Wondimu Borena v. Jason Jacocks ( 2017 )

05/12/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
March 22, 2017 Session
WONDIMU BORENA v. JASON JACOCKS, ET AL.
Appeal from the Circuit Court for Davidson County
No. 15C2783 Thomas W. Brothers, Judge
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No. M2016-00449-COA-R3-CV
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This is a mechanic’s lien case. Appellee/auto repair shop agreed to repair Appellant’s
vehicle for $5,267.30. Appellant paid this amount, but Appellee raised the estimate to
$9,489.30. Appellant did not pay the additional costs. Under a purported mechanic’s
lien, Tennessee Code Annotated Section 66-19-103, Appellee sold Appellant’s vehicle
for $4,500.00. Appellant filed a complaint, seeking damages for conversion and for
violation of the Tennessee Consumer Protection Act. The trial court dismissed
Appellant’s Tennessee Consumer Protection Act claim. Concerning the conversion
claim, the trial court held that Appellee did not have a valid mechanic’s lien and had
converted the property. The trial court awarded $10,000.00 in damages to Appellant.
Appellant appeals, arguing that the damage award is insufficient. Discerning no error, we
affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and BRANDON O. GIBSON, J., joined.
Wondimu Borena, Nashville, Tennessee, appellant, Pro Se.
Renard Astaire Hirsh, Nashville, Tennessee, for the appellees, Jason Jacocks and
Greenleaf Collision, Inc.
MEMORANDUM OPINION1
I. Background
On January 3, 2014, Appellant Wondimu Borena purchased a 2012 Honda
Odyssey minivan from an online car dealer for $7,041.93. The vehicle had been totaled,
and Mr. Borena took the vehicle to Limon Auto Repair.2 After extensive repairs to the
vehicle, Mr. Borena received a rebuilt title for the automobile on April 17, 2014.
However, Mr. Borena noticed that the tailgate was not closing properly. On June 7,
2014, he took the minivan to Greenleaf Collision, Inc. (“Appellee” or “Greenleaf”) for
further repairs. Greenleaf prepared an estimate of $5,267.30 for the repair. Mr. Borena
agreed to the estimate, and, on June 12, 2014, made a $2,000.00 down payment and left
the vehicle to be repaired. On September 2, 2014, Greenleaf contacted Mr. Borena and
requested that he come to the shop. Appellant testified that when he arrived, he was
informed that the total price of the repair had increased to $9,489.20, allegedly due to
additional defects that were discovered after Greenleaf had given the initial estimate. On
September 2 and 3, 2014, Mr. Borena made payments to Greenleaf of $2,000.00 and
$1,500.00, respectively, for a total of $5,500.00. However, he refused to pay the full
$9,489.20.
On January 8, 2015, Greenleaf allegedly sent notice to Mr. Borena that he owed
$19,241.10 for repairs, storage fees, and processing fees, and informed him that, if the
balance was not paid in full within ten days, Greenleaf would sell the vehicle to satisfy
the debt. Appellant testified that he never received a letter from Greenleaf. On or about
March 17, 2015, Greenleaf sold the vehicle for $4,500.00.
On June 3, 2015, Appellant, acting pro se, filed a warrant in the general sessions
court against an employee of Greenleaf, Jason Jacocks, seeking a return of Appellant’s
vehicle, which he valued at $29,000.00; this warrant was dismissed, without explanation.
Appellant refiled the case against Appellee Greenleaf. On July 13, 2015, the general
sessions court dismissed the Greenleaf warrant, again without explanation. On July 17,
2015, Appellant filed a notice of appeal of the general sessions’ judgment.
1
Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
This Court, with the concurrence of all judges participating in the case, may affirm,
reverse or modify the actions of the trial court by memorandum opinion when a formal
opinion would have no precedential value. When a case is decided by memorandum
opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and
shall not be cited or relied on for any reason in any unrelated case.
2
On November 14, 2014, Appellant filed a complaint in the General Sessions Court for Davidson
County (“General Sessions Court”) against Limon Auto Repair. On January 6, 2015, the General Session
Court heard the case, and granted a judgment to Appellant for $9,400.00.
