                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                 February 19, 2004 Session

              BEVERLEY MILLER, ET AL. v. UNITED AUTOMAX

                 A Direct Appeal from the Circuit Court for Shelby County
                  No. 306619-7    The Honorable Robert A. Lanier, Judge



                    No. W2003-01394-COA-R3-CV - Filed May 13, 2004


        Appellants sued Appellee on theories of common law misrepresentation and violation of the
Tennessee Consumer Protection Act, arising from the sale of a used vehicle. A jury returned a
verdict for Appellants on both theories and Appellants elected to take their remedy under the
common law claim, which included an award of punitive damages. The trial court denied
Appellants’ prayer for attorney fees, which were not available under the common law remedy but
only under the Consumer Protection Act claim. Having been denied attorney fees, Appellants
requested that they be allowed to amend their election of remedies. This request was denied.
Appellants appeal. We affirm.


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

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

Kevin A. Snider of Germantown For Appellants, Beverley Miller and Cassandra Meyer

Gary C. McCullough of Germantown For Appellee, United Automax

                                           OPINION

       On June 26, 1998, Beverley Miller (“Miller,”) and Cassandra Meyer (“Meyer,” and together
with Miller “Plaintiffs,” or “Appellants”) purchased a used Ford Contour (the “vehicle”) from
United Automax (“Automax,” “Defendant,” or “Appellee”). Appellants contend that the car had
sustained damages prior to the sale even though Appellee denies that the car was damaged.

        This case began in the Shelby County General Sessions Court under docket number 750358.
Appellants claims included: breach of contract, breach of warranty, fraud, misrepresentation, and
violation of the Tennessee Consumer Protection Act. Following a hearing on January 18, 2000, the
General Sessions court rendered a judgment in favor of Appellants in the amount of $10,000.00 plus
court costs. Automax timely appealed to the Shelby County Circuit Court. Appellants’ expert who
had testified in the General Sessions trial died before the appeal was heard in the Circuit Court.
Upon Appellants’ Motion, the Circuit Court allowed the deceased expert’s testimony from the
transcript of the General Sessions Court proceedings.

        A jury trial was held in the Circuit Court on April 8 and 9, 2003, and the jury found in favor
of Appellants on both the misrepresentation claim and the Tennessee Consumer Protection Act
claim. On the misrepresentation claim, the jury awarded compensatory damages in the amount of
$899.50 and punitive damages in the amount of $3,000. On the violation of the Tennessee
Consumer Protection Act, the jury awarded compensatory damages in the amount of $899.50. After
the jury was dismissed, the following exchange, concerning the election of damages, occurred:

                  MR. SNIDER [attorney for Appellants]: Your Honor, I guess, as I
                  understand the election, the election would be between accepting the
                  punitive damages or, essentially, asking Your Honor for treble
                  damages.

                  THE COURT: That’s correct.

                  MR. SNIDER: So I guess based upon the number calculation, I think
                  that would be more than the maximum that you could award anyway.

                  THE COURT: Yeah.

                  MR. SNIDER: So we would accept the punitive damages.

                  *                                          *                                  *

                  MR. McCULLOUGH [attorney for Appellee]: Your Honor please,
                  my understanding is that he’s [Mr. Snider] accepted the
                  misrepresentation–made his election to accept the misrepresentation
                  with the $899.50 and the $3,000.

                  THE COURT: That’s my understanding.

                  MR. SNIDER: Correct. But we also have the verdict under the
                  Consumer Protection Act, which would entitle my client to a claim
                  for attorney fees, which you’re going to rule on later.1

                  THE COURT: Okay. There just can’t be any duplication of damages
                  or punitive damages.


       1
           The matter of attorney fees and costs was bifurcated from the trial on the merits.

                                                          -2-
        On or about April 10, 2003, Appellants’ attorney filed a motion for attorney fees and
discretionary costs. At a hearing, on April 25, 2003, attorney for the Appellants argued that the
election of tort damages does not preclude the court from awarding attorney’s fees under the
Consumer Protection Act since such award is justified by the jury’s finding on the Consumer
Protection claim and is not a duplication of damages. In the alternative, attorney for Appellants
argued that, if an award of attorney’s fees was denied, then Appellants would like to rescind their
election of the tort remedy and pray for treble damages under the Consumer Protection claim. After
arguments, the Court made the following ruling from the bench:

                       It seems to me [the Court] it’s clear that just by selecting
               punitive damages whether the word election of remedy was used or
               not, that you have elected to take the benefits of the tort of
               misrepresentation and if you choose that. You have to take the bitter
               with the sweet. The bitter being that you don’t get attorney fees in
               that tort action.

