Milan Suppy Chain Solutions, Inc. f/k/a Milan Express, Inc. v. Navistar, Inc.

08/14/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
June 19, 2019 Session

MILAN SUPPLY CHAIN SOLUTIONS INC. F/K/A MILAN EXPRESS INC.
v. NAVISTAR INC. ET AL.

Appeal from the Circuit Court for Madison County
No. C-14-285 Roy B. Morgan, Jr., Judge
___________________________________

No. W2018-00084-COA-R3-CV
___________________________________

This appeal involves a jury verdict in a commercial dispute pertaining to the quality of
trucks purchased by the plaintiff, Milan Supply Chain Solutions, Inc. Contending that the
purchased trucks were defective, Milan filed suit against Navistar, Inc. and Volunteer
International, Inc., alleging various legal claims, including breach of contract, violation of
the Tennessee Consumer Protection Act, and fraud. Although some of Milan’s claims
were dismissed prior to trial, the remaining fraud and Tennessee Consumer Protection
Act claims were tried before a jury. Defendant Volunteer International, Inc. was granted
a directed verdict upon the conclusion of Milan’s proof and later awarded attorney’s fees,
but a monetary judgment for both compensatory and punitive damages was entered
against Navistar, Inc. The parties now appeal, raising a plethora of issues for our
consideration. For the reasons stated herein, including our conclusion that the asserted
fraud claims are barred by the economic loss doctrine, we reverse the judgment awarded
to Milan. We affirm, however, the trial court’s award of attorney’s fees in favor of
Volunteer International, Inc.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in
Part, Affirmed in Part and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which KENNY
ARMSTRONG, and CARMA DENNIS MCGEE, JJ., joined.

Roman Martinez, Washington, D.C, Kevin Jakopchek, Chicago, Illinois, Eugene N.
Bulso, Jr. and Paul J. Krog, Nashville, Tennessee, for the appellant, Navistar, Inc.

Marty Phillips, Adam Nelson, Jackson, Tennessee, Clay Miller, Lawrence R. Lassiter,
Dallas, Texas and Donald Capparella, Nashville, Tennessee, for the appellee, Milan
Supply Chain Solutions, Inc. f/k/a Milan Express, Inc.
Roman Martinez, Washington, D.C., Kevin Jakopchek, Chicago, Illinois, Eugene N.
Bulso, Jr. and Paul J. Krog, Nashville, Tennessee, for appellee, Volunteer International,
Inc.

Bradley M. Davis, Chattanooga, Tennessee, for amicus curiae Tennessee Chamber of
Commerce and Industry.

OPINION

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff Milan Supply Chain Solutions, Inc. (“Milan”) is a logistics company that
is engaged in the business of hauling refrigerated and dry van commodities across the
country. Defendant Navistar, Inc. (“Navistar”) is a Delaware corporation that
manufactures trucks and other equipment. Defendant Volunteer International, Inc.
(“Volunteer”) is a Tennessee company that sells and services Navistar trucks and
equipment.

The present dispute arose as a result of Milan’s business dealings with Navistar
and Volunteer, specifically its purchase of over two hundred Navistar trucks through a
series of separate transactions. When Milan purchased its trucks, they were subject to a
standard “Limited Warranty”; Milan also purchased “Optional Service Contracts”
concerning the trucks. Pursuant to the terms of the “Limited Warranty” and “Optional
Service Contracts,” Navistar agreed to “repair or replace” parts of the trucks that proved
defective. Among other things, however, the documents also provided that no warranties
were given beyond those described in the warranty documents and that the warranties of
merchantability and fitness for a particular purpose were specifically disclaimed.

On November 13, 2014, Milan commenced the present litigation by filing a
complaint in the Madison County Circuit Court against both Navistar and Volunteer. The
complaint alleged that the trucks purchased by Milan were defective and stated that not
long after they were purchased, Milan “began to experience numerous breakdowns of the
Trucks.” Milan asserted that although it had taken the trucks to the “Navistar Network”
for repair, it had been repeatedly delayed in getting the trucks back into operation. Milan
further charged Navistar and Volunteer with making a number of misrepresentations
concerning the trucks. According to Milan, it had been provided with false information
regarding the trucks’ performance capabilities, fuel economy, and overall fitness for use.

In a subsequently-filed amended complaint, Milan reiterated these same concerns
and asserted several legal claims for relief, including breach of contract, breach of
express and implied warranties, fraud, and violation of the Tennessee Consumer
Protection Act. Although a number of Milan’s claims were dismissed prior to trial,

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including its warranty claims, asserted fraud and Tennessee Consumer Protection Act
claims were allowed to proceed to trial before a jury.