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On August 3, 2015, Mr. Borena, who was represented by counsel at the time, filed
a complaint in the Circuit Court for Davidson County (“trial court”) against Jason
Jacocks and Appellee Greenleaf. Mr. Borena sought damages, costs, and attorney’s fees,
alleging: (1) violation of Tennessee Code Annotated Section 66-19-104(a)(1)(B), which
requires an automobile repair facility to inform a consumer of his or her rights; (2)
violation of Tennessee Code Annotated Section 66-14-102, which requires notice to the
owner of a vehicle prior to sale on a lien; (3) violation of Tennessee Code Annotated
Section 66-14-106, which requires the proceeds of a sale on a lien, if a balance remains,
to be delivered to the former owner; (4) violation of the Tennessee Consumer Protection
Act (“TCPA”), Tennessee Code Annotated Section 47-18-104; and (5) conversion of
Appellant’s property. On January 20, 2016, Appellee filed its answer to the complaint,
alleging that it was entitled to sell Appellant’s vehicle because Appellant had not paid the
$9,489.20 repair cost. Appellee denied Appellant’s statutory claims and claim for
conversion and sought damages for the repairs and storage charges.
On January 20, 2016, the trial court heard the case. Appellant voluntarily
dismissed Jason Jacocks as a party. At the close of proof, Greenleaf moved to dismiss
Appellant’s claims. The trial court dismissed Mr. Borena’s TCPA claim, on the ground
that Tennessee Code Annotated Section 47-18-104(b)(27) does not provide a private right
of action and vests enforcement solely in the attorney general. The trial court denied
Greenleaf’s motion as to all other claims. On February 2, 2016, the trial court entered its
order, finding:
1. For the reasons announced from the bench, the court finds that
[Appellee] violated [Tennessee Code Annotated Section] 66-19-101,
etc., it[s] statutory lien against [Appellant]’s vehicle was nullified[,] and
[Appellee] committed conversion when it sold [Appellant’s] vehicle;
***
4. [Appellee]’s counterclaim against [Appellant] is dismissed; and
5. A judgment is entered against [] Greenleaf Collision, Inc. for Ten
Thousand Dollars and No Cents ($10,000.00) plus the costs of this
action, all for which execution may issue if necessary.
Appellant appeals.
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II. Issues
We restate Appellant’s issues, as follows3:
1. Whether the trial court erred in finding that Appellee violated Tennessee
Code Annotated Section 66-19-101 et seq. and converted Appellant’s
property?
2. Whether the trial court erred in awarding $10,000.00 in damages to
Appellant for conversion?
3. Whether the trial court erred in dismissing Appellant’s TCPA claim?
Greenleaf asks this Court to award its attorney’s fees and costs for this appeal on the
ground that the appeal is frivolous, pursuant to Tennessee Code Annotated Section 27-1-
122.
III. Standard of Review
Because this case was tried by the trial court, sitting without a jury, we review the
trial court’s findings of fact de novo upon the record of the trial court, accompanied by a
presumption of the correctness of these findings, unless the evidence preponderates
otherwise. Tenn. R. App. P. 13(d); Langschmidt v. Langschmidt, 81 S.W.3d 741, 744
(Tenn. 2002). With respect to the trial court’s conclusions of law, however, our review is
de novo with no presumption of correctness. Kendrick v. Shoemake, 90 S.W.3d 566, 569
(Tenn. 2002).
To the extent that the issues require us to interpret and apply statutes, this Court
reviews questions of statutory construction de novo with no presumption of correctness.
In re Estate of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009). This Court’s primary goal
“is to carry out legislative intent without broadening or restricting the statute beyond its
intended scope.” Johnson v. Hopkins, 432 S.W.3d 840, 848 (Tenn. 2013) (quoting Lind
3
We note that Appellant raises as an issue concerning whether the trial court erred in
commenting on the friendship between Appellant and Larry Jacocks, the manager of Greenleaf. From our
review, Appellant did not object, at trial, to the comment. Therefore, this issue is waived. Dye v. Witco
Corp., 216 S.W.3d 317 (Tenn.2007) (“Issues raised for the first time on appeal are waived.”) (quoting
Black v. Blount, 938 S.W.2d 394, 403 (Tenn. 1996)).
Additionally, Appellant contends that the trial court erred by failing to consider his claims under
the following statutes: Tennessee Code Annotated Section 66-14-106, which provides for distribution of
proceeds from a lien sale in excess of the debt; and Tennessee Code Annotated Section 66-14-102, which
provides for written notice before sale on a lien. Appellant did not pursue these claims at trial, and “[i]t is
well-settled that issues are considered waived on appeal by the failure to present them at trial.” Edmunds
v. Delta Partners, L.L.C., 403 S.W.3d 812, 825 (Tenn. Ct. App. 2012). Accordingly, we will not address
the foregoing arguments.
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v. Beaman Dodge, Inc., 356 S.W.3d 889, 895 (Tenn. 2011)). In construing legislative
enactments, we presume that every word in a statute has meaning and purpose and should
be given full effect if the obvious intention of the legislature is not violated by so doing.