                        Now the question of whether you can change your mind, I
               have great difficulty in reaching any sort of analogy to [existing] law.
               The only thing I can think of and the only way to resolve that question
               is to try to analogize it through existing law.

                       And it seems to me if you made an election that it’s similar to
               a jury’s verdict. In other words, the Court would have to be asked to
               change the jury’s verdict or to change the judgment. The fact that we
               haven’t signed an order doesn’t mean that that didn’t take place. It
               did take place.

               *                                       *                       *

                        So I’m going to hold that there was an election made to accept
               the tort remedy and with the benefits and the shortcomings of the tort
               remedy and that it can’t be changed now after having done so....

        An Order was entered on the jury verdict on April 30, 2003. The Order reads, in relevant
part, as follows:

                      This cause came on for trial on April 8, 2003 before the
               Honorable Robert A. Lanier, and a jury, and the Court having
               submitted issues to the jury and the jury having answered, as follows:

                             CLAIM #1–MISREPRESENTATION




                                                 -3-
Question #1: Did the Defendant misrepresent the condition of the
vehicle (that it never had been wrecked) at the time it was sold?
Answer: Yes

Question #2: Was the misrepresentation without negligence, negligent
or intentional or reckless?
Answer: Intentional or reckless

Question #3: What damage did the Plaintiff sustain that she would
have had if the condition of the automobile was what it was
represented to be?
Answer: $899.50

Question #4: What damages, if any, should be awarded to punish the
Defendant for the intentional or reckless misrepresentation?
Answer: $3,000.00

         CLAIM #2–CONSUMER PROTECTION ACT

Question #1: Did the Defendant represent that the automobile was not
wrecked when it had, in fact, been in a wreck?
Answer: Yes

Question #2: What actual damages, meaning loss of money, did the
Plaintiff suffer as a result of the representation?
Answer: $899.50

        Thereafter, the counsel for the Plaintiff, made an election of
remedies to be awarded the damages pursuant to Claim #1 for
Misrepresentation and to ask the court to consider the Plaintiff’s
claim for attorney fees pursuant to the Tennessee Consumer
Protection Act at a later date. Upon the request for attorney fees,
discretionary costs, and interest the court determined that the Plaintiff
was not entitled to attorney fees....

     IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED THAT:

1. That the Plaintiff, Beverly Miller, recover from the Defendant,
United Automax, the sum of ($899.50), as actual damages and the
sum of ($3,000.00) as punitive damages, for an aggregate judgment
of ($3,899.50).



                                  -4-
               2. That the Plaintiff has made its election of remedies and chosen to
               be awarded damages pursuant to Claim #1 for Misrepresentation.

               3. That the Plaintiff’s application for attorney fees pursuant to the
               Tennessee Consumer Protection Act is denied.

        On May 7, 2003, Appellants filed “Plaintiffs’ Motion to Reconsider, Alter and/or Amend
Final Judgment as to the Award of Attorney Fees,” along with a Memorandum of Law in support
thereof. The Motion states that:

               [Plaintiffs] are entitled to an award of attorney fees with an election
               of punitive damages in lieu of a claim for treble damages. In the
               alternative, if the Plaintiffs are not entitled to an award of attorney
               fees with an election of punitive damages in lieu of a claim for treble
               damages then the Plaintiff[s] move to amend the Plaintiffs’ election.

Automax responded to Appellants’ Motion and filed a Memorandum in support of its position. A
hearing was held on May 23, 2003. Following the hearing, the trial court denied Appellants’
Motion by Order of May 28, 2003.

       Miller and Meyer appeal and raise two issues for review as stated in their brief:

               I. Whether the trial court erred in not awarding Appellants attorney
               fees with an election of punitive damages in lieu of a claim for treble
               damages.

               II. In the alternative, whether the trial court erred in refusing to allow
               the Appellants to amend their election if they are not entitled to an
               award of attorney fees with an election of punitive damages in lieu of
               a claim for treble damages.

