JERRY FAERBER, ET AL.
TROUTMAN & TROUTMAN, P.C., ET AL
Session Date May 23, 2017
from the Circuit Court for Campbell County No. 15495 Don R.
Ash, Senior Judge
entered into a contract for the purchase of an undeveloped
lot in a planned unit development. Appellants, an attorney
and his law firm, prepared closing documents, including a
warranty deed and settlement statement. The warranty deed
included language that the property was unencumbered, and the
settlement statement provided for payoff of the first
mortgage and for the purchase of title insurance. Appellees
later discovered that Appellants had failed to procure
release of the first lien and had also failed to procure
title insurance. The property was foreclosed, and Appellees
filed suit against Appellants for negligent misrepresentation
and violation of the Tennessee Consumer Protection Act. The
trial court found Appellees liable on these claims. We
concluded that the Tennessee Consumer Protection Act does not
apply to Appellants, who were engaged in the practice of law
in the preparation of the closing documents. Accordingly, we
reverse the trial court's award of attorney fees and
costs pursuant to the Tennessee Consumer Protection Act. The
trial court's order is otherwise affirmed.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed in Part, Reversed in Part, and Remanded.
Mark Troutman, Knoxville, Tennessee, pro se. 
L. Grimm and M. Patrick O'Neal, Knoxville, Tennessee, for
the appellees, Jerry Faerber, and Margaret Faerber.
Armstrong, J., delivered the opinion of the court, in which
Charles D. Susano, Jr. and John W. McClarty, JJ., joined.
26, 2016, Jerry and Margaret Faerber (together, the
"Faerbers, " or "Appellees") entered into
an agreement, "The Willows at Mountain Lake Marina PUD
Sale Agreement" ("Purchase Agreement") for the
sale of real estate in a planned unit development. The seller
was Thor Industries ("Thor"), which is owned by
Wilrite Company. The purchase price for the property was $75,
000. On August 20, 2010, the Faerbers and Thor entered into a
Settlement Statement, with Troutman & Troutman
("Troutman") listed as the Settlement Agent. The
Settlement Statement was signed by Troutman attorney Conrad
Mark Troutman (together with Troutman,
"Appellants"). The Settlement Statement referenced
a $387.50 charge for title insurance and a $30, 000 loan
payoff to Tennessee State Bank. On August 20, 2010, the
Faerbers tendered a $71, 083 cashier's check to Troutman
(they had previously paid a $5, 000 deposit). Troutman
deposited the check into its trust account. Thereafter, Mark
Troutman prepared a Warranty Deed, which was signed on August
20, 2010. The Warranty Deed reflected that the property was
the Settlement Statement provided for title insurance,
Troutman never provided the insurance; instead, Mark Troutman
relied on the statements of Thor and Tennessee State Bank
employees, who allegedly advised that title insurance was not
necessary. Tennessee State Bank held a lien/mortgage on the
property at the time of closing. Troutman issued a $30, 000
check to Tennessee State Bank to receive a release of the
lien. Teresa Montgomery, a Tennessee State Bank employee,
allegedly informed Mr. Troutman that the bank would accept
the $30, 000 for a "partial" release, but the bank
ultimately rejected the payoff. Without obtaining a release
from Tennessee State Bank, on September 21, 2010, Troutman
issued a $30, 000 check to Wilrite. Mr. Troutman testified
that he received a document from Mr. Steve Williams, one of
Thor's owners, indicating that Tennessee State Bank would
release the lien, or that another entity would arrange a
"rural development loan" and remove Tennessee State
Bank's lien via an "approval letter". When Mr.
Troutman discovered that the property was still encumbered,
he contacted Mr. Williams, who allegedly informed Mr.
Troutman that a refinance plan was in place. Although Mr.
Troutman suggested that Thor return the purchase price to the
Faerbers, Mr. Williams rejected the suggestion. Mr. Troutman
did not inform the Faerbers of these issues. None of the
arrangements, which Mr. Williams described, happened, and the
property went into foreclosure.
17, 2013, the Faerbers filed suit against Appellants (the
Faerbers named other defendants, who were settled prior to
trial), alleging negligent misrepresentation, fraudulent
misrepresentation, breach of contract, legal malpractice and
violation of the Tennessee Consumer Protection Act. The case
was tried on April 11, 2016. In its June 6, 2016 order, the
trial court found that Appellants had committed negligent
misrepresentation by providing erroneous information
indicating that Troutman had obtained title insurance and
that the $30, 000 payment represented the first mortgage
payoff. The trial court also found Appellants liable under
the Tennessee Consumer Protection Act ("TCPA"),
Tenn. Code Ann. § 47-18-104(b)(12) (finding that
Appellants had represented the transaction to include title
insurance and to pay off the first mortgage, thus deceiving
Appellees). The trial court denied Appellees' fraudulent
misrepresentation claim (finding no fraud in the
misrepresentations), breach of contract claim (finding that
the Faerbers were not in privity of contract with Appellants
on the Warranty Deed), and the legal malpractice claim
(finding that Troutman had no knowledge of title problems at
the time of closing). The trial court awarded Appellees: (1) the
$75, 000 purchase price; (2) $1, 083 in closing costs; (3)
$67, 620.25 in attorney's fees (under § 47-18-109 of
the TCPA); and (4) prejudgment interest.
appeal. They raise three issues for review as stated in their
1. The trial court erred in finding that the Tennessee
Consumer Protection Act was applicable and in finding
Appellants liable thereunder.