In re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005). When a statute is clear, we should
apply the plain meaning without complicating the task. Eastman Chem. Co. v. Johnson,
151 S.W.3d 503, 507 (Tenn. 2004).
Before turning to the issues, we note that Appellant is self-represented in this
appeal. However, “pro se litigants are held to the same procedural and substantive
standards to which lawyers must adhere.” Brown v. Christian Bros. Univ., No. W2012-
01336-COA-R3-CV, 2013 WL 3982137, at *3 (Tenn. Ct. App. Aug. 5, 2013), perm. app.
denied (Tenn. Jan. 15, 2014). As explained by this Court:
Parties who decide to represent themselves are entitled to fair and equal
treatment by the courts. The courts should take into account that many pro
se litigants have no legal training and little familiarity with the judicial
system. However, the courts must also be mindful of the boundary between
fairness to a pro se litigant and unfairness to the pro se litigant’s adversary.
Thus, the courts must not excuse pro se litigants from complying with the
same substantive and procedural rules that represented parties are expected
to observe.
Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003) (internal citations
omitted).
IV. Analysis
A. Dismissal of Appellant’s Tennessee Consumer Protection Act Claims
Appellant argues that the trial court erred in dismissing his claim under the
Tennessee Consumer Protection Act. At trial, Appellant stated that he was proceeding
under the “catch-all provision” of the TCPA, codified at Tennessee Code Annotated
Section 47-18-104(b)(27)4:
(b) The following unfair or deceptive acts or practices affecting the
conduct of any trade or commerce are declared to be unlawful and in
violation of this part:
(27) Engaging in any other act or practice which is deceptive to the
consumer or to any other person; provided, however, that enforcement of
4
Because Appellant failed to raise any other provision of the TCPA at trial, any arguments
Appellant raises for the first time before this court are waived. Dye, 216 S.W.3d at 317.
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this subdivision (b)(27) is vested exclusively in the office of the attorney
general and reporter and the director of the division[.]
(emphasis added). In 2011, the Tennessee General Assembly amended the TCPA to
remove the private right of action for this subsection and vested enforcement exclusively
in the office of the attorney general and reporter. 2011 Tenn. Pub. Acts Ch. 510, § 15.
Because the statute subsection cited by Appellant in his complaint does not provide a
private right of action, Appellant’s TCPA claim is not viable. Therefore, we conclude
that the trial court did not err in dismissing Appellant’s TCPA claim.
B. Applicability of Tennessee Code Annotated Section 66-19-104
Tennessee Code Annotated Section 66-19-104 provides, in relevant part, that:
(a) Before beginning any repair work on a motor vehicle, an automotive
repair facility shall inform the consumer for whom the repairs are to be
done of the following rights:
(1) That a consumer:
***
(B) May not be charged an amount over twenty-five percent
(25%) in excess of the written estimate without the
consumer’s consent or good faith attempt to acquire the
consent; and
(2) That repairs not originally authorized by the consumer may not
be charged to the consumer without the consumer’s consent unless a
repair facility makes a good faith attempt to acquire the consent prior
to providing additional repairs. A good faith attempt shall entail at
least an attempted telephone call to the consumer.
(b) The consumer’s rights provided in subsection (a) shall be:
(1) Displayed immediately before the space for the signature of the
consumer conspicuously in easily readable type;
(2) Physically separated from the other terms of the form used for
authorization of repairs; and
(3) Listed under the printed heading “Consumer’s Rights.”
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(c) If any automotive repair facility informs a consumer orally of the
consumer’s rights, the facility shall record in writing:
(1) The name of the persons who were notified or whom the facility
attempted to notify;
(2) The date and time of the notification or attempt; and
(3) The signature of the person who made the notification or
attempted notification.
(d) Failure to comply with this section shall abrogate the repair facility’s
rights under § 66-19-103.
The trial court found that Greenleaf violated Section 66-19-104 and committed
conversion by selling Appellant’s vehicle. The trial court explained from the bench:
Therefore, I find [Appellant] has carried [his] burden of proof and has
shown violation of [Tennessee Code Annotated Section] 66-19-103 by
[Appellee]. The effect of that is, it abrogates or removes [Appellee’s] right
to [proceed] under a garage keeper’s lien under [Tennessee Code Annotated
Section] 66-19-104. Therefore, the subsequent sale in March of 2015 was
not authorized. In addition, the court finds [Appellant] has carried his
burden of proof and shown that it was not a commercially reasonable sale.
***
For those reasons, it necessarily follows that the sale of the vehicle is in fact
a conversion and [Appellant] has carried his burden and proven that,
[Appellee] has exercised rights and derogation of the rights of [Appellant]
who owned the vehicle….
