                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                 Assigned on Briefs October 8, 2008

                   MEGAN GRISWOLD v. JOSH WILLIAMS, ET AL.

                      Appeal from the Chancery Court for Rutherford County
                       No. 04-9240 CV Robert E. Corlew, III, Chancellor



                         No. M2007-01007-COA-R3-CV - Filed July 24, 2009


Sellers of truck appeal award of damages and attorneys fees awarded to purchaser based on finding
that sellers violated the Tennessee Consumer Protection Act. Finding no error, we affirm the
decision of the trial court.

      Tenn. R. App. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

RICHARD H. DINKINS, J., delivered the opinion of the court, in which PATRICIA J. COTTELL, P.J.,
M.S., and FRANK G. CLEMENT , JR., J., joined.

Josh Williams and Richard Williams, Dowelltown, Tennessee, Pro Se.

Benjamin D. Groce, Murfreesboro, Tennessee, for the appellee, Megan Griswold.

                                          MEMORANDUM OPINION1

I. Background

        Josh Williams and his father Richard Williams (“the Williams”) buy and repair damaged
and/or salvaged vehicles for purposes of resale. They purchased a truck which had been damaged
in an accident for $4,000.00 and, at the time of their purchase, had no hood, headlights, front fender
or radiator. The truck had been totaled in the accident and the title the Williams received, issued by
the State of Georgia, showed the vehicle to be a “salvage” vehicle. The Williams performed some
repair work to the truck and, in contemplation of selling the truck, applied for a new certificate of

       1
           Tenn. R. Ct. App. 10 states:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify
       the actions of the trial court by memorandum opinion when a formal opinion would have no
       precedential value. W hen a case is decided by memorandum opinion it shall be designated
       “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any
       reason in any unrelated case.
title issued by the State of Tennessee. The Tennessee title they received did not contain a salvage
notation.

        Josh Williams advertised the truck for sale on a bulletin board at his place of employment
with an asking price of $8,350.00. Megan Griswold, whose brother worked with Josh Williams,
became interested in the truck. Ms. Griswold and her father inspected and test drove the truck. Ms.
Griswold asked about problems with the vehicle and was advised by Josh Williams that the body had
been repaired due to damages sustained in a previous wreck. Ms. Griswold subsequently purchased
the truck for 8,250.00.

         A few days after the purchase, both oil lines on the truck became disconnected, causing all
the oil to leak. Ms. Griswold’s father took the truck to a friend who had a lift, as a result of which
they learned that the car had been involved in a serious accident. Mr. Griswold then consulted the
“Carfax” service2 and learned of the previous “salvage” title issued in Georgia. Mr. Griswold then
contacted Josh Williams to resolve the matter, but they were unable to agree.

        Ms. Griswold thereafter filed suit against the Williams in Rutherford County Chancery Court
alleging breach of contract, fraud and violation of the Tennessee Consumer Protection Act (“TCPA”)
and seeking rescission of the sale, damages and treble damages pursuant to the TCPA, punitive
damages based on fraud and attorneys fees. Following a non-jury trial, the court entered its order
finding that the Williams made negligent misrepresentations regarding the truck’s history and
violated the TCPA. The court awarded actual damages in the amount of $2,350.003 jointly and
severally against the Williams; for violation of the TCPA, the court awarded Ms. Griswold judgment
in the amount of $2,350.00 against Richard Williams and treble damages totaling $7,050.00 against
Josh Williams. The court awarded attorneys fees in the amount of $14,100.00 against Josh Williams
and $4,700.00 against Richard Williams;4 the court made the award against Richard Williams joint
and several.

         The Williams appeal, stating the following as the issue for review:

         Whether the trial court erred in ordering relief under the TCPA because the
         transaction was a single transaction between individuals and the Williams were not
         in the business of selling vehicles. The only cause of action Griswold properly pled
         in her complaint was that the Williams had violated the TCPA. Therefore, the trial
         court’s finding that Griswold was entitled to recover under the Act is erred [sic]


        2
         Carfax is an internet-based service that provides vehicle history reports, including history of vehicle titles.
See www.carfax.com.

         3
            This amount represented the difference between the $8,350 sale price and the $6,000.00 fair market value
of the truck.

         4
          It appears that the amount of attorneys fees awarded against Josh W illiams was two times the TCPA damage
award and the award against Richard W illiams was two times the actual damage award.

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       based on Ganzevoort v. Russell, 949 S.W.2d 293 (Tenn. 1997) for the proposition
       that the TCPA does not apply because the transaction was “the isolated sale of real
       estate between private parties.” The Trial Court followed Ganzevoort and held that
       the “casual sale of a person’s personal residence (property)” does not fall within the
       ambit of the Act.

       Ms. Griswold raises the additional issue of whether this appeal should be dismissed for the
Williams’ failure to file their brief on appeal in accordance with Rule 29, Tenn. R. App. P.

II. Standard of Review

        Because this case was tried without a jury, our review of the trial court’s findings of fact is
de novo, accompanied by a presumption of correctness, unless the preponderance of the evidence
is otherwise. See Tenn. R. App. P. 13(d). Our review of the trial court’s determinations regarding
questions of law is de novo with no presumption of correctness. See Bain v. Wells, 936 S.W.2d 618,
622 (Tenn. 1997); Tenn. R. App. P. 13(d). The construction of the TCPA and its application to the
facts of this case is a question of law. Ganzevoort v. Russell, 949 S.W.2d 293 (Tenn. 1997) (citing
Beare Co. v. Tennessee Dept. Of Revenue, 858 S.W.2d 906 (Tenn. 1993)).

III. Discussion

       A. Dismissal of the Appeal

        Ms. Griswold suggests that the appeal should be dismissed because the Williams’ brief was
not filed within the time limit set forth in Rule 29, Tenn. R. App. P. We note that the Williams’ brief
was timely filed in accordance with this court’s order of April 4, 2008, but that the brief was filed
with the Clerk and Master of Rutherford County rather than the clerk of this court. Exercising our
authority under Rule 2, Tenn. R. App. P., and in the interest of finality of the dispute between the
parties, we will consider the appeal.

       B. Ms. Griswold’s TCPA Claim

        The Williams, relying on Ganzevoort v. Russell, argue that the TCPA does not apply since
“the transaction was a single transaction between individuals and the Williams were not in the
business of selling vehicles.” We find, however, that, under the facts of this case and the applicable
law, the sale of the truck fell within the provisions of the TCPA.

       The relevant provision of the TCPA, Tenn. Code Ann. § 47-18-109(a)(1), provides a private
cause of action to:




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         Any person who suffers an ascertainable loss of money or property, real, personal,
         or mixed, . . . as a result of the use or employment by any person of an unfair or
         deceptive act or practice declared to be unlawful by this part5. . . .

        In Ganzevoort, an action in which the purchaser of a home brought suit under the TCPA
against the seller of the home and the seller’s real estate agent for defects in the home, the Tennessee
Supreme Court held that the TCPA was not applicable to the seller, since he was not generally
engaged in the sale of real property; the court found the TCPA otherwise applicable to the
transaction. The court distinguished the “isolated sale” of the owner of the home in that case from
the statute’s language that one purpose of the TCPA is to maintain “ethical standards of dealing
between persons engaged in business and the consuming public.” Ganzevoort, 949 S.W.2d at 298
(quoting Tenn. Code Ann. § 47-18-102(4) (emphasis in original).

         The trial court in this case found as a fact that the Williams were engaged in the practice of
buying salvaged and damaged vehicles, repairing them, and placing them for sale and that the sale
of the truck to Ms. Griswold was one of several similar transactions. We have reviewed the record
and find that the preponderance of the evidence supports the trial courts finding in this regard. The
effect of this finding is that the Williams were, in the language of the statute, “persons engaged in
business,” and that the sale of the truck was not an isolated one. The court properly held that the
TCPA applied to the transaction at issue.

        The Williams also argue that the trial court erred in finding them “guilty of deceptive and
unfair acts based on their failure to disclose the fact that the vehicle had a previous salvage title.”
They assert that Ms. Griswold had means to acquire the knowledge on her own and that, in response
to her questions, the Williams gave “information of the previous damage to the body of the vehicle.”
The trial court’s findings relative to the knowledge and actions of the Williams relative to the
damage to the truck and the titles issued by Georgia and Tennessee are exhaustive and are fully
supported by the preponderance of the evidence. As found by the trial court, Ms. Griswold’s reliance
on the responses to her questions was reasonable;6 however, the information she received from the
Williams was knowingly incomplete and deceptive and did not disclose facts known to the Williams.
In this regard, we note that the trial court expressed some concern regarding Josh Williams’
credibility. Because the trial court observes the witnesses as they testify, it is in the best position to
assess witness credibility. Frazier v. Frazier, No. W2007-00039-COA-R3-CV, 2007 WL 2416098,
*2 (Tenn. Ct. App. Aug. 27, 2007) (citing Wells v. Tenn. Bd. Of Regents, 9 S.W.3d 779,783 (Tenn.
1999)). Therefore, we give great deference to the court’s determinations on matters of witness
credibility. Id.




         5
             The list of deceptive practices is set forth at Tenn. Code Ann. § 47-18-104.

         6
          The reasonableness of a party’s reliance on another party’s misrepresentations is a question of fact. City State
Bank v. Dean Witter Reynolds, Inc., 948 S.W .2d 729, 737 (Tenn. Ct. App. 1996).

                                                           -4-
IV. Conclusion

       For the reasons set forth above, the decision of the Chancery Court is AFFIRMED.

       Costs are assessed against Josh Williams and Richard Williams, jointly and severally, for
which execution may issue if necessary.


                                                    ___________________________________
                                                    RICHARD H. DINKINS, JUDGE




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