Messer Griesheim dba MG Industries v. Cryotech ( 2003 )


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  •                  IN THE COURT OF APPEALS OF TENNESSEE
    AT KNOXVILLE
    February 13, 2003 Session
    MESSER GRIESHEIM INDUSTRIES, INC. D/B/A MG INDUSTRIES v.
    CRYOTECH OF KINGSPORT, INC., ET AL.
    Appeal from the Circuit Court for Knox County
    No. 3-64-97 Wheeler A. Rosenbalm, Judge
    FILED JULY 10, 2003
    No. E2002-01728-COA-R3-CV
    This appeal from the Knox County Circuit Court questions whether the Trial Court erred in granting
    a summary judgment in favor of the Appellee/Defendant, Eastman Chemical Company, with respect
    to various claims connected with the purchase and sale of contaminated carbon dioxide by the
    Appellant/Plaintiff, Messer Griesheim Industries, Inc., d/b/a MG Industries. We affirm in part,
    vacate in part and remand.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part
    and Vacated in Part; Cause Remanded
    HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which D. MICHAEL SWINEY and
    CHARLES D. SUSANO, JR., JJ., joined.
    Gregory M. Leitner, Chattanooga, Tennessee; Mark G. Arnold, St. Louis, Missouri and Arthur G.
    Seymour, Jr., Knoxville, Tennessee, for the Appellants, Messer Griesheim Industries, Inc. d/b/a MG
    Industries
    Pamela Blass Bracher, Chattanooga, Tennessee; William Randall Wilson, Chattanooga, Tennessee
    and Robert C. Divine, Chattanooga, Tennessee, for the Appellee, Eastman Chemical Company
    OPINION
    Cryotech of Kingsport, Inc. (hereinafter "Cryotech") operates gas purification facilities and
    produces food grade liquid carbon dioxide. The Appellee, Eastman Chemical Corporation
    (hereinafter "Eastman"), owns and operates a coal gasification plant in Kingsport. The Appellant,
    Messer Griesheim, Inc., d/b/a MG Industries (hereinafter “Messer”), is a distributor of liquid carbon
    dioxide, which it purchases in bulk and sells to customers for various food and medical uses.
    In 1988 Cryotech and Eastman entered into an agreement pursuant to which Cryotech would
    purchase a carbon dioxide rich waste stream (hereinafter “feedgas”) from Eastman which Eastman
    had, prior to that time, vented into the atmosphere. The price paid to Eastman by Cryotech under
    the agreement was determined by the concentration of carbon dioxide in the feedgas and the volume
    of feedgas to be purchased was measured by the amount of carbon dioxide Cryotech shipped to its
    customers.
    At the same time it entered the feedgas agreement Cryotech also entered into a lease of land
    belonging to Eastman adjacent to Eastman's Kingsport plant and constructed thereon a carbon
    dioxide purification facility.
    Cryotech’s purification facility became operational in 1992 and Cryotech began selling
    carbon dioxide to Messer and other customers. Shortly after operations began Cryotech began
    experiencing problems due to chemical contaminants in the feedgas it was purchasing from Eastman.
    In spring of 1993, Eastman discovered the presence of hydrogen cyanide (hereinafter “HCN”), a
    toxic and potentially lethal substance, on Cryotech’s catalyst and informed Cryotech of this finding.
    The feedgas agreement had not included HCN in a description designated “Typical Composition of
    Carbon Dioxide Gas” and deposition testimony indicates that Eastman had previously represented
    that it had never detected any cyanide in the feedgas. Because of resulting increased purification
    costs, Cryotech withheld payment for the feedgas and eventually owed Eastman an arrearage of over
    one million dollars.
    Cryotech began monitoring the HCN content of the feedgas more than once a day and
    frequently discussed the results of such monitoring with Eastman representatives. In late 1993
    Cryotech detected increasing levels of HCN and complained to Eastman about the increased cost
    of its removal. Eastman sought to determine the cause of the increased HCN levels and endeavored
    to assist Cryotech in identifying better and less expensive ways Cryotech could remove the HCN.
    Eastman also took some actions in its own facility to try to reduce the HCN content of the feedgas.
    In 1996 Eastman installed its own HCN analyzer to prepare for compliance with new EPA
    regulations; however, this analyzer exhibited various problems and was ultimately determined to be
    an unreliable measure of HCN levels.
    In March of 1996 Messer began selling carbon dioxide obtained from Cryotech to a large
    manufacturer of carbonated beverages. Shortly thereafter, this manufacturer notified Messer that it
    was receiving customer complaints regarding the odor and/or taste of its beverages. Testing revealed
    the presence of HCN in Cryotech’s carbon dioxide and thereafter Eastman discontinued supplying
    feedgas to Cyotech. Subsequently, several of Messer’s other customers claimed that their product
    had been adulterated by the contaminated carbon dioxide and that beverage canisters containing the
    contaminated carbon dioxide were rendered unusable and had to be destroyed. Messer settled these
    claims in anticipation of litigation. Messer also incurred expenses in cleaning its own storage tanks
    and tanker cars which had contained the contaminated carbon dioxide. Messer incurred additional
    expenses as a result of the adulteration of uncontaminated carbon dioxide when it was mixed with
    carbon dioxide purchased from Cryotech. Altogether, Messer asserts that it has sustained damages
    -2-
    totaling nearly eight million dollars as a result of injury to its own property and the property of its
    customers and that it has suffered additional damages “including but not limited to, business losses,
    substantial attorney’s fees, expenses incurred in determining the origin of the hydrogen cyanide
    contamination, and the costs of cover.” There are no allegations of personal injury in this case.
    In June of 1996 Messer filed a complaint in the United States District Court for the Eastern
    District of Tennessee at Chattanooga against Cryotech seeking reimbursement of funds paid to
    satisfy claims of those customers of Messer who had purchased contaminated carbon dioxide. The
    complaint was amended in September of 1996 to include as defendants Eastman and Mellon
    Financial Services which provided financing for Cryotech’s gas purification facility. 1
    On February 4, 1997, Messer filed a complaint in the Circuit Court for Knox County which
    essentially duplicated the complaint filed in the District Court. The complaint alleged that the
    defendants were liable under theories of breach of contract, fraud, breach of warranty,
    misrepresentation, products liability, ultra-hazardous activity, negligence, gross negligence,
    recklessness, outrageous conduct, intentional concealment, violations of the Racketeer Influenced
    and Corrupt Organizations Act (“RICO”) and violations of the Consumer Product Safety Act. This
    complaint was removed to the United States District Court for the Eastern District of Tennessee at
    Knoxville where it was consolidated with the federal suit pending in Chattanooga. The District
    Court in Knoxville dismissed Messer’s claims for violation of the Consumer Product Safety Act and
    the RICO Act and remanded the case to the Knox County Circuit Court.
