                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                FEBRUARY 14, 2007 Session

                  RONALD F. FLEMING v. JIM MURPHY, ET AL.

                   Direct Appeal from the Circuit Court for Shelby County
                         No. CT-004221-04     D’Army Bailey, Judge



                      No. W2006-00701-COA-R3-CV - Filed July 19, 2007


The plaintiff buyer, a Texas resident, became aware of a used car for sale in Memphis through an
internet advertisement. The plaintiff contacted the defendant who had prepared the internet
advertisement for the seller, and who provided him with the phone number of the defendant seller.
The plaintiff and the defendant seller agreed that the plaintiff would travel to the seller’s house in
Memphis to see the car and decide whether to purchase it for $38,000. The plaintiff and his stepson
drove to the seller’s home in Memphis, inspected the car, and took it on a short test-drive. The
plaintiff noted several problems with the car during the test-drive, but declined the defendant seller’s
offer to have the car inspected by a Memphis area mechanic prior to purchase. The plaintiff tendered
full payment for the car, and he and the seller signed a bill of sale that contained “as is” disclaimers
of warranty. After the plaintiff arrived back home in Texas, he took the car to a mechanic for routine
maintenance. The mechanic informed the plaintiff that the car’s frame was severely rusted,
rendering it dangerous to drive. The plaintiff received the same opinion from a restoration specialist,
and the plaintiff claims ultimately to have spent nearly $35,000 restoring the vehicle. The plaintiff
filed a complaint in Shelby County Circuit Court, asserting claims under the Tennessee Consumer
Protection Act and claims for negligent misrepresentation and breach of contract. The plaintiff
claimed actual damages which included over $25,500 in restoring the car to the condition
represented by the defendants, and he sought treble damages under the Tennessee Consumer
Protection Act. After discovery, the trial court granted the defendants’ joint motion for summary
judgment. We affirm.


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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY M. KIRBY , J., joined.

Felix H. Bean, III, Memphis, TN, for Appellant

Garrett M. Estep, Memphis, TN, for Appellees
                                            OPINION

                             I. FACTS AND PROCEDURAL HISTORY

        This case involves the sale of a used automobile. Plaintiff-buyer Ronald Fleming
(“Appellant”) is a Texas resident who is employed as a truck driver, and who has purchased
approximately 15 used cars in his lifetime from various dealers and individuals. Defendants Jim
Murphy and Jim Brannon are residents of Shelby County, Tennessee, as is Defendant Danny Buggs,
who conducts business as a used car dealer under the company name of “Buggs Buggys”
(collectively, “Appellees”). Mr. Murphy is a licensed used car dealer and purported independent
contractor of Buggs Buggys, and Mr. Brannon prepared an advertisement for display on the online
auction website, “eBay,” to assist Murphy in selling the vehicle at issue.

       In February of 2004, Mr. Fleming learned of the sale of a 1964 Chevrolet Corvette
convertible from an advertisement on eBay. The advertisement stated that the car had once been
owned by the actor John Travolta, and the Corvette was described as follows:

              This vehicle has been lovingly passed down, and still has plenty of
              life left in it. The previous owner has represented the mileage to be
              correct. Clean smell throughout, appears to have never been smoked
              in. This vehicle shines like new; it appears to have always been
              garaged. This vehicle has a smooth shifting transmission. The
              engine runs like a dream. There are no electrical concerns associated
              with this vehicle. This vehicle is perfectly sound, no known defects.

              This vehicle appears to have been detailed on a regular basis and
              looks brand new. The interior is extra clean; it was very well kept.
              There appears to be a full set of brand new tires. The engine in the
              car is a 1967 327-350HP that runs very well. In the pictures I have a
              window sticker that was made up just for display purposes and not
              original to the car. Any questions call me at . . . or email me at . . . .
              Thanks, Jim Brannon.

Also displayed on the advertisement was a prominent disclaimer stating “AS IS - NO
WARRANTY,” and “[i]t is the responsibility of the buyer to have thoroughly inspected the vehicle,
and to have satisfied himself or herself as to the condition and value and to bid based upon that
judgment solely.” An additional description provided:

              This car is in very nice condition. The paint is very good and the
              body nice. The interior is in great shape and the carpet shows little
              wear. The engine runs great and the transmission shifts good. The
              brakes are new and the rear end has been rebuilt and serviced Nov.
              03. You could drive this car and enjoy it without fear of breaking


                                                 -2-
                   down. The air conditioning works very well and will keep you cool
                   on hot days.

Fleming stated at his deposition that he was a fan of the films of John Travolta, and admitted that
he would not have been interested in purchasing the Corvette if it had not been for the “John
Travolta link.”1

         On February 8, 2004, Mr. Fleming called the phone number listed in the advertisement to
express his interest in purchasing the Corvette. Initially, Appellant spoke only with Jim Brannon,
who informed him that the car was actually owned by Jim Murphy.2 Mr. Brannon explained that he
had prepared the online listing at the request of Mr. Murphy, whom Mr. Brannon described as “a
friend, a good ole boy[,]” and that he was selling the car for Mr. Murphy. Appellant contends that
at that time he inquired about rust on the vehicle, and that Mr. Brannon informed him that it was
affected by “surface rust” and that “to his knowledge, the car was everything that was listed on the
E-Bay ad.” Later that day, Appellant participated in a conference call with Mr. Murphy and Mr.
Brannon. Appellant states that only Mr. Murphy spoke to him during this call, and that the two men
negotiated the price of the car. Mr. Fleming states that he did not discuss the condition of the car
with Mr. Murphy at this time, and that Mr. Murphy insisted on a purchase price of $38,000 for the
Corvette. Mr. Murphy agreed to suspend the eBay auction so that Mr. Fleming could drive from
Dallas to Memphis to look at the car, and he required a $500 deposit that would be non-refundable
if Mr. Fleming decided not to purchase the vehicle. Mr. Fleming and Mr. Murphy engaged in
another phone conversation later that day during which the arrangement was confirmed.

        The next morning, Mr. Fleming and his stepson arrived in Memphis at the home of Mr.
Murphy to inspect the Corvette, which was kept in Murphy’s garage with several other antique
automobiles. At some point during the visit, Fleming gave Murphy the $500 deposit in cash.3 Mr.
Fleming and his stepson spent approximately 30 minutes examining the vehicle. During the
inspection, Fleming claims to have discussed the condition of the car with Murphy, who allegedly
stated that “[i]t was a sound car, shouldn’t have any problems with it.” Fleming and his stepson
viewed the vehicle’s exterior and the engine compartment, used mirrors provided by Murphy to view
the frame, and crawled underneath the rear end of the car in order to get a better look. In his

         1
           W e note at the outset of this opinion that Mr. Fleming has not alleged any misrepresentations related to Mr.
Travolta’s previous ownership of the Corvette.

