IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
TIMOTHY W. BURROW, )
) FILED
Plaintiff/Appellant, ) Sumner Circuit No. 18049-C
) September 17, 1999
VS. ) Appeal No. 01A01-9806-CV-00311
) Cecil Crowson, Jr.
RUSSELL E. BARR, Individually ) Appellate Court Clerk
and d/b/a MAIN STREET MOTORS, )
)
Defendant/Appellee. )
APPEAL FROM THE CIRCUIT COURT OF SUMNER COUNTY
AT GALLATIN, TENNESSEE
THE HONORABLE THOMAS GOODALL, JUDGE
G. KLINE PRESTON, IV
Nashville, Tennessee
Attorney for Appellant
ROLLIE L. WOODALL
Nashville, Tennessee
Attorney for Appellee
REVERSED AND REMANDED
ALAN E. HIGHERS, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
DAVID R. FARMER, J.
This lawsuit arises from Timothy Burrow’s purchase of a used car from Russell Barr
(d/b/a Main Street Motors), where, unbeknownst to Burrow, significant mechanical
problems that greatly affected the car’s value existed at the time of sale. In this appeal,
Timothy Burrow appeals the trial court’s sua sponte involuntary dismissal of his claims at
trial, which occurred before Burrow was afforded the opportunity to fully present the facts
and his evidence. Based upon the following, we reverse and vacate the trial court’s
dismissal, and remand this case to the trial court for further proceedings consistent with
this opinion.
FACTS AND PROCEDURAL HISTORY
This lawsuit was originally commenced in the Sumner County General Sessions
Court by Burrow’s filing of a civil warrant against Barr (hereafter either “Barr” or “Main
Street Motors”), whereby Burrow alleged that Main Street Motors sold to Burrow “a 1988
Acura Legend ... on or about April 12, 1997 ... with defects that were known to [Barr] and
were not known to [Burrow].” Burrow claimed, among other things, that Barr violated the
Tennessee Consumer Protection Act 1 (“the TCPA”), and sought a judgment for actual
damages,2 treble damages,3 and attorney fees. 4 After Burrow’s claims were dismissed
with prejudice in the General Sessions Court after a trial, Burrow appealed to the Sumner
County Circuit Court for a de novo trial. In the circuit court, Barr counterclaimed for the
recovery of any damages incurred, including reasonable attorney fees and costs, that
1. See Tenn. Code Ann. §§ 47-18-101 et seq. (1995 & Supp. 1998). More specifically, Burrow explained at
trial that he claimed Barr had violated Tennessee Code Annotated sections 47-18-104(b)(7) and (b)(27), which
provide:
[T]he following unfair or deceptive acts or practices affecting the conduct of any trade or
com mer ce are d eclared to be unlaw ful and in viola tion of this pa rt:
...
(7) Representing that goods or se rvices are of a particular standard, quality or grade
. . . if they are of another;
...
(27) Engaging in any other act or practice which is deceptive to the consumer or to
any other person.
Tenn. Code A nn. § 47-18-104(b) (Supp. 199 8).
2. See Tenn. Code A nn. § 47-18-109(a)(1) (providing for the recovery of actual damages resulting from “the
use or emp loyment ... of an unfair or deceptive act or practice declared to by unlawful” by the TCPA).
3. See Tenn. Code Ann. § 47-18-109(a)(3) & (4) (providing for the recovery of treble damage s where “the
unfair or deceptive act or practice was a willful or knowing violation” of the TCPA).
4. See Tenn. Code A nn. § 47-18-109(e)(1) (establishing that the trial court may award the person bringing
a TCPA claim reasonable attorney fees and co sts).
2
resulted from defending this action.5
Prior to the circuit court trial, Burrow subpoenaed three witnesses: Steve Bowman,
Tim Durbin, and Melanie Barr. 6 Furthermore, he filed a witness list that provided that he
may call any or all of the following witnesses: Burrow, Barr, Steve Bowman, Tim Durbin,
Melanie Barr, Rick Meadows, Phillip Urrutia, and Tony Adgent. On May 21, 1998, the case
came to be heard by the circuit court, at which time each party presented opening
statements, and Burrow began presentation of his case in chief. At this time, Burrow
presented testimony from both Burrow and Steve Bowman.