    In July of 1997 Eastman filed a motion to dismiss and for summary judgment or partial
    summary judgment in the Circuit Court. Hearing on that motion was held on October 6, 1997, at
    which time the Court granted the motion in part. In so doing, the Court dismissed Messer’s product
    liability claim upon a finding that Messer had not sustained property damage. The Court also
    dismissed Messer’s claim for breach of contract upon a finding that there was lack of privity between
    Eastman and Messer and Messer’s claim for breach of warranty for lack of privity and/or property
    damage. Finally, the Court dismissed Messer’s claim for violation of the TCPA.2 Remaining
    matters under the motion were held in abeyance pending further discovery.
    In October of 2001, Messer filed a motion requesting the Court to reconsider its October
    1997 ruling granting Eastman’s motion for summary judgment and, on January 15, 2002, Eastman
    filed a renewed motion for summary judgment requesting that the Court dismiss all remaining claims
    against it.
    1
    On October 8, 1999, the Circuit Court granted Mellon’s motion for summary judgment and that ruling was
    subsequently affirmed by this Court in Messer Griesheim v. Cryotech of Kin gsport, 
    45 S.W.3d 588
     (Tenn. Ct App.
    2001). Additionally, all claims against Cryotech were dismissed with prejudice by agreed order entered November 26,
    2001.
    2
    On December 10, 1997, the Circ uit Court also dismissed Messer’s claims alleging violations of the Federal
    Consumer Products Safety Act and the RICO Act beca use those claims were previously dismissed with prejudice by the
    District Court in Chattanoo ga.
    -3-
    On April 18, 2002, the Court granted Eastman’s renewed motion for summary judgment.
    The Court also granted Messer’s motion to reconsider with respect to its claim against Eastman
    under the Tennessee Consumer Protection Act; however, on May 13, 2002, the Court granted
    Eastman’s motion for summary as to this claim also. Thereafter, Messer filed this appeal.
    The issues presented for our review in this case are restated as follows:
    1. Did the Circuit Court err in granting Eastman’s motion for summary judgment as to
    Messer’s tort claims upon grounds that such claims are barred by the economic loss doctrine?
    2. Did the Circuit Court err in granting Eastman’s motion for summary judgment as to
    Messer’s fraud and concealment claims upon grounds that such claims are barred by the economic
    loss doctrine?
    3. Did the Circuit Court err in granting Eastman’s motion for summary judgment as to
    Messer’s claim under the Tennessee Consumer Protection Act upon grounds that there was lack of
    privity between Eastman and Messer, that there was lack of evidence that Eastman engaged in unfair
    or deceptive conduct and that there was lack of evidence of causation?
    4. Did the Circuit Court err in granting Eastman’s motion for summary judgment as to
    Messer’s tort and contract claims upon grounds that Eastman and Messer were not engaged in a joint
    venture?
    5. Should the Circuit Court have applied Pennsylvania law in ruling upon Eastman’s motion
    for summary judgment as to Messer’s claims against Eastman for breach of warranty?
    The standard of review with respect to a trial court’s ruling on a motion for summary
    judgment is well settled. Summary judgment is only proper when the moving party has
    demonstrated that there are no genuine issues with respect to the material facts relevant to the claim
    or defense contained in the motion and the moving party is entitled to judgment as a matter of law.
    Byrd v. Hall, 
    847 S.W.2d 208
    , (Tenn. 1993). Because our inquiry in determining the propriety of
    a summary judgment involves purely a question of law no presumption of correctness attaches to the
    trial court’s judgment. Hunter v. Brown, 
    955 S.W.2d 49
     (Tenn. 1997). In assessing evidence in the
    summary judgment context we must view the evidence in the light most favorable to the nonmoving
    party and draw all reasonable inferences in that party’s favor and a summary judgment should be
    granted only when the facts and the conclusions to be drawn from the facts permit a reasonable
    person to reach only one conclusion. Byrd, 
    ibid.
    The first issue we address is whether the Circuit Court properly granted Eastman’s motion
    for summary judgment as to Messer’s tort claims upon grounds that such claims were barred by the
    economic loss doctrine.
    -4-
    The Tennessee Supreme Court has noted that “Tennessee has joined those jurisdictions which
    hold that product liability claims resulting in pure economic loss can be better resolved on theories
    other than negligence.” Ritter v. Custom Chemicals, Inc., 
    912 S.W.2d 128
     (Tenn. 1995). The
    economic loss doctrine provides that “[i]n a contract for the sale of goods where the only damages
    alleged come under the heading of economic losses, the rights and obligations of the buyer and seller
    are governed exclusively by the contract.” Trinity Industries v. McKinnon Bridge Co., 
    77 S.W.3d 159
     (Tenn. Ct. App. 2001). Consequently, a plaintiff may not maintain a claim for purely economic
    losses absent contractual privity with the party charged with responsibility for those losses.
    However, T.C.A. 29-34-104 provides as follows as to causes of action which do not involve purely
    economic losses:
    In all causes of action for personal injury or property damage brought on
    account of negligence, strict liability or breach of warranty, including actions
    brought under the provisions of the Uniform Commercial Code, privity shall not
    be a requirement to maintain such action.
    In the case before us there was no contractual privity between Eastman and Messer. The
    Circuit Court found that the losses claimed by Messer were economic losses and, based upon the
    economic loss doctrine, the Court dismissed Messer’s tort claims against Eastman. However,
    Messer contends that it asserted claims for property damage and that it’s tort claims should be
    allowed pursuant to T.C.A. 29-34-104. Specifically, Messer contends that tank cars it used for
    shipping were damaged as a result of contact with the contaminated carbon dioxide and that, when
    it placed the contaminated carbon dioxide in storage tanks, it damaged the tanks’ pipes as well as
    the uncontaminated carbon dioxide in the tanks with which it was mixed. Messer further contends
    that property damage was also incurred when its customers combined the contaminated carbon
    dioxide with soft drink ingredients in beverage cans ruining both the ingredients and the cans.
