Don Daugherty v. Sony Electronics, Inc.

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

November 14, 2005 Session

DON DAUGHERTY v. SONY ELECTRONICS, INC., ET AL.

Appeal from the Circuit Court for Knox County

No. 2-202-03 Harold Wimberly, Judge

No. E2004-02627-COA-R3-CV - FILED JANUARY 26, 2006

This potential class action lawsuit was filed by Don Daugherty (“Plaintiff”) on behalf of himself and

all other Tennessee residents who purchased certain specified DVD players from Sony Electronics,

Inc. (“Sony”). Plaintiff alleged in his complaint that the DVD players were inherently defective, that

Sony was aware of these defects, and that Sony nevertheless marketed and sold the defective DVD

players. Plaintiff brought claims for breach of express warranty, breach of implied warranty, unjust

enrichment, money had and received, as well as a violation of the Tennessee Consumer Protection

Act. Sony’s motion seeking to have all of the claims dismissed was granted by the Trial Court.

Plaintiff appeals the dismissal of all five claims. We affirm the judgment of the Trial Court with

respect to the claims for breach of express warranty, breach of implied warranty, unjust enrichment,

and money had and received. We reverse the judgment of the Trial Court dismissing Plaintiff’s

Tennessee Consumer Protection Act claim.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit

Court Affirmed in Part and Reversed in Part; Case Remanded

D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J.,

joined. CHARLES D. SUSANO , JR., J., filed a separate concurring Opinion.

Gordon Ball, Knoxville, Tennessee, for the Appellant Don Daugherty.

John A. Lucas and John T. Winemiller, Knoxville, Tennessee, for the Appellee Sony Electronics,

Inc.

OPINION

Background

This putative class action1 lawsuit was filed by Plaintiff on behalf of himself and all

Tennessee residents who purchased Sony DVD players bearing certain specified model numbers.

Plaintiff sued Sony Electronics, Inc., Sony Corporation of America2, and Does 1 through 50.

According to the complaint, Sony manufactured thousands of DVD players with serious inherent

defects that have “not only resulted in extreme annoyance and inconvenience for Class members but

also in substantial outlays of money for repeated repairs.” Plaintiff further alleged that “Sony is and

has been fully aware of the defect but has thus far refused to issue a recall of the products. Even

more egregiously, Sony affirmatively and deceptively denies the existence of the problem when

Class members call to complain and seek a free repair of the product or a refund of the purchase

price.” With regard to Plaintiff’s specific cause of action, he claims that he purchased a Sony DVD

player for $249.99 in January of 2000. Plaintiff further claims that over two and one-half years later,

in October of 2002, he began experiencing problems with the DVD player of the type referenced in

the complaint. In December of 2002, Plaintiff eventually purchased a new Sony DVD player for

$189.00.

Plaintiff’s complaint referenced several Sony advertisements wherein Sony allegedly

“touts” the quality of its products in general and which contain comments to the effect that “the

company has earned a solid reputation for quality, reliability, innovation and stylish design.” With

regard to Sony’s marketing of its DVD players, Plaintiff referenced various advertisements where

Sony described itself as “setting the standard” with its DVD players which were described as

“superior.”

According to Plaintiff, the DVD players come with a standardized “Limited

Warranty” for one year on parts and ninety days for labor, although in some cases the warranty on

labor is extended to one year. Plaintiff further alleged that the DVD players all suffer from common

defects which typically manifest themselves within ten to fourteen months after purchase, or “just

after the one year warranty for parts has expired.” Plaintiff claims these DVD players were sold by

Sony with full knowledge of the defects. Plaintiff sued for: (1) breach of implied warranty; (2)

breach of express warranty; (3) unjust enrichment; (4) money had and received; and (5) a violation

of the Tennessee Consumer Protection Act, Tenn. Code Ann. § 47-18-101, et seq.

Sony filed a motion to dismiss seeking to have all five claims dismissed. Following

a hearing, the Trial Court granted the motion and dismissed the entire complaint. Plaintiff appeals

claiming the Trial Court erred when it dismissed all five of the claims alleged in the complaint.

1

Because all of Plaintiff’s claims were dismissed, the Trial Court never certified the class. None of the issues

on appeal involve whether this lawsuit was properly filed or maintainable as a class action, whether Plaintiff can properly

represent the class, etc. We express no opinion on any of these class action related issues.

2

Sony Corporation of America was voluntarily dismissed via stipulation of the parties.

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Discussion

I. Plaintiff’s Claims for Breach of Express and Implied Warranties.

While the motion to dismiss was pending, Sony filed the affidavit of Michael

DeRosa, Manager of the Sustaining Engineering-Training-Service Promotion Department at Sony

Electronics, Inc. Among other things, this affidavit set forth the particular warranty that was

provided to Plaintiff when he purchased the DVD player in January of 2000. Because this affidavit

was relied upon by the Trial Court when dismissing the breach of express and implied warranty

claims, we will review the dismissal of these claims under the standard utilized for reviewing a grant

of summary judgment.3 In Blair v. West Town Mall, 130 S.W.3d 761 (Tenn. 2004), our Supreme

Court recently reiterated this standard when it stated:

The standards governing an appellate court’s review of a

motion for summary judgment are well settled. Since our inquiry

involves purely a question of law, no presumption of correctness

attaches to the lower court’s judgment, and our task is confined to

reviewing the record to determine whether the requirements of

Tennessee Rule of Civil Procedure 56 have been met. See Staples v.

