Killingsworth v. Ted Russell Ford, Inc.

• Decision Date: 04 December 2002
• Citation: 104 S.W.3d 530
• Parties: James KILLINGSWORTH, et al., v. TED RUSSELL FORD, INC.
• Court: Tennessee Court of Appeals

104 S.W.3d 530

James KILLINGSWORTH, et al., v. TED RUSSELL FORD, INC.

Court of Appeals of Tennessee, Eastern Section, at Knoxville.

November 15, 2002 Session.

December 4, 2002.

Permission to Appeal Denied by Supreme Court May 5, 2003.

Order Denying Rehearing July 22, 2003.

George W. Morton, Jr. and J. Myers Morton, Knoxville, Tennessee, for the appellants, James Killingsworth and wife, Kathy Killingsworth.

J. Douglas Overbey and Ben M. Rose, Knoxville, Tennessee, for the appellee, Ted Russell Ford, Inc.

OPINION

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HOUSTON M. GODDARD, P.J., and D. MICHAEL SWINEY, J., joined.

This is an action under the Tennessee Consumer Protection Act¹ that arises out of the sale of an SUV. James Killingsworth, and his wife, Kathy Killingsworth ("the purchasers"), sued Ted Russell Ford, Inc. ("the seller"), alleging that the seller failed to advise them about damage to the previously-unowned vehicle sold to the purchasers. At the conclusion of the trial below, the jury returned a verdict in favor of the purchasers, awarding them $2,500. The purchasers then moved for attorney's fees and discretionary costs, which the court granted, but only in the amount of $500. The purchasers appeal, arguing that the fees and expenses awarded by the trial court are unreasonably low. By way of separate issues, the seller argues that the purchasers' second reply brief should be stricken and that the trial court erred in granting any fees and costs to the purchasers. We vacate and remand.²

I.

In December, 1999, the purchasers began shopping for a new vehicle. They found a 2000 model Ford Expedition at the seller's place of business and entered into negotiations with the seller. As they were unable to agree on a price, the purchasers prepared to leave the seller's place of business. At that time, the salesperson with whom the purchasers were negotiating mentioned that he had one 1999 model Ford Expedition, not previously owned, left on the lot. The purchasers went with the salesperson to examine this vehicle, and they were pleased with what they saw. The purchasers then bought this vehicle from the seller.

Shortly after purchasing the 1999 Ford Expedition, the purchasers took a trip to Alabama to visit friends. While unloading some of their belongings, one of their friends noticed some masking tape on the roof of the vehicle.³ Upon further inspection the purchasers realized that at least part of the vehicle had been repainted. After returning home, the purchasers examined the vehicle more closely and noticed more extensive damage to the vehicle.

The purchasers called the seller and informed it of their discovery. At the seller's request, the purchasers returned to the seller's place of business with the vehicle. The seller's general manager examined the Expedition and informed the purchasers that the vehicle had been "scratched" in transit to the seller. The purchasers then demanded to see the invoice for the repairs to the vehicle. This invoice revealed that the vehicle had been repaired due to "collision damage." At this time, the seller offered to have the vehicle repaired at a body shop of the purchasers' choosing. In addition, the seller offered the purchasers an extended warranty. However, at the time the offer was made, no monetary value was placed on it.

The purchasers then had the vehicle independently evaluated. This evaluation exposed even more extensive damage. The purchasers sued the seller under the Tennessee Consumer Protection Act ("the Act"), claiming that the seller had engaged in intentionally deceptive acts by misrepresenting the value of the vehicle and by failing to disclose the damage to the vehicle.

At trial, the testimony of the plaintiff, Mrs. Killingsworth, and the purchasers' expert witness revealed that the difference between the price the purchasers paid for what they thought was a new, undamaged vehicle, and the worth of the vehicle after repairs, was between $5,000 and $7,000. The seller's general manager testified that there was no difference in value between what the purchasers paid for the vehicle and the value of the repaired vehicle. The general manager also testified that the cost to a customer of the extended warranty offered to the purchasers was approximately $2,000. At the conclusion of the trial, the jury found that the seller had violated the Act, but that the seller's violation was not knowing and willful, and that the seller did not intentionally misrepresent the value of the vehicle. The jury awarded the purchasers $2,500 in damages, but declined to award any punitive damages.