    Messer argues that because of this asserted property damage it should be allowed to pursue its tort
    claims under T.C.A. 29-34-104. In addition to seeking damages to its own property Messer seeks
    recovery for damages to the property of its customers through subrogation or, alternatively, through
    contribution.
    Eastman argues that the only losses incurred by Messer were economic losses. Eastman
    asserts that the money paid by Messer to its customers was paid solely because the carbon dioxide
    sold by Messer to these customers did not meet the customers’ commercial expectations.
    Accordingly, Eastman argues that these payments constitute economic loss for which Eastman is not
    liable because it is not in privity with either Messer or Messer’s customers. Eastman contends that
    Messer’s only remedies are those which it may have against Cryotech.
    Each party cites two United States Supreme Court cases in support of its position - East River
    S.S. Corp. v. Transamerica Delaval, Inc., 
    106 S.Ct. 2295
     (1986) and Saratoga Fishing Co. v. J.M
    Martinac & Co., 
    117 S.Ct. 1783
     (1997).
    -5-
    In East River the plaintiffs chartered four oil-transporting supertankers. While at sea, the
    turbines on each of the ships malfunctioned because of design and manufacturing defects. No harm
    resulted other than to the turbines themselves. The plaintiffs filed suit in tort against the
    manufacturer of the turbines and the issue before the Court was whether a cause of action in tort is
    stated when a defective product injures only itself. The Court concluded that a plaintiff cannot
    recover in tort for physical damage to a defective product itself and that, in such cases, remedies are
    limited to those available under contract. The Court stated as follows at page 2302:
    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 warranty action. Or, if the customer prefers, it can reject
    the product or revoke its acceptance and sue for breach of contract....
    (Citations omitted.)
    In Saratoga, another admiralty case, the plaintiff’s fishing vessel sank as a result of an engine
    room fire caused by a defective hydraulic system installed by the defendant boat manufacturer. The
    original purchaser of the vessel had added a skiff, a seine net and miscellaneous spare parts and these
    were all incorporated into the vessel when it was resold to the plaintiff and were destroyed when it
    sank. The Supreme Court noted that under its prior holding in East River, although a plaintiff cannot
    recover in tort for physical damage a defective product causes to itself, a plaintiff can recover for
    physical damage the defective product causes to other property. The issue in Saratoga was whether
    the added equipment - the skiff, seine net, etc.- was part of the “product itself” or “other property”
    for which the plaintiff could recover. The Court found that “[w]hen a manufacturer places an item
    in the stream of commerce by selling it to an Initial User, that item is the ‘product itself’” and
    “equipment added to a product after the Manufacturer (or distributor selling in the initial distribution
    chain) has sold the product to an Initial User is not part of the product that itself caused physical
    harm. Rather, in East River’s language, it is ‘other property’.”
    Eastman argues that in the instant case the soft drinks were an integrated product and the
    carbon dioxide was a component of that product. Eastman contends that when the component was
    found to be defective the injury was to the product itself - the soft drinks- and proper recovery is
    through contract. Eastman references the Court’s quotation of East River at page 1788 of Saratoga:
    “Since all but the very simplest of machines have component parts, [a contrary]
    holding would require a finding of ‘property damage’ in virtually every case
    where a product damages itself. Such a holding would eliminate the distinction
    between warranty and strict products liability.”
    We do not find that this statement is supportive of Eastman’s contention that the damaged
    soft drinks were the product itself of which the carbon dioxide was a component. The quoted
    -6-
    language was prompted by the plaintiff’s allegations in East River that each turbine was damaged
    by defectively designed components. The Court noted that “[s]ince each turbine was supplied by
    [the manufacturer] as an integrated package, ... each is properly regarded as a single unit.” In the
    case before us the soft drink was not an integrated unit supplied by Eastman. In the language of the
    Court in Saratoga the soft drink was not the item placed in the stream of commerce by Eastman.
    Eastman cites McCrary v. Kelly Tech. Coating, Inc., an unreported opinion of this court filed
    in Knoxville on August 28, 1985. In McCrary the plaintiff, a swimming pool contractor who
    painted pools as part of his job, painted a pool with paint manufactured by the defendant. Because
    of defects in the paint the plaintiff was required to repaint the pool. Thereafter, the plaintiff filed suit
    against the defendant for the cost of repainting. This court determined that the cost of repainting was
    a cost of repair and, therefore, an economic loss. Accordingly, the plaintiff was precluded from
    recovering from the defendant because there was no privity between the two. In arriving at this
    conclusion we noted the following language from White & Summers, Uniform Commercial Code,
    § 11-4 (2nd Ed. 1980) (quoting from Restatement Second, Torts § 402A (1965):
    [W]e use the terms “property damage” on the one hand and “economic loss” on
    the other to describe different kinds of damage a plaintiff may suffer. An action
    brought to recover damages for inadequate value, costs of repair, and replacement
    of defective goods or consequent loss of profits is one for “economic loss.”
    Property damage, on the other hand, is the Restatement’s physical harm ... to
    [user’s] property.
    We do not find that our holding in McCrary bars recovery for at least a portion of the damage
    alleged by Messer in the case at hand. We concluded our opinion in McCrary by noting that there
    was no evidence that the component (the paint) caused physical damage to the end product (the
    swimming pool). In the case before us there is evidence that the component (the carbon dioxide) did
    cause damage to the end product (separate property of Messer and its customers).