Automax raises one additional issue as stated in its brief:

               The trial court erred when it allowed Appellant to use a transcript
               from the trial of the lower court, General Sessions, when Appellee
               paid for the court reporter and Appellant did not share the expense of
               the court reporter.

Election of Remedies

        The trial court’s determination that Appellants were not entitled to an award of attorney
fees after electing punitive damages under the misrepresentation claim in lieu of treble damages
under the Consumer Protection Act claim is a question of law. As such, our review of the trial


                                                  -5-
court’s order is de novo upon the record with no presumption of correctness accompanying the
trial court’s conclusions of law. See Tenn. R. App. P. 13(d); Waldon v. Delffs, 988 S.W.2d 182,
184 (Tenn. Ct. App. 1998); Sims v. Stewart, 973 S.W.2d 597, 599-600 (Tenn. Ct. App. 1998).
        The jury in this case found for Appellants on both the misrepresentation claim and the
Consumer Protection Act claim. The crux of Appellants’ first issue, therefore, is whether
Appellants were required to make an election of remedies under the facts of this case. The
doctrine of election of remedies prevents plaintiffs from seeking inconsistent remedies. See
Wimley v. Rudolph, 931 S.W.2d 513, 515 (Tenn. 1996). In short, its purpose is to prevent
double recoveries. See Forbes v. Wilson County Emergency Dist. 911 Bd., 966 S.W.2d 417,
421 (Tenn. 1998); Purcell Enters., Inc. v. State, 631 S.W.2d 401, 409 (Tenn. Ct. App. 1981).

        In the instant case, Appellants’ alleged both common law and statutory misrepresentation.
In Concrete Spaces, Inc., et al. V. Henry Sender, et al., 2 S.W.3d 901 (Tenn. 1999), our
Supreme Court considered the coexistence of a common law action for breach of contract,
punitive damages under Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992), and the
statutory remedy available under the Tennessee Consumer Protection Act same being “treble” or
“multiple” damages:

                      The doctrine of election of remedies is implicated when two
              inconsistent and irreconcilable remedies are available to the plaintiff
              to redress a single wrongful act. See Barger v. Webb, 216 Tenn. 275,
              391 S.W.2d 664, 667 (1965); Allied Sound, Inc. v. Neely, 909
              S.W.2d 815, 822 (Tenn.App.1995). The purpose of the doctrine is to
              prevent double redress for a single wrong, see Barger, 391 S.W.2d at
              667; Barnes v. Walker, 191 Tenn. 364, 368, 234 S.W.2d 648, 650
              (1950), and it requires the plaintiff in such a scenario to choose one
              theory of recovery under which to proceed. See Forbes v. Wilson
              County Emergency Dist. 911 Bd., 966 S.W.2d 417, 421 (Tenn.1998).
                      At first glance there appears to be some discord between the
              doctrine of election of remedies and Tenn. R. Civ. P. 8.01, which
              grants a plaintiff wide latitude in pleading alternative claims for relief
              and pursuing an array of theories of recovery in a single action. A
              common example of this friction occurs when a plaintiff seeks
              multiple damages under an available statutory remedy as well as
              punitive damages pursuant to a common law claim. While this type
              of alternative pleading is available under Tenn. R. Civ. P. 8.01,
              double recovery may occur if the jury decides that the plaintiff is
              entitled to both punitive damages and multiple damages.
                      Almost every jurisdiction addressing this question has
              concluded that recovery of both multiple statutory damages and
              punitive damages constitutes an impermissible double recovery
              because the two forms of enhanced damages serve the same
              functions. The purpose of punitive damages is not to compensate the


                                                 -6-
               plaintiff but to punish the wrongdoer and to deter others from
               committing similar wrongs in the future. See Coffey v. Fayette
               Tubular Prod., 929 S.W.2d 326, 328 (Tenn.1996); Hodges, 833
               S.W.2d at 900. Several Tennessee statutory schemes achieve the same
               objectives of punishment and deterrence through multiple damage
               provisions, which allow for compensatory damages to be trebled if
               the defendant's conduct rises to a specified level of culpability.
               Because multiple damages are punitive in nature and not intended to
               compensate for the plaintiff's injury, see Smith Corona Corp. v.
               Pelikan, Inc., 784 F.Supp. 452, 483 (M.D.Tenn.1992); Lien v.
               Couch, 993 S.W.2d 53, 58 (Tenn.App.1998), a plaintiff cannot
               recover both punitive damages and multiple damages in the same
               cause of action, even if they are each available, because receipt of
               both forms of enhanced damages violates the principle against double
               recovery. See Edwards v. Travelers Ins. of Hartford, Conn., 563
               F.2d 105, 119-120 (6th Cir.1977); Lorentz, 834 S.W.2d at 320
               (Tenn.App.1992).

