11/24/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
October 6, 2020 Session
MINI SYSTEMS INC. v. MARVIN ALEXANDER ET AL.
Appeal from the Chancery Court for Weakley County
No. 23150 Tony Childress, Chancellor
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No. W2019-01871-COA-R3-CV
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This case arises from a breach of contract dispute involving the construction of two storage
buildings. Among other issues is whether Appellee’s actions were “unfair or deceptive”
pursuant to the Tennessee Consumer Protection Act. The trial court ultimately found that
there was a breach of contract, but that Appellee’s actions were not deceptive and dismissed
the Tennessee Consumer Protection Act claim. Appellant now appeals the trial court’s
dismissal of his claim under the Tennessee Consumer Protection Act. For the reasons stated
herein, we affirm the trial court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
and Remanded
ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,
P.J., W.S., and CARMA DENNIS MCGEE, J., joined.
Keely Wilson, Russell E. Reviere and Dale Conder, Jr., Jackson, Tennessee, for the
appellant, Marvin Alexander.
Charles H. Barnett, III and Nicholas B. Latimer, Jackson, Tennessee, for the appellee, Mini
Systems, Inc.
OPINION
I. BACKGROUND AND PROCEDURAL HISTORY
Mini Systems, Inc. (“Appellee”) and Marvin Alexander (“Appellant”)1 entered into
a contract in which Appellee was to construct two storage buildings for Appellant.
Specifically, Appellee was to dig the foundations for the buildings, pour the concrete pads,
1
Although the notice of appeal was filed by Marvin Alexander, individually, and as trustee for the
Marvin E. Alexander Trust, a brief was filed only by Marvin Alexander, individually.
and erect the metal buildings. In return, Appellant agreed to pay Appellee $174,614.00.
After construction began, a dispute arose concerning the quality of the work
performed by Appellee. This dispute escalated into a lawsuit filed by Appellee against
Appellant for (i) breach of contract; (ii) sworn account; and (iii) enforcement of a
mechanic’s lien and materialmen’s lien. Appellant responded to the complaint and
counterclaimed, alleging (i) material breach of contract, as well as of express and implied
warranties; (ii) misrepresentation and fraud; and (iii) violation of the Tennessee Consumer
Protection Act. Specifically, Appellant argued that Appellee breached the contract by
negligently constructing the concrete pads for the storage buildings based on the fact that
the construction plans called for the concrete pads to be poured in two pours rather than
the monolithic (single) pour performed by Appellee.
The trial court ultimately dismissed all of Appellant’s claims except for the breach
of contract claim based on the fact that the construction plans called for a multiple pour of
the concrete slabs rather than a monolithic pour. However, while the trial court held that
Appellee’s act of performing a monolithic pour was a material breach of the contract, it
was “not intended to be deceptive or fraudulent,” but rather was a misinterpretation of the
engineer’s design. This determination by the trial court resulted in a dismissal of
Appellant’s Tennessee Consumer Protection Act claim, which Appellant now appeals. For
the reasons set out below, we affirm the decision of the trial court.
II. ISSUES PRESENTED
The Appellant presents two issues on appeal for our review:
1. Whether the trial court erred in determining that Appellee did not violate the
Tennessee Consumer Protection Act.
2. Whether the Appellant is entitled to attorney’s fees incurred for this appeal.
III. STANDARD OF REVIEW
This Court reviews a bench trial de novo upon the record with a “presumption of
correctness as to the findings of fact, unless the preponderance of the evidence is
otherwise.” Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000) (citing Tenn. R. App. P.
13(d)). We review questions of law de novo with no presumption of correctness. Id.
(citation omitted).
IV. DISCUSSION
Whether the Trial Court Erred in Finding that Appellee’s Actions Were Not Deceptive or
Fraudulent
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In its Findings of Fact and Conclusions of Law, the trial court found that in pouring
the concrete slabs, Appellee had failed to adhere to the construction plans and had
performed a monolithic pour of the concrete rather than a multiple pour (two pours) as
required by the plans, failed to make required saw cuts to the concrete, and used foam
material rather than rubber as required by the plans. However, the trial court found that
Appellee’s actions did not constitute an unfair or deceptive practice under the Tennessee
Consumer Protection Act (“TCPA”). Although Appellant now argues that the trial court
erred in failing to additionally find that a violation of the TCPA occurred, we find no
occasion to disturb the trial court’s judgment.
The TCPA was enacted “[t]o 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 in part or wholly within this state.” Tenn. Code Ann. § 47-18-102(2).