Turning to the record, both Appellant and Larry Jacocks testified that Appellee provided
Appellant with a “preliminary estimate” of $5,267.30 on June 7, 2014. At some point
thereafter, Appellee informed Mr. Borena that the repair cost would be $9,489.20.
Pursuant to Section 66-19-104, an automotive repair facility (such as Appellee) must
obtain consent from a consumer to complete repairs that are twenty-five percent or higher
than the original estimate; if the consumer is informed orally instead of in writing, the
repair shop must create a written record of the notification. Larry Jacocks testified that
Appellee never has customers “sign [anything] else once they sign us to repair [on the
preliminary estimate;]” therefore, all future repair cost increases are by oral notification.
Greenleaf made no record of any “good faith attempts” to obtain Appellant’s consent to
the additional repairs. Additionally, the estimate forms used by Greenleaf do not list the
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statutory notice of consumer’s rights as required in Section 66-19-104(b). Accordingly,
the record does not preponderate against the trial court’s finding that Appellee did not
comply with the requirements of Tennessee Code Annotated Section 66-19-104;
therefore, pursuant to subsection 66-19-104(d), we conclude that the trial court did not err
in finding that Appellee was not authorized to sell Appellant’s vehicle and that the sale
was a conversion.
C. Amount of Damages
We now address the trial court’s damages award. Mr. Borena argues that the
$10,000.00 damages “award… is less than half of the total expenses incurred,” and,
therefore, the trial court erred because its award was insufficient. As a threshold matter,
in a bench trial, the trial court’s determination of damages is a question of fact, and “we
review the amount of damages awarded by the trial court with a presumption of
correctness, unless the preponderance of the evidence demonstrates otherwise.”
Memphis Light, Gas & Water Div. v. Starkey, 244 S.W.3d 344, 352 (Tenn. Ct. App.
2007). In conversion actions, the measure of damages is the value of the property at the
time and place of conversion. Lance Prods., Inc. v. Commerce Union Bank, 764
S.W.2d 207, 213 (Tenn. Ct. App. 1988).
Although Appellee sold Appellant’s vehicle for $4,500.00, the trial court found
that the sale was not commercially reasonable. The record indicates that Larry Jacocks
testified that he did not sell the vehicle at auction; rather, Greenleaf placed a “For Sale”
sign in the window and took the first offer without apparent negotiation. Therefore, we
cannot conclude that the $4,500.00 amount was the fair market value for Appellant’s
vehicle at the time and place of conversion. Appellant testified that he values the vehicle
at $29,000.00. As held by this Court, “an owner is not required to prove, but is presumed
to know, the value of owned property.” Adams v. Duncan Transfer & Storage of
Morristown, 757 S.W.2d 336, 339 (Tenn. Ct. App. 1988). From our review of the
record, the vehicle at issue is a 2012 Honda Odyssey minivan with 12,000 miles on the
odometer with a purchase price of $7,041.00. Although Mr. Borena testified that the
vehicle was worth $29,000, this amount appears excessive in view of the vehicle’s
history. From the totality of the evidence, and in light of the competing testimonies
regarding the vehicle’s value, coupled with the vehicle’s history of damage and repairs,
we cannot conclude that the trial court’s award of $10,000.00 for conversion was outside
the range of reasonableness so as to constitute an abuse of discretion.
D. Appellee’s Request for Damages
Greenleaf asks that this Court to award damages for frivolous appeal under
Tennessee Code Annotated Section 27-1-122, which provides:
When it appears to any reviewing court that the appeal from any court of
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record was frivolous or taken solely for delay, the court may, either upon
motion of a party or of its own motion, award just damages against the
appellant, which may include but need not be limited to, costs, interest on
the judgment, and expenses incurred by the appellee as a result of the
appeal.
The decision whether to award damages for a frivolous appeal rests solely in this Court’s
discretion. Chiozza v. Chiozza, 315 S.W.3d 482, 493 (Tenn. Ct. App. 2009). “A
frivolous appeal is one that is ‘devoid of merit,’ or one in which there is little prospect
that it can ever succeed.” Indus. Dev. Bd. v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct.
App. 1995). We find that this appeal is not so devoid of merit as to characterize it as
frivolous. Accordingly, we exercise our discretion to decline Greenleaf’s request for
attorney fees and costs in defense of this appeal.
V. Conclusion
For the foregoing reasons, we affirm the judgment of the trial court. We remand
the case for such further proceedings as may be necessary and are consistent with this
opinion. Costs of the appeal are taxed to the Appellant, Wondimu Borena, for all of
which execution may issue if necessary.
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KENNY ARMSTRONG, JUDGE
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