51 they had
previously paid, and Lamb’s Auto refused to give the Andersons their money back.

         At some point, Mrs. Anderson became concerned that the exterior of her car seemed dull, so
Clarence Bailey (“Mr. Bailey”) came with her to Lamb’s Auto to pick the car up. Mr. Bailey had
painted the exterior of Mrs. Anderson’s car a month earlier. Mr. Bailey determined that there was
overspray on the exterior of the car which was causing the dull appearance. At trial, Mr. Bailey
testified that he estimated the cost of repairing the overspray damage to be $1,374.46. Although
Lamb’s Auto did not do any painting or work on the exterior of the car, Mrs. Anderson testified that
she had seen a man using a spray paint gun inside the shop where her car was parked.

        At some point, the Andersons also asked Jerry Benefield (“Mr. Benefield”), the manager at
Don’s Auto Upholstery, to inspect the car and estimate the costs for the various cosmetic repairs they
wanted done. Based on Mr. Anderson’s requests, Mr. Benefield estimated the price for installing
new factory door panels, factory floor carpet, re-covering the seats and headrests in leather, and re-
covering the headliner. The estimate total was $5,352.16. At trial, the Andersons showed Mr.
Benefield pictures taken of the car in December 2003. Mr. Benefield testified that many of the
repairs, including the taped headliner, screws in the loosened door panels, unsecured headliner, and
undone or torn leather on the headrest, would be poorly done if they were the result of a repair. Mr.
Benefield acknowledged, however, that screwing in door panels is a last resort, and not considered
substandard work when replacing door panels where the plastic clips that normally hold in the panels
have broken or deteriorated.




       5
           (...continued)
                            be recovered [sic].



                                                  -4-
         Mr. Lamb also testified at trial about the equipment that it uses to paint a car’s exterior. Mr.
Lamb stated that all painting is done in a painting booth. The painting booth is enclosed on all sides
with a ventilation system that filters the air through an exhaust fan and draws it up and out through
the back of the booth. This system was similar to the painting booth Mr. Bailey testified he uses to
keep cars from being oversprayed. Mr. Lamb also testified that the spray guns that they use in the
shop contain glue, not paint, although the two types of spray guns look exactly alike. Mr. Lamb also
testified that Lamb’s Auto did put salvaged door panels on Mrs. Anderson’s car; he did not tell her
that they were either new or used, but the price reflects that Lamb’s Auto installed salvaged doors.
Mr. Lamb stated that he often uses salvaged doors on older cars, and that when he repairs cars
pursuant to an insurance contract, the insurance company rarely approves installing new parts on a
ten-year old car.

                                               Analysis

        At trial, the Andersons argued two separate theories of liability. First, the Andersons alleged
that the repairs Lamb’s Auto made to restore the vehicle breached their contract and violated the
Tennessee Consumer Protection Act. Second, the Andersons argued that Lamb’s Auto was
responsible for the overspray damage pursuant to a negligent bailment theory. Lamb’s Auto argues
on appeal that it did not violate the Tennessee Consumer Protection Act, that the trial court erred in
awarding damages for any overspray, and that the attorney fee award was error. We address each
argument in turn.

                               Tennessee Consumer Protection Act

         A plaintiff seeking to recover under the Tennessee Consumer Protection Act (“TCPA”) must
prove (1) that the defendant engaged in an unfair or deceptive act or practice declared unlawful by
the TCPA, and (2) that the defendant’s conduct caused an “ascertainable loss of money or property,
real, personal, or mixed, or any other article, commodity, or thing of value wherever situated.”
Tucker v. Sierra Builders, 180 S.W.3d 109, 115 (Tenn. Ct. App. 2005). Whether a specific
representation in a particular case is unfair or deceptive under the Tennessee Consumer Protection
Act is a factual question. Id. at 116 Because the Tennessee Consumer Protection Act does not define
“deceptive” and “unfair,” the standards used to determine whether an act or representation is
deceptive or unfair is a legal matter. Id. As this Court has discussed, “[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.” Id. Defendant’s conduct need not be willful or knowing
for a court to award actual damages and attorney fees for violating the TCPA, and a merchant can
mislead a consumer through its statements, silence, or actions. Id. at 115–16.

        The Andersons’ argument at trial was that Lamb’s Auto violated several specific provisions
of the Tennessee Consumer Protection Act. The most relevant of these is the Andersons’ allegation
that Lamb’s Auto “represent[ed] that goods are original or new [when] they are deteriorated, altered
to the point of decreasing the value, reconditioned, reclaimed, used or secondhand” and
“represent[ed] that goods or services are of a particular standard, quality or grade, or that goods are


                                                  -5-
of a particular style or model, if they are of another.” Tenn. Code Ann. § 47-18-104(b)(6)- (7). The
trial court held that Lamb’s Auto engaged in a deceptive trade practice because Lamb’s Auto used
parts which were not stated in the invoice.

         As we have previously articulated, however, breach of a contract and violation of the TCPA
are two different actions, and proof of the existence of one does not necessarily establish existence
of the other. Hall v. Hamblen, No. M2002-00562-COA-R3-CV, 2004 WL 1838180, at *4 (Tenn.
Ct. App. 2004). “A party bringing a TCPA action must prove that there was some deception,
misrepresentation or unfairness, regardless of any breach of contract.” Id.; Haverlah v. Memphis
Aviation, Inc., 674 S.W.2d 297, 305–06 (Tenn. Ct. App. 1984). We find, however, that the evidence
in this case preponderates against the trial court’s finding that the Andersons were entitled to relief
under the TCPA. Nothing in the proof reveals a misrepresentation or unfair or deceptive practice.
As the Kentucky Supreme Court eloquently stated,

         [t]he parties’ repair contract was for completed performance . . . the party charged
         with performance was, entitled to use its skill and judgment as to the method and
         materials. . . .
         . . . . The statute requires some evidence of “unfair, false, misleading or deceptive
         acts” and does not apply to simple incompetent performance of contractual duties .
         ...
         . . . . We are not talking about bad manners or mere breakdowns in communications
         resulting in irritations injuring pride.