CBL & Assoc., Inc., 15 S.W.3d 83, 88 (Tenn. 2000); Hunter v.

Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997); Cowden v. Sovran

Bank/Central South, 816 S.W.2d 741, 744 (Tenn. 1991). Tennessee

Rule of Civil Procedure 56.04 provides that summary judgment is

appropriate where: 1) there is no genuine issue with regard to the

material facts relevant to the claim or defense contained in the

motion, and 2) the moving party is entitled to a judgment as a matter

of law on the undisputed facts. Staples, 15 S.W.3d at 88.

***

When the party seeking summary judgment makes a properly

supported motion, the burden shifts to the nonmoving party

to set forth specific facts establishing the existence of

disputed, material facts which must be resolved by the trier of

fact.

3

In relevant part, Tenn. R. Civ. P. 12.02 provides that “[i]f, on a motion asserting the defense numbered (6) to

dismiss for failure to state a claim upon which relief can be granted, matters outside the pleading are presented to and

not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule

56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule

56.”

-3-

To properly support its motion, the moving party must

either affirmatively negate an essential element of the

non-moving party’s claim or conclusively establish an

affirmative defense. If the moving party fails to negate a

claimed basis for the suit, the non-moving party’s burden to

produce evidence establishing the existence of a genuine issue

for trial is not triggered and the motion for summary judgment

must fail. If the moving party successfully negates a claimed

basis for the action, the non-moving party may not simply rest

upon the pleadings, but must offer proof to establish the

existence of the essential elements of the claim.

Blair, 130 S.W.3d at 763-64, 767 (quoting Staples, 15 S.W.3d at 88-89).

Since Plaintiff makes the same argument regarding whether the Trial Court erred in

dismissing the breach of express and implied warranty claims, we will discuss these claims together.

The written warranty provided to Plaintiff states, in relevant part, as follows:

LIMITED WARRANTY

Sony Electronics Inc. (“Sony”) warrants this Product (including any

accessories) against defects in material or workmanship as follows:

1. LABOR: For a period of 90 days from the date of

purchase, if this product is determined to be defective, Sony will

repair or replace the Product, at its option, at no charge, or pay the

labor charges to any Sony authorized service facility. After the

warranty period, you must pay for all labor charges.

2. PARTS: In addition, Sony will supply, at no charge,

new or rebuilt replacements in exchange for defective parts for a

period of one (1) year. After 90 days from the date of purchase, labor

for removal and installation is available from Sony authorized service

facilities or a Sony Service Center at your expense.

***

_______________________________________________________

REPAIR OR REPLACEMENT AS PROVIDED UNDER THIS

WARRANTY IS THE EXCLUSIVE REMEDY OF THE

CONSUMER. SONY SHALL NOT BE LIABLE FOR ANY

INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR BREACH

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OF ANY EXPRESS OR IMPLIED WARRANTY ON THIS

PRODUCT. EXCEPT TO THE EXTENT PROHIBITED BY

APPLICABLE LAW, ANY IMPLIED WARRANTY OF

MERCHANTABILITY OR FITNESS FOR A PARTICULAR

PURPOSE ON THIS PRODUCT IS LIMITED IN DURATION TO

THE DURATION OF THIS WARRANTY.

_______________________________________________________

Some states do not allow the exclusion or limitation of incidental or

consequential damages, or allow limitations on how long an implied

warranty lasts, so the above limitations or exclusions may not apply

to you. In addition, if you enter into a service contract with the Sony

Partnership within 90 days of the date of sale, the limitation on how

long an implied warranty lasts does not apply to you. This warranty

gives you specific legal rights, and you may have other rights which

vary from state to state.…

Plaintiff argues that Sony made two express warranties that were breached.

Specifically, Plaintiff claims Sony expressly warranted the DVD players to be “defect-free” and in

a “merchantable condition.” As to the claimed warranty that the DVD player was “defect free,”

emphasis is placed on the decision of the Connecticut Superior Court in Zeigler v. Sony Corporation

of America, 849 A.2d 19 (Conn. Super. Ct. 2004), which also involved a potential class action

lawsuit alleging Sony had marketed and sold DVD players it knew to be defective. Id. at 21. In

Zeigler, as in the present case, the plaintiff alleged in the complaint that Sony expressly warranted

the DVD players to be in a “defect-free and merchantable condition.” Id. at 23. Sony filed a motion

to strike the entire complaint which apparently is the functional equivalent of a motion to dismiss

for failure to state a claim under Tennessee law. A motion to strike a complaint under Connecticut

law “tests the legal sufficiency of the allegations of a complaint to state a claim upon which relief

can be granted.” Id. at 21, 22. This is the same standard utilized in Tennessee when considering a

Tenn. R. Civ. P. 12.02(6) motion to dismiss for failure to state a claim upon which relief can be

granted. See Stein v. Davidson Hotel Co., 945 S.W.2d 714 (Tenn. 1997), infra.

In denying the motion to strike the breach of express warranty claim, the Zeigler court

noted that a conflict within a warranty can arise when that warranty provides that the product is

defect-free and, at the same time, a repair and replace warranty also is provided. Zeigler added that

this “remedial conflict” between the two express provisions of a warranty can result in the remedial

provision of the warranty failing of its essential purpose. Id. at 23 (citing Comind, Companhia de

Seguros v. Sikorsky Aircraft, 116 F.R.D. 397, 414 (D. Conn. 1987)(“If Comind is successful in

establishing that the part was latently defective and that the defect was not reasonably discoverable

or actually