Opinion
No. 01-A-01-9009-CH00332.
February 15, 1991.
James W. White, Waller, Lansden, Cortch Davis, Nashville for plaintiff-appellee.
William Carter Conway, Kimberly K. Whaley, Alexander, Conway Williams, Franklin, for defendant-appellant.
Williamson Equity, Appealed from the Chancery Court for Williamson County, Tennessee, Cornelia A. Clark, Judge.
OPINION
This case was tried before a jury. The primary issue in the trial court was whether or not the defendant, Harpeth Ford-Mercury, Inc. (Harpeth), had violated the Tennessee Consumer Protection Act, Tenn.Code Ann. § 47-18-101, et seq. in its dealings with plaintiff, Jean Adkinson, when Adkinson purchased an automobile from Harpeth.
The jury found that Harpeth was guilty of violating the Tennessee Consumer Protection Act and found that plaintiff was entitled to actual damages of $8,555.36. The plaintiff then moved for attorney's fees and an injunction under the Act. The trial court awarded attorney's fees of $20,004.00 and "permanently enjoin[ed Hampeth] from future violations of the Tennessee Consumer Protection Act, Tenn.Code Ann. § 47-18-101, et seq."
Harpeth has appealed from the judgment.
The pertinent facts are as follows:
Plaintiff had, in 1979 and 1981, purchased automobiles from Harpeth and, on both occasions, had dealt with Kenny Hughes, a salesman for Harpeth. In January 1984, plaintiff went to Harpeth and talked with Hughes about purchasing a new automobile for her personal use. She was very concerned with the cost of an automobile. After looking at several automobiles, she decided on a Ford LTD (Ford). Plaintiff asked Hughes how much the Ford would cost and, when told, stated that she did not feel she could afford the Ford.
Hughes left the office, returned a few minutes later, and asked plaintiff if she had ever considered leasing an automobile. Plaintiff told Hughes she had not. Hughes then told plaintiff her payments would be less leasing an automobile than if she purchased it. She then decided to lease the Ford for, among other reasons, the smaller monthly payment.
The parties entered into a "closed-end" lease. Under a "closed-end" lease, the lessee does not have an option to purchase the leased automobile, and the lessee does not have an obligation to pay for the "residual" or "leased-end" value at the end of the lease term. The lease was for a term of forty-eight months with payments of $251.63 per month. Plaintiff was required to post a security deposit of $275.00 which was to be returned at the end of the lease term. She was also to pay six cents ($.06) per mile for mileage in excess of 60,000 and to pay for "excess wear and tear."
Plaintiff relied on Hughes to explain the lease to her and did not read the lease "in detail." Plaintiff relied on Hughes because she had dealt with him in two previous transactions.
Plaintiff traded in her 1981 automobile when she entered into the lease for the Ford. At the time of the trade-in, plaintiff had equity of $384.69 in the 1981 automobile.
There is evidence that instead of giving plaintiff credit for the 1981 automobile, Harpeth added the $384.69 equity to the cost of the lease. The handwritten "Retail Buyer's Order," signed by plaintiff, did not reflect a credit for the $384.69. The typed version, prepared a day later and which was not signed by plaintiff, shows that plaintiffs equity was added to the cost of the lease. The typed version was used by Harpeth for internal purposes. The net effect of failing to give plaintiff credit for the equity, in fact, increased the cost of the lease by $769.38 which, in turn, increased the lease payments. Eight of the payments (May through December) were ultimately included in the price plaintiff paid to purchase the Ford.
On 29 April 1987, plaintiff called Hughes and asked him if she would be required to do anything to the leased Ford in terms of maintenance or replacement of tires when the lease expired in January 1988. Plaintiff testified that Hughes did not give her a direct answer but asked her to come to Harpeth and talk about it.
Plaintiff testified that she went to Harpeth on that same date and met with Hughes. She again asked him what her obligations would be at the end of the lease as to tires and maintenance. Plaintiff was told by Hughes that she would owe a $7,000.00 pay-off at the end of the lease.