Tennessee Code Annotated section 47-18-104(b) provides a lengthy list detailing deceptive
or unfair acts that may be actionable under the TCPA. In order to be successful under the
TCPA, there must be a showing of “some deception, misrepresentation or unfairness,
regardless of any breach of contract.” Hall v. Hamblen, M2002-00562-COA-R3-CV, 2004
WL 1838180, at *4 (Tenn. Ct. App. Aug. 16, 2004) (citing Hamer v. Harris, No. M2002-
00220-COA-R3-CV, 2002 WL 31469213, at *1 (Tenn. Ct. App. Nov. 6, 2002)). “A breach
of contract is not per se a deception, misrepresentation or unfairness for purposes of the
TCPA.” Carbon Processing and Reclamation, LLC v. Valero Mktg. and Supply Co., 694
F. Supp.2d 888, 913 (W.D. Tenn. 2010) (internal citations omitted).
At the outset, we note that Appellant’s efforts to allege a TCPA violation in this
case have been lacking since the issue was initially pled in his counterclaim. There,
Appellant merely alleged facts and made a general claim that “[d]efendants’ practices
toward Plaintiffs constitute unfair or deceptive practices, and therefore are violations of the
Tennessee Consumer Protection Act[.]” No specific subsection or violation of the TCPA
on which Appellant was relying was pled. Similarly, neither the lack of specificity in
Appellant’s main brief nor contentions asserted at oral argument helped to clarify the issue.
As in his counterclaim, Appellant argued generally rather than specifically in his main brief
that Appellee’s actions constituted an unfair and deceptive act, but again failed to point to
any specific subsection of section 47-18-104(b) on which he was relying. Instead,
Appellant merely recited facts from the record and concluded, without further citation or
argument, that the mere existence of these facts necessitated a finding by this Court of an
unfair or deceptive act on the part of Appellee. Appellant never articulated the specific
provision of the TCPA that was violated. Not until Appellant’s reply brief was there any
indication that he was purportedly proceeding under section 47-18-104(b)(7) of the TCPA.
For the first time in his reply brief on appeal, Appellant contended that Appellee’s actions
came under the purview of this provision “because it represented that its construction of
the buildings, including the concrete pads, were of a particular style or quality when the
construction was of another.” Tenn. Code Ann. § 47-18-104(b)(7).
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It is well-settled law in Tennessee that “it is not the office of a reply brief to raise
issues on appeal.” Regions Financial Corp. v. Marsh USA, Inc., 310 S.W.3d 382, 392
(Tenn. Ct. App. 2009) (quoting Gentry v. Gentry, No. E2000-02174-COA-R3-CV, 2001
WL 839714, at *4 n.3 (Tenn. Ct. App. July 2, 2001)). “A reply brief is a response to the
arguments of the appellee. It is not a vehicle for raising new issues.” Owens v. Owens, 241
S.W.3d 478, 499 (Tenn. Ct. App. 2007) (citing Tenn. R. App. P. 27(c)). Because Appellant
did not adequately articulate in his initial brief as to how the TCPA was violated, he has
invited a potential finding of waiver on the issue. See Castle v. State, Dep’t of Corr., E2005-
00874-COA-R3-CV, 2005 WL 2372762, at *4 (Tenn. Ct. App. Sept. 27, 2005) (“We will
not consider an issue raised for the first time in a reply brief as an issue that has been raised
properly on appeal.”).
Based upon Appellant’s assertions in his main brief, this Court cannot ascertain the
specificities of his argument as to why the evidence presented in the record preponderates
against the trial court’s Findings of Fact and Conclusions of Law. It is not the job of this
Court to construct the parties’ arguments. Heflin v. Iberiabank Corp., 571 S.W.3d 727, 734
(Tenn. Ct. App. 2018) (citing Coleman v. Coleman, No. W2011-00585-COA-R3-CV, 2015
WL 479830, at *9 (Tenn. Ct. App. Feb. 4, 2015)). Rather, it is the responsibility of
Appellant to present this Court with a brief in compliance with the appellate rules of
procedure, including in his main brief the issues he intends to argue and constructing an
argument in support of those issues. Appellant failed to comply with this responsibility.
Although Appellant’s reply brief sought to clarify the issue, Appellant further
confounded our review and understanding of his position when the matter was discussed
at oral argument. Upon questioning by a member of the judicial panel about the basis of
Appellant’s TCPA claim, it was initially stated that Appellant was proceeding under the
so-called “catch-all” provision of the TCPA, section 47-18-104(b)(27). However, it was
subsequently argued that Appellant was proceeding under section 47-18-104(b)(7). It was
then argued by Appellant that contentious email exchanges between the parties, including
threats made by Appellee to file a lawsuit as well as the filing of a mechanic’s lien, was
conduct that went to the “absolute essence” of what the TCPA is designed to protect
against. However, we reject Appellant’s contentions made at oral argument for two
reasons. First, Appellant again attempted to raise issues that were not previously raised or
briefed prior to oral argument. Nowhere in Appellant’s main brief was the TCPA’s catch-
all provision addressed nor any of the allegations regarding threats. Again, these were
raised for the first time at oral argument. As this Court has previously made clear, “[i]ssues
initially raised at oral argument are not properly presented for review in accordance with
this court’s rules.” Christie v. Christie, No. M2012-02622-COA-R3-CV, 2014 WL
4293966, at *6 (Tenn. Ct. App. Apr. 25, 2014). Second, it is clear that any allegations
concerning threats of a lawsuit or the filing of a mechanic’s lien do not concern the
representation of a good or service as required by section 47-18-104(b)(7). As best we can
perceive it given the statements offered by Appellant at oral argument, these specific
allegations of threats and misconduct were proffered to support a claim under the TCPA’s
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catch-all provision, codified at section 47-18-104(b)(27). This catch-all provision provides
a cause of action when a party is “[e]ngaging in any other act or practice which is deceptive
to the consumer or to any other person[.]” However, enforcement of this subdivision
(b)(27) is vested exclusively in the office of the attorney general and reporter. Tenn. Code
Ann. § 47-18-104(b)(27). Therefore, we reject any attempt by Appellant to proceed
individually under the TCPA’s catch-all provision.
