Helton v. Glenn Enterprises, Inc.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
September 16, 2005 Session

DAVID HELTON, ET AL. v. GLENN ENTERPRISES, INC.,
DBA LINMAR HOSPITALITY

Appeal from the Circuit Court for Knox County
No. 3-784-03 Wheeler A. Rosenbalm, Judge

No. E2005-00103-COA-R3-CV - FILED JANUARY 26, 2006

David Helton and his wife, Charlotte Helton, brought suit against Glenn Enterprises, Inc., dba
Linmar Hospitality, the operator1 of a Fairfield Inn in Knox County, for compensatory damages
arising out of the theft of their drag racing vehicle and other personal property losses, all of which
occurred while the plaintiffs were guests at the defendant’s motel. At the conclusion of a jury trial,
the court directed a verdict for the defendant, holding that there was no liability shown by the proof.
This holding was predicated upon the fact that the parking lot where the plaintiffs parked their truck
and trailer,2 while close to the defendant’s motel, was not actually on the defendant’s property. The
plaintiffs appeal, arguing that the duty established by the Supreme Court in the case of McClung v.
Delta Square Ltd. P’ship, 937 S.W.2d 891 (Tenn. 1996) should apply to the facts of this case. They
contend that they made out a question for the jury on the McClung issue as well as on the issue of
liability under the Tennessee Consumer Protection Act (“the TCPA”). We vacate the trial court’s
judgment on these two issues and remand for a new trial.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Vacated; Case Remanded

CHARLES D. SUSANO , JR., J., delivered the opinion of the court, in which D. MICHAEL SWINEY and
SHARON G. LEE, JJ., joined.

Stephen A. Marcum, Huntsville, Tennessee, for the appellants, David Helton and wife, Charlotte
Helton.

Jay Arthur Garrison, Knoxville, Tennessee, for the appellee, Glenn Enterprises, Inc. dba Linmar
Hospitality.

1
The defendant manages and operates the motel for its owner. As we read McClung, the holding in that case
would apply to an entity that operates the property owner’s business .

2
The drag racing car and the other personal property were located in the trailer.
 OPINION

I.

The plaintiffs, who are residents of Kentucky, are “weekend” drag racing enthusiasts. On
July 25, 2003, they, along with their two small children, stopped at a Fairfield Inn near the
Strawberry Plains exit off Interstate 40 in Knox County. The family traveled to the motel in a 1988
Chevrolet “dually” truck, which was towing a 36-foot gooseneck trailer. The trailer contained a drag
racing car, a golf cart, racing equipment, and other personal property owned by the plaintiffs. The
plaintiffs refer to the truck and trailer as “the rig,” as will we.

Upon arriving at the motel, the plaintiffs observed that the parking area immediately adjacent
to the motel was “pretty full,” which was not unusual for that time of year. Because the motel did
not have designated parking spaces for oversized rigs such as their rig (which was approximately 40
to 50 feet long), the plaintiffs parked in a paved parking area in front of the motel but separated from
the parking adjacent to the motel’s entrance by a curbed grassy median. From the photographs in
the record, the median appears to be approximately two car-lengths in depth. The area in question
was paved and lined for parking spaces. The plaintiffs observed that other guests of the motel –
including guests who arrived in a large bus – had parked in that lot and were entering the motel from
that lot with their luggage. There were no signs posted to indicate that the lot was not owned by the
motel or to advise guests against parking there. In fact, the motel’s manager was aware that guests
commonly parked in that lot, particularly due to the lot’s relatively-close proximity to the front door
of the motel.

Knowing that guests preferred the convenience of the lot where the plaintiffs parked their rig,
the motel’s manager instructed the desk clerks that they were not to discourage guests from using
the lot, unless a guest specifically inquired about parking there. In June, 2003, the real owner of the
lot had complained to the manager about guests of the motel using his premises for parking. As a
result of this complaint, the manager, once again, instructed the desk clerks to tell guests not to park
in the lot, but only if the guests specifically asked. In addition, desk clerks were instructed to inform
guests about the lack of motel security, but only if the guests specifically asked.