After the close of Milan’s proof, the Circuit Court ruled that a directed verdict
should be entered in favor of Volunteer. As it explained in a subsequent order
memorializing this ruling, the court noted that Milan’s former president had specifically
testified that Volunteer’s representative was an honest and credible man. With regard to
Navistar, however, the case was submitted to the jury for a verdict. After deliberating,
the jury returned a verdict in favor of Milan, finding, among other things, that Navistar
had represented that the trucks purchased were of a particular standard and quality when
they were that of another. Pursuant to the Circuit Court’s “Order of Judgment,” which
was entered on the jury’s verdict, Milan was awarded over $10,000,000 in compensatory
damages and $20,000,000 in punitive damages.

Following entry of the “Order of Judgment,” various motions and responses to
motions were filed by the parties, including a motion for new trial and accompanying
memorandum of law by Navistar. Ultimately, the Circuit Court entered a series of orders
wherein it denied Navistar’s motion for new trial, awarded Milan attorney’s fees and
discretionary costs against Navistar, and awarded Volunteer attorney’s fees and
discretionary costs against Milan. This timely appeal followed.

ISSUES PRESENTED
The parties raise a number of issues for our consideration in this appeal. In
Navistar’s appellate brief, it specifically raises the following matters:

1. Whether the trial court erred in holding that Tennessee’s economic loss doctrine
categorically does not apply to fraud claims.
2. Whether the trial court erred in holding that a commercial truck sold to a company
for business use falls within the Tennessee Consumer Protection Act’s definition
of “[g]oods,” Tenn. Code Ann. § 47-18-103(7).
3. Whether the trial court erred in holding that material evidence supported the jury’s
finding that Milan filed its Tennessee Consumer Protection Act claim within the
one-year statute of limitations.
4. Whether the trial court erred in excluding evidence of conspicuous written
disclaimers in the parties’ agreements.
5. Whether the trial court erred in holding that Tennessee law does not require
benefit-of-the-bargain damages to be calculated as of the time of sale.
6. Whether the trial court erred in upholding the jury’s award of lost profits in the
absence of any proof of lost profits.
7. Whether the trial court failed to carry out its thirteenth juror responsibility when it
deferred to the jury’s verdict without independently deciding whether it agreed
with that verdict.
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 8. Whether the jury’s $20 million punitive damages award was excessive and
unreasonable in violation of Tennessee law or Navistar’s due-process rights.

Milan separately raises the following two issues, restated verbatim from its brief:

1. The trial court denied Volunteer’s motion for summary judgment on all Milan’s
misrepresentation-based claims, including Milan’s claim under the TCPA, finding
that there were “genuine issues of material fact,” and Volunteer never claimed that
the trucks were not “goods” under the TCPA. Though the trial court ultimately
granted Volunteer’s motion for directed verdict during the trial, it awarded
attorney’s fees to Volunteer under the TCPA. Did the trial court err because,
having survived a summary-judgment motion, Milan’s TCPA claim against
Volunteer was not, by definition “frivolous, without legal or factual merit, or
brought for the purpose of harassment?”

2. Under Tennessee law, a limited “repair or replace” remedy in a warranty can fail
of its essential purpose if there is evidence that the seller is unable to effectively
repair the goods. There was ample evidence in the summary-judgment record that
whatever repairs Navistar did perform were ineffective, with multiple trucks
needing multiple repairs of the EGR system, as well as evidence from Navistar’s
own internal records showing that it was never able to effectively repair the EGR
system. Did the trial court err by dismissing Milan’s breach of express warranty
claims against Navistar by ruling that a limited “repair or replace” remedy cannot
fail of its essential purpose as a matter of law as long as the seller performs repairs
when asked and there were triable issues of fact as to whether the remedy failed of
its essential purpose?

For its part, Volunteer separately raises as an issue whether it “is entitled to recover
attorney’s fees incurred on appeal.”

DISCUSSION
Milan’s Fraud Claims
We turn first to what is perhaps the most contentious issue in this appeal: whether
Milan’s fraud claims are barred by the economic loss doctrine.

The economic loss doctrine is a judicially created principle that “prevents a party
who suffers only economic loss from recovering damages under a tort theory.” Jeffrey L.
Goodman et al., A Guide to Understanding the Economic Loss Doctrine, 67 Drake L.
Rev. 1, 2 (2019). Although it has been suggested that the doctrine would be better named
the “commercial loss” doctrine, see All-Tech Telecom, Inc. v. Amway Corp., 174 F.3d
862, 865 (7th Cir. 1999), this Court has previously indicated that “economic losses” in
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this context can take two forms: direct economic losses and consequential economic
losses attributable to a product. McLean v. Bourget’s Bike Works, Inc., No. M2003-
01944-COA-R3-CV, 2005 WL 2493479, at *6 (Tenn. Ct. App. Oct. 7, 2005). “Direct
economic losses relate to the product itself and include costs of repairing or replacing the
product or the diminution in the product’s value because it is of an inferior quality or
does not work for the general purposes for which it was manufactured and sold.” Id. On
the other hand, consequential economic losses “include all other economic losses
attributable to the product itself such as the loss of profits resulting from an inability to
use the defective product.” Id. “Economic losses” do not include personal injuries or
damage to other property. See Lincoln Gen. Ins. Co. v. Detroit Diesel Corp., 293 S.W.3d
487, 489 (Tenn. 2009) (“The economic loss doctrine is implicated . . . when a defective
product damages itself without causing personal injury or damage to other property.”).