During the course of Burrow’s direct examination by his counsel, Burrow testified
that, prior to April 12, 1997, he spoke with Tim Durbin, who is an employee at Main Street
Motors. Burrow asked what kind of shape the 1988 Acura Legend was in, and Durbin
stated that it was in good shape.7 On April 12, 1997, Burrow went to Main Street Motors
and met with Rick Meadows, who is another Main Street Motors employee. While there,
Burrow looked at another vehicle, a Mercedes, at which time the following oral exchange
occurred:
And Rick Meadows -- I said to Rick, “I’m a little concerned about the
maintenance of the car.” He said, “Yeah.” He said, “That kind of concerns
me, too.” He said, “Well, you know how much you’ll have to pay in
maintenance on an Acura.” And I said, “How much?” And he said,
“Nothing.”
And, you know, I realize that was sales puffing; but still, it was
consistent with Tim Durbin’s statement that it was a good car.
So I was kind of eager to drive the car. And also, Mr. Meadows
volunteered information that they had bought the Acura from Gary Force
[Acura].
....
So then I thought, well, why did Gary Force sell it? And so I asked
him if Gary Force only sells cars that they don’t want, or do they sell all their
old cars? He said, “Oh, they sell all of them.” So I thought, all right, that’s
fine, it could still be an excellent car.
5. See Tenn. Code Ann. § 47-18-109(e)(2) (establishing that the trial court may award a defendant any
damages incurred, including reasonable attorney fees and costs, resulting from the defense of a T CPA claim
that was “frivolous, without legal or factual merit, or brought for the purpose of harassme nt”).
6. Pres um ably, M elanie Barr is Ru sse ll Barr ’s wife , who supp ose dly dro ve the Acu ra Le gen d dur ing th e tim e
period when it was in Main Street Motors’s possession.
7. The mileage of the 1988 model car did, however, exceed 136,000 miles. Further, Burrow later admitted
during cross-examination that he assumed that Durbin’s characterization (that he thought it was a good car)
was jus t Durbin’s o pinion.
3
During this exchange, the 1988 Acura Legend had been out being test driven by another
potential customer. After the car was returned, Burrow test drove it. “It drove well. ....
[I]t really ran very smoothly.” Meadows did, however, inform Burrow, “there’s a CV joint
that needs to be replaced.” Thereafter, Burrow negotiated an agreement, whereby “the
final deal was: $5,400 if they fixed the CV joint and if they put stripes on it. .... Plus tax,
it was $5,788.50.” At the time of the purchase, Burrow received an “invoice and bill of
sale” that stated “AS-IS.” Moreover, Burrow signed a “buyers guide” that was attached to
the bill of sale, which stated:
IMPORTANT: Spoken promises are difficult to enforce. Ask the dealer to put
all promises in writing.
....
AS IS - NO WARRANTY
YOU WILL PAY ALL COSTS FOR ANY REPAIRS. The dealer assumes no
responsibility for any repairs regardless of any oral statements about the
vehicle.
....
PRE PURCHASE INSPECTION: ASK THE DEALER IF YOU MAY HAVE
THIS VEHICLE INSPECTED BY YOUR MECHANIC EITHER ON OR OFF
THE LOT.
SEE THE BACK OF THIS FORM for important additional information,
including a list of major defects that may occur in used motor vehicles.
The back of the signed “buyers guide” stated, “Below is a list of some major defects that
may occur in used motor vehicles,” and set forth an exhaustive list of potential defects,
including transmission and suspension problems. The day Burrow purchased the vehicle,
he left it at Main Street Motors for the agreed CV joint repair and the stripe work. Three
days later, he picked up the vehicle and, while the engine was cold, he “put it in reverse
[and] it had a very loud sound” that lasted five to ten seconds. He then put the car in
reverse in front of Rick Meadows, inquiring what the noise was, to which Meadows stated,
“Well, I’ve never heard that before.” At that point, Burrow recognized that he didn’t “have
any proof that it didn’t happen just now or yesterday,” and he drove away with the car.
Thereafter, the problem did not go away, and the sound “happened every single time you
put it in reverse when it was cold.” Furthermore, the next day or two days later, Burrow
noticed another clicking sound that occurred when the engine is cold. As soon as Burrow
was able, he contacted Rick Meadows about the problems and requested to return the car.