When the plaintiffs checked into the motel on July 25, 2003, Mr. Helton approached the desk
clerk on duty, pointed to his rig in the parking lot (which was visible from the front desk), and asked
the desk clerk “if [his] stuff [would] be all right there where [he] parked it.” According to Mr.
Helton, the desk clerk leaned over the front desk, looked at the plaintiffs’ rig and responded that “it
should be fine – or something similar [to that statement].”3 Despite Mr. Helton’s specific inquiry
and the manager’s instruction as to how the clerks were to respond to such an inquiry, the clerk did
not inform the plaintiffs that they should not park in that lot, or that the motel did not own that lot,
nor did the clerk give the plaintiffs anything in writing to advise them against parking in that lot.

3
At the time of trial, the desk clerk was deceased and her testimony had not been preserved prior to her death.

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In addition, the clerk said nothing about the recent vehicle thefts and burglaries that had occurred
on the premises of the motel and in the area around the motel’s property. Mr. Helton testified that
he took into account the clerk’s response when he decided to leave his rig in the lot and stated that,
had he been told about the vehicle thefts, he would have driven the rig home and returned to the
motel in the family van because the rig was “just too much to risk.”

The following morning, the plaintiffs discovered that their rig had been stolen. Mr. Helton
asked the desk clerk on duty – who was someone other than the person on duty when the Heltons
checked in the previous evening – if the motel had experienced any prior thefts, and the clerk
responded that it had not. When Mr. Helton asked to speak to the manager, the same desk clerk
informed him that the manager did not have time to talk to him, as he was busy preparing for an
inspection by Marriott. When Mr. Helton’s father arrived later in the morning to drive the plaintiffs
and their children back to Kentucky, the father asked the manager whether the motel had experienced
any problems with thefts, and the manager responded that they had never had anything stolen. The
manager then proceeded to tell Mr. Helton’s father that the motel often housed guests participating
in car shows in Sevier County and that the motel parking lot would be full of “show cars,” none of
which had ever been discovered missing. Sometime later, when the plaintiffs were communicating
with the Knoxville Police Department (“KPD”) about the theft, the plaintiffs learned that there had
been a number of vehicle thefts and burglaries at the motel. The record reflects that KPD had
received reports of 32 separate incidents at the motel from January 11, 2001, through July 26, 2003,
the date on which the plaintiffs’ rig was stolen. These incidents included 17 stolen vehicles,
including the plaintiffs’ rig; 11 vehicle burglaries; 2 attempted vehicle thefts; 1 theft of motor vehicle
parts; and 1 armed robbery. In fact, one vehicle had been reported stolen from the motel’s premises
just ten days prior to the theft of the plaintiffs’ rig.

While the desk clerk on duty the morning after the theft had told Mr. Helton that he was
unaware of any prior thefts on the motel’s property, he later admitted at trial – once faced with copies
of vehicle theft reports personally signed by him – that the motel had experienced prior thefts and
burglaries. Moreover, the motel’s manager was also aware of the crime problem at the motel. He
admitted at trial that, prior to the July 26, 2003, theft of the plaintiffs’ rig, he was aware of reports
of people behaving suspiciously in the motel’s parking lot; of the prior vehicle thefts and burglaries
at his motel; of similar thefts from other area businesses; and of a meeting that area business owners
had conducted to discuss the theft problem. The manager asked KPD to patrol the motel’s parking
lot, but was advised that KPD could not make any promises about their ability to make regular
patrols. The manager then requested that KPD conduct a “sting” operation at the motel, using a
“dummy” vehicle as bait in an effort to catch the thieves, but KPD declined to do so.