         2
             Mr. Murphy stated in his affidavit that he personally purchased the car “as-is” on November 1, 2003, for
$35,805. He claimed to have spent approximately $1,000 having the rear-end of the car rebuilt by Snell Automotive
prior to listing it for sale.

         3
           In his appellate brief, counsel for Appellant states that Fleming paid this deposit by check made payable to
Jim M urphy. However, Fleming stated in his deposition that he paid this amount in cash. Furthermore, the exhibit cited
by counsel for this fact is actually a receipt, dated February 10, 2004, for a cashier check in the amount of $500 for which
Fleming is listed as payee. It is apparent that the receipt corresponds to a cashier check for $500 that the parties
acknowledged Murphy sent to Fleming sometime after the transaction, because the deposit was intended to be refundable
after Fleming’s $38,000 check cleared.

                                                            -3-
deposition, Mr. Fleming testified that he did not see any problems that concerned him. Fleming and
his stepson also took the automobile for a test drive in Murphy’s residential neighborhood for about
15 minutes. Mr. Fleming said that he heard a noise in the vehicle’s rear end, that the heater did not
work, and that the radio blew a fuse. However, Appellant indicated at his deposition that these
problems were of minor concern to him and did not abate his desire to buy the car.

         Upon his return to Murphy’s home, Murphy offered to let Fleming take the car to a local
mechanic of his choice for a professional inspection, but Fleming declined this opportunity. Mr.
Fleming then agreed to purchase the Corvette for $38,000, and he filled out a check for a pre-
approved credit line in this amount. Mr. Murphy instructed Appellant to make his check payable to
Buggs Buggys, which he did, and he gave Murphy the check. Mr. Fleming was given receipts
allegedly documenting reconstruction work Murphy had performed on the rear end of the car in
November of 2003. Fleming and his stepson then went to Buggs Buggys.4 Fleming stated in his
deposition that he had understood the Corvette to be from Murphy’s own private collection, and that
he was surprised that he had been asked to make the check out to Buggs Buggys and follow Murphy
to the dealership. However, Appellant admitted that these concerns did not deter him from
proceeding with the transaction, and he also stated that he perceived no defect affecting the vehicle’s
chain of title. When they arrived at Buggs Buggys, Murphy introduced Appellant to Danny Buggs,
who owned the dealership, and his wife. Fleming claimed that Mr. Murphy retrieved the certificate
of title while he and his stepson waited. Mr. Fleming was presented with a bill of sale, which was
on Buggs Buggys letterhead, and which displayed the following disclaimer:

                                        Disclaimer of Warranties
                                                    ...
                          All warranties on this vehicle are the manufacturer’s. The
                  Seller[] hereby expressly disclaims all warranties, either expressed or
                  implied, including any implied warranty of Merchantability or Fitness
                  for a Particular purpose, and neither assumes nor authorizes any other
                  person to assume for it any liability in connection with this sale.
                  [T]his disclaimer in no way affects the terms of the manufacturer’s
                  warranty. The buyer shall not be entitled to recover from the selling
                  dealer any consequential damages, damages to property, damages for
                  loss of use, loss of time, loss of profit or income, or any other
                  incidental damages. Any exceptions to the above disclaimer must be
                  expressly provided by separate instrument in writing.
                          THE VEHICLE BEING SOLD UNDER THIS
                  AGREEMENT IS BEING PURCHASED AND ACCEPTED BY
                  THE PURCHASER “AS IS”.



         4
           In his discovery responses, Murphy claimed that he was a licensed car dealer and independent contractor for
Buggs Buggys. He stated that they went to Buggs Buggys in order to obtain a “drive-out tag,” and also to utilize their
notary services. Fleming, in his deposition, testified that Murphy told him that the title was kept at the dealership.

                                                         -4-
Mr. Fleming signed and dated the bill of sale beneath this provision. Additionally, both Fleming and
Murphy signed underneath another provision, which provided in part:

               ALL USED VEHICLES SOLD AS IS WITH NO EXPRESS OR
               IMPLIED WARRANTY OF ANY KIND OR DESCRIPTION
               EXCEPT WHEN STATED ABOVE IN WRITING OR IN THE
               CASE OF A USED VEHICLE WITH AN UNEXPIRED PORTION
               OF MANUFACTURER’S WARRANTY THEREON AND, IF ANY,
               SAID WARRANTY SHALL BE DETERMINED SOLELY BY THE
               TERMS OF SAID WARRANTY.
               I understand and agree that this instrument comprises the entire
               agreement pertaining to this purchase AND NO OTHER
               AGREEMENTS VERBAL OR OTHERWISE IS [sic]
               UNDERSTOOD BY ME OR SHALL BE RECOGNIZED.

Mr. Fleming and his stepson left Memphis later that afternoon to return to their home in Dallas,
Texas, took turns driving the Corvette and their other vehicle, and stopped to spend the night in Little
Rock, Arkansas. They arrived home on February 10, and Appellant testified that neither he nor his
stepson experienced any problems with the Corvette on the trip back to Texas.

        On February 11, Appellant took the Corvette to his mechanic in Dallas, Bud Langton, in
order to have its fluids changed. After he placed the car on the service rack, Mr. Langton informed
Appellant that the vehicle’s “frame was completely rusted through, brake lines rusted, gas lines
rusted, rear end rusted and showed [him] where it had all been painted to cover it up.” Mr. Fleming
drove the car back home, and he sent Danny Buggs a fax in which he demanded restitution. He also
sent letters to Buggs, Murphy, and Brannon, two of which were returned to him unopened. Mr.
Fleming claimed to have received a message on his cell phone sometime in March from Mr. Murphy,
who allegedly stated that “they were not going to do anything about the situation.” Appellant took
the vehicle to a restoration specialist in Texas, Gary Hatfield, for a second opinion regarding the
vehicle’s condition. Mr. Hatfield similarly noted the rusted frame, parts, and undercarriage that had
been painted black. Appellant testified that he ultimately paid Mr. Hatfield nearly $35,000 for the
vehicle’s total restoration, which was completed approximately nine months later.