Concrete Spaces, Inc., et al. V. Sender , et al., 2 S.W.3d at 906 (Tenn. 1999) (footnotes
omitted).

         Since, as in this case, a plaintiff may simultaneously pursue a common law remedy, a
statutory remedy seeking “multiple” damages and, as an enhancement to his or her common law
action, “punitive” damages under Hodges, an election of remedies is necessary, at least as it
relates to statutory “multiple” damages and “punitive” damages under Hodges. Since Appellants
successfully asserted a cause of action under the Tennessee Consumer Protection Act as well as a
punitive damages claim in the common law, Appellants were required to elect between the
remedies. See also Buddy Lee Attractions, Inc. v. William Morris Agency, Inc., 13 S.W.3d 343
(Tenn. Ct. App. 1999).

Amendment of Damages Election

        Having found that Appellants were required to elect between remedies in this matter, we
now address whether, after making such election, Appellants should have been allowed to
amend. Tennessee cases hold that, once made, the choice of remedies becomes irrevocable, and
the plaintiff is thereafter estopped from pursuing the remedy not chosen. See Barnes v. Walker,
234 S.W.2d 648, 650 (Tenn. 1950); Allied Sound, Inc. v. Neely, 909 S.W.2d 815, 822 (Tenn. Ct.
App. 1995); Hayes v. Civil Serv. Comm’n, 907 S.W.2d 826, 828 (Tenn. Ct. App. 1995).
However, as pointed out by this Court in Davis v. Tennessee Department of Employment
Security, 23 S.W.3d 304 (Tenn. Ct. App. 1999):

               ...with the advent of the liberalized pleading rules, most courts will
               not invoke the doctrine [of election of remedies] unless (1) the


                                                -7-
               plaintiff has prosecuted the chosen remedy either to final judgment or
               a determinative conclusion, see Gottschalk v. Simpson, 422 N.W.2d
               181, 185 (Iowa 1988); Christensen v. Eggen, 577 N.W.2d 221, 224
               (Minn. 1998); Alexander v. Link’s Landing, Inc., 814 S.W.2d 614,
               620-21 (Mo. Ct. App. 1991); Family Bank of Commerce v. Nelson,
               72 Or.App. 739, 697 P.2d 216, 218 (Or. Ct. App. 1985), or (2) the
               defendant has materially changed its position based on the plaintiff’s
               choice of remedy. See Ripple v. Wold, 549 N.W.2d at 675-76. Thus,
               most courts permit a party to change to an alternative remedy until
               judgment is entered or until the doctrines of res judicata or collateral
               estoppel apply. See Smith v. Golden Eagle Ins. Co., 69 Cal.App.4th
               1371, 82 Cal.Rptr.2d 300, 303 (1999).

               Although the decisions are not without some doubt, the Tennessee
               Supreme Court appears to have recognized the controlling
               significance of a final judgment in an election of remedies analysis.
               The Court has held that the doctrine applies once the plaintiff obtains
               a judgment on one of its inconsistent claims, even if it is later unable
               to satisfy the judgment. See Phillips v. Rooker, 134 Tenn. 457, 465-
               66, 184 S.W. 12, 14 (1916). However, the Court has also noted that
               the doctrine does not apply when the plaintiff elects to pursue a
               remedy that is legally or factually unavailable. See Montlake Coal
               Co. v. Chattanooga Co., 137 Tenn. 440, 444-45, 193 S.W. 1057,
               1058 (1917); Grizzard v. Fite, 137 Tenn. 103, 108, 191 S.W. 969,
               970 (1917), rev’d on other grounds, Barnes v. Walker, 191 Tenn.
               364, 372, 234 S.W.2d 648, 651 (1950).

23 S.W.3d 304, 310. (footnotes omitted).

        In the instant case, Appellants requested that they be allowed to change their remedies
election at the April 25, 2003 hearing. As noted, supra, the judgment in this case was not entered
until April 30, 2003. Under burgeoning law, had Appellants requested permission to amend their
election after the final judgment had been entered, their request clearly should have been denied.
However, because the request came before the judgment was entered, we find that the matter was
within the discretion of the trial court.

       The Tennessee Consumer Protection Act, T.C.A. §47-18-109(a) reads, in relevant part:

               (3) If the court finds that the use or employment of the unfair or
               deceptive act or practice was a willful or knowing violation of this
               part, the court may award three (3) times the actual damages
               sustained...



                                                 -8-
Id. (emphasis added).

        Concerning the award of attorney fees, the Act, at T.C.A.§47-18-109(e)(1), states:

               (e)(1) Upon a finding by the court that a provision of this part has
               been violated, the court may award to the person bringing such action
               reasonable attorney’s fees and costs.

Id. (emphasis added).

        There is nothing in the Consumer Protection Act that mandates a trial court to award
treble damages and/or attorney fees. In the instant case, the Appellants rescission of their
common law remedies and election of remedies under the Consumer Protection Act may have
resulted in less damages. Consequently, there is nothing in this record to indicate that the trial
court’s decision not to allow the Appellants to amend their election rendered an unfair result or
was, in any way, an abuse of discretion.

Use of Transcript

        Appellants did not pay for the services of the court reporter in the General Sessions trial.
Following that trial, Appellants’ expert died and, as noted supra, they filed a motion requesting
that the expert’s testimony be admitted on the transcript. Over Appellee’s objection to the use of
the transcript, the trial court granted the motion. Appellee now contends that that ruling was in
error. We disagree.

       Appellee relies upon this Court’s opinion in In Re: Estate of Ruby Lee Nichols, 1992
WL 9436 (Tenn. Ct. App. 1992), rev’d on other grounds In Re: Estate of Nichols, 856 S.W.2d
397 (Tenn. 1993) in which we stated:

               Before trial Appellant did not obtain a stenographer or offer to share
               with Appellee in the expense of the stenographer Appellee had
               engaged. Only after losing in the trial court and desiring to appeal did
               Appellant offered to pay. The appellate rules do not require that a
               party who has assumed the burden of providing a reporter at trial
               make available that reporter's work for a party who did not join in
               providing the reporter. Absent unusual circumstances the rules do not
               contemplate permitting a party to see how his case comes out before
               deciding whether to share in the reporter cost. If he takes this course
               he runs the risk of not having a verbatim record available.

Id. at *1.




                                                 -9-
The gravamen of the language is that a party who does not share in the per diem expense of a
court reporter runs the risk of not having a verbatim record available. The risk of unavailability
stems from the contractual relationship created between the reporter and the payee, as described
by this Court in Beef N’ Bird of America, Inc. v. Galbreath, 803 S.W.2d 234 (Tenn. Ct. App.
1990):
                In civil cases, this Court notes judicially the practice of parties to
                engage and pay a stenographer a "per diem" to attend and record the
                evidence and proceedings. If only one party engages and pays the
                stenographer, it appears that the verbatim record of evidence and
                proceedings would be available to that party by contract. If more than
                one party jointly engage and pay the stenographer, it would appear
                that the verbatim record would be available to any one of the
                participating parties by contract. Inability of a participating party to
                pay for the transcription might make it unavailable to him.
                A party who does not join in the engagement and payment of a
                stenographer has no contract right to require the stenographer to
                transcribe the record which is therefore unavailable to him unless and
                until made available to him on terms satisfactory to the stenographer
                and the party or parties who engaged the stenographer.

Id. at 240. (emphasis added).

        It is uncontested that Appellants made arrangements with the court reporter to purchase a
copy of the transcript. After procuring the copy, Appellants sought its admission in the trial
court. Automax contends that Appellants did not “make satisfactory arrangements” with
Automax in obtaining the transcript. While it is true that Appellants did not seek Automax’s
permission, they were able to buy a transcript from the reporter. Any contractual obligations
concerning the transcript arise from the terms of any agreement between Automax and the
reporter it hired. Consequently, if Automax disagrees with the court reporter’s actions in selling
the Appellants a copy of the transcript, that is a dispute between Automax and the court reporter.

       For the foregoing reasons, we affirm the Order of the trial court. Costs of this appeal are
assessed to the Appellants, Beverley Miller and Cassandra Meyer, and their respective sureties.

                                      __________________________________________
                                      W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




                                               -10-