Plaintiff testified that she tried to explore ways to avoid the pay-off. She asked Hughes about turning in the Ford and leasing a Ford Escort. Hughes told her that she would still be responsible for the pay-off on the Ford and that when the pay-off was added to a Ford Escort lease, the monthly payment would be more than $400.00. Plaintiff felt she could not pay a $400.00 monthly payment. Plaintiff testified that Hughes then told her that she could get out of the lease with what he referred to as a "flip-over," a transaction in which she would purchase the Ford.
Under the "flip-over," the monthly payments to purchase the Ford would be only ten cents ($.10) more per month than her lease payment. However, the payment would be extended for forty-two additional months.
Plaintiff testified that she was confused about the pay-off, that she told Hughes she would be out of town for two weeks and would talk with him when she returned. Hughes told her there was no need to wait, that the paperwork on the "flip-over" could be prepared in a few minutes.
Plaintiff concluded, based upon what Hughes told her, that there was no way she could turn in the leased Ford at the end of the lease term without paying the $7,000.00. She further testified that she could not afford to pay the $7,000.00 and also buy or lease another automobile.
Plaintiff then purchased the Ford on the same day she had called Hughes to determine what would be required of her when she returned the automobile at the end of the lease term.
She testified that she did not want to buy the car and was "heart-sick" that she would have to make an additional forty-two payments on an automobile that had 53,000 miles on it.
Hughes testified that plaintiff indicated that she was very happy with the Ford and wished to purchase it, and that he simply supplied her with the pay-off amount.
After agreeing to purchase the Ford, she was taken to the finance office but was asked to wait in the showroom while her papers were being prepared.
There had been no discussion between plaintiff and anyone at Harpeth to this point about an extended warranty or credit disability insurance. Plaintiff testified that she was completely unaware of the concept of an extended warranty or credit disability insurance.
The person who prepared the finance papers told plaintiff she needed the extended warranty because the Ford was getting older. Hughes, after plaintiff was shown the credit disability insurance form, told plaintiff that almost everyone bought it "because of what it does for you." Plaintiff then signed all the papers that were shown to her.
Plaintiffs purchase of the Ford was financed through the Ford Motor Credit Company (FMCC). Plaintiff was told that the interest rate was 16.5% per annum for a total interest charge of $2,613.41. Harpeth did not inform plaintiff that 2.5% of the 16.5%, or $459.37, would be returned to Harpeth by FMCC if plaintiff made all of the payments. FMCC charged an interest rate of 14 percent and Harpeth added for itself an additional 2.5%. Harpeth did not disclose to plaintiff that Harpeth, and not FMCC, had imposed the additional charge.
Plaintiffs security deposit of $275.00, which she paid at the front end of the lease, was to be refundable. Plaintiff was not refunded the $275.00 directly, and nothing in the sales documents indicate that the security deposit was credited to plaintiff when she purchased the Ford.
The security deposit could be retained by Harpeth only if the plaintiff failed to make lease payments or if there was damage to the Ford at the end of the lease. The record is clear that neither of these circumstances occurred.
Harpeth insisted at trial that as a matter of policy the security deposit would have been "netted out" of the pay-off for the Ford. However, Harpeth's statements through its General Manager Joe Mobley to plaintiff and her fiance Larry Sheehan, approximately one month after the Ford was purchased by plaintiff, was quite different. Joe Mobley told plaintiff and Sheehan that plaintiff could not get the security deposit back because she had not completed the lease. He told them this, in spite of the fact that the price the plaintiff paid for the Ford included the remaining lease payments.
Plaintiff was unaware of exactly what had occurred between her and Harpeth until a day or two after the transaction was completed. At this time she talked with her fiance Larry Sheehan by telephone. Larry Sheehan, who was an airline pilot and was in Nashville on a limited basis, told plaintiff he did not think that she had to buy the Ford but that he would look "at the papers when he was in Nashville approximately one month later.