In this case, Milan’s claimed injury stems from the alleged defectiveness of the
purchased trucks. Its asserted losses are strictly commercial financial losses, and these
losses implicate the type of injury for which the economic loss doctrine would bar tort
recovery. The issue here, however, is whether some type of exception to the doctrine
exists for fraud claims.

The economic loss doctrine, which is also sometimes referred to as the economic
loss rule, was created by the courts to avoid the “coming collision between warranty and
contract on the one hand and the torts of strict liability, negligence, fraud and
misrepresentation on the other.” Trinity Indus., Inc. v. McKinnon Bridge Co., Inc., 77
S.W.3d 159, 171 (Tenn. Ct. App. 2001) (quoting James J. White & Robert S. Summers,
Uniform Commercial Code § 10-5, 580 (4th ed. 1995)). Its overarching premise is fairly
straightforward:

[C]ontract and tort are separate and distinct areas of the law that provide
separate and distinct remedies. A party who enters into a contract which
contains terms that limit recovery in the event of a breach [is] typically
unable to circumvent such provisions by alleging a tort occurred as well.
The warranty or contract’s terms and conditions set forth the rules
governing the relationship, and tort law does not expand the remedies of the
contract beyond the agreed-to terms. Absent personal injury or damage to
other property, the sole remedy lies in contract.

Goodman et al., supra, at 55–56 (internal footnotes omitted).
The conceptual simplicity of the doctrine notwithstanding, a review of case law
across the country shows a lack of uniformity in the approaches taken, see David v. Hett,
270 P.3d 1102, 1109 (Kan. 2011) (noting that “the doctrine is viewed differently in
various jurisdictions”), even prompting one judge to note that the economic loss rule has
become a “confusing morass.” Indem. Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So.2d
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532, 544 (Fla. 2004) (Cantero, J., concurring). Whatever nuances may appear within and
across jurisdictions, however, there is no question that the doctrine preserves an
important distinction between the law of contracts and the law of torts. Goodman et al.,
supra, at 57; see also Steven W. Feldman, 21 Tenn. Practice: Contract Law and Practice
§ 1:4 (May 2019) (noting that the economic loss doctrine is “one important device that
preserves the boundaries for contract and tort”).

The policy undergirding the economic loss doctrine is that contract law and
warranty law are best suited to address a purchaser’s economic loss. As one court
articulated this concept:

[C]ontract theories such as breach of warranty are specifically aimed at and
perfectly suited to providing complete redress in cases involving . . .
economic losses. All of such losses are based upon and flow from the
purchaser’s loss of the benefit of his bargain and his disappointed
expectations as to the product he purchased. Thus, the harm sought to be
redressed is precisely that which a warranty action does redress.

REM Coal Co., Inc. v. Clark Equip. Co., 563 A.2d 128, 129 (Pa. Super. Ct. 1989); see
also Goodman et al., supra, at 11 (“Contract law, rather than tort law, protects a
consumer’s expectation interests[.]”).

Parties are invariably free to negotiate the terms of their purchase agreements and
warranties, and “[b]y preventing a plaintiff from recovering in tort for purely economic
loss, the doctrine protects the right to allocate economic risks in contract.” Goodman et
al., supra, at 6. Consequently, the “economic loss doctrine prevents parties from
subverting their contract and recovering in tort what they could not obtain through their
contractual remedies.” Id. at 7. A party’s remedy, therefore, is left in his or her own
hands. “[I]f consumers want to ensure a product they purchase meets their performance
or business needs, their remedy is bargaining for a warranty that permits them to recover
the costs of repair/replacement of the product and any consequent loss of profits.” Id. at
15. In addition to its direct legal consequences pertaining to the viability of tort claims,
the economic loss doctrine has practical market consequences through its enforcement of
parties’ warranties, helping the “manufacturer keep costs down so the average consumer
does not have to pay a higher price.” Id. at 24–25.

As Judge Richard Posner stated when discussing the economic loss doctrine,

Where there are well-developed contractual remedies, such as the remedies
that the Uniform Commercial Code (in force in all U.S. states) provides for
breach of warranty of the quality, fitness, or specifications of goods, there
is no need to provide tort remedies for misrepresentation. The tort
remedies would duplicate the contract remedies, adding unnecessary
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 complexity to the law. Worse, the provision of these duplicative tort
remedies would undermine contract law. That law has been shaped by a
tension between a policy of making the jury the normal body for resolving
factual disputes and the desire of parties to contracts to be able to rely on
the written word and not be exposed to the unpredictable reactions of lay
factfinders to witnesses who testify that the contract means something
different from what it says.

....