    In further support of its argument that the losses suffered by Messer are not losses attributable
    to property damage, Eastman cites Trinity Industries, Inc. v. McKinnon Bridge Co., 
    77 S.W.3d 159
    (Tenn. Ct. App. 2001). Under the facts in Trinity, defective structural steel used in the construction
    of a bridge caused the bridge to collapse and the steel’s manufacturer was sued for “the damage to
    the steel itself and the attendant costs of salvage, storage, and testing.” We determined that these
    damages constituted economic loss rather than property damage. In our discussion of the economic
    loss doctrine in Trinity we noted that, although Tennessee does not have definitive body of law on
    the doctrine, most courts in other jurisdictions “hold that there is tort liability for the sale of goods
    only when there is either personal injury or damage to ‘other property’ which was not a part of the
    contract for sale” Eastman relies on the following footnote to this statement:
    There is a difference of opinion as to what constitutes “other property” to which,
    when injury incurs, can be the basis of a negligence cause of action. We think that
    the interpretation of “other property” which is most true to the policy behind the
    -7-
    rule does not include the type of property that one would reasonably expect to be
    injured as a direct consequence of the failure of the defective product, as these
    losses are essentially damages for failed commercial expectations, or loss of the
    benefit of the bargain.
    Based upon this footnote Eastman argues that the ruination of the described property of
    Messer and Messer’s customers does not constitute injury to “other property” because, as Eastman
    states in its brief, “[t]he most obvious consequence of a noncompliance with [contractual
    specifications for food grade carbon dioxide] would be ruination of any food or drink product into
    which the [carbon dioxide] was combined and recall and destruction of those products.”
    Although Eastman’s argument is supported by the statement set forth in the referenced
    footnote, that statement is obiter dictum and as such, does not constitute binding precedential
    authority under the doctrine of stare decisis. Shepherd Fleets, Inc. v. Opryland USA, 
    759 S.W.2d 914
     ( Tenn. Ct. App. 1988). In any event, we deem the statement to be overly broad and we agree
    with Messer’s contention that if all property that one would reasonably expect to be injured because
    of the defective product is excluded from the definition of “other property” this would result in a
    remote buyer never being able to recover from a manufacturer for property damage in tort. This
    would be so because proximate cause is a prerequisite to such recovery. King v. Danek Medical,
    Inc., 
    37 S.W.3d 429
     (Tenn. Ct. App. 2000). The establishment of proximate cause is contingent
    upon a showing that the harm giving rise to the cause of action was reasonably forseeable.
    McClenahan v. Cooley, 
    806 S.W. 2d 767
     (Tenn. 1991). Therefore, under the dictum cited by
    Eastman, by establishing proximate cause, the plaintiff in a tort action against a manufacturer would
    necessarily eliminate its damaged property from the category of “other property” and would, thereby,
    undermine its case.
    Guided by the Supreme Court’s holding in Saratoga, we are compelled to conclude that the
    contaminated feedgas, as the product placed in the stream of commerce by Eastman, was “the
    product itself ” and the property of Messer and its customers which was injured as a result of contact
    with the contaminated carbon dioxide was “other property.” Messer is not required to establish
    privity to maintain its cause of action in tort for damages arising from injury to this other property
    and the Trial Court erred in granting summary judgment against Messer on that basis. It is our
    determination that Messer’s carbon dioxide which was contaminated as a result of being mixed with
    the contaminated carbon dioxide constitutes such injured property. We also find that the soft drink
    ingredients and cans of Messer’s customers which were ruined as a result of contact with the
    contaminated carbon dioxide fall within this category. We do not, however, agree that the cost
    incurred by Messer in cleaning its tanker cars and storage tanks is properly classified as a cost related
    to property damage. In McCrary we determined that the costs of repainting the pool, including the
    cost of removing the defective paint, was a cost of repair and, therefore, an economic loss. We find
    no basis for distinguishing between the cost of cleaning defective paint from the surface of a pool
    and the costs incurred by Messer in cleaning its tanker cars and storage tanks. In this regard we note
    the following testimony of David Wolff, a witness for Messer, referenced by Messer in its brief:
    -8-
    Q. To your knowledge, were any cylinders or tankers or storage tanks rendered
    not usable because of this HCN situation?
    A. I’m not aware of any cylinders, tankers or storage tanks which were rendered
    permanently unusable. They needed to be cleaned properly so that they registered
    no presence of HCN.
    The next two issues are whether summary judgment was appropriate with respect to Messer’s
    fraud claim and whether summary judgment was appropriate with respect to the claim asserted by
    Messer under the TCPA . We find it appropriate to address these two issues as one because we
    believe that our analysis of the record regarding Messer’s allegations of misrepresentation and
    concealment will resolve both issues.
    Specifically, Eastman asserts that it made no representations of any kind to Messer and has
    not deceived Messer or anyone else. Eastman points out that, under the feedgas agreement, it
    contracted with Cryotech to sell it raw feedgas for purification and that Cryotech contemplated that
    the feedgas contained HCN as a constituent. Eastman further maintains that the feedgas agreement
    with Cryotech disclaimed any representations about the merchantability or fitness of the feedgas,
    expressly contemplated that the constituents of the feedgas might change over time and specifically
    permitted Cryotech to terminate the agreement if the impurities in the feedgas reached a level at
    which Cryotech could no longer process the gas. Eastman also notes that when it found HCN on
    Cryotech’s catalyst it immediately notified Cryotech. Finally, Eastman avers that there is no
    evidence that Cryotech knowingly failed to remove impurities from the carbon dioxide it sold to
    Messer or that Eastman knew of any such failure.
    Messer argues that Eastman engaged in deceptive activity when it placed a defective product
    in the stream of commerce knowing that it would damage Messer and failed to disclose this to
    Messer. Messer contends that Eastman knew that its feedgas was contaminated with HCN
    throughout the term of the feedgas agreement, that Eastman knew that on occasion the
    concentrations of HCN exceeded levels of 30 parts per million and that Eastman’s own doctor
    testified that he would start being concerned for human safety at concentrations over that amount.
    Messer further argues that Eastman knew or should have known that the Cryotech facility was
    incapable of removing HCN at those levels and that it was, therefore, inevitable that the carbon
    dioxide sold by Cryotech would contain HCN. Finally, Messer states that Eastman knew that
    Cryotech was selling Messer carbon dioxide and that this carbon dioxide would be resold for human
    consumption and, yet, Eastman never informed Messer that the carbon dioxide it purchased from
    Cryotech would contain HCN.