In spite of the manager’s knowledge of the crimes on the motel’s property and his request
for assistance from KPD, the manager chose not to increase motel security. The motel had no
security guards or outside cameras, and the manager never instructed the staff to patrol the parking
lot. While the manager discussed with his supervisor, Tim Knipp, the possibility of increased
security, they decided that the number of thefts and burglaries at the motel was insufficient to justify
the additional expense.

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 Mr. Knipp, who is vice president of operations for the defendant, testified that the motel was
concerned about the incidents of criminal activity. He stated that the number of thefts at the motel
was unacceptable. However, he went on to state that the number of criminal incidents was not
sufficient to warrant a meeting with a security consultant. Both the manager and Mr. Knipp testified
that guests at the motel were not told of the ongoing crime in the area out of a concern that it would
hurt business and affect the motel’s bottom line.

At trial, the plaintiffs introduced the testimony of Tim Twohig, who is employed with a
Knoxville security firm. Mr. Twohig testified that in July, 2003, the motel could have hired a 24-
hour-a-day security guard for $13.28 per hour. Mr. Knipp admitted that the motel could have hired
a staff person or desk clerk to patrol the parking lot for approximately $7.00 per hour. The manager
also admitted that the motel’s employees simply could have informed guests at check-in of the
ongoing crime problem. In addition, the manager conceded that, at very little cost, the motel could
have provided guests with flyers notifying them of the thefts and advising them as to where they
should park.

The plaintiffs’ truck and trailer were later recovered in Cocke County at a “chop shop.” Both
had been damaged. The race car and the other personal property were never recovered.

The plaintiffs filed a complaint against the defendant in the instant case on December 15,
2003, alleging that it was liable to the plaintiffs for the theft of their rig. The plaintiffs’ theories of
recovery included negligence; gross negligence; negligent and/or intentional and/or fraudulent
misrepresentation; concealment; and violation of the Tennessee Consumer Protection Act (“the
TCPA”). The motel answered, denying any culpability.

The case was tried before a jury in December, 2004. At the close of the plaintiffs’ proof, the
defendant moved for a directed verdict, which motion was denied. At the conclusion of all the proof,
the defendant renewed its motion. This time, the trial court granted the defendant’s motion and
dismissed the plaintiffs’ case. The trial court entered its final judgment on December 14, 2004.
From this judgment, the plaintiffs appeal.

II.

We review a trial court’s decision on a motion for directed verdict de novo, “applying the
same standards as the trial court.” Biscan v. Brown, 160 S.W.3d 462, 470 (Tenn. 2005) (citing
Gaston v. Tenn. Farmers Mut. Ins. Co., 120 S.W.3d 815, 819 (Tenn. 2003)). A directed verdict
is appropriate “only when the evidence in the case is susceptible to but one conclusion.” Childress
v. Currie, 74 S.W.3d 324, 328 (Tenn. 2002) (citing Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn.
1994)). We must “take the strongest legitimate view of the evidence favoring the opponent of the
motion,” allowing “all reasonable inferences in favor of the opponent of the motion,” and
disregarding “all evidence contrary to the opponent’s position.” Id. After assessing the evidence
in this fashion, we will affirm the directed verdict only upon a determination “that reasonable minds
could not differ as to the conclusions to be drawn from the evidence.” Eaton, 891 S.W.2d at 590.

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 To the extent that the trial court’s judgment is based upon a conclusion of law, our de novo
review is undertaken with no presumption of correctness as to the trial court’s legal conclusions. S.
Constructors, Inc. v. Loudon Co. Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

III.

As previously indicated, the plaintiffs’ complaint recites numerous theories of recovery.
However, the plaintiffs’ brief on appeal only addresses the theories of negligence under the rubric
of McClung and culpability under the TCPA. Therefore, the issue of whether the trial court erred
in dismissing the plaintiffs’ suit under the other theories of recovery is treated by us as being
waived.4

IV.

A.