Ultimately, however, Main Street Motors refused to allow Burrow to rescind the purchase.
4
After recalling that Main Street Motors had originally purchased the vehicle from Gary
Force Acura, Burrow contacted Gary Force Acura and learned that the problem, which was
a transmission problem, had existed even before Main Street Motors purchased the
vehicle. Burrow further learned that other problems existed with the car that had not been
repaired, including among other things the need for ball joints to be replaced. Ultimately,
Burrow traded in the Legend eight months after he had purchased it (and after he had
increased its total mileage by approximately 10,000 miles) for $1,500.
At the end of Burrow’s direct examination, Burrow explained to the circuit court that
his “main witness” had not been present at the general sessions trial, and that he hadn’t
expected to prevail if his “main witness did not show up.” Thereafter, Barr’s counsel began
cross-examining Burrow. Before he was through, however, and (more importantly) prior
to Burrow having any opportunity for his counsel to conduct any redirect examination, the
circuit court judge curtailed cross-examination, stating the following:
I have a suggestion. [Burrow] has said that he has a very good witness that
was not heard. I’d like to hear from that witness, then I will allow you to
cross-examine more if you need to.
Neither party expressed any objection to this procedure, and, therefore, Burrow’s counsel
called Steve Bowman to testify. During direct examination, Bowman testified that he was
a service manager at Gary Force Acura, that he was personally familiar with the 1988
Acura Legend that was the subject of this suit, and that the car’s transmission made a loud
grinding sound that lasted 10 to 15 seconds when he had moved the car prior to its sale
to Main Street Motors. Gary Force Acura “had already checked the car out” and had come
up with a $2,300 estimate for varying repair work, excluding the internal transmission
“grinding.” Repairing the transmission was estimated to cost over $2,000 more. Based
upon the car’s overall condition, Bowman recommended that Gary Force Acura
“wholesale” the car, rather than put the car on its lot for sale. During direct examination,
Bowman also opined that the “repairs” of which he was aware would “affect the value of
the vehicle.” He further opined that the grinding transmission problem that appeared when
the engine is cold would not have disappeared for the subsequent one month period of
time during which Main Street Motors had the car in its possession.
5
The transcript of proceedings from the May 21, 1998 trial does not indicate whether
Burrow’s counsel completed his direct examination of Steve Bowman. The following,
however, is the remaining exchange that occurred immediately following Bowman’s
testimony on direct examination:
THE COURT: I think we need to take a break.
(Break in proceedings.)
THE COURT: Mr. Woodall [who was Barr’s trial counsel], I’ve heard
enough proof to make a decision, and I dismiss both actions. I hope it’s not
considered that I’m tired or weary, but this doesn’t fit into the criteria of that
exhibited under the Consumer Protection Act.
The original action is dismissed and the cross-action is dismissed. Mr.
Woodall, would you prepare the order, please?
MR. WOODALL: Certainly, sir.
(End of Proceedings.)
Accordingly, on June 1, 1998, the circuit court entered a judgment that provided:
After hearing the testimony presented and considering the exhibits
admitted into evidence, the Court was of the opinion and found that ...
Burrow take nothing from ... Barr ... ; that ... Barr ... take nothing from ...
Burrow; and that the costs of this cause should be adjudged against ...
Burrow.
IT IS, THEREFORE, ORDERED, ADJUDGED, and DECREED by the
Court that this action should be, and is hereby, dismissed as to all parties
with all costs of this cause taxed against ... Burrow, for which execution may
issue, if necessary.
On appeal, Burrow contends that “the trial court erred in sua sponte ordering the
involuntary dismissal” of Burrow’s claims, and further contends that “the evidence
presented at trial preponderated against the trial court’s decision.”
ANALYSIS
In Burrow’s brief, he states,
The trial judge dismissed the action before [Burrow] had completed
presenting his proof. In fact, [Burrow] still had two witnesses under
subpoena and [Barr] who remained to be called to testify. The trial court . .
. dismissed [Burrow’s] action prior to the presentation of all [Burrow’s] proof
. . . . [Burrow] had not rested or closed his proof.