    The foodgas agreement between Cryotech and Eastman expressly acknowledges that Eastman
    is generating crude carbon dioxide which, “in its raw form, is not suitable for food use” and that
    Cryotech “proposes to construct and operate a facility for the purification and liquefaction” of such
    carbon dioxide. The product which Cryotech was in the business of selling and producing was food
    grade carbon dioxide. The product sold by Eastman to Cryotech was non-food grade carbon dioxide
    -9-
    There is no evidence that Eastman ever represented to Cryotech, Messer or anyone else that the
    product it was selling to Cryotech was fit for human consumption.
    In response to Eastman’s argument that it was merely supplying a raw material that Cryotech
    alone was responsible for purifying, Messer states that “Eastman’s own documents evidence its
    intent that the Eastman carbon dioxide be ‘refined and put in product form’ for delivery to Cryotech
    as a ‘food grade carbon dioxide feed stock,’...after which ‘Cryotech further purifies the gas’”
    The documents referred to by Messer consist of two internal memoranda generated by
    Eastman. We do not agree that a jury could reasonably conclude from the information referenced in
    these documents that Eastman represented that it was supplying, or intended to supply, anything
    other than non-food grade carbon dioxide. The phrase “food grade carbon dioxide feed stock’ is
    derived from an Eastman memorandum the subject of which is designated “Approval for Product
    Commercialization for Carbon Dioxide Coproduct” and appears as follows in that document:
    Proposal: It is proposed that a coproduct carbon dioxide rich stream be made in
    Acid Division and provided to Cryotech as a food grade carbon dioxide feedstock
    The only reasonable construction of this sentence, given the language of the feedgas
    agreement that the carbon dioxide produced by Eastman is non- food grade, is that the words “food
    grade carbon dioxide” do not describe the grade of the feedstock but instead describe the product for
    which the “carbon dioxide rich stream” is to serve as feedstock or raw material. The words “refined
    and put in product form” appear in an attachment to the same memorandum designated
    “Manufacturing Attachment” in the following context:
    1. Equipment and Capacity
    The carbon dioxide is produced in the Plant 12 Gasifiers. The CO2 is refined
    and put in product form in Plant 14. The capacity is approximately 550 tons of
    CO2 per day. Utilization is expected to be about 225 tons CO2 per day.
    There is nothing in this language in its original context which could be construed as evidence
    that Eastman is producing carbon dioxide fit for human consumption or making that representation.
    Finally, the words “Cryotech further purifies the gas” appear in a separate Eastman
    memorandum, the designated subject of which is “Trace Impurities in Carbon Dioxide CoProduct”
    and the original context is as follows:
    The Gasification department is currently revising the MSDS for carbon dioxide
    coproduct (PM 14324). This gas is sold to a company called Cryotech which
    further purifies the gas and sells the carbon dioxide to carbonate beverages.
    -10-
    The implication that the carbon dioxide was purified by Eastman because it is “further “
    purified by Cryotech does not constitute proof that the carbon dioxide is produced by Eastman to be
    of food grade quality or that Eastman represents it to be such when it is sold to Cryotech.
    As Messer concedes in its brief, Tennessee law requires reliance in misrepresentation cases.
    Milwee v. Peachtree Cypress Inv. Co., 
    510 F. Supp. 284
     (E. D. Tenn. 1978). However, Messer
    contends that such reliance need not be direct reliance, citing Ladd v. Honda Motor Co., 
    939 S.W.2d 83
     ( Tenn. Ct. App. 1996).
    In Ladd a twelve year old plaintiff was paralyzed as the result of injuries he incurred while
    operating an all-terrain vehicle manufactured by the defendant. The vehicle was owned by the
    plaintiff’s uncle who had allowed the plaintiff to operate it. The uncle testified that he had believed
    that his nephew could safely operate the vehicle because of television advertising by the defendant
    which depicted children operating all-terrain vehicles. The Court noted the requirement under
    section 402B of the Restatement (Second) of Torts that a consumer must justifiably rely upon a
    defendant’s misrepresentation before liability will arise. The Court found that “the reliance required
    by Section 402(B) need not be that of the injured consumer but may be that of the purchaser who
    passes the product along to the ultimate consumer.” Accordingly, Messer indicates that it need not
    have directly relied upon misrepresentations by Eastman.
    In Ladd the plaintiff’s uncle reasonably relied upon misrepresentations in the defendant’s
    advertising in allowing the plaintiff to operate the vehicle. However, in the instant matter it cannot
    be said that Cryotech reasonably relied upon any misrepresentation by Eastman in marketing carbon
    dioxide to Messer. As noted above, Eastman never represented that the product it sold to Cryotech
    was anything other than non-food grade carbon dioxide. Furthermore, Messer cannot have relied
    upon a misrepresentation by Eastman that the feedgas sold to Cryotech did not contain HCN
    because, when the alleged injuries occurred to Messer in 1996, Cryotech was well aware that HCN
    was a constituent of the feedgas, having been informed of this fact by Eastman in 1993.
    It is our conclusion that Messer has failed to submit evidence which creates a genuine issue
    of material fact as to whether it reasonably relied upon a misrepresentation by Eastman and,
    therefore, summary judgment dismissal of it’s cause of action for fraud is appropriate.
    This Court has hitherto held that a plaintiff under the TCPA is not required to show reliance
    upon a misrepresentation by the defendant in order to maintain a cause of action. Harvey v. Ford
    Motor Credit Company, an unreported opinion of this Court filed in Knoxville on July 13 1999.
    However, there must be a deceptive act by the defendant before the defendant can be held liable
    under the TCPA. McDonald’s Corp. v. Shop At Home, Inc., 
    82 F. Supp.2d 801
     (M.D. Tenn. 2000).
    Our analysis of the record in this case, as set forth above, compels us to the conclusion that Messer
    has failed to establish a genuine issue of material fact as to whether Eastman engaged in a deceptive
    act which would subject it to liability under the TCPA Accordingly, summary judgment was also
    appropriate as to Messer’s TCPA claim.
    -11-
    The next issue we address is whether Messer presented evidence establishing a genuine issue
    of material fact as to whether Eastman and Cryotech were engaged in an implied partnership or joint
    venture. Messer asserts that, as a joint venturer with Cryotech, Eastman is jointly and severally
    liable for Messer’s tort and contract claims against Cryotech because Cryotech and Messer were in
    privity.