When Larry Sheehan came to Nashville, he and plaintiff met with Joe Mobley at Harpeth. At that time Mobley repeated what Hughes had stated regarding plaintiff being responsible for the $7,000.00 pay-off. After reviewing plaintiffs lease, Mobley left and returned with a blank lease. Mobley then attempted to support his claim that plaintiff was responsible for the pay-off by showing plaintiff and Sheehan a blank "open-end" lease with option to purchase. This was contrary to plaintiffs "closed-end" lease with no option to purchase.
Larry Sheehan pointed out to Joe Mobley this difference in the structure of the leases. Joe Mobley then said Harpeth did not use closed-in leases any more. When Mobley was asked why Harpeth no longer used the closed-end lease, he replied that Harpeth wanted its lease customers to buy the cars they leased because if Harpeth had to put the cars on the used car lot, Harpeth would lose some $1,500.00 to $2,000.00 on each car.
Plaintiff and Sheehan had been unable to make the numbers add up on the purchase of the Ford. When they met with Joe Mobley, he could not make the numbers add up. He then asked a lady from the accounting department to come into the office to add up the numbers. She could not make them add up.
At this meeting Mobley acknowledged that there had been a "misunderstanding." However, he refused to rescind the transaction, and he never contacted FMCC or made any other effort to resolve the problem.
Sometime later plaintiff filed this suit.
Following an evidentiary hearing, the jury was given a special jury verdict form in which they were asked to answer eight questions. They are as follows:
JURY VERDICT FORM
NOTE — Some parts of this form are wider than one screen. To view material that exceeds the width of this screen, use the right arrow key. To return to the original screen, use the left arrow key.
1. Was Harpeth Ford"Mercury, Inc. guilty of intentional misrepresentation in connection with the April 29, 1987, sale of the Ford LTD to Jean Adkinson?
_______ Yes ____X___ No
If your answer to No. 1 was "Yes", then do not answer No. 2 and go on to No. 3. If your answer to No. 1 was "No", then go on to No. 2.
2. Was Harpeth Ford"Mercury, Inc. guilty of negligent misrepresentation in connection with the April 29, 1987, sale of the Ford LTD to Jean Adkinson?
___X____ Yes ________ No
3. Did Harpeth Ford"Mercury, Inc. use unfair or deceptive acts or practices in connection with the April 29, 1987, sale of the Ford LTD to Jean Adkinson?
___X____ Yes ________ No
If the answer to No. 3 was "yes", answer no. 4 before going on. If the answer to No. 3 was "No", do not answer No. 4 but go on to No. 5.
4. Was Harpeth Ford"Mercury, Inc.'s conduct willful or knowing?
_______ Yes ____X___ No
If the answer to No. 4 was "Yes", be sure to Answer No. 7. If the answer to No. 4 was "No", do not answer No. 7.
5. If the answer to No. 3 was "yes", should the contract between Harpeth Ford"Mercury, Inc. and Jean Adkinson be rescinded?
___X____ Yes ________ No
6. If the answer to any of Questions 1, 2, 3, 4, or 5 was "Yes", enter the amount of actual damages to Jean Adkinson sustained by the acts in question.
$8,555.36
7. If the answer to Question 4 was "Yes", do you choose to award three times the actual damages as provided by the Consumer Protection Act?
________ Yes ________ No
8. If the answer to Question 3 or 4 was "Yes", do you choose to award plaintiff her reasonable attorney fees?
___X____ Yes ________ No
18 January 19 /s/ John Morris Date Foreman
Judgment was entered on the jury's verdict, and the trial court, pursuant to Tenn.Code Ann. § 47-18-109 (a)(1), awarded plaintiffs attorney's fees in the amount of $20,004.00 and expenses of $2,885.91 and imposed an injunction pursuant to Tenn.Code Ann. § 47-18-109 (b).