It is apparent from our review of the record that Burrow indeed had not rested or completed
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his case in chief. Quite simply stated, Burrow was not afforded an opportunity to attempt
to fully present the facts and his evidence (subject to objections as to the admissibility of
evidence). The trial judge simply curtailed any further opportunity for Burrow either to
attempt to introduce additional testimony prior to the completion of his case in chief, or
even to explain why further testimony might be necessary and/or appropriate. In reviewing
the propriety of the trial court’s sua sponte dismissal at this stage in the proceedings, we
find ourselves guided, in part, by Harris v. Baptist Memorial Hospital, 574 S.W.2d 730
(Tenn. 1978), wherein the Tennessee Supreme Court reviewed the propriety of a trial
court’s sua sponte dismissal after hearing only opening statements from counsel. In
Harris, our supreme court stated the following:
Although Rule 41.02 does not expressly so provide, we are of the
opinion that a trial court may under certain circumstances and upon
adequate grounds therefor, sua sponte order the involuntary dismissal of an
action. However, this power must be exercised most sparingly and with
great care that the right of the respective parties to a hearing shall not be
denied or impaired. It must be remembered that Rule 41.02(3), Tennessee
Rules of Civil Procedure, provides that all dismissals, except those for lack
of jurisdiction, improper venue or lack of an indispensable party, shall
operate as an adjudication upon the merits unless the court in its order of
dismissal otherwise provides. In short, the occasions for the proper exercise
of this power are considered by this Court to be few indeed.
We are of the opinion, however, that the trial judges of this State are
not authorized to order the involuntary dismissal of an action at trial upon the
sole basis of the opening statements of counsel. Such a practice was not
recognized in this State prior to the adoption of the Tennessee Rules of Civil
Procedure and we find nothing in those rules to countenance such a practice
now. The applicable rule is Rule 41.02(2), governing involuntary dismissals
at trial, which provides:
"After the plaintiff, in an action tried by the court without a jury, has
completed the presentation of his evidence, the defendant, without
waiving his right to offer evidence in the event the motion is not
granted, may move for dismissal on the ground that upon the facts
and the law the plaintiff has shown no right to relief. The court as trier
of the facts may then determine them and render judgment against
the plaintiff or may decline to render any judgment until the close of
all the evidence; in the event judgment is rendered at the close of
plaintiff's evidence, the court shall make findings of fact if requested
in writing within three days after the announcement of the court's
decision."
Clearly, this rule contemplates that the plaintiff's evidence shall be
heard and evaluated by the court prior to an involuntary dismissal order at
trial. We note also that Rule 50.01 governing the granting of a directed
verdict in a jury trial also limits the power of the court to do so to that point in
the trial " . . . at the close of the evidence offered by an opposing party or at
the close of the case."
Of critical importance here is the nature of opening statements. They
7
are intended merely to inform the trial judge and jury, in a general way, of the
nature of the case and to outline, generally, the facts each party intends to
prove. Such statements do not amount to stipulations and certainly are not
a substitute for the pleadings or for evidence. See 75 Am.Jur.2d Trials s 202
(1974). It is easy to see that an involuntary dismissal upon the basis of the
opening statements of counsel alone may effectively deny the litigants the
opportunity to be heard or to fully present the facts and evidence in the case.
For this reason, we are unwilling to expand the provisions of Rule 41.02 to
authorize trial judges to order involuntary dismissals upon opening
statements only.
574 S.W.2d at 731-32 (emphasis added). While Harris clearly recognizes “that a trial court
may . . . sua sponte order the involuntary dismissal of an action,” it further sets forth the
proposition that a litigant should not be denied the opportunity to be heard or to fully
present the facts and evidence in the case. While Harris undoubtedly involved a more
egregious denial of a plaintiff’s opportunity to fully present the facts and evidence, we
nonetheless find that, under the circumstances of this case, the trial court similarly erred
by denying Burrow the opportunity to fully present the facts and his evidence.
CONCLUSION
Accordingly, we hereby reverse the trial court’s dismissal, and remand this case to
the trial court for further proceedings consistent with this opinion. Costs on appeal are
taxed to Barr, for which execution may issue if necessary.
8
HIGHERS, J.
CONCUR:
CRAWFORD, P.J., W.S.
FARMER, J.
9