The plaintiffs’ theory regarding the negligence of the defendant, as previously stated, is
bottomed on the holding in the case of McClung v. Delta Square Ltd. P’ship, 937 S.W.2d 891
(Tenn. 1996). In McClung, the Supreme Court granted permission to appeal “to review the standard
for determining business owner liability for injuries occurring on the business premises and caused
by the criminal acts of third parties.” Id. at 893 (emphasis added). In that case, the plaintiff’s wife
went to a shopping center in Memphis to shop at Wal-Mart, the center’s “anchor tenant.” Id. at 893-
94. As she was returning to her car in the center’s parking lot, she was abducted at gunpoint by a
fugitive from Chattanooga, who later raped her and forced her into the trunk of her car where she
suffocated. Id.

The plaintiff in McClung sued Wal-Mart and the owner of the shopping center. Id. at 894.
He alleged that the defendants were negligent “in failing to provide security measures for the parking
lot and that their negligence was the proximate cause of [his wife’s] death.” Id. When confronted
with the defendant’s motion for summary judgment, the plaintiff relied, in part, upon “records from
the Memphis Police Department, which indicated that from May, 1989 through September, 1990,
when plaintiff’s wife was abducted, approximately 164 criminal incidents had occurred on or near
defendants’ parking lot.” Id. at 903. The trial court, relying upon the precedent of Cornpropst v.
Sloan, 528 S.W.2d 188 (Tenn. 1975), reluctantly granted the defendants summary judgment. Id.

4
In Hawkins v. Hart, 86 S.W .3d 522 (Tenn. Ct. App. 2001), we stated that

[i]n order for an issue to be considered on appeal, a party must, in his [or her] brief,
develop the theories or contain authority to support the averred position as required
by [Tenn. R. App. P.] 27(a). “Where a party makes no legal argument and cites no
authority in support of a position, such issue is deemed to be waived and will not
be considered on appeal.”

Id. at 531 (quoting Branum v. Akins, 978 S.W .2d 554, 557 n.2 (Tenn. Ct. App. 1998)).

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at 894.The Court of Appeals affirmed. Id.

The Supreme Court reversed the trial court, stating that “we must disavow the observation
made in Cornpropst that ‘conditions in the area [of the defendant’s business] are irrelevant’ in
assessing the foreseeability of a criminal act.” Id. at 899 (quoting Cornpropst, 528 S.W.2d at 197)
(bracketing in McClung opinion). The High Court held that it was “join[ing] those courts which
generally impose a duty upon businesses to take reasonable measures to protect their customers from
foreseeable criminal attacks.” Id.

In addressing the nature and scope of the duty of owners and occupiers of business premises
to customers, the Supreme Court stated as follows:

A business ordinarily has no duty to protect customers from the
criminal acts of third parties which occur on its premises. The
business is not to be regarded as the insurer of the safety of its
customers, and it has no absolute duty to implement security
measures for the protection of its customers. However, a duty to take
reasonable steps to protect customers arises if the business knows, or
has reason to know, either from what has been or should have been
observed or from past experience, that criminal acts against its
customers on its premises are reasonably foreseeable, either generally
or at some particular time.

In determining the duty that exists, the foreseeability of harm and the
gravity of harm must be balanced against the commensurate burden
imposed on the business to protect against that harm. In cases in
which there is a high degree of foreseeability of harm and the
probable harm is great, the burden imposed upon defendant may be
substantial. Alternatively, in cases in which a lesser degree of
foreseeability is present or the potential harm is slight, less onerous
burdens may be imposed. By way of illustration, using surveillance
cameras, posting signs, installing improved lighting or fencing, or
removing or trimming shrubbery might, in some instances, be cost
effective and yet greatly reduce the risk to customers. In short, “the
degree of foreseeability needed to establish a duty decreases in
proportion to the magnitude of the foreseeable harm” and the burden
upon defendant to engage in alternative conduct. “As the gravity of
the possible harm increases, the apparent likelihood of its occurrence
need be correspondingly less to generate a duty of precaution.” The
degree of foreseeability needed to establish a duty of reasonable care
is, therefore, determined by considering both the magnitude of the
burden to defendant in complying with the duty and magnitude of the
foreseeable harm.