2. The trial court erred in holding the Appellants liable for
3. The trial court erred in its calculation and award of
Standard of Review
this case was tried by the court sitting without a jury, we
review the trial court's findings of fact de novo with a
presumption of correctness, unless the evidence preponderates
against those findings. McGarity v. Jerrolds, 429
S.W.3d 562, 566 (Tenn. Ct. App. 2013); Wood v.
Starko, 197 S.W.3d 255, 257 (Tenn. Ct. App. 2006). For
the evidence to preponderate against a trial court's
finding of fact, the weight of the evidence must
"demonstrate... that a finding of fact other than the
one found by the trial court is more probably true."
Williams v. City of Burns, 465 S.W.3d 96, 108 (Tenn.
2015); The Realty Shop, Inc. v. R.R. Westminster Holding,
Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999). This
Court conducts a de novo review of the trial court's
resolutions of question of law, with no presumption of
correctness. Kelly v. Kelly, 445 S.W.3d 685, 691-92
(Tenn. 2014); Armbrister v. Armbrister, 414 S.W.3d
685, 692 (Tenn. 2013).
respect to the issue of whether Appellants are liable under
the TCPA, the role of this Court is to "give effect to
the legislative intent without unduly restricting or
expanding a statute's coverage beyond its intended
scope." Owens v. State, 908 S.W.2d 923, 926
(Tenn. 1995). When reading "statutory language that is
clear and unambiguous, we must apply its plain meaning in its
normal and accepted use, without a forced interpretation that
would limit or expand the statute's application."
Eastman Chemical Co. v. Johnson, 151 S.W.3d 503, 507
(Tenn. 2004). "[W]e presume that every word in a statute
has meaning and purpose and should be given full effect if
the obvious intention of the General Assembly is not violated
by doing so." Lind v. Beaman Dodge, 356 S.W.3d
889, 895 (Tenn. 2011). "When a statute is clear, we
apply the plain meaning without complicating the task."
Id. "Our obligation is simply to enforce the
written language." Id.
Applicability of the Tennessee Consumer Protection
alleged a violation of the TCPA based on Appellants'
failure to issue title insurance, failure to inform them of
the rejected payoff, and remittance of the $30, 000 payoff to
Wilrite. Appellants maintained that the allegedly wrongful
conduct constituted the practice of law, thus rendering the
TCPA inapplicable. Concerning applicability of the TCPA, this
The Tennessee Consumer Protection Act, Tennessee Code
Annotated Sections 47-18-101, et seq.
("TCPA"), prohibits, among other things,
"unfair or deceptive acts or practices affecting the
conduct of any trade or commerce." Tenn. Code Ann.
§ 47-18-104(a). A "deceptive" act or practice
is "one that causes or tends to cause a consumer to
believe what is false or that misleads or tends to mislead a
consumer as a matter of fact." Tucker v. Sierra
Builders, 180 S.W.3d 109, 116 (Tenn. Ct. App. 2005)
(citations omitted). An act or practice may be deemed unfair
if it "causes or is likely to cause substantial injury
to consumers which is not reasonably avoidable by consumers
themselves and not outweighed by countervailing benefits to
consumers or to competition." Id. at 116-17
(citing 15 U.S.C. § 45(n)). Because the TCPA is
remedial, courts have determined that it should be construed
liberally in order to protect the consumer. Id. at
115. In order to recover under the TCPA, a plaintiff must
prove: (1) that the defendant engaged in an unfair or
deceptive act; and (2) that the defendant's conduct
caused an "ascertainable loss of money or
property...." Id. (quoting Tenn .Code Ann.
§ 47-18-109(a)(1)); see also Cloud Nine, L.L.C. v.
Whaley, 650 F.Supp.2d 789, 798 (E.D. Tenn.2009)
("plaintiffs asserting claims under the [TCPA] are
required to show that the defendant's wrongful conduct
proximately caused their injury). . . .
Whether a particular representation or act is
"unfair" or "deceptive, " within the
meaning of the TCPA, is a question of fact, Id. at
116 (citation omitted), which we review de novo upon the
record with a presumption of correctness, unless the evidence