If the seller makes an oral representation that is important to the buyer, the
latter has only to insist that the seller embody that representation in a
written warranty. The warranty will protect the buyer, who will have an
adequate remedy under the Uniform Commercial Code if the seller reneges.
To allow him to use tort law in effect to enforce an oral warranty would
unsettle contracts by exposing sellers to the risk of being held liable by a
jury on the basis of self-interested oral testimony and perhaps made to pay
punitive as well as compensatory damages. This menace is averted by
channeling disputes into warranty (contract) law[.]

All-Tech Telecom, Inc., 174 F.3d at 865–66.

The California Supreme Court’s decision in Seely v. White Motor Co., 403 P.2d
145 (Cal. 1965), is frequently cited as the genesis of modern jurisprudence on the
economic loss doctrine.1 In that case, the plaintiff brought suit after a truck he purchased
for heavy-duty hauling overturned and had to be repaired. Id. at 147. Ultimately, the
California Supreme Court dismissed the notion that recovery in tort was available for
solely economic loss, opining in relevant part as follows:

The distinction that the law has drawn between tort recovery for physical
injuries and warranty recovery for economic loss is not arbitrary and does
not rest on the ‘luck’ of one plaintiff in having an accident causing physical
injury. The distinction rests, rather, on an understanding of the nature of
the responsibility a manufacturer must undertake in distributing his
products. He can appropriately be held liable for physical injuries caused
by defects by requiring his goods to match a standard of safety defined in
terms of conditions that create unreasonable risks of harm. He cannot be
held for the level of performance of his products in the consumer’s business

1
It has been suggested, however, that the historical roots of the doctrine are traceable much
further back in time and “lie in the nineteenth century.” See Sidney R. Barrett, Jr., Recovery of Economic
Loss in Tort for Construction Defects: A Critical Analysis, 40 S.C. L. Rev. 891, 897 (1989).
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 unless he agrees that the product was designed to meet the consumer’s
demands.

Id. at 151.

Also influential in the growth of the doctrine was the United States Supreme
Court’s decision in East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S.
858 (1986). In that admiralty case, the United States Supreme Court held that “a
manufacturer in a commercial relationship has no duty under either a negligence or strict
products-liability theory to prevent a product from injuring itself.” Id. at 871. The Court
identified a “need to keep products liability and contract law in separate spheres” and
expressed concern that contract law might “drown in a sea of tort.” Id. at 871, 866.
Quoting favorably to the reasoning from Seely, the Court stated as follows:

“The distinction that the law has drawn between tort recovery for
physical injuries and warranty recovery for economic loss is not arbitrary
and does not rest on the ‘luck’ of one plaintiff in having an accident causing
physical injury. The distinction rests, rather, on an understanding of the
nature of the responsibility a manufacturer must undertake in distributing
his products.” Seely v. White Motor Co., 63 Cal.2d, at 18, 45 Cal.Rptr., at
23, 403 P.2d, at 151. When a product injures only itself the reasons for
imposing a tort duty are weak and those for leaving the party to its
contractual remedies are strong.

The tort concern with safety is reduced when an injury is only to the
product itself. When a person is injured, the “cost of an injury and the loss
of time or health may be an overwhelming misfortune,” and one the person
is not prepared to meet. In contrast, when a product injures itself, the
commercial user stands to lose the value of the product, risks the
displeasure of its customers who find that the product does not meet their
needs, or, as in this case, experiences increased costs in performing a
service. Losses like these can be insured. Society need not presume that a
customer needs special protection. The increased cost to the public that
would result from holding a manufacturer liable in tort for injury to the
product itself is not justified.

Damage to a product itself is most naturally understood as a
warranty claim. Such damage means simply that the product has not met
the customer’s expectations, or, in other words, that the customer has
received “insufficient product value.” The maintenance of product value
and quality is precisely the purpose of express and implied warranties.
Therefore, a claim of a nonworking product can be brought as a breach-of-

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 warranty action. Or, if the customer prefers, it can reject the product or
revoke its acceptance and sue for breach of contract.

Contract law, and the law of warranty in particular, is well suited to
commercial controversies of the sort involved in this case because the
parties may set the terms of their own agreements. The manufacturer can
restrict its liability, within limits, by disclaiming warranties or limiting
remedies. In exchange, the purchaser pays less for the product. Since a
commercial situation generally does not involve large disparities in
bargaining power . . . we see no reason to intrude into the parties’ allocation
of the risk.

Id. at 871–73 (internal footnotes omitted and some internal citations omitted).