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 As a practical matter, the requisite degree of foreseeability essential
to establish a duty to protect against criminal acts will almost always
require that prior instances of crime have occurred on or in the
immediate vicinity of defendant’s premises. Courts must consider the
location, nature, and extent of previous criminal activities and their
similarity, proximity, or other relationship to the crime giving rise to
the cause of action. To hold otherwise would impose an undue
burden upon merchants.

The balancing approach we adopt appropriately addresses both the
economic concerns of businesses and the safety concerns of
customers who are harmed due to the negligence of one seeking their
business. . . . The criminal who intends to strike in defendant’s
parking lot will not enter defendant’s store to announce his intentions
and thereby provide defendant actual notice of the impending attack.
In short, this new rule provides the fairest and most equitable results.
It creates a duty in limited circumstances, giving merchants neither
absolute immunity nor imposing absolute liability. It recognizes the
national trend that businesses must justifiably expect to share in the
cost of crime attracted to the business. It encourages a reasonable
response to the crime phenomenon without making unreasonable
demands.

Id. at 902 (internal citations and footnote omitted) (emphasis added).

B.

The parties differ sharply as to whether the holding in McClung applies to the facts of this
case. We agree with the defendant that there is a major factual difference between McClung and the
instant case. In McClung, the property upon which the criminal act occurred was owned by the
shopping center defendant and made available by it to the customers of the defendant Wal-Mart; by
contrast, in the instant case, the theft of the plaintiffs’ property took place on real estate not owned
by the defendant or on property that was the site of a business operated by it. The holding in
McClung, when read in the context of the facts of that case, applies to “injuries occurring on the
business premises.” Id. at 893 (emphasis added).

The plaintiffs strenuously argue that the holding in McClung should not be limited to
criminal activity on one’s property but rather should be expanded to include activity that occurs on
property that a defendant leads a customer to reasonably believe is owned by or under the control
of the defendant. We agree with the plaintiffs on this point.

In Bradshaw v. Daniel, 854 S.W.2d 865 (Tenn. 1993), the Supreme Court stated that the

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 imposition of a legal duty reflects society’s contemporary policies and
social requirements concerning the right of individuals and the
general public to be protected from another’s act or conduct.

* * *

Indeed, it has been stated that “‘duty’ is not sacrosanct in itself, but
is only an expression of the sum total of those considerations of
policy which lead the law to say that the plaintiff is entitled to
protection.”

Id. at 870 (quoting W. Keeton, Prosser and Keeton on the Law of Torts § 53 at 358 (5th ed. 1984)).
In McClung, the Supreme Court addressed the duty established in that case:

[The new rule] creates a duty in limited circumstances, giving
merchants neither absolute immunity nor imposing absolute liability.
It recognizes the national trend that businesses must justifiably expect
to share in the cost of crime attracted to the business.

McClung, 937 S.W.2d at 902 (emphasis added).

We believe that the underlying justification for the McClung rule applies with equal force
to criminal activity on property that the defendant causes a customer to reasonably believe is owned
by the defendant or under the defendant’s control. In both cases, as far as the customer is concerned,
the property is one for which the defendant is responsible. If a plaintiff believes – and reasonably
so because of the conduct of the defendant – that the defendant is responsible with respect to certain
property, the customer can also reasonably believe that the defendant has the ability to take action
with respect to that property. Accordingly, we believe it is a reasonable and natural expansion of the
duty recognized in McClung to hold that if a defendant, by word or conduct, leads a customer of the
defendant to reasonably believe that the defendant is the owner of property or otherwise responsible
for the use of the property, the defendant is subject to the duty expounded upon in McClung,
assuming the balancing test set forth in McClung is resolved in the plaintiff’s favor. We so hold.

C.