Harpeth has presented several issues. We first discuss whether there is material evidence to support the verdict.
This is a jury trial, and in a jury trial, if there is any material evidence to support the verdict, the judgment must be affirmed. Tenn.R.App.P. 13(d); Cary v, Arrowsmith, 777 S.W.2d 8, 23 (Tenn.App. 1989). In a case where plaintiff prevails in a jury trial, appellate courts must take as true that which has a tendency to support the plaintiffs right of recovery, discard all countervailing evidence, and allow all reasonable inferences to be drawn from the evidence in favor of the plaintiff. Mason v. Tennessee Farmers Mut. Ins. Co, 640 S.W.2d 561, 564 (Tenn.App. 1982). Substantial and material evidence is that which a reasonable mind might accept as adequate to support a rational construction and furnish a reasonably sound basis for the action under consideration. South Cent. Bell Tele. Co. v. Tennessee Pub. Serv. Comm., 579 S.W.2d 429, 440 (Tenn.App. 1979). Appellate courts do not reweigh evidence. If there is some material substantial evidence which supports the jury verdict, the verdict must be affirmed.
While in this case the plaintiffs evidence is, in a lot of particulars, diametrically opposed to the evidence of the defendant, this raises a question of credibility. The credibility of witnesses and the weight to be given their testimony is for the jury. State v. Chumbley, 27 Tenn. App. 377, 385, 181 S.W.2d 382, 385 (1944). In this case the jury has resolved the question of credibility in the plaintiffs favor.
Taking all of the rules into consideration, there is substantial material evidence to support the verdict of the jury.
The evidence shows that plaintiff was an unsophisticated, trusting customer. She was employed by the Baptist Sunday School Board in Nashville. She was not a world-wise career woman who had worked in the business community for several years as insisted by Harpeth. Plaintiffs job was to help churches set up libraries. She had no business training or business education and, according to her testimony, "almost zero" familiarity with business matters.
The record shows that Harpeth cultivated plaintiffs trust over a period of years. She first met Joe Mobley, Harpeth's general manager, in 1981. He told the plaintiff at that time that he was a leader in his church, a Southern Baptist congregation. Each time that plaintiff saw Joe Mobley, including the 29 April 1987 date that she purchased the Ford, he discussed church matters with her.
The record shows that in January 1984, when Adkinson traded her 1981 automobile in on the lease of the Ford, Harpeth added her equity in the 1981 automobile to the cost of the lease rather than giving her credit for it. Harpeth then appropriated the equity in the 1981 automobile for itself. The document which plaintiff signed did not show this added charge. It was only the typed document which was characterized by Harpeth at trial as an internal document which showed the added charge. This was never shown to plaintiff
This practice increased the cost of the lease to plaintiff by increasing the lease payments and, ultimately, increased the cost of the Ford when plaintiff purchased it because the remaining lease payments were incorporated into the purchase price. Plaintiff trusted Harpeth and erroneously believed she had been given credit for her equity in the 1981 automobile.
Harpeth does not deny that there is evidence in the record to support a finding that plaintiff was told by Hughes and Mobley that she would owe a $7,000.00 payment on the Ford at the end of the lease. However, Harpeth spends several pages in its brief arguing in effect that the testimony of Hughes and Mobley is more credible than plaintiffs testimony under the circumstances. Credibility of the witnesses and the weight to be given their testimony is, as we have stated, for the jury to pass upon. State v. Chumbley, 27 Tenn. App. at 385, 181 S.W.2d at 385. Harpeth also fails to acknowledge that there is corroborating evidence of Sheehan that Mobley told both plaintiff and Sheehan that plaintiff would be responsible for the $7,000.00 pay-off on the Ford at the end of the lease and that Mobley even attempted to justify this position by showing plaintiff and Sheehan a blank "open-end" lease.
Harpeth insists in the face of this that plaintiffs being taken advantage of was her own fault, that she should have known of these misrepresentations because of the documents relating to the transaction. As is pointed out by plaintiff, this argument reflects a "blame the victim" view point.