Although the economic loss doctrine is undisputedly a valid feature of Tennessee
law, see Lincoln Gen. Ins. Co., 293 S.W.3d at 488–92 (analyzing whether a sudden,
calamitous event could give rise to an exception under the economic loss doctrine);
Trinity Indus., Inc., 77 S.W.3d at 173 (noting that our state Supreme Court has expressed
its agreement with the policy behind the doctrine), the acknowledgment of this point has
done little to quell the parties’ disagreements in this case. In fact, as alluded to
previously, the specific controversy here concerns the economic loss doctrine’s scope,
namely whether it serves as a bar to fraud claims. To some degree, this dispute has been
emboldened by virtue of the fact that various courts have taken different approaches to
this precise question. Indeed, despite the widespread acceptance of the economic loss
doctrine across the country, some courts have created exceptions for allegations of fraud.
It appears that three approaches to fraud claims have emerged: (1) there is no exception
to the economic loss doctrine; (2) there is a general exception for all fraud in the
inducement claims; or (3) a narrow exception exists where the fraud “is not interwoven
with the quality or character of the goods for which the parties contracted or otherwise
involved performance of the contract.” Kaloti Enters., Inc. v. Kellogg Sales Co., 699
N.W.2d 205, 217 (Wis. 2005).

While we are not aware of any fraud exceptions to the economic loss doctrine
under current Tennessee law, it is evident from the last of the three general approaches
listed above, that even when those jurisdictions hold that fraud tort claims should not be
categorically barred by the economic loss doctrine, such an “exception” is a limited one.
As one court put it, “[t]he fraudulent inducement exception is subject to a widely
recognized limitation that where the fraudulent misrepresentation concerns the quality,
character, or safety of the goods sold, the economic loss doctrine bars the fraud claim
because it is substantially redundant with warranty claims.” Flynn v. CTB, Inc., No.
1:12CV68 SNLJ, 2015 WL 5692299, at *12 (E.D. Mo. Sept. 28, 2015). Such a limitation
on a fraud claim exception was notably adopted in the decision in Huron Tool &
Engineering Co. v. Precision Consulting Services, Inc., 532 N.W.2d 541 (Mich. Ct. App.
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1995), where the Michigan Court of Appeals held that a plaintiff could only pursue a
claim for fraud in the inducement if it was “extraneous to the alleged breach of contract.”
Id. at 546. In applying this legal framework, the Huron Tool court stated as follows:

[W]e must look to the four corners of plaintiff’s complaint, accept all
factual allegations as true, and determine whether the fraud claim falls
outside the ambit of the economic loss doctrine. We hold that it does not.
The fraudulent representations alleged by plaintiff concern the quality and
characteristics of the software system sold by defendants. These
representations are indistinguishable from the terms of the contract and
warranty that plaintiff alleges were breached. Plaintiff fails to allege any
wrongdoing by defendants independent of defendants’ breach of contract
and warranty. Because plaintiff’s allegations of fraud are not extraneous to
the contractual dispute, plaintiff is restricted to its contractual remedies
under the UCC. The circuit court’s dismissal of plaintiff’s fraud claim was
proper.

Id. (internal footnote omitted).

The Wisconsin Supreme Court’s decision in Kaloti Enterprises, Inc. v. Kellogg
Sales Co., 699 N.W.2d 205 (Wis. 2005), is another notable instance where such an
analytical approach was adopted. In that case, the Wisconsin Supreme Court centered its
focus, in part, on whether the alleged fraud “concerns matters whose risk and
responsibility did not relate to the quality or the characteristics of the goods for which the
parties contracted,” explaining that misrepresentations that relate to the “quality or
character of the goods sold” are either “(1) expressly dealt with in the contract’s terms, or
(2) if they are not dealt with explicitly in the contract’s terms, they go to reasonable
expectations of the parties to the risk of loss in the event the goods purchased did not
meet the purchaser’s expectations.” Id. at 219. According to the Kaloti court, a fraud in
the inducement claim would not be barred by the economic loss doctrine if the fraud was
extraneous to the contract, rather than interwoven with it. Id.

While no Tennessee appellate court has found that an exception to the economic
loss doctrine exists for extraneous fraud that is unrelated to the quality and character of
the goods sold, we need not address it here because the claimed misrepresentations in this
case clearly relate to the quality of the trucks purchased by Milan. Yet, like Huron Tool,
Kaloti, and other decisions that have adopted such a narrow exception, we hold that
where the alleged fraud, as in this case, relates to the quality of goods sold, the economic
loss doctrine is a bar and any remedies must be pursued in contract/warranty law.

We find such an approach consistent with Tennessee law. This Court has noted
that the economic loss doctrine draws the line between tort and warranty and, by quoting
to other authority, has cautioned that courts “should be particularly skeptical of business
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plaintiffs who—having negotiated an elaborate contract or having signed a form when
they wish they had not—claim to have a right in tort.” Trinity Indus., Inc., 77 S.W.3d at
171–72 (quoting James J. White & Robert S. Summers, Uniform Commercial Code § 10-
5, 582–83 (4th ed. 1995)). Indeed, as discussed supra, the doctrine was created to avoid
the “coming collision between warranty and contract on the one hand and the torts of
strict liability, negligence, fraud and misrepresentation on the other.” Id. at 171
(emphasis added) (quoting James J. White & Robert S. Summers, Uniform Commercial
Code § 10-5, 580 (4th ed. 1995)). We have emphasized that the economic loss rule
“requires parties to live by their contracts rather than to pursue tort actions for purely
economic losses,” McLean, 2005 WL 2493479, at *5, and in our view, because a
purchaser’s expectation interests regarding goods are protected by contract and warranty
law, that law should govern grievances pertaining to the quality or character of the goods
purchased. See Milner v. Windward Petroleum, Inc., No. 06-2563, 2007 WL 9706514, at
*6 (W.D. Tenn. May 31, 2007) (noting that “[m]any jurisdictions have held that fraud
claims essentially alleging breach of contract are barred by the economic loss doctrine”
and holding that the remedy lies in contract, not tort, where the alleged fraud pertains to
the quality of the product).