In the case at bar, a jury could reasonably find – by the tenor of Mr. Helton’s question to the
desk clerk – that he, Mr. Helton, believed that the desk clerk, because of his position at the motel,
would be able to tell him if the motel objected to his parking in the subject lot and if his “stuff
[would] be all right.” A jury could also conclude that Mr. Helton’s question could reasonably be
interpreted as inquiring whether his rig would be safe there and/or whether it was a place where the
motel permitted patrons to park their vehicles. A jury could also reasonably conclude that the desk
clerk’s answer could be reasonably interpreted by Mr. Helton as an affirmative answer to these
inquiries. Hence, a jury could reasonably conclude that the defendant (through the actions of the

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desk clerk), by word and conduct, affirmatively induced Mr. Helton to reasonably believe that the
motel owned the property or otherwise considered it a part of the premises of the motel or was
otherwise responsible for it.

The conversation between Mr. Helton and the desk clerk at the time the Heltons registered
must be viewed in the context of the physical layout of the motel and the surrounding parking areas.
At the front entrance to the motel, there is a portico. The portico is located perpendicular to the
length of the motel. When the plaintiffs checked in, the desk clerk was behind the registration
counter which was just inside the front entrance. There are lined parking spaces on either side of the
portico. These lined spaces are generally designed for vehicles facing the motel and for vehicles
facing away from the motel. The facing-toward spaces and facing-away spaces are separated by the
driveway running the length of the motel and through the portico.

When one exits the main entrance of the motel, he or she is facing a long, curbed grassy
median running parallel with the driveway and the motel. From the photographs, it appears that the
median is approximately two-car lengths in depth. On the other side of the median is pavement with
lined parking spaces.5 This is where the plaintiff parked his rig. This area is some 50 to 60 yards
from the front desk. As previously noted, when Mr. Helton made his inquiry of the desk clerk, the
clerk was able to lean over the counter and observe the plaintiffs’ rig in front of her. It should also
be noted that the plaintiff observed other vehicles – including a bus – in the subject parking area.
He saw passengers from the bus exit the vehicle and carry luggage into the motel.

The Supreme Court in McClung noted that “the question of duty and of whether defendants
have breached that duty by taking or not taking certain actions is one for the jury to determine based
upon proof presented at trial.” McClung, 937 S.W.2d at 904. In the instant case, there is evidence,
which, if accredited, could lead a jury to reasonably conclude that “the foreseeability of harm and
the gravity of harm” when “balanced against the commensurate burden imposed on the business to
protect against that harm” would militate in favor of a finding of a duty. Id. at 902. There is also
evidence from which a jury could reasonably conclude that the defendant breached that duty and that
the breach was the cause in fact and legal cause of the plaintiffs’ losses. Accordingly, we conclude
that the trial court erred in directing a verdict for the defendant as to the plaintiffs’ negligence claim
under McClung.

D.

We next address whether the trial court erred in directing a verdict with respect to the
plaintiffs’ cause of action under the TCPA. Their basic claim under the Act was that the defendant’s
failure to disclose certain information, e.g., its lack of ownership of the adjacent parking area, the
fact that the real owner did not want guests of the motel parking on his property, and the prevalence

5
This lined parking area apparently was once parking for a building that was completely leveled at some time
before the incident involved in this case.

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of criminal activity, including motor vehicle theft, on and near the defendant’s motel, constituted an
actionable “unfair or deceptive act.”

After determining that the McClung duty did not extend to the facts before it, the trial court
stated the following with respect to the plaintiffs’ TCPA claim:

No sale of goods were involved here, and if there’s any implication
of the Tennessee Consumer Protection Act at all, it must be under the
theory that the defendant was selling a service to the plaintiff. An
issue I do not believe we have to decide today but an issue about
which I think there is, in my mind, serious doubt about whether this
was a sale of service as contemplated by the legislature in adopting
the Tennessee Consumer Protection Act.

But I think the important conclusion is that if there was no duty to
disclose these prior criminal incidents or the level of criminal activity
in the community at or about the defendant’s property, then there
could be no unfair or deceptive act or practice for failure to disclose.
The defendant could hardly be charged with being unfair or deceptive
for failing to do something it was not otherwise bound by law to do.