Tennessee Code Annotated § 47-18-102 sets forth the purposes of the Tennessee Consumer Protection Act and provides:
The provisions of this part shall be liberally construed to promote the following policies:
(1) To simplify, clarify, and modernize the state law governing the protection of the consuming public and to conform these laws with existing consumer protection policies;
(2) 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 in part or wholly within this state;
(3) To encourage and promote the development of fair consumer practices;
(4) To declare and to provide for civil legal means for maintaining ethical standards of dealing between persons engaged in business and the consuming public to the end that good faith dealings between buyers and sellers at all levels of commerce be had in this state; and
(5) To promote statewide consumer education.
There is evidence in this record that there were oral misrepresentations made by Harpeth that induced a written contract. Oral misrepresentations that induce a written contract may form the basis for a cause of action under the Tennessee Consumer Protection Act, notwithstanding language of the subsequent written contract. Brungard v. Caprice Records. Inc., 608 S.W.2d 585, 588 (Tenn.App. 1980).
Tennessee Code Annotated § 47-18-104(a) provides: "Unfair or deceptive acts or practices affecting the conduct of any trade or commerce are hereby declared unlawful." Tennessee Code Annotated § 47-18-104 (b)(12) provides that "[r]epresenting that a consumer transaction confers or involves rights, remedies or obligations that it does not have or involve or which are prohibited by law" is a deceptive act or practice.
The jury determined that the oral misrepresentation by Harpeth employees concerning the $7,000.00 pay-off was an unfair or deceptive act and a violation of the Tennessee Consumer Protection Act.
We have considered each of the cases cited by Harpeth and find them to be inapposite to the facts of this case.
There is material evidence to support the jury's finding that Harpeth engaged in unfair or deceptive acts or practices regarding the $7,000.00 pay-off.
There is evidence in the record which supports the jury's finding that Harpeth used high-pressure tactics in pressuring plaintiff to buy the Ford on the same day she called Hughes to determine her obligations on expiration of the Ford lease. When plaintiff told Hughes that she would return in a couple of weeks, he told her there was no need to wait, that the paper work could be prepared in a few minutes. Additionally, Hughes led plaintiff to believe that there was no way to avoid the $7,000.00 pay-off except by the "flip-over." It was Harpeth's intention through Hughes to sell plaintiff the Ford that day before she could leave and think about it or talk to anyone else.
We are also of the opinion that under the circumstances it was proper for the jury to base a finding of unfair or deceptive acts and practices on the evidence at trial which shows that Harpeth kept for. itself 2.5% of the 16.5% annual percentage rate financing which plaintiff was led to believe was charged by FMCC to finance the transaction. Harpeth told plaintiff that FMCC was financing the transaction but failed to disclose to plaintiff that it had secretly imposed the 2.5% additional charge. Plaintiff was led to believe, both by the contract documents and Harpeth's oral representations, that FMCC required the 16.50 annual percentage rate.
The record also supports the finding that Harpeth failed to refund the security deposit, that approximately a month after the time plaintiff purchased the Ford she inquired about the security deposit, and that Joe Mobley told Sheehan and plaintiff that plaintiff could not get the security deposit back because plaintiff had not completed the lease. Mobley denies this, but the credibility of the witnesses is for the jury to determine.
There is substantial material evidence that Harpeth engaged in unfair or deceptive acts or practices under the Tennessee Consumer Protection Act and that it also made negligent misrepresentations to plaintiff.
Harpeth raises the issue of "[w]hether the court erred in failing to direct a verdict for Harpeth based on the undisputed proof at trial and the jury's findings that there were no intentional misrepresentations."