Subsequently, the purchasers moved the court to award attorney's fees and discretionary costs. The requested attorney's fees amounted to approximately $9,718, and the discretionary costs requested by the purchasers equaled approximately $1,864, for a total of $11,582. The seller opposed the award of any fees and costs, asserting, inter alia, that, as the purchasers did not specifically request attorney's fees and costs in their complaint, they could not recover fees and costs. The court then awarded the purchasers $500 in attorney's fees and costs.

At a hearing on the purchasers' motion to alter or amend, the trial court made the following statements:

This case came on to be tried. The jury did what it saw as justice in this case, and the Court approved the jury verdict and approves that. What the jury did in this case, is found that the [purchasers were] overreaching, gave the cash equivalent of what the [seller] had offered long before the — well, not long, early on in the process.

And so, trying to do justice and be fair, the Court did not award a full fee in this case, because the [purchasers] could have taken the offer that the [seller] made, which this jury ended up, found was fair. The Court found that the [seller], in this case, made an offer, which partially — the reason why I did award some fees in this case, because the [seller], in this case, never offered cash money. They offered — they said, We'll provide extended insurance and so forth and so on, which is not a — had they offered cash money, I doubt that I would have awarded anything in discretionary cost [sic] or attorneys' fees, considering the facts of the case and what the jury and the Court find to be justice in this case.

So, I did not intend to award full fees for those reasons, and I am not saying that the fee was not earned. But the [purchasers] could have accepted what the jury found to be a fair offer long before a lot of these were ever incurred and that's why I did what I did.

So, the Motion to Alter is overruled.

From this order, the purchasers appeal.

II.

Before addressing the parties' issues relating to attorney's fees and costs, we will address the seller's motion to strike the purchasers' second reply brief.

As the appellants in this case, the purchasers filed their initial brief, asserting as their only issue that the trial court abused its discretion in limiting the amount of the purchasers' fees and costs to $500. The seller, as the appellee, then filed a brief in response to the purchasers' issue on appeal and raised the additional issue that the purchasers are not entitled to any fees and costs. The purchasers then filed a reply brief, in which they addressed both their own issue and the issue raised by the seller. Subsequently, the seller filed a reply brief pursuant to Tenn. R.App. P. 27(c), which provides as follows:

The appellant may file a brief in reply to the brief of the appellee. If the appellee also is requesting relief from the judgment, the appellee may file a brief in reply to the response of the appellant to the issues presented by appellee's request for relief.

Thereafter, the purchasers filed a second reply brief. The propriety of the filing of this latter brief is now challenged on this appeal.

In a situation such as this, where both parties raise issues requesting relief from the judgment of the trial court, both parties are entitled to file reply briefs, provided that in the appellant's reply brief, the appellant responds to the issues raised by the appellee. This allows the party who has raised a given issue to have the final word on that issue. However, neither Tenn. R.App. P. 27(c) nor any other rule of this court allows the appellant to file a second reply brief. Accordingly, we find and hold that the purchasers' second reply brief should be stricken from the record. It will not be considered by us.

III.

The seller argues that, as the purchasers did not specifically request an award of attorney's fees and costs in their complaint, they are not entitled to such relief. Essentially, the seller asserts that the judgment in this case is beyond the scope of the pleadings. The seller asks this court to reverse the trial court's award to the purchasers of $500.

The purchasers, in their complaint, specifically claim that the seller "violated the Tennessee Consumer Protection Act, [Tenn.Code Ann.] § 47-18-101, et seq." The Act provides that, once a trial court finds there has been a violation of the Act, the court may award the plaintiff "reasonable attorney's fees and costs." Tenn. Code Ann. § 47-18-109(e)(1) (2001). The Tennessee Supreme Court has held that "in determining whether or not a judgment is beyond the scope of the pleadings, those pleadings must be given a liberal construction with all reasonable intendments taken in favor of the judgment." Brown v. Brown, 198 Tenn. 600, 611, 281 S.W.2d 492, 497 (1955) (citing Myers v. Wolf, 162 Tenn. 42, 50, 34 S.W.2d 201, 203 (1931)). Given that we must liberally construe the complaint in the instant case and take "all reasonable intendments" in favor of the trial court's judgment, we conclude that the seller was effectively put on notice that the purchasers were seeking all relief authorized under the Act, including attorney's fees and costs. Accordingly, we find the seller's...