We also take note of our Supreme Court’s decision in Mid-South Milling Co., Inc.
v. Loret Farms, Inc., 521 S.W.2d 586 (Tenn. 1975). In that case, which concerned the
purchase of poultry meal, the plaintiffs brought suit asserting several claims, including
fraudulent misrepresentation and breach of express and implied warranties. Id. at 588.
Among other things, the plaintiffs alleged that certain false representations had been
made to them concerning the quality and character of the purchased poultry meal. Id.
Despite the assertion of both tort and breach of warranty allegations, the Tennessee
Supreme Court characterized the action as being under the Uniform Commercial Code:

[T]he plaintiffs allege negligence, fraudulent misrepresentation, breach of
express and implied warranties, and violation of T.C.A. Sec. 53–103.
Regardless of the many allegations we must view the lawsuit in the light of
what it really is—tort, breach of warranty of sale, or both.

The plaintiffs allege certain representations were made to them
concerning the quality and character of the poultry by-product meal. The
plaintiffs claim they relied upon these representations which proved to be
false, or were not carried out by the defendants. The plaintiffs further
allege the defendants were negligent in mixing the poultry by-product meal
and included therein certain ingredients which proved to be harmful to the
plaintiff’s chicks to the extent that the chicks did not make normal gains in
weight. All of these allegations go to the real complaint—the defendants
breached their warranty of sale.

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 A contract may be negligently or fraudulently breached and the
cause of action remain in contract rather than in tort.

....

We . . . conclude the gravamen of the present cause of action is
breach of warranty of sale, T.C.A. secs. 47–2–313 and 47–2–314; and the
damages sought are permissible under and governed by T.C.A. secs. 47–2–
714 and 47–2–715. The action lies under those provisions of the Uniform
Commercial Code, even though tortious breach on the part of the
defendants is alleged.

Id. at 588–89. Although Mid-South Milling was concerned with a question of venue and
did not nominally invoke the “economic loss doctrine” or “economic loss rule,” our state
jurisprudence acknowledges that “the policies behind Mid-South Milling . . . are the same
as those which inspired the economic loss doctrine.” Trinity Indus., Inc., 77 S.W.3d at
173.

To conclude with regard to this first issue, we are in general agreement with the
arguments set forth by Navistar. Because only “economic loss” is at issue here and
Milan’s fraud claims concern the quality of the trucks sold to it, we hold that those claims
are barred by the economic loss doctrine. Those claims are hereby dismissed.

Milan’s Tennessee Consumer Protection Act claim

We next shift our attention to Milan’s claim under the Tennessee Consumer
Protection Act (“TCPA”). In its appellate brief, Navistar offers a couple of separate
arguments as to why Milan’s TCPA claim is without merit. Because we find its first
articulated argument regarding the TCPA to be dispositive, we need not reach its second
argument which concerns the statute of limitations.

Here, our focus is squarely concerned with the legal applicability of Tennessee
Code Annotated section 47-18-104(b)(7) in light of the facts of this case. Indeed, per the
Circuit Court’s “Order of Judgment,” the “jury found that Defendant, Navistar, did
violate the Tennessee Consumer Protection Act, as codified at Tenn. Code Ann. § 47-18-
104(b)(7).” (TR 8401) Pursuant to this statutory section, it is considered to be an unfair
or deceptive act or practice if one represents that goods are of a “particular standard,
quality or grade” or of a “particular style or model” if they are of another. Tenn. Code
Ann. § 47-18-104(b)(7).

