SHAY SIMPSON, ET AL.
NATIONAL FITNESS CENTER, INC., ET AL.
Session August 10, 2017
from the Circuit Court for Knox County No. 3-291-15 Deborah
C. Stevens, Judge
appeal arises from a lawsuit filed by plaintiffs Shay and
Brian Simpson ("the Simpsons, " collectively, or
"Ms." or "Mr. Simpson, " respectively)
against defendants National Fitness Center, Inc. and National
Fitness Center, LLC ("National Fitness, "
collectively). Ms. Simpson and National Fitness orally
contracted to allow the Simpsons "a couple of
weeks" additional time to consider whether to cancel
their club membership. After more than two weeks elapsed, the
Simpsons elected to cancel but National Fitness refused to
accept the cancellation. This case was tried before the
Circuit Court for Knox County ("the Trial Court").
The Trial Court found that National Fitness breached the
contract and committed a deceptive act under the Tennessee
Consumer Protection Act ("TCPA"). The Trial Court
ordered "a return of all monies paid [by the Simpsons]
to [National Fitness] . . ." and awarded attorney's
fees to the Simpsons. National Fitness appealed to this
Court. We affirm the Trial Court in its determination that
the Simpsons effectively exercised their right to cancel and
that they were entitled to a refund of any monies paid.
However, we reverse the Trial Court in its determination that
National Fitness violated the TCPA. We, therefore, reverse
the award of attorney's fees. We affirm, in part, and
reverse, in part, the judgment of the Trial Court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Stanley F. Roden, Knoxville, Tennessee, for the appellants,
National Fitness Center, Inc., and National Fitness Center,
Katherine Sanford Goodner and Brady C. Cody, Knoxville,
Tennessee, for the appellees, Shay Simpson and Brian Simpson.
Michael Swiney, C.J., delivered the opinion of the court, in
which John W. McClarty and Thomas R. Frierson, II, JJ.,
MICHAEL SWINEY, CHIEF JUDGE
2015, the Simpsons filed suit against National Fitness
alleging that it made a number of misrepresentations to them
regarding the quality of services provided and that National
Fitness misrepresented the amount of time that the Simpsons
had to cancel their membership. The Simpsons' complaint
set forth causes of action arising from the Tennessee Health
Club Act at Tenn. Code Ann. § 47-18-301, et
seq., and the TCPA, at Tenn. Code Ann. § 47-18-101,
et seq. A bench trial occurred in this matter in
Simpsons signed their membership contract with National
Fitness in October 2012. The membership contract provided
for, among other things, a ten day time period following the
club's opening in which members could cancel their
membership. The club opened on January 15, 2014. The Simpsons
visited on January 25. The Simpsons quickly became
dissatisfied with the club, finding it not to their
expectations. On February 14, Ms. Simpson spoke with National
Fitness Center, Inc. President Lee Sloan ("Sloan")
about cancelling the Simpsons' membership. Although the
ten days allowed for opting to cancel had expired under the
membership agreement, Sloan proposed that the Simpsons give
the club "a couple of weeks" at which point he
would work with them on their membership contract. Ms.
Simpson agreed, and the Simpsons' membership contract was
so modified. Whether the phrase "a couple of weeks"
was meant loosely and informally or as a hard fourteen day
deadline is at the heart of this dispute. The Simpsons
meanwhile continued to visit the club. On March 10, 23 days
after her initial discussion with Sloan, Ms. Simpson
contacted Sloan again and requested that the Simpsons'
membership be canceled. Sloan said it was too late and there
was nothing he could do. On March 19, National Fitness
received a letter from the Simpsons requesting cancellation
of their contract.
Simpson testified at trial as to the sequence of events in
this case as follows:
Q. When you expressed your concerns on the 25th, what were
you told by the staff at National Fitness Center?
A. That things would get better. That, again, the
construction would be completed; that the classes would be,
you know, offered once the -- again, like the Pilates and
yoga room, that those classes would be offered. Of course,
there was -- still completing the pool area, so they promised
that, again, those things would get better.
Q. And when was the next time that you visited the facility?
A. I think the next time that we went was on February 8th, if
I'm not mistaken, of 2014. And at that time when we went,
um, we were not allowed in. We were told at that point by the
front desk that our membership was on hold status, if you
will. We asked to speak with a member of management. A girl
came out and indicated to us that our credit card on file was
expired and that we needed to contact member services to take
care of it. We asked if we could take care of it that day,
and they said no, that again you had to contact member
services. We asked if we could go ahead and workout that
morning and then come, you know, take care of the credit card
situation. But we were not even allowed into the facility.