When a motion for a directed verdict is made, the trial judge, and this Court on appeal, must look to all of the evidence, take the strongest legitimate view of it in favor of the opponent of the motion and allow all reasonable inferences from it in the opponent's favor. The court must discard all countervailing evidence and, if then there is any dispute as to any material determinative evidence or any doubt as to the conclusion to be drawn from the whole evidence, the motion for a directed verdict must be denied. Country Maid Dairy, Inc. v. Hunter, 57 Tenn. App. 138, 149, 416 S.W.2d 367, 372 (1967). There is material determinative evidence that Harpeth engaged in unfair or deceptive acts or practices affecting the conduct of trade or commerce and pursuant to Tenn.Code Ann. § 47-18-104. Those unfair or deceptive acts are unlawful.
This issue is without merit.
Harpeth also argues:
The jury verdict is excessive and there should be a remittitur and credit given Harpeth for the fair market use or rental value of the LTD by Atkinson from April 29, 1987 until the present. Also, Harpeth is entitled to a credit given on any payment claimed as damages by Adkinson for the extended warranty, credit life and disability in that the undisputed proof shows that the same could be cancelled at any time by Adkinson.
This issue was neither pleaded or tried in the trial court. No proof was offered by Harpeth regarding any credit it should be given. There is not a scintilla of evidence in the record regarding the fair market use or rental value of the Ford.
Issues which were not tried in the trial court cannot be raised for the first time on appeal. Lake County v. Truett, 758 S.W.2d 529, 537 (Tenn.App. 1988).
Harpeth defended in the trial court on the theory that it had made no misrepresentations of any kind and that it had engaged in no unfair or deceptive acts or practices. It did not plead set-off as a defense and did not introduce any evidence of any fair rental value.
The trial court will not be put in error for not awarding set-off when there was no proof in the record which would entitle Harpeth to set-off. See Mechanic Savings Bank Trust Co. v. Scoggin. 52 S.W. 718 (Tenn.Ch.App.1899).
This issue is without merit.
Harpeth's next issue is "[w]hether the trial court erred in giving the special jury verdict form to the jury over Harpeth's objection."
Harpeth says that it "strenuously asserts that submission of the special jury verdict form to the jury by the Trial Court over Harpeth's objection was irreversible [sic] error." Harpeth simply argues that the jury verdict form was improper. It cites no authority in support of this contention. Our reading of the jury verdict form fails to disclose that it was improper.
The verdict form was prepared by the court and properly identified the matters for the jury's consideration. We find nothing in the record to show that it was improper.
This issue is without merit.
Harpeth next contends that "the trial court erred in awarding Adkinson's attorney sums in excess of that which he would have otherwise received pursuant to the contingency fee contract. . . ."
Plaintiff entered into a contingency fee contract with her attorneys which provided that the attorneys would receive "one-third of any recovery." Additionally, the plaintiff was responsible for all expenses of the suit. Contingency fee arrangements between an attorney and the client are valid in Tennessee.
Tennessee Code Annotated § 47-18-109 (e)(1) provides: "Upon a finding by the court that a provision of this part has been violated, the court may award to the person bringing such action reasonable attorney's fees and costs."
We have found no case, nor have we been cited to a case, that has discussed what is a reasonable attorney's fee under the Tennessee Consumer Protection Act.
Rules of the Supreme Court, Rule 8 DR2-106(B) sets forth "[f]actors to be considered as guides in determining the reasonableness of a fee, includ [ing] the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for similar legal services.
(4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the client.
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contingent.
We have reviewed several federal civil rights cases and are of the opinion that the reasoning in those cases is applicable to the awarding of attorney's fees under the Tennessee Consumer Protection Act.
Kelley v. Metropolitan County Bd. of Educ., 773 F.2d 677 (6th Cir. 1985), cert. denied, 474 U.S. 1083, 106 S.Ct. 853 (1986) Northeross v. Board of Educ. of Memphis City Schools, 611 F.2d 624 (6th Cir. 1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999 (1980) McCullough v. Cady, 640 F. Supp. 1012 (E.D.Mich. 1986).