The TCPA authorizes:

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

Tenn. Code Ann. § 47-18-109(a)(1) (2001) (emphasis added). Though the Act does not define the
terms “unfair” and “deceptive,” it enumerates a number of specific “unfair or deceptive acts or
practices [which] affect[] the conduct of any trade or commerce.” Tenn. Code Ann. § 47-18-
104(b)(1)-(40) (Supp. 2005). Included within this list is the “[e]ngaging in any other act or practice
which is deceptive to the consumer or to any other person.” Tenn. Code Ann. § 47-18-104(b)(27).
The plaintiffs base their cause of action under the TCPA on this provision and its broad language.

The TCPA is to be “liberally construed” to “protect consumers and legitimate business
enterprises from those who engage in unfair or deceptive acts or practices in the conduct of any trade
or commerce . . . .” Tenn. Code Ann. § 47-18-102(2) (2001); see Ganzevoort v. Russell, 949 S.W.2d
293, 298 (Tenn. 1997). The term “consumer” is defined in the Act. “‘Consumer’ means any natural
person who seeks or acquires by purchase, rent, lease, assignment, award by chance, or other
disposition, any goods, services, or property, tangible or intangible, real, personal or mixed, and any

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other article, commodity, or thing of value wherever situated . . . .” Tenn. Code Ann. § 47-18-103(2)
(2001) (emphasis added). The terms “trade” or “commerce” are also defined, in part, as “offering
for sale, lease or rental, or distribution of any goods, services, or property, tangible or intangible,
real, personal, or mixed, and other articles, commodities, or things of value wherever situated[.]”
Tenn. Code Ann. § 47-18-103(11) (emphasis added). Given the required liberal construction and
the stated purpose behind the TCPA, we hold that the business transaction in this case, i.e., the
furnishing of hotel services for a fee, is covered by the Act.

“[W]hether a specific representation in a particular case is ‘unfair’ or ‘deceptive’ is a question
of fact.” Tucker v. Sierra Builders, No. M2003-02372-COA-R3-CV, 2005 WL 1021675, at *4
(Tenn. Ct. App. M.S., filed April 29, 2005), perm. app. denied, October 24, 2005 (citation omitted).
In the instant case, we hold that a jury could reasonably find that the plaintiff posed the
aforementioned question (i.e., “will my stuff be all right there where I parked it”) to the desk clerk
because he was concerned with the security of the area in which the rig was parked and because he
believed that the defendant was the owner of the subject parking area or otherwise responsible for
the area in question. A jury could also reasonably find that the desk clerk’s response led the plaintiff
to reasonably believe that the desk clerk had some basis of knowledge for telling him that it would
be all right to park the rig in the adjacent lot. A jury could also reasonably conclude, based upon the
desk clerk’s response, that the plaintiffs reasonably believed that the defendant owned the adjacent
lot or was responsible for it and that the clerk, acting for the motel, did not know of any reason why
it would not be appropriate or safe to park there. If a jury were to find these facts, it could then
reasonably find that the conduct of the desk clerk, as an employee of the motel, constituted “any
other act or practice which [was] deceptive to the consumer or to any other person.” See Smith v.
Scott Lewis Chevrolet, Inc., 843 S.W.2d 9, 12-13 (Tenn. Ct. App. 1992) (holding that even negligent
conduct can constitute a deceptive act or practice under the Act). Accordingly, a directed verdict was
not appropriate on the plaintiffs’ TCPA claim.

V.

The judgment of the trial court directing a verdict for the defendant/appellee and dismissing
the complaint on the theories based upon negligence and the TCPA are hereby vacated and this case
is remanded to the trial court for a new trial. Costs on appeal are taxed to the appellee, Glenn
Enterprises, Inc., dba Linmar Hospitality.

_______________________________
CHARLES D. SUSANO, JR., JUDGE

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