In this case, the jury specifically determined that Navistar had violated the TCPA
by representing that purchased trucks were “of a particular standard, quality or grade, or
that [they] were of a particular style or model, when they were that of another.” Even
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assuming this finding was unimpeachable, it does not support liability under Tennessee
Code Annotated section 47-18-104(b)(7). The fundamental problem, as argued by
Navistar, is that the purchased trucks here do not constitute “goods” for purposes of the
TCPA. Under the statute, “goods” are defined to mean “any tangible chattels leased,
bought, or otherwise obtained for use by an individual primarily for personal, family, or
household purposes or a franchise, distributorship agreement, or similar business
opportunity.” Tenn. Code Ann. § 47-18-103(7). As pointed out by Navistar in its
appellate brief, the statute essentially provides two definitions for “goods.” Indeed, as
one decision has explained, the statute’s definition “is in the disjunctive offering two
categories of ‘good’—a tangible chattel (with some qualifications) and a franchise,
distributorship or similar business opportunity.” Pinkberry Ventures, Inc. v. Penninsular
Grp., LLC, Nos. CV13-02146 PSG(SSx), CV13-02662 PSG(SSx), 2014 WL 12600828,
at *3 (C.D. Cal. Feb. 24, 2014).2 Here, both categories of “goods” are inapplicable.
Turning to the first categorical definition, we note the following: (1) the trucks were
purchased by Milan, a logistics company, not an individual and (2) the trucks were
purchased for use in Milan’s business, not for personal, family, or household purposes.
Based on these facts, the trucks are not “tangible chattels leased, bought, or otherwise
obtained for use by an individual primarily for personal, family, or household purposes.”
The second categorical definition of goods is also not satisfied, as the trucks at issue are
clearly not a “franchise, distributorship agreement, or similar business opportunity.”

Despite the argument advanced by Navistar on this issue, Milan urges this Court to
deem the matter waived and suggests that Navistar’s general motion for a directed verdict
made during trial did not preserve this issue for appellate review. Respectfully, Milan’s
argument is without merit. Here, Navistar moved generally for a directed verdict, and as
a previous panel of this Court has explained, “[a] general motion for a directed verdict
made at the conclusion of the proof is sufficient to support a complaint on appeal that the
evidence is legally insufficient to sustain the judgment.” Lewis v. Lawson, C.A. Nos.
774, 775, 776, 1987 WL 26203, at *2 (Tenn. Ct. App. Dec. 8, 1987). Of course, as we
have detailed herein, because the evidence surrounding the purchased trucks indicates
that they are not a “good” within the meaning of the statute, the evidence is legally
insufficient to support the specific TCPA violation claimed in this case.

Having concluded herein that the fraud and TCPA claims are without legal merit,
it follows that the monetary judgments awarded against Navistar based on these claims
cannot stand. We accordingly hereby reverse the monetary judgments entered in favor of
Milan and conclude that the remaining issues raised by Navistar are pretermitted as
unnecessary.3
2
In Pinkberry, it was disputed whether the sale of a franchise involved a good. After consulting
the “plain meaning interpretation of § 47-18-103(7),” it was held that the “sale of a franchise appears to
come within the scope of the TCPA.” Pinkberry Ventures, Inc., 2014 WL 12600828, at *4.
3
Although the remaining issues properly raised by Navistar are pretermitted as unnecessary, we
are compelled to briefly address one other matter. Buried in a footnote in its appellate brief, Navistar
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Milan’s Express Warranty Claims
We next address Milan’s contention that its breach of express warranty claims
were erroneously dismissed. According to Milan, there are “triable issues” concerning
whether Navistar’s limited warranty failed its essential purpose. For the reasons that
follow, we are of the opinion that Milan has waived its breach of warranty claims.

Considering that this case was tried by a jury and that Milan necessarily seeks a
new trial on account of its warranty claims, Milan’s request for relief is subject to the
requirement in Rule 3(e) of the Tennessee Rules of Appellate Procedure. In relevant part,
the plain text of that rule provides as follows: “[I]n all cases tried by a jury, no issue
presented for review shall be predicated upon . . . [a] ground upon which a new trial is
sought, unless the same was specifically stated in a motion for a new trial; otherwise such
issues will be treated as waived.” Tenn. R. App. P. 3(e). Here, Milan did not file a
motion for new trial raising the issue connected to its express warranty claims. 4 As such,
those issues are waived on appeal.

This Court reached an analogous result in its decision in Nepp v. Hart, No.
M2005-2024-COA-R3-CV, 2006 WL 2582503 (Tenn. Ct. App. Sept. 7, 2006). In that
case, the plaintiffs-homeowners filed suit in connection with a dispute over the
construction of their residence. Id. at *1. Although a jury found in their favor on certain
claims and awarded damages in an amount over $60,000.00, id. at *4, the plaintiffs-
homeowners later appealed to this Court raising issues concerning prior interlocutory
orders, including the previous dismissal of their TCPA claim. Id. at *5. Noting that the
case had been tried to a jury, we explained that any ground upon which a new trial is
sought must be raised in a motion for new trial:

We do not reach the merits of the Homeowners’ issues in this case because
of procedural aspects. The issues raised by the Homeowners arise from the
trial court’s orders of September 30, 2003 and November 21, 2003. . . .
[O]nce the final order in this case was entered on July 11, 2005, the
Homeowners could raise any issues arising from the trial or any
interlocutory orders so long as all procedural requirements were met. This

states that “this Court should award attorney’s fees and expenses under the TCPA to Navistar.” We deem
this request to be waived, noting that it was not asserted in the “Statement of the Issues” section of
Navistar’s brief. See Naylor v. Naylor, No. W2016-00038-COA-R3-CV, 2016 WL 3923790, at *4 n.2
(Tenn. Ct. App. July 15, 2016) (noting that a request for attorney’s fees was waived when not designated
as an issue on appeal in the statement of the issues section of the party’s appellate brief).
4
In fact, we note that in a response to Navistar’s motion for new trial, Milan actually made
statements evidencing a distancing from its previously-asserted warranty claims, remarking (a) “there is
no warranty claim in this case” and (b) “Navistar argues as if this were a warranty case governed by the
UCC. This is a fraud case.”
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 case was tried to a jury and, under Tenn. R. App. P. 3(e), the Homeowners
were required to raise their issues first in a motion for new trial, to wit:

[I]n all cases tried by a jury, no issue presented for review shall be
predicated upon error in the admission or exclusion of evidence, jury
instructions granted or refused, misconduct of jurors, parties or
counsel, or other action committed or occurring during the trial of
the case, or other ground upon which a new trial is sought, unless the
same was specifically stated in a motion for a new trial; otherwise
such issues will be treated as waived.

Having failed to call the trial court’s attention, by way of a motion for new
trial, to the alleged errors cited, the Homeowners have waived their right to
be heard on those issues.

Id. at *5–6.

Because we deem Milan’s issue waived in light of the requirement of Rule 3(e),
we need not address Navistar’s argument in defense of the Circuit Court’s dismissal of
the warranty claims. We now shift our attention to the remaining matters to be
addressed, which concern whether Volunteer is entitled to attorney’s fees under the
TCPA.

Attorney’s Fees Under the TCPA

As previously discussed, a directed verdict was entered in favor of Volunteer
following the conclusion of Milan’s proof. As reasoning for this decision, the Circuit
Court stated as follows:

[T]he only testimony adduced regarding Volunteer International, Inc. in the
Plaintiff’s case-in-chief was presented through the testimony of John Ross,
who testified the representative of Volunteer, to be an honest, credible man.
Based on the requirement necessary to prove a . . . violation under the
TCPA, the Court finds the Defendant Volunteer International, Inc.’s
Motion for Directed Verdict should be granted.

In addition to granting a directed verdict, the Circuit Court subsequently concluded that
Volunteer should also be awarded attorney’s fees against Milan. Although Milan now
seeks to have the Circuit Court’s award of attorney’s fees under the TCPA reversed, we
decline to do so for the reasons stated below.

The relevant statutory provision at issue here is Tennessee Code Annotated section
47-18-109(e)(2). This section, which provides for an award of damages to TCPA
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defendants, specifically states that “[i]n any private action commenced under this section,
upon finding that the action is frivolous, without legal or factual merit, or brought for the
purpose of harassment, the court may require the person instituting the action to
indemnify the defendant for any damages incurred, including reasonable attorney’s fees
and costs.” Tenn. Code Ann. § 47-18-109(e)(2). The decision regarding whether to
award fees pursuant to this section is reviewed for an abuse of discretion. Lapinsky
v.Cook, 536 S.W.3d 425, 446 (Tenn. Ct. App. 2016).

We cannot say that the trial court abused its discretion in awarding attorney’s fees
to Volunteer in this case, because as evidenced by the Circuit Court’s order granting
Volunteer a directed verdict, Milan’s witness specifically testified favorably towards the
honesty of Volunteer’s representative. In fact, Milan’s counsel candidly admitted before
the Circuit Court that it had centered its proof on alleged activities of Navistar, not
Volunteer. As Milan’s counsel remarked, “[W]e just chose . . . as a matter of trial
strategy, we were going to focus all of our evidence on Navistar.”

Milan’s central contention on appeal regarding this issue is that, because its TCPA
claim survived a summary judgment motion, its claim was not “frivolous, without legal
or factual merit, or brought for the purpose of harassment.” In advancing a similar
argument before the Circuit Court in a hearing on the fee issue, Milan’s counsel argued as
follows: “If we had no factual basis for the claim, you would have had to grant summary
judgment. You denied summary judgment.” The Circuit Court was unpersuaded and
specifically noted that “the proof that was presented through your own witnesses . . . was
in fact so favorable, it was all favorable about Volunteer.” According to the Circuit
Court, the “mere fact the claim survived the summary judgment does not absolutely
demonstrate the claim had an actual factual basis, factual merit.” Having reviewed this
issue, we are in agreement with the Circuit Court and, as already noted, find no abuse of
discretion on its part in awarding Volunteer fees. We therefore hereby affirm the Circuit
Court’s award of attorney’s fees to Volunteer. We respectfully decline, however, to
award Volunteer any attorney’s fees in connection with this appeal.

CONCLUSION

For the foregoing reasons, we reverse the judgment awarded to Milan and affirm
the award of attorney’s fees entered against Milan and in favor of Volunteer.

_________________________________
ARNOLD B. GOLDIN, JUDGE

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