    As defined by T.C.A. 61-1-202(a) a partnership is “the association of two or more persons
    to carry on as co-owners of a business for profit....” Joint ventures and partnerships are governed
    by the same rules. Federated Stores Realty,Inc. v. Huddleston, 
    852 S.W.2d 206
     (Tenn. 1992).
    Although similar to a partnership, a joint venture exists for a more limited time and for a more
    limited purpose. Fain v. O’Connell, 
    909 S.W.2d 790
     (Tenn. 1995).
    In Bass v. Bass, 
    814 S.W.2d 38
     (Tenn. 1991) the Tennessee Supreme Court noted as follows
    at page 41:
    In determining whether one is a partner, no one fact or circumstance may be
    pointed to as a conclusive test, but each case must be decided upon consideration
    of all relevant facts, actions and conduct of the parties.... If the parties’ business
    brings them within the scope of a joint business undertaking for mutual profit –
    that is to say if they place money, assets, labor, or skill in commerce with the
    understanding that profits will be shared between them – the result is a partnership
    whether or not the parties understood that it would be so....
    Moreover, the existence of a partnership depends upon the intention of the
    parties, and the controlling intention in this regard is that ascertainable from the
    acts of the parties.... Although a contract of partnership, either express or implied,
    is essential to the creation of partnership status, it is not essential that the parties
    actually intend to become partners.... The existence of a partnership is not a
    question of the parties’ undisclosed intention or even the terminology they use to
    describe their relationship, nor is it necessary that the parties have an
    understanding of the legal effect of their acts.... It is the intent to do the things
    which constitute a partnership that determines whether individuals are partners,
    regardless if it is their purpose to create or avoid the relationship.... Stated another
    way, the existence of a partnership may be implied from the circumstances where
    it appears that the individuals involved have entered into a business relationship
    for profit, combining their property, labor, skill, experience, or money.(Citations
    omitted.)
    The Trial Court found that “Cryotech and Eastman did not have the right to control each
    other’s means and methods of doing business or general business activities, and therefore, these
    parties were not partners or joint venturers.” Messer contends that the Trial Court’s ruling was in
    error, arguing that there was evidence that Eastman would share profits with Cryotech and did, in
    fact, share losses with Cryotech and that this alone establishes a prima facie case of joint venture.
    -12-
    Messer additionally asserts that there was evidence of a substantial community of interest between
    Eastman and Cryotech which permits an inference that Eastman had a right of control. And finally,
    Messer asserts that there was direct evidence that Eastman had a right of control.
    Eastman contends that Messer submitted the same argument, both factually and legally,
    regarding an alleged joint venture between Mellon, Cryotech and Eastman in Messer Griesheim v.
    Cryotech of Kingsport, 
    45 S.W.3d 588
     ( Tenn. Ct. App. 2001). In that case we determined that “ the
    fact that each of the defendants expected to profit from the relationship does not mean that they
    expected to share the profits of Cryotech’s business” Accordingly, we found that Mellon was not
    involved in a joint venture or partnership with Cryotech and Eastman. Eastman argues that, based
    upon that determination Messer, we should also find that there was no joint venture/implied
    partnership in the case now before us. We disagree.
    Our determination that there was no joint venture/implied partnership between Mellon and
    the other two defendants in Messer was based upon Mellon’s status as a secured creditor and we
    found that the actions of Mellon referenced by Messer to establish a joint venture/implied partnership
    were nothing more than measures taken by Mellon as the financing lessor of the Cryotech facility
    to preserve its security interest. Although some of the evidence presented by Messer to establish a
    joint venture/implied partnership in the present matter is not dissimilar to that presented in the earlier
    case, the relationship between Eastman and Cryotech is not that of a secured creditor and debtor.
    The relationship between Eastman and Cryotech is governed by a totally different agreement and is
    properly subject to a separate and different analysis.
    Before a partnership may be implied the circumstances must show that the parties intended
    to share the profits from their joint enterprise. Wright v. Quillen, 
    909 S.W.2d 804
     (Tenn. Ct. App.
    1995), citing Pritchett v. Thomas Plater 7 Co., 
    232 S.W. 961
     (1921). Accordingly, absent evidence
    showing an intent by Eastman and Cryotech to share profits we must affirm the judgment of the Trial
    Court that there was no genuine issue of material fact in this case with respect to the existence of a
    joint venture or implied partnership.
    Messer points out this Court’s recognition in Messer that “... Cryotech’s profits and
    Eastman’s profits seem to be somehow linked to one another....” Although that statement does
    appear as dicta in Messer, we did not in any way indicate in that case that Cryotech and Eastman
    were sharing, or intended to share, profits.
    With respect to its assertion that Eastman would have shared profits with Cryotech, Messer
    notes that, under the terms of the feedgas agreement, Cryotech paid Eastman for the feedgas based
    upon the amount of carbon dioxide Cryotech shipped to customers and the price that Cryotech
    charged those customers. “If Cryotech’s price to [Messer] increased by 5%, Eastman was entitled
    to a 5% increase in the price it charged Cryotech.” Messer contends that a jury could reasonably
    conclude that this pricing mechanism amounted to a sharing of profits.
    -13-
    Messer relies upon the case of Memphis Natural Gas Co. v. Pope, 
    161 S.W.2d 211
     (Tenn.
    1941) in support of its contention that a jury could conclude that Eastman and Cryotech were
    engaged in an agreement to share profits.
    In Memphis Natural Gas Co. the Tennessee Supreme Court found that a joint venture existed
    between a natural gas company and a power company. Under the facts of that case the gas company
    and the power company were both organized in 1928 for the purpose of bringing natural gas from
    gas fields in Louisiana to certain areas of Tennessee. The gas company owned and operated pipe
    lines which conveyed the gas from Louisiana to stations owned and operated by the power company
    from which it was distributed to the power station’s customers. Each party employed its own workers
    and made its own purchase of materials. At least eighty per cent of the gas company’s revenues
    consisted of monies derived from its business with the power company.