And we were treated -- it was very matter of fact. They were
very -- not really understanding to the situation. Again,
this was a credit card that had been placed on file over two
Q. And this was, I think you said, the credit card that you
had given with the original agreement in October of 2012?
Q. Had anyone contacted you ahead of time to say that your
credit card was expiring when the facility opened?
Q. Anything of that nature?
Q. After you attempted to go with your family on February
10th, what was your next interaction with National Fitness
A. I contacted them on February 10th -- if I'm not
mistaken, that was on Monday -- to take care of the credit
card situation. I expressed my concerns at that point to
member services that we were dissatisfied, that they really
weren't living up to our expectations of what the
facility was going to be like. I think at that point was when
they gave me Lee Sloan's name and phone number and asked
me to contact him because he was the president of the
Q. Did you contact him?
A. Yes, I contacted him -- I think at that point I left him a
voicemail if he could contact me to discuss our concerns. He
did call me back. Not sure of the exact date that we talked.
But at that point in time, he was very understanding to our
concerns. He indicated again that things would get better. We
expressed our concerns about Kids in Motion and the hours and
things of that nature. And at that point, he reassured us and
told us to give it a couple more weeks, again to give time
for the facility to get up and running, and then to contact
him to let him know if we were satisfied or dissatisfied.
Q. And what was your option if you were dissatisfied?
A. He told us that he would work with our agreement. He would
work with our contract at that time.
Q. And did you have any conversations with him about the fee
that you were charged?
A. Yes. I inquired about we had been charged a $30 late fee
because the credit card had expired, and he agreed to waive
that fee of $30.
Q. And when was your next contact with National Fitness
A. I went back once on my own. My husband went back once on
his own. We went as a family. It was approximately -- it was
a little over two weeks -- I think it was 18 days or
something of that nature that I contacted Mr. Sloan and
indicated that we were still not satisfied. The facility
still was not to our expectations. And his response was he
wished I would have contacted him sooner. But again, he had
allowed us two weeks to tour the facility and continue to use
Q. Had he given you a hard deadline by which to get back to
A. No. It was take a couple of weeks.
Q. And did you ask for any specific deadline or get anything
in writing saying that you had a finite period of time to try
A. No. Unfortunately, no.
Q. Did you continue to try the facility based on your
conversation with Mr. Sloan?
A. Yes, we did. Again, we were trying to make it work. We
really wanted it to work out for our family. We had tried to
get Bree into the Kids in Motion classes. At that time they
were starting to get the classes up and running. They were
still far and few between. But at that point in time, they
were not conducive to our schedule, and so she was not able
cross-examination, Ms. Simpson testified as follows:
Q. And you unequivocally stated that Mr. Sloan told you two
weeks, correct, to check it out?
A. He told me to give it a couple of weeks.
Q. Couple of weeks. Does that mean three weeks? Does that
mean two weeks? What's your definition of a couple of
A. Two weeks is generally 14 days, but there was no set-hard
Q. When you wrote the letter, how much time had lapsed since
that two weeks or when you spoke to Mr. Sloan?
A. I spoke to Mr. Sloan in February, and I would have to look
back and see the exact date in which I wrote that.
Q. You said that you went to the club on February 8th?
A. Yes, sir.
Q. You had your problem with the card. And then you said on
February 10th that you left Lee Sloan a voicemail; is that
A. The 10th was when the customer service had -- or member
services had provided me Mr. Sloan's name and number, and
to the best of my knowledge, I contacted him on the 10th.
Q. How did you make a -- so you're saying on the 10th is
when you had your conversation with Mr. Sloan?
A. I didn't have my conversation with Mr. Sloan on the
10th. I left him a voicemail on the 10th, to the best of my
Q. Well, how can you state with certainty that it was 18 days
after you had your two-week conversation with Mr. Sloan?
A. Because at the time I had documented everything. Again, I
don't have these dates in front of me. I'm going off
of memory off of two years ago. But in the letter is when it
was so close to the time I had everything documented on my
calendar at the time, and I was able to calculate those dates
at that time. And I think it was roughly 18 days.
Q. So you had put into a letter that said it was 18 days
after you - Mr. Sloan had given you the two weeks?
A. I had indicated the time I had spoken with Mr. Sloan and
based on the time that the letter was written, yes.
Q. So this letter to him is clearly received by National
Fitness Center a month later after you had your conversation
with Lee Sloan about two weeks; is that correct?
A. Yes. The letter itself was received later. In the letter
itself, though, it does document the time in which I had
spoken with Mr. Sloan on the first occurrence, and it also
indicates the secondary call with Mr. Sloan.
Q. And your best -- and you would state that those dates that
are recited in your letter are a better and accurate