Because we find that Appellant’s initial brief was insufficient and unclear as to what
provision of the TCPA he was proceeding under, we deem that Appellant has arguably
waived any such claim.
Even if the issue was not waived and we were to ignore the previously enumerated
deficiencies, we would still find the claim to be without merit. Section 47-18-104(b)(7)
provides that “[r]epresenting that goods or services are of a particular standard, quality or
grade, or that goods are of a particular style or model, if they are of another” is considered
to be an unfair or deceptive practice. Tenn. Code Ann. § 47-18-104(b)(7). Here, Appellant
appears to argue that the concrete pour is the good or service being misrepresented and
would have us find that the mere act of performing the wrong concrete pour is unfair and
deceptive because it is a misrepresentation of the good or service agreed upon under the
contract. However, if this were true, it would transform every breach of contract action into
a TCPA claim. Such is not the case. “Although every breach of contract is arguably
‘unfair’ in the colloquial sense, . . . the TCPA envisions something more than the simple
incompetent performance of contractual duties.” Poole v. Union Planters Bank, N.A., 337
S.W.3d 771, 786 (Tenn. Ct. App. 2010). A breach of contract action and a violation of the
TCPA are separate causes of action, and “proof of the existence of one does not necessarily
establish the existence of the other.” Hall, 2004 WL 1838180, at *4. In order to come
under the purview of section 47-18-104(b)(7), there must be some form of
misrepresentation of a good or service. In the present case, the trial court found that the
construction plans had been misinterpreted rather than misrepresented. We agree with the
trial court’s finding. Appellant’s brief fails to point to any specific misrepresentations made
by Appellee and we discern none in this record. It is not enough that Appellee erroneously
performed the wrong concrete pour required under the contract. Again, as noted by the trial
court, this resulted from a misinterpretation of the construction plans rather than an unfair
or deceptive act on part of the Appellee. Without more, this Court cannot agree that
Appellee’s act of pouring a monolithic concrete pour rather than a multi-pour constitutes
an unfair or deceptive act under the TCPA.
Appellant also relies on this Court’s decision in Holladay v. Speed, 208 S.W.3d 408
(Tenn. Ct. App. 2006), to support a finding that Appellee violated the TCPA. In that case,
a homeowner brought an action against a contractor, alleging breach of express warranty,
implied warranty of good workmanship, misrepresentation, and a violation of the TCPA
arising from damages to a home caused by alleged defects in an external insulation and
finish system. Holladay, 208 S.W.3d at 410. The homeowner argued that the contractor’s
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actions violated section 47-18-104(b)(7). Id. at 416. This Court ultimately found that the
contractor’s actions amounted to an unfair or deceptive act. Id. at 418. Specifically, the
Court noted that the contractor’s actions amounted to a misrepresentation, which it found
to be an intentional deceptive act under the TCPA. Id.
Appellant argues that this Court’s decision in Holladay requires a similar result here.
However, Holladay may be distinguished from the present facts. In the present case, the
trial court found that it was a “misinterpretation of the engineer’s design that caused the
single pour to occur” rather than a misrepresentation that amounted to a deceptive act on
part of Appellee. As we noted previously, Appellant would have us find that by signing
the contract and then breaching that contract that Appellee committed an unfair and
deceptive act. This would effectively transform every breach of contract into a TCPA
violation even though, as noted earlier, it is well established under the law that this is not
the case. Because we conclude there is no misrepresentation in the present case, we do not
find Holladay dispositive.
Therefore, we do not find that the record preponderates against the trial court’s
finding that Appellee’s actions did not constitute an unfair or deceptive act under the
TCPA.
Whether Appellant is Entitled to Attorney’s Fees
Appellant is also requesting attorney’s fees incurred for bringing this appeal
pursuant to Killingsworth v. Ted Russell Ford, Inc., 205 S.W.3d 406, 407 (Tenn. 2006),
which permits recovery of attorney’s fees and costs on appeal for claims proceeding under
the TCPA. Because we do not find in Appellant’s favor as to his asserted TCPA violations,
we decline to award him attorney’s fees on appeal.
V. CONCLUSION
Based on the foregoing, we affirm the trial court’s decision in dismissing
Appellant’s claims under the TCPA.
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ARNOLD B. GOLDIN, JUDGE
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