    Under the terms of the contract between the gas company and power company the parties
    were required to deliver, each to the other, a monthly statement setting forth costs of operation and
    maintenance, taxes incurred, amortization costs, gross revenues realized and the amount of net
    surplus or net deficit for the contract year. The contract further provided that the combined net
    surpluses and net deficits of the parties be equally divided between them by an annual cash
    adjustment and by adjustment of the rates charged by the gas company to the power company “in
    order as nearly as possible to effect an equal division of any contemplated combined surplus and/or
    deficit for the contract year then current and for subsequent contract years.” Finally, the contract
    provided that if in any year all the net deficits of both parties were made up and, in addition, the
    power company had received from combined net surpluses an amount equal to one and one-half per
    cent of certain investment expenses for every contract year to date then the entire balance of the
    combined net surplus would be paid to or retained by the gas company.
    Our Supreme Court noted in Memphis Natural Gas Co. that the sharing of profits of a
    business is prima facie evidence of partnership and that “even without joint control of the operations
    that produce profits, persons or corporations may establish relationships that will result in a sharing
    of profits, each with the other.” The Court found that the above described contractual provisions
    set forth a mathematical formula whereby the parties could calculate profits after each was given
    specified credits and that profits from the entire enterprise were divided between them. The Court
    noted that under the final provision described above the gas company was not only a participant in
    the profits from distribution of gas by the power company but that, after a certain situation was
    reached, the gas company would receive all the remaining profits of the distribution.
    Messer correctly points out that in Memphis Natural Gas Co., the Court found that “[t]he
    price of gas, if there was ever an actual sale, was not and could not be determined until after the gas
    had been delivered to the ultimate consumer.” However, the Court’s determination that there was
    a joint venture was not based upon this finding. The gas company’s complaint in Memphis Natural
    Gas Co. sought to enjoin the collection of excise taxes collectible on intrastate commerce. The gas
    company asserted that the gas was sold at a fixed price to the power company and delivered in the
    direct flow of interstate commerce. The question before the Court, therefore, was whether the parties
    -14-
    were engaged in a joint operation at the time the gas was distributed to customers in Tennessee, in
    which case the gas company would be engaged in intrastate, rather than interstate, commerce and
    would, therefore, be subject to the tax. The question of when the price of the gas became fixed was
    raised in relevance to a determination of whether the gas was, as asserted by the gas company, sold
    at a fixed rate and then delivered it to the power company in interstate commerce before intrastate
    distribution. However, the Court opined at pages 215-216 that the question of when title to the gas
    passed was not important in view of the fact that the parties were engaged in a joint operation:
    It is not necessary to determine when title to the gas passed to Memphis power
    and Light Company, or whether the title ever actually passed. If title passed, then,
    still the business conducted in distributing to consumers was for and on behalf of
    both these development and operating corporations, and Memphis Natural Gas
    Company was engaged through its co-operative in intrastate business in
    Tennessee.
    The price of gas, if ever there was an actual sale, was not and could not be
    determined until after the gas had been delivered to the ultimate consumer. Our
    view is, that there is not a fixed price in article sixth which is merely adjusted by
    article eleventh, but in reality there was an operation in which both companies
    were jointly interested. There was an allotment of work performed but a division
    of the entire results of that work.
    While the Court recognized that the price of the gas was not determinable until after delivery
    to the customer, its conclusion that the gas company and power company were engaged in a joint
    venture was not based upon that fact but rather upon a finding that the contractual provisions
    discussed above constituted an agreement to share profits and losses.
    We are further compelled to point out the distinction between profits and gross revenues.
    Tennessee case law has defined profit to mean the net amount after deduction of proper expenses
    incident to the business. Jones v. Davidson, 
    34 Tenn. 447
     (1854). We do not agree that a reasonable
    jury could conclude that the pricing mechanism whereby the price received by Eastman for its
    feedgas increased in proportion to the price Cryotech charged when selling the carbon dioxide it
    processed was a device to share profits. Even if this pricing mechanism were conceived to be an
    arrangement for sharing funds received those funds would constitute gross returns not profits and,
    unlike the sharing of profits, the sharing of gross returns does not of itself establish a partnership.
    T.C.A. 61-1-202(b)(2). Messer’s argument that the pricing mechanism constitutes evidence that
    Eastman and Cryotech intended to share profits is without merit.
    Messer has failed to present evidence that Cryotech and Eastman intended to share profits
    and has, therefore, failed to establish a genuine issue of material fact as to whether those parties were
    engaged in a joint venture or implied partnership. Accordingly, the Trial Court’s summary judgment
    with respect to this issue is affirmed.
    -15-
    The final issue we address is whether the Trial Court erroneously dismissed Messer’s breach
    of warranty claim based upon the fact that there is no privity between Messer and Eastman. Messer
    argues that the Trial Court should have applied Pennsylvania law and that under Moscatiello v.
    Pittsburgh Contractors Equipment Co., 595 A2d 1198 (Pa. Super. 1991), even absent privity, a
    manufacturer can be held liable for economic losses as well as property damage resulting from a
    defective product. Eastman apparently does not dispute this construction of Moscatiello.
    Messer asserts that the HCN in the carbon dioxide supplied by Cryotech caused it to be non-
    conforming to express and implied specifications set forth in supply agreements entered into between
    Messer and Cryotech and resulted in a breach of express and implied warranties in those agreements.
    Messer also asserts that the HCN in Eastman’s feedgas gave rise to breach of warranty claims by
    Cryotech against Eastman. Although there is privity between Eastman and Cryotech and between
    Cryotech and Messer, there is no privity between Messer and Eastman. However, as previously
    indicated in this opinion, we have found that a portion of the damages alleged by Messer arise from
    injury to property. Messer is entitled to pursue its claim for property damage under a breach of
    warranty theory in Tennessee even in the absence of privity. T.C.A. 29-34-104 and Commercial
    Truck & Trailer Sales v. McCampbell, 
    580 S.W.2d 765
     (Tenn. 1979).3 But Tennessee law does not
    allow recovery of economic losses under a breach of warranty theory absent privity and, unless we
    determine that Pennsylvania law, rather than Tennessee law, applies to Messer’s breach of warranty
    claims we must affirm the Trial Court’s summary judgment to the extent those claims seek recovery
    for economic losses.
    Messer asserts, and the record confirms, that it was sold the contaminated carbon dioxide
    pursuant to supply agreements it entered into with Cryotech and that those agreements provide that
    they shall be governed by Pennsylvania law, citing Vantage Technology, LLC v. Cross, 
    17 S.W.3d 637
     (Tenn. Ct. App. 1999). Messer argues that, since Messer and Cryotech chose Pennsylvania law
    to govern their supply agreements, Pennsylvania law should govern its warranty claims against
    Eastman notwithstanding the fact that such claims were filed in Tennessee. Messer also cites T.C.A.