         Mr. Fleming filed a complaint against the three defendants in Shelby County Circuit Court
on July 22, 2004, asserting claims that Appellees’ violated the Tennessee Consumer Protection Act
through either willful or negligent misrepresentations as to the vehicle’s condition, as well as
common law claims for negligent misrepresentation and breach of contract. Plaintiff claimed
economic damages “in excess of $25,500.00” which he alleged to be “the cost of bringing the value
of the vehicle up to the standard as represented by the Defendants[.]” Plaintiff sought to recover
actual damages in this amount, in addition to payments made to his credit provider to finance the
purchase, “insurance and travel expenses connected with restoration of the vehicle[,]” and treble
damages under the Tennessee Consumer Protection Act. After the parties agreed to allow more time
for a response, Appellees filed their answer on September 1, 2004, and they filed an amended answer


                                                  -5-
on December 10, 2004, by leave of the trial court. The parties exchanged numerous interrogatories
and requests for production of documents. In a detailed scheduling order entered on July 22, 2005,
the trial court recognized that all outstanding written discovery for the case was complete, required
that all additional discovery be completed by January 15, 2006, and set a trial date for February 7,
2006.

       Appellees filed a motion for summary judgment on January 6, 2006, which contained their
statement of facts, the affidavit of Mr. Murphy, the deposition of Mr. Fleming, and several
documents related to the purchase of the vehicle. Mr. Fleming filed a motion in response on January
30, which was accompanied by his own affidavit, as well as affidavits of his two experts, Mr.
Langton and Mr. Hatfield. Mr. Langton’s affidavit provided, in part:

               6. To service the car I placed on the rack and lifted it. With the car
               on the lifted rack I observed that the frame on the car was rusted
               through.
               7. I noticed that the undercarriage had been painted with black paint
               and the paint on the frame had an odor of fresh paint, was tacky and
               I noticed there was an overspray on one of the wheel wells.
               8. Because of the condition of the frame this car was dangerous.

Mr. Hatfield’s affidavit provided in relevant part:

               6. On or before February 26, 2004 my customer Ronald F. Fleming
               had a 1964 Chevrolet convertible Corvette car towed to my shop for
               inspection and [sic] have work done.
               7. It was clear to me that the frame of this car was rusted to such an
               extent as to make it dangerous. The frame that was on the car when
               sold to Ronald F. Fleming was replaced by me and my employees.
               8. It was equally clear to me the undercarriage had been recently
               painted black, there was an odor of fresh paint, the paint was tacky
               and there was an overspray of black paint on one of the wheel wells.
                                                 ...
               9. If the rear end of this car had been rebuilt and serviced in
               November of 2003 then it would have been clear to whoever did the
               work that the frame was severely rusted.

In the affidavit, Mr. Hatfield also stated that the description of the Corvette in the eBay
advertisement constituted a misrepresentation of the vehicle’s condition.

       A summary judgment hearing was held before the Honorable D’Army Bailey on February
24, 2006. Appellees relied heavily on this Court’s decision in Pitz v. Woodruff, No. M2003-01849-
COA-R3-CV, 2004 Tenn. App. LEXIS 851 (Tenn. Ct. App. Dec. 17, 2004), an opinion that



                                                -6-
discusses fraudulent misrepresentation, during their arguments in support of summary judgment.
In announcing his ruling from the bench, the trial court stated in part:

               Judge Kirby’s opinion says that, and again she’s making it clear that,
               she says, quote, although the courts will enforce as-is clauses
               allocating the risk of unknown defects to the buyers, to do so where
               the sellers knew about the defect and withheld material information
               would be to blindly enforce a contract obtained by fraud. She goes on
               to say the defendant has a duty to disclose such a fact or condition,
               quote, unless ordinary diligence would have revealed the disclosed
               fact, unquote. Thus, there is no duty to disclose a material fact or
               condition if it was apparent through common observation or if it
               would have been discoverable through the exercise of ordinary
               diligence, unquote.
                       It seems to me that Mr. Fleming, the plaintiff, buyer, failed to
               exercise ordinary diligence on the facts even taken in the light most
               favorable to the plaintiff and accordingly the motion for summary
               judgment will be granted.

On March 2, 2006, the trial court entered an order granting Appellees summary judgment. In the
order, the trial court stated its findings as follows:

               Among other matters the Court considered the motion and
               memorandum filed on behalf of the defendants, including the
               affidavit of Jim Murphy, the response and memorandum opposing the
               motion filed on behalf of the plaintiff, including the affidavits of
               Ronald Fleming, Bud Langton, and Gary Hatfield, the transcript of
               Ronald Fleming’s deposition, and the relevant bill of sale. Having
               considered the entire record in this cause, the applicable law, and the
               arguments of counsel, the Court finds that the plaintiff, Ronald
               Fleming, failed to exercise ordinary diligence. Viewing the facts in
               the light most favorable to the plaintiff, Ronald Fleming did not
               justifiably rely upon any representation made by any defendant. In
               the absence of any genuine issue of material fact, the Court finds that
               the summary judgment motion is well taken and should be granted .
               ...

Mr. Fleming filed a timely notice of appeal.

                                      II. ISSUES PRESENTED

      The sole issue presented by Mr. Fleming on appeal, restated for the purpose of clarity, is
whether the trial court erred in granting summary judgment in favor of Appellees on his claims for


                                                 -7-
unfair or deceptive acts or practices under the Tennessee Consumer Protection Act, negligent
misrepresentation, and breach of contract. We affirm.

                                   III. STANDARD OF REVIEW

        Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of law.” Tenn. R. Civ.
P. 56.04 (2006). Our review of the trial court’s grant of summary judgment is de novo on the record
before this Court, with no presumption of correctness. Warren v. Estate of Kirk, 954 S.W.2d 722,
723 (Tenn. 1997). No presumption of correctness attaches to a trial court’s findings in a summary
judgment case. Burgess v. Harley, 934 S.W.2d 58, 62 (citing Carvell v. Bottoms, 900 S.W.2d 23,
26 (Tenn. 1995)).

         “The party moving for summary judgment must affirmatively negate an essential element of
the nonmoving party’s claim, or conclusively establish an affirmative defense. . . . When a party
makes a properly supported motion for summary judgment, the burden shifts to the nonmoving party
to establish the existence of disputed material facts.” Patterson v. Arif, 173 S.W.3d 8, 11 (Tenn. Ct.
App. 2005) (citing McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998)). In
determining whether or not a genuine issue of material fact exists for purposes of summary
judgment, courts in this state have indicated that the trial court must take the strongest legitimate
view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that
party, and discard all countervailing evidence. Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn. 1993).
If there is a dispute as to any material fact or any doubt as to the conclusions to be drawn from that
fact, the summary judgment motion must be denied. Id. at 211. The trial court is not to “weigh” the
evidence when evaluating a motion for summary judgment. Id. The court is simply to overrule the
motion where a genuine dispute exists as to any material fact. Id.

                                          IV. DISCUSSION

        The Tennessee Consumer Protection Act (“TCPA”), Tenn. Code Ann. §§ 47-18-101 et seq.,
creates a private right of action for “any person who suffers an ascertainable loss of money or
property, real, personal or mixed . . . 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.” Tenn. Code Ann. § 47-18-
109(a)(1). Although the TCPA does not define the phrase “unfair or deceptive act or practice,” §
47-18-104(b) provides a list of specific examples. Ingram v. Cendant Mobility Fin. Corp., 215
S.W.3d 367, 375 (Tenn. Ct. App. 2006); Glanton v. Bob Parks Realty, No. M2003-01144-COA-R3-
CV, 2005 Tenn. App. LEXIS 263, at *14 (Tenn. Ct. App. Apr. 27, 2005). Disclaimers permitted by
the Uniform Commercial Code may limit or modify liability otherwise imposed by the code, but
such disclaimers do not defeat separate causes of action for unfair or deceptive acts or practices
under the TCPA. Morris v. Mack’s Used Cars, 824 S.W.2d 538, 539 (Tenn. 1992); see also
Godwin Aircraft, Inc. v. Houston, 851 S.W.2d 816, 822 (Tenn. Ct. App. 1993) (noting the



                                                 -8-
Tennessee Supreme Court’s holding that “disclaimers permitted by the Uniform Commercial Code
do not constitute a defense under the Tennessee Consumer Protection Act”).

         Appellant alleged three unfair or deceptive acts or practices under the TCPA in his complaint.
The first is provided at Tenn. Code Ann. § 47-18-104(b)(7): “Representing that goods or services
are of a particular standard, quality or grade, or that goods are of a particular style or model, if they
are of another.” Another provision relied upon by Fleming was § 47-18-104(b)(21), stating in part:
“Using statements or illustrations in any advertisement which create a false impression of the grade,
quality, quantity, make, value, age, size, color, usability or origin of the goods or services offered
. . . .” Finally, Appellant relied upon the TCPA’s “catch-all” provision located at § 47-18-
104(b)(27): “Engaging in any other act or practice which is deceptive to the consumer or to any other
person.” Fleming based his TCPA claims upon alleged misrepresentations in the eBay
advertisement, which was prepared by Defendant Jim Brannon. Although it was not pled in the
complaint, Fleming later testified that upon his initial inquiry about the car, Brannon had represented
that, to his knowledge, the Corvette was in the condition described in the advertisement, and that it
was affected only by “surface rust.” Mr. Fleming also stated that during his inspection of the vehicle,
Mr. Murphy, the purported owner of the car, had described it as “sound” and one with which
Fleming “shouldn’t have any problems.” Fleming asserted that these representations caused him to
purchase the car, which his mechanic and restoration specialist in Texas later informed him was
dangerous to drive because of its rusted frame. Fleming claimed that Defendants knew or should
have known that their statements were false, and that they were liable under the TCPA for either
knowingly or negligently engaging in unfair or deceptive acts or practices. Fleming also alleges that
Defendants knew or should have known that the vehicle’s undercarriage had been painted black,
hindering his ability to discover its true condition.

        The transcript of the hearing below indicates that the trial court’s treatment of Plaintiff’s
claims focused primarily on the common law elements for fraudulent misrepresentation, as reiterated
by this Court in Pitz v. Woodruff. As a threshold matter, we note that “the scope of the TCPA is
much broader than that of common-law fraud.” Tucker v. Sierra Builders, 180 S.W.3d 109, 115
(Tenn. Ct. App. 2005). “Under the TCPA, a consumer can obtain recovery without having to meet
the burden of proof that is required in common-law fraud cases, and the numerous defenses that are
available to the defendant in a common-law fraud case are simply not available to the defendant in
a TCPA case.” Id. For example, this Court has held that in TCPA cases involving
misrepresentation, a plaintiff is not required to show reliance upon a misrepresentation in order to
maintain a cause of action. See Messer Griesheim Indus., Inc. d/b/a MG Indust. v. Cryotech of
Kingsport, Inc., 131 S.W.3d 457, 469 (Tenn. Ct. App. 2003) (citing Harvey v. Ford Motor Credit
Co., No. 03A01-9807-CV-00235, 1999 Tenn. App. LEXIS 448, at *4 (Tenn. Ct. App. July 13,
1999)). However, there must be an unfair or deceptive act or practice by the defendant before the
defendant can be held liable under the TCPA. See, e.g., Tenn. Code Ann. §§ 47-18-104(a) &
-109(a)(1); McLean v. Bourget’s Bike Works, Inc., No. M2003-01944-COA-R3-CV, 2005 Tenn.
App. LEXIS 645, at *20 (Tenn. Ct. App. Oct. 7, 2005); New Life Corp. v. Thomas Nelson, Inc., 932
S.W.2d 921, 928 (Tenn. Ct. App. 1996).



                                                  -9-
        Furthermore, although the TCPA does not require reliance, plaintiffs are required to show
that the defendant’s wrongful conduct proximately caused their injury. White v. Early, 211 S.W.3d
723, 741 (Tenn. Ct. App. 2006); Prudential Botts & Assocs. Realtors, Inc. v. R & E Props., LLC,
No. E2002-01827-COA-R3-CV, 2003 Tenn. App. LEXIS 454, at *4-5 (Tenn. Ct. App. June 25,
2003); Milliken v. Crye-Leike Realtors, No. M1999-00071-COA-R3-CV, 2001 Tenn. App. LEXIS
472, at *21-24 (July 5, 2001); Harvey, 1999 Tenn. App. LEXIS 448, at *4-5; Stracener v. Swindle,
No. 01A01-9502-CH-00047, 1995 Tenn. App. LEXIS 471, at *6 (July 14, 1995). The TCPA
provides a cause of action for “any person who suffers an ascertainable loss. . . 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 . . . .” Land v. Dixon, No. E2004-03019-COA-R3-CV, 2005 Tenn. App. LEXIS 401,
at *12 (Tenn. Ct. App. July 12, 2005) (emphasis in original); see also Tenn. Code Ann. § 47-18-
109(a)(1). “The phrase ‘as a result of’ requires a showing by a plaintiff that the alleged violations
caused his or her injury.” Land, 2005 Tenn. App. LEXIS 401, at *12. In Ganzevoort v. Russell, 949
S.W.2d 293, 298-99 (Tenn. 1997), the Tennessee Supreme Court cited a federal district court case,
Klotz v. Underwood, 563 F. Supp. 335 (E.D. Tenn. 1982), aff’d, 709 F.2d 1504 (6th Cir. 1983), for
the proposition that “the Tennessee Consumer Protection Act imposes no liability where the seller
had no knowledge of the hidden defects and where an inspection by the purchaser would reveal the
same information known by the seller.” In Land, the Eastern Section of this Court concluded that
the plaintiffs’ TCPA claim was properly dismissed where they voluntarily elected to close on a
contract for the sale of property with full knowledge of alleged misrepresentations and of the truth
regarding the property, holding that the plaintiffs could not show “the required causative link
between the misrepresentations and their alleged injury.” 2005 Tenn. App. LEXIS 401, at *12.

       A list of unfair or deceptive acts or practices within the province of the TCPA is provided
at Tenn. Code Ann. § 47-18-104(b) (2007). The TCPA was thoroughly discussed by the Middle
Section of this Court in Tucker, 180 S.W.3d at 114-20. Judge Koch, writing for the majority,
discussed the historical background of the TCPA and other states’ statutory counterparts, which were
considered “little FTC acts” because of their similarity to the Federal Trade Commission (“FTC”)
Act outlawing unfair or deceptive trade practices, and stated in relevant part:

                       The TCPA was not intended to be a codification of the
               common law. To the contrary, one of the express purposes of the
               TCPA is to provide additional, supplementary state law remedies to
               consumers victimized by unfair or deceptive business acts or
               practices that were committed in Tennessee in whole or in part. Tenn.
               Code Ann. §§ 47-18-102(2),(4) -112. Moreover, the TCPA is
               explicitly remedial, and Tennessee courts are therefore required to
               construe it liberally to protect consumers in Tennessee and elsewhere.
               Tenn. Code Ann. § 47-18-115; Myint v. Allstate Ins. Co., 970
               S.W.2d 920, 925 (Tenn. 1998); Morris v. Mack’s Used Cars, 824
               S.W.2d 538, 540 (Tenn. 1992).




                                                 -10-
                          The scope of the TCPA is much broader than that of
                  common-law fraud. (footnote omitted) Under the TCPA, a consumer
                  can obtain recovery without having to meet the burden of proof that
                  is required in common-law fraud cases, and the numerous defenses
                  that are available to the defendant in a common-law fraud case are
                  simply not available to the defendant in a TCPA case. See Smith v.
                  Baldwin, 611 S.W.2d 611, 616, 24 Tex. Sup. Ct. J. 149 (Tex. 1980).
                  Misrepresentations that would not be actionable as common-law
                  fraud may nevertheless be actionable under the provisions of the little
                  FTC acts, including the TCPA. See, e.g., Stutman v. Chemical Bank,
                  95 N.Y.2d 24, 731 N.E.2d 608, 611-12, 709 N.Y.S.2d 892 (N.Y.
                  2000); Eagle Props., Ltd. v. Scharbauer, 807 S.W.2d 714, 724, 34
                  Tex. Sup. Ct. J. 463 (Tex. 1990). Claims under the TCPA are not
                  limited to misrepresentations that are fraudulent or willful. Smith v.
                  Scott Lewis Chevrolet, Inc., 843 S.W.2d 9, 12-13 (Tenn. Ct. App.
                  1992). Instead, the TCPA applies to any act or practice that is unfair
                  or deceptive to consumers. Tenn. Code Ann. §§ 47-18-104(a),
                  -104(b)(27). (footnote omitted)

                           In order to recover under the TCPA, the plaintiff 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 . . . .” Tenn. Code Ann. § 47-18-109(a)(1). (footnote
                  omitted) The defendant’s conduct need not be willful or even
                  knowing, but if it is, the TCPA permits the trial court to award treble
                  damages. Tenn. Code Ann. § 47-18-109(a)(3); Concrete Spaces, Inc.
                  v. Sender, 2 S.W.3d 901, 910 n.13 (Tenn. 1999); Holmes v. Foster
                  Pontiac GMC, Inc., 1989 Tenn. App. LEXIS 333, Shelby Law No.
                  9, 1989 WL 48515, at *4 (Tenn. Ct. App. May 10, 1989), perm. app.
                  denied, (Tenn. Oct. 2, 1989); Haverlah v. Memphis Aviation, Inc.,
                  674 S.W.2d 297, 306 (Tenn. Ct. App. 1984).

Id. at 114-116.

        The Tucker Court noted that “the concept of deceptiveness is a broader, more flexible
standard of actionable merchant misconduct than the traditional remedy of common-law fraud” and
went on to define a “deceptive” act or practice as “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. at
116. In interpreting what constituted an “unfair” act or practice, the Court looked to the legislative
history of the federal act, which indicated that “an act or practice should not be deemed unfair
‘unless the act or practice causes or is likely to cause substantial injury to consumers which is not


                                                   -11-
reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to
consumers or to competition.’” Id. at 116-17. The Court found that the concept of “unfairness” was
even broader than “deceptiveness,” and joined Connecticut, Maine, Maryland, Ohio, and Washington
in using the definition of unfairness to guide its interpretation of the TCPA. Id. at 117; see also
Ganzevoort, 949 S.W.2d at 299 (noting the Supreme Court of Vermont’s definition of “deceptive
act or practice” as “a material representation, practice or omission likely to mislead a reasonable
consumer”).

         In his response to Defendants’ motion for summary judgment, Plaintiff stated: “Some of the
things that were represented he could overlook but taken all together he was misled by the sellers
and purchased a car that was not only not up to standards but one that was dangerous.” Indeed,
although Plaintiff’s complaint alleged a litany of discovered problems with the vehicle, the record
suggests that he was made aware of several defects through his own inspection prior to purchase and
that he had been altogether unconcerned with them. For example, Fleming alleged that “[t]he engine
in the car is not the same number as the Defendants advertised.” Yet in his deposition, he testified
that he “knew it wasn’t a numbers-matching car when [he] bought the car” and that this did not
matter to him because he liked the car. Plaintiff also asserted that the statement in the eBay
advertisement, “[t]he air conditioning works very well,” was a misrepresentation. His complaint
alleged, “[t]he air conditioner is not cooling due to being installed improperly.” Yet in his
deposition, Fleming admitted that he never had any problems with the air conditioning, that he never
used it before Mr. Hatfield had restored the vehicle, and that he did not know whether it worked or
not at the time of purchase. As for the statement in the advertisement that “[t]here are no electrical
concerns associated with this vehicle[,]” Mr. Fleming testified that when the fuse blew in the radio
on his brief test-drive, the problem was of no real concern to him. He also testified that the
dashboard later caught fire due to some electrical problem, but conceded that this problem occurred
after he had the vehicle restored and that he did not associate the defect with Defendants. As the
foregoing alleged mechanical problems are concerned, we find these facts to be similar to those in
Land, 2005 Tenn. App. LEXIS 401, at *12, where the plaintiffs proceeded with their purchase of
property despite their knowledge of alleged misrepresentations and the true condition of the property.
We similarly conclude that in this case, Mr. Fleming failed to show the required causative link
between these alleged misrepresentations and his injury.5

        The defect of primary concern, allegedly unknown to Mr. Fleming at the time of purchase
of the Corvette, was the severely rusted frame and various components of the vehicle. Both of
Plaintiff’s expert mechanics attested by affidavit that this condition made the vehicle dangerous to
drive. The only alleged misrepresentation specifically referring to rust on the vehicle was Brannon’s
statement to Fleming, in the first telephone conversation on February 8, 2004, that the vehicle was


         5
            Mr. Fleming also claimed that the rear end of the Corvette was not actually reconstructed in November of
2003, as represented by the advertisement and by M r. M urphy at the time of sale. His only evidence for this claim is that
the receipts or invoices Murphy provided him referred to an “‘81 Corvette” rather than Fleming’s 1964 model. In his
affidavit, Murphy claimed that this was an invoice mistake, and that he spent over $1,000 having the vehicle’s rear-end
reconstructed by Snell Automotive. Fleming offered no evidence to refute this contention.

                                                          -12-
affected by “surface rust.”6 Mr. Fleming argues that this statement by Mr. Brannon was a
misrepresentation about the vehicle’s condition, considering his own mechanics’ later discoveries.
However, despite allegedly having been put on notice by Brannon of possible rust on the vehicle,
Fleming could not identify any inquiries that he made in this regard to the seller, Murphy, in either
of his subsequent conversations or upon his own inspection of the Corvette at Murphy’s home in
Memphis. Even more notably, despite being given the opportunity by Murphy to have the car
inspected by a mechanic of his choosing, Appellant inexplicably declined this option. Mr. Fleming
contends on appeal that he refused this opportunity because “he did not know where there was [a
mechanic]” in Memphis.

       In support of his claims under the TCPA, Mr. Fleming referenced several specific statements
contained in the eBay advertisement, asserting that they constituted material representations about
the vehicle’s condition. As noted above, however, several of these statements referred to minor
problems with the car that were known to Fleming after his own inspection and test drive, and they
cannot be said to have caused Fleming’s alleged injury. We perceive the following general
statements in the eBay advertisement to serve as the basis for his TCPA claims regarding the
vehicle’s rusted frame: “This vehicle is perfectly sound, no known defects. . . This car is in very
nice condition. . . You could drive this car and enjoy it without fear of breaking down.”

         As for any alleged TCPA violations for fraudulent misrepresentations regarding the vehicle’s
condition, whether represented in the eBay advertisement or orally by Jim Brannon or Jim Murphy,
we conclude that the trial court appropriately granted summary judgment in favor of Appellees.
Viewing the general representations made in the eBay advertisement in a light most favorable to Mr.
Fleming, and assuming that either Brannon or Murphy knew them to be untrue, the undisputed facts
of this case indicate that Appellant’s injury, purchasing the severely rusted 1964 Corvette at issue,
was reasonably avoidable by Mr. Fleming prior to purchase. “Even if an act or practice causes or
is likely to cause substantial injury, it will not be considered unfair unless the injury is not reasonably
avoidable by consumers themselves.” Tucker, 180 S.W.3d at 117. For example, “[c]onsumers
cannot reasonably avoid injury when a merchant’s sales practices unreasonably create or take
advantage of an obstacle to the free exercise of consumer decision-making.” Id. While Brannon
allegedly represented to Fleming that the vehicle was affected by “surface rust,” Appellant
admittedly knew that Brannon’s role in the transaction was limited to preparing the eBay
advertisement that initially sparked his interest in the car. Most importantly, Fleming refused to take
advantage of Murphy’s offer to have the car inspected by a mechanic in Memphis prior to purchase.
The fact that Murphy offered Fleming this accommodation seriously undermines a contention that
his sales practices unreasonably created or took advantage of an obstacle to the free exercise of Mr.
Fleming’s decision-making. See id. It is not alleged that Mr. Buggs, owner of Buggs Buggy’s, made
any representations as to the car’s condition, or even spoke generally to Mr. Fleming about the car.
Although this would not necessarily preclude his liability under the TCPA if Brannon and Murphy


         6
           In his interrogatory responses, Defendant Brannon admitted to preparing the e-Bay advertisement, but claimed
that in Fleming’s initial phone call to him, the extent of his own involvement in the transaction was providing Fleming
with Murphy’s phone number.

                                                         -13-
could be said to have committed unfair or deceptive acts as his agents, we conclude that summary
judgment was also correctly granted in his favor. As Mr. Fleming’s injury was reasonably avoidable
on these undisputed facts, we believe that no representations made by Defendants could be found
to have been unfair or deceptive pursuant to the TCPA.

         Appellant contends that the Defendants knew or should have known that the undercarriage
of the Corvette had been painted black to conceal its true condition from him. However, his expert
mechanic stated in his affidavit that he observed this fact after the car was placed on the rack at his
shop. His other expert, a restoration specialist, attested that the rusted frame would have been
noticeable by Snell Automotive in November of 2003 when it allegedly rebuilt the Corvette’s rear
end. Mr. Fleming testified at his deposition that Mr. Murphy “had mirrors on the side of the car
underneath so you could see the frame” and that he and his stepson spent approximately 30 minutes
visually inspecting the car in Murphy’s garage. Although Fleming stated that it was raining outside,
and the garage was equipped only with fluorescent lighting, he admitted that the lighting was
sufficient for his purpose. When asked whether the mirrors were sufficient for Fleming to fully view
underneath the car, given his knowledge at the time, he said no, and that he crawled underneath the
car but was unable to see any better. Again, despite his alleged inability to properly inspect the car
at this time, it is undisputed that Fleming declined Murphy’s offer to have the car professionally
inspected prior to purchase. On these facts, and even operating under the unlikely assumption that
the car’s black painted frame was the proximate cause of Mr. Fleming’s injury, we believe that it was
reasonable avoidable under these circumstances and that summary judgment was appropriate on this
aspect of his claim under the TCPA.

         To the extent that the summary judgment ruling on the TCPA claims was based upon a
finding that Mr. Fleming had not reasonably relied upon any alleged misrepresentations by
Appellees, we disagree with the trial court’s treatment of this issue. A plaintiff proceeding under
the TCPA is not required to show reliance upon a misrepresentation of the defendant in order to
maintain a cause of action. See Messer Griesheim Indus., Inc. d/b/a MG Indust., 131 S.W.3d at
469. However, this Court cannot reverse for matters which would not alter the outcome of the
litigation. See, e.g., O’Brien v. Smith Bros. Engine Rebuilders, Inc., 494 S.W.2d 787 (Tenn. Ct.
App. 1973). We therefore conclude that the trial court’s summary judgment ruling is sustainable
given the legal principles governing the TCPA, as discussed herein.

       We recognize that an unfair or deceptive act does not have to be fraudulent or intentional to
impose liability under the Act. Brandon v. Winnett, No. 01A01-9411-CH-00529, 1995 Tenn. App.
LEXIS 508, at *16 (Tenn. Ct. App. July 28, 1995). In Appellant’s complaint, he stated that “[i]n
making the representations complained of in this complaint, the Defendants did so knowingly or they
had reason to know the representations complained of were misrepresentations.” (R. Vol. 1, p. 3-4).
The complaint later provided, “[y]our Plaintiff reiterates all averments contained in the first twelve
paragraphs of this Complaint and avers that the Defendants are guilty of negligence in representing
the vehicle to be in the condition they described when the vehicle was not in that condition.”
Construing the pleadings liberally, Appellant’s complaint averred a TCPA claim for negligent



                                                 -14-
misrepresentation.7 Negligent misrepresentations which are unfair or deceptive to the consumer can
also be deemed violations of the TCPA. Id. (citing Smith v. Scott Lewis Chevrolet, Inc., 843
S.W.2d 9, 13 (Tenn. Ct. App. 1992)). However, the undisputed facts on record have already led us
to find that Appellant’s injury was reasonably avoidable. This precludes Mr. Fleming, as a matter
of law, from being able to show that Appellees engaged in unfair or deceptive acts or practices under
the TCPA. See Tucker, 180 S.W.3d at 117. It is apparent to this Court that summary judgment was
also appropriately granted in Appellees’ favor on Fleming’s claim under the TCPA for any allegedly
negligent misrepresentations made by Appellees.

        We next consider Mr. Fleming’s claim against Murphy, Brannon, and Buggs for breach of
contract. Appellant’s complaint failed to reference any written agreement between the parties as to
the transaction in question, and apparently relied solely upon the aforementioned statements
contained in the eBay® advertisement for the Corvette as a basis for this claim. At the summary
judgment hearing, the trial court asked Appellant’s counsel, Mr. Bean, to explain his position with
regard to the “as is” language in the signed bill of sale, which the court recognized as the sole written
embodiment of the parties’ agreement. Mr. Bean responded that the “as-is” language appeared in
the bill of sale, and “there was no written contract to enter into this sale or purchase as far as I
know.” Mr. Bean correctly cited Morris v. Mack’s Used Cars, 824 S.W.2d 538 (Tenn. 1992), for
his position that “you cannot have an as-is provision under the UCC to prohibit the application of
the Tennessee Consumer Protection Act.” The trial court agreed that fraudulent misrepresentation
would indeed be a defense to such a disclaimer under both the TCPA and the common law. The trial
court recognized Defendants’ argument that Plaintiff’s claims of misrepresentation and breach of
contract were weakened by the fact that the vehicle’s condition would have been readily observable
to Mr. Fleming before purchase if Fleming had accepted Murphy’s offer to let him have the car
inspected by a local mechanic. The trial court went on to apply the elements for fraudulent
misrepresentation as recited in this Court’s decision in Pitz, 2004 Tenn. App. LEXIS 851, at *23,
and concluded that Mr. Fleming did not exercise ordinary care or diligence in relying upon any
alleged representations made by Defendants, or in declining the opportunity to have a professional
inspection of the vehicle before he tendered payment.

        The essential elements of any breach of contract claim include (1) the existence of an
enforceable contract, (2) nonperformance amounting to a breach of the contract, and (3) damages
caused by the breach of the contract. Ingram v. Cendant Mobility Fin. Corp., 215 S.W.3d 367, 374
(Tenn. Ct. App. 2006). The interpretation of a written agreement is a matter of law and not of fact.
Id. In Ingram, the plaintiffs pursued various claims based upon their purchase of a house, after they
allegedly discovered that the house was not in the condition represented by the defendant seller. Id.
at 369. In Ingram, this Court affirmed the trial court’s grant of summary judgment on a claim for
breach of contract, stating:



         7
           Mr. Fleming briefly states in his appellate brief that his negligent misrepresentation claim was pursued under
the common law. W e address Appellant’s position below, in our discussion regarding Fleming’s common law claim for
breach of contract.

                                                         -15-
               The plaintiffs’ theory necessarily requires the existence of some
               guarantee in the Sales Contract regarding the condition of the
               Residence at the time of the sale. The Sales Contract, however,
               contains an “as-is” clause . . . . The foregoing clauses are valid and
               enforceable in the absence of fraudulent misrepresentation and
               concealment. Chadwick v. Spence, 2004 Tenn. App. LEXIS 92, No.
               W2003-00931-COA-R3-CV, 2004 WL 298367, at *5 (Tenn. Ct. App.
               Feb. 11, 2004); Edmondson v. Coates, 1992 Tenn. App. LEXIS 466,
               No. 01-A-01-9109-CH-000324, 1992 WL 108717, at *11 (Tenn. Ct.
               App. May 22, 1992); Simmons v. Evans, 185 Tenn. 282, 206 S.W.2d
               295, 296 (Tenn. 1947). [Defendant] Cendant has successfully negated
               the Plaintiffs’ claims of fraudulent misrepresentation and
               concealment. Accordingly, the “as-is” clause is enforceable, and we
               affirm the Trial Court on this issue.

Id. at 374.

        In this case, the bill of sale, which the trial court appropriately recognized to be the sole
written agreement entered into between the parties, contained two separate disclaimers similar to the
one found in Ingram. Specifically, Mr. Fleming and Mr. Murphy each signed the bill of sale which
contained the following disclaimers:

                                     Disclaimer of Warranties
                                                 ...
                       All warranties on this vehicle are the manufacturer’s. The
               Seller[] hereby expressly disclaims all warranties, either expressed or
               implied, including any implied warranty of Merchantability or Fitness
               for a Particular purpose, and neither assumes nor authorizes any other
               person to assume for it any liability in connection with this sale.
               [T]his disclaimer in no way affects the terms of the manufacturer’s
               warranty. The buyer shall not be entitled to recover from the selling
               dealer any consequential damages, damages to property, damages for
               loss of use, loss of time, loss of profit or income, or any other
               incidental damages. Any exceptions to the above disclaimer must be
               expressly provided by separate instrument in writing.
                       THE VEHICLE BEING SOLD UNDER THIS
               AGREEMENT IS BEING PURCHASED AND ACCEPTED BY
               THE PURCHASER “AS IS”.
                                                 ...
               ALL USED VEHICLES SOLD AS IS WITH NO EXPRESS OR
               IMPLIED WARRANTY OF ANY KIND OR DESCRIPTION
               EXCEPT WHEN STATED ABOVE IN WRITING OR IN THE
               CASE OF A USED VEHICLE WITH AN UNEXPIRED PORTION


                                                -16-
               OF MANUFACTURER’S WARRANTY THEREON AND, IF ANY,
               SAID WARRANTY SHALL BE DETERMINED SOLELY BY THE
               TERMS OF SAID WARRANTY.
               I understand and agree that this instrument comprises the entire
               agreement pertaining to this purchase AND NO OTHER
               AGREEMENTS VERBAL OR OTHERWISE IS [sic]
               UNDERSTOOD BY ME OR SHALL BE RECOGNIZED.

Under the common law of contracts, we interpret exculpatory clauses according to the plain meaning
of their terms. Ouzts v. Womack, 160 S.W.3d 883, 885 (Tenn. Ct. App. 2004), perm. app. denied
(Tenn. Feb. 28, 2005). Disclaimers such as these are valid in Tennessee, absent fraudulent
misrepresentation and concealment. Ingram, 215 S.W.3d at 374. Therefore it is necessary for this
Court to discuss the elements for these causes of action under the common law.

       Mr. Fleming contends that Appellees misrepresented the true condition of the vehicle in
question. The well-established elements of a common law claim for fraudulent misrepresentation
were recited by this Court in Pitz, 2004 Tenn. App. LEXIS 851, at *23:

               (1) the defendant made a representation of an existing or past fact; (2)
               the representation was false when made; (3) the representation related
               to a material fact; (4) the false representation was made either
               knowingly or without belief in its truth or recklessly; (5) the plaintiff
               reasonably relied on the misrepresented material facts; and (6) the
               plaintiff suffered damage as a result of the misrepresentation.
               Metropolitan Gov’t of Nashville [&] Davidson County v. McKinney,
               852 S.W.2d 233, 237 (Tenn. Ct. App. 1992); see Anderson v.
               Warren, 2001 Tenn. App. LEXIS 958, W2000-02649-COA-R3-CV,
               2001 WL 1683810, at *3 (Tenn. Ct. App. Dec. 12, 2001). In such an
               action, the burden is upon the plaintiff to show that his reliance on the
               defendant’s representation was reasonable. Metropolitan Gov’t of
               Nashville & Davidson County, 852 S.W.2d at 237.

Mr. Fleming also argues that Appellees fraudulently concealed the rusted condition of the car’s
frame by painting it black. “The tort of fraudulent concealment is committed when a party who has
a duty to disclose a known fact or condition fails to do so, and another party reasonably relies upon
the resulting misrepresentation, thereby suffering injury.” Ingram, 215 S.W.3d at 373 (quoting
Chrisman v. Hill Home Dev., Inc., 978 S.W.2d 535, 538-59 (Tenn. 1998)). “Moreover a plaintiff
must show that the defendant had actual knowledge of the defect allegedly concealed.” Id. (citing
Akbari v. Horn, 641 S.W.2d 506, 507 (Tenn. Ct. App. 1982)). In this case, the only evidence
offered by Mr. Fleming to support his contention that Appellees had actual knowledge that the
Corvette had been painted black to conceal its rusted frame was the affidavit of his restoration
specialist, Mr. Hatfield, who stated that “[i]f the rear end of the car had been rebuilt and serviced in



                                                 -17-
November of 2003 then it would have been clear to whoever did the work that the frame was
severely rusted.”

        In Pitz, we elaborated as to several factors that should be considered when determining
whether a plaintiff’s reliance on a defendant’s representations is reasonable: (1) the plaintiff’s
business expertise and sophistication; (2) the existence of a longstanding business or personal
relationship between the parties; (3) the availability of the relevant information; (4) the existence of
a fiduciary relationship; (5) the concealment of the fraud; (6) the opportunity to discover the fraud;
(7) the party which initiated the transaction; and (8) the specificity of the misrepresentation. Pitz,
2004 Tenn. App. LEXIS 851, at *32 (citing J.C. Bradford & Co. v. S. Realty Partners, 2000 Tenn.
App. LEXIS 555, W1999-01617-COA-R3-CV, 2000 WL 34411153, at *10 (Tenn. Ct. App. Aug.
14, 2000)).

        In this case, the trial court applied these factors at the summary judgment hearing, after all
discovery had been completed. In the final order granting summary judgment, Judge Bailey stated
his finding that Mr. Fleming had not reasonably relied on any misrepresentations by Appellees. For
the reasons already discussed, we agree with this finding by the trial court. As such, Appellees
successfully negated Mr. Fleming’s claims of fraudulent misrepresentation and concealment.
Therefore, the exculpatory clauses found within the bill of sale were valid and enforceable, and Mr.
Fleming’s breach of contract claim fails as a matter of law, making summary judgment appropriate
on this issue.

        Mr. Fleming states in his appellate brief that his claims for negligent misrepresentation were
pursued under the common law. However, Appellant fails to cite any Tennessee authority discussing
the common law elements for negligent misrepresentation, or otherwise offer an argument in support
of such a claim. Nonetheless, we note the Tennessee Supreme Court’s discussion of the elements
for negligent misrepresentation:

               One who, in the course of his business, profession or employment, or
               in any other transaction in which he has a pecuniary interest, supplies
               false information for the guidance of others in their business
               transactions, is subject to liability for pecuniary loss caused to them
               by their justifiable reliance upon the information, if he fails to
               exercise reasonable care or competence in obtaining or
               communicating the information.

Robinson v. Olmer, 952 S.W.2d 423, 427 (Tenn. 1997) (quoting Section 402B of the Restatement
(Second) of Torts (1965)) (emphasis added). We have already expressed our agreement with the trial
court’s finding that Mr. Fleming did not reasonably rely on any alleged misrepresentations by
Appellees, for reasons already thoroughly discussed. We additionally find that Mr. Fleming did not
justifiably rely on any of these purported representations, thus any claim pursued for negligent
misrepresentation under the common law was appropriately dismissed through the trial court’s grant
of summary judgment.


                                                 -18-
                                        V. CONCLUSION

        For the foregoing reasons, the judgment of the trial court is affirmed. Costs are assessed
against Appellant, Ronald Fleming, and his surety, for which execution may issue if necessary.




                                                     ___________________________________
                                                     ALAN E. HIGHERS, JUDGE




                                              -19-