Capital Cadillac Olds, Inc. v. Roberts, 813 S.W.2d 287, 291 (Ky. 1991) (citations omitted). The
record in this case contains no evidence of any representations by Lamb’s Auto regarding the quality
of its work, no representations regarding the quality of the goods that Lamb’s Auto provides with
its services, and the invoice did not indicate whether new or used parts were to be installed.6 We
find, therefore, that the evidence preponderates against the circuit court’s finding that Lamb’s Auto
violated the Tennessee Consumer Protection Act.

                                            Damages for “Overspray”

        On appeal, Lamb’s Auto argues that there was insufficient proof to establish that the
overspray damage was the proxmiate result of any negligence by Lamb’s Auto. In inquiring whether
there is sufficient proof of negligence, we consider the burden shifting that occurs when a party
alleges a negligent bailment. By statute, a bailor establishes a prima facie case of a bailee’s
negligence if it proves 1) the property was delivered to the bailee in good condition, 2) bailee failed

         6
           We are aware of this Court’s decision in Coleman v. Proyor Oldsmobile/EMG, where we found that a car
dealership violated the Tennessee Consumer Protection Act by failing to disclose a paint defect on a demonstrator car
although it made no representation that the car was new. Coleman v. Proyor Oldsmobile/EMG, No. 38887-7 T.D., 1996
WL 544440, at *2 (Tenn. Ct. App. 1996). In Coleman, however, we were bound by the statutory definition that the
demonstrator car was sold as new because it had not previously “been the subject of a sale at retail to the general public.”
 Id.; see Tenn. Code Ann. § 47-18-119 (1995); Tenn. Code. Ann. § 55-5-106(e) (1993).

                                                            -6-
to return the property in accord with a contract or returned it in a damaged condition, and 3) the
damage was not due to the inherent nature of the property bailed. Tenn. Code Ann. § 24-5-111.
Once a bailor establishes a prima facie case, the burden shifts to the bailee to produce evidence and
persuade the trier of fact that the damage was not caused by the bailee’s negligence. Mathews v.
Cumberland Chevrolet Co., 640 S.W.2d 582, 584–85 (Tenn. Ct. App. 1982). At trial, Mrs.
Anderson testified that when she dropped her car off at Lamb’s Auto there was no overspray on the
car, but when she picked it up the car looked dull and there were flakes later identified to be
overspray. This shifted the burden to Lamb’s Auto to prove that the damage was not caused by the
bailee’s negligence. On appeal, Lamb’s Auto argues that it met this burden. We disagree.

         As no findings of fact were made on this argument other than the rendering of the judgment,
our review of this matter is de novo upon the record of the trial court. Archer v. Archer, 907 S.W.2d
412, 416 (Tenn. Ct. App.1995). To rebut the presumption of negligence, Lamb’s Auto offered proof
of the general precautions that it takes to avoid overspray damage. In addition, Lamb’s Auto claims
that no paint work was performed while plaintiffs’ vehicle was in defendant’s shop. This evidence,
however, is not sufficient to rebut the presumption of negligence. As this Court articulated in
Stevens v. Moore, 139 S.W.2d 710, 717 (Tenn. Ct. App. 1940), “the bailee’s duty in this respect
includes production of evidence that the loss was not attributable to any want of due care on his part,
and that to this end he is bound to disclose fully, in so far as he can, the manner in which the loss
occurred, the facts and circumstances attending it, and the precautions taken to prevent it.” Id. at 717
(quoting 6 Am. Juris § 379). Lamb’s Auto failed to produce evidence of what particularly happened
to the Andersons’ car; where a defendant fails to produce any evidence whatsoever to account for
the damage of the property, it cannot be said that they have sustained their burden by proving that
the damage was not caused by the their own negligence. Murphy v. Co-operative Laundry Co. of
St. Paul, 41 N.W.2d 261, 262–63 (Minn. 1950). We find, therefore, that Lamb’s Auto failed to
prove that its negligence did not damage the exterior of the Andersons’ car, and affirm the judgment
of the trial court that Lamb’s Auto breached the contract.

                                            Attorney Fees

        Lamb’s Auto also argues that the circuit court erred in awarding attorney fees in practically
an equal amount of the compensatory damages. In addition, the Andersons raise the additional issue
that the trial court erred because it did not award them the full amount of attorney fees they
requested. In light of our determination that Lamb’s Auto did not violate the Tennessee Consumer
Protection Act, the Andersons are not entitled to recover attorney fees.

                                             Conclusion

      For the foregoing reasons, we affirm in part and reverse in part. We reverse the trial court’s
judgment granting the Andersons damages and attorney fees as an award for violation of the
Tennessee Consumer Protection Act. We remand to the trial court for further proceedings limited




                                                  -7-
to the amount of damages incurred as a breach of contract with respect to the overspraying. The
Andersons’ request for attorney fees on appeal is denied. Costs of this appeal are taxed one-half to
the Appellee, Gene and Dorothy Anderson, and one-half to the Appellant, Lamb’s Auto Service, Inc.,
and its surety, for which execution may issue if necessary.



                                                      ___________________________________
                                                      DAVID R. FARMER, JUDGE




                                                -8-