    47-1-105 in support of this argument apparently relying on subsection (1) of that statute which states
    as follows:
    (1) Except as provided hereafter in this section, when a transaction bears a
    reasonable relation to this state and also to another state or nation the parties may
    agree that the law either of this state or such other state or nation shall govern their
    rights and duties....
    In Vantage this Court found that a provision in a covenant not to compete between the
    plaintiff employer and the defendant employee was a valid choice of law clause calling for the
    3
    Although Eastman contends that, prior to this appeal, Messer did not raise the issue of whether Tennessee law
    allows it to recover property damages for breach of warranty even in the absence of privity, the record shows that Messer
    did raise this issue at trial in its September 22, 199 7, response to Eastman’s motion to dismiss and motion for summary
    judgment or partial summ ary jud gment
    -16-
    application of Tennessee law. However, in that case both plaintiff and defendant were parties to the
    agreement containing the choice of law provision. In the instant matter Eastman was not a party to
    the supply agreements entered into between Messer and Cryotech and, therefore, the described
    choice of law provision does not merit a finding that Pennsylvania law governs Messer’s warranty
    actions against Eastman. Messer presents no authority for the argument that the agreements entered
    into between itself and Cryotech are determinative of the proper law to be applied in Messer’s
    warranty claims against Eastman.
    Messer further contends that it is otherwise appropriate that the law of Pennsylvania govern
    in this case because that is where both Messer and Cryotech are headquartered and that is where
    Cryotech executed the feedgas agreement with Eastman. Messer also asserts that Pennsylvania law
    should apply because it sustained at least a portion of its damages in Pennsylvania, referencing
    witness testimony that the carbon dioxide purchased from Cryotech was placed in a storage tank at
    Messer’s terminal in Philadelphia where it was mixed with carbon dioxide from other suppliers,
    indicating that that is where Messer’s storage tank and other carbon dioxide were contaminated due
    to contact with the contaminated product purchased from Cryotech. Messer also states that it has
    consistently asserted that Pennsylvania law applies, that it pleaded claims in its amended complaint
    under Pennsylvania law and that Eastman did not specifically contest the application of Pennsylvania
    law in its answer to that complaint. However, Messer fails to cite authority for the proposition that
    any of these factors dictates that Pennsylvania law should be applied in this case and, accordingly,
    its argument that Pennsylvania law applies based upon each of these factors may be deemed to be
    waived. Failure to cite authority for propositions in arguments submitted on appeal constitutes
    waiver of the issue. State v. Brown, 
    795 S.W.2d 689
     (Tenn. Cr. App. 1990) and Rhea County v.
    Town of Graysville, an unreported opinion of this Court filed in Knoxville on July 25, 2002.
    However, even in light of these factors referenced by Messer, we do not agree that the record
    supports Messer’s argument that Pennsylvania law should be applied in this case.
    In Hataway v. Mckinley, 
    830 S.W.2d 53
     (Tenn. 1992) our Supreme Court abandoned the lex
    loci delecti doctrine which required that the substantive rights of an injured party in a tort case be
    determined according to the law of the state where the injury occurred. In its place the Court adopted
    the “most significant relationship” approach of the Restatement (Second) of Conflict of Laws. At
    page 59 the Court cites §145 of the Restatement which provides under subsection (2) that the
    following contacts are to be taken into account in determining the law applicable to an issue:
    (a) the place where the injury occurred,
    (b) the place where the conduct causing the injury occurred,
    (c) the domicile, residence, nationality, place of incorporation and place of
    business of the parties,
    (d) the place where the relationship, if any, between the parties is centered.
    In Vantage, ibid. at page 650 we set forth Tennessee’s conflict of law doctrine applicable to
    contractual claims as follows:
    -17-
    Tennessee follows the rule of lex loci contractus. This rule provides that
    a contract is presumed to be governed by the law of the jurisdiction in which it
    was executed absent a contrary intent. Ohio Cas. Ins. Co. v. Travelers Indem. Co.,
    
    493 S.W.2d 465
    , 467 (Tenn. 1973).
    If the parties manifest an intent to instead apply the laws of another
    jurisdiction, then that intent will be honored provided certain requirements are
    met. The choice of law provision must be executed in good faith. Goodwin Bro.s
    Leasing, Inc. v. H & B Inc., 
    597 S.W.2d 303
    , 306 (Tenn. 1980). The jurisdiction
    whose law is chosen must bear a material connection to the transaction. 
    Id.
     The
    basis for the choice of another jurisdiction’s law must be reasonable and not
    merely a sham or subterfuge. 
    Id.
     Finally, the parties’ choice of another
    jurisdiction’s law must not be “contrary to ‘a fundamental policy’ of a state having
    [a] ‘materially greater interest’ and whose law would otherwise govern.” 
    Id.,
     n.
    2 (citing RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 187(2)
    (1971).
    Whether Messer’s claims are analyzed under the conflict of law doctrine applicable to
    matters arising in tort or that applicable to matters arising in contract, it is our determination that
    Tennessee law should govern this case. The feedgas containing HCN was produced at Eastman’s
    factory in Tennessee and Eastman performed its duties under the feedgas agreement in Tennessee,
    thus the actions/omissions attributed to Eastman by Messer would appear to have taken place in
    Tennessee. The feedgas was supplied to Cryotech at Cryotech’s facility in Tennessee. Cryotech
    processed the feedgas received from Eastman in Tennessee and delivered the contaminated carbon
    dioxide to Messer in Tennessee. Finally, the feedgas agreement between Eastman and Cryotech
    provides that that agreement “shall be governed and construed according to the laws of the State of
    Tennessee.” Under these circumstances we believe it is appropriate to apply Tennessee law in this
    case and Messer’s argument for the application of Pennsylvania law is without merit.
    For the foregoing reasons we affirm in part, vacate in part and remand for further action
    consistent with our decision herein. Costs of appeal are adjudged equally against Messer and
    Eastman.
    _________________________________________
    HOUSTON M. GODDARD, PRESIDING JUDGE
    -18-