In Conklin v. Lovely, 834 F.2d 543 (6th Cir. 1987), a case involving 42 U.S.C. § 1988 regarding attorneys fees, the court held that the existence of a contingent fee arrangement is a factor that in certain circumstances may justify an attorney's fee award at a level above the attorney's hourly rate. Id. at 553. The court in Conklin also held that the risk inherent in litigating under a contingency fee may render the attorney's hourly rate of compensation inadequate. Id.
Attorney's fee awards under the civil rights statutes are not tied to the amount awarded by the jury in damages. See City of Riverside v. Rivera, 477 U.S. 561, 581, 106 S.Ct 2686, 2697 (1986). In City of Riverside, the Court upheld an award of attorney's fees in excess of $245,000.00 where the jury awarded damages of only $33,350.00. The rationale for this rule is that plaintiffs in civil rights cases bring suit as private attorneys general acting for the public benefit as well as for themselves. McCullough v. Cady, 640 F. Supp. 1012, 1021 (E.D.Mich. 1986).
While the instant case does not involve a civil rights action, it does involve the Tennessee Consumer Protection Act, Tenn.Code Ann. § 48-18-101 et seq., and we are of the opinion that that reasoning is applicable. Plaintiffs under the Tennessee Consumer Protection Act also act as private attorneys general. The potential award of attorney's fees under the Tennessee Consumer Protection Act is intended to make prosecution of such claims economically viable to plaintiff.
Where a defendant elects to pursue a strategy of delay by erecting hurdles in order to make the cost of litigation prohibitive to the plaintiff, the plaintiff is effectively denied a remedy if the award of attorney's fees is made proportionate to the jury award. A review of the record shows that this was the strategy used by Harpeth. Under the Tennessee Consumer Protection Act, a defendant employs such a strategy of delay and obstruction at its peril.
Taking all the factors into consideration, including the number of hours expended by the plaintiff's attorney at what is clearly a reasonable hourly rate, the award of $20,004.00 attorney's fees is reasonable.
Defendant argues that the attorney should not receive one-third of the recovery and the award of attorney's fees. The award of attorney's fees by the court in this case is in lieu of one-third of the plaintiffs recovery. Plaintiffs attorney will not receive, in addition to the $20,004.00 awarded by the court, one-third of the plaintiffs recovery.
This issue is without merit.
By its next issue, Harpeth questions "[w]hether the trial court erred in issuing a permanent injunction against Harpeth pursuant to the Tennessee Consumer Protection Act."
Tennessee Code Annotated § 47-18-109 (b) provides in pertinent part as follows:
(b) Without regard to any other remedy or relief to which a person is entitled, anyone affected by a violation of this part may bring an action to obtain a declaratory judgment that the act or practice violates the provisions of this part and to enjoin the person who has violated, is violating, or who is otherwise likely to violate this part; provided, however, that such action shall not be filed once the division has commeneded a proceeding pursuant to § 47-18-107 or § 47-18-108.
That part of the trial court's order relating to the injunction is as follows: "It is further ORDERED that defendant Harpeth Ford-Mercury, Inc. is permanently enjoined from future violations of the Tennessee Consumer Protection Act, Tenn.Code Ann. § 47-18-101 et seq."
We are of the opinion that the record in this case does not support an all-encompassing injunction such as that issued. The evidence shows there was a violation of Tenn.Code Ann. § 47-18-104 (b)(12). We are, therefore, of the opinion that the injunction should be modified to permanently enjoin Harpeth Ford-Mercury, Inc. from future violations of Tenn.Code Ann. § 47-18-104 (b)(12): "Representing that a consumer transaction confers or involves rights, remedies or obligations that it does not have or involve or which are prohibited by law."
In all other particulars the judgment of the trial court is affirmed and the cause is remanded to the trial court for the entry of an order modifying the injunction and in all other respects for the implementation of its judgment. Costs are taxed to the defendant, Harpeth Ford-Mercury, Inc.
CANTRELL, KOCH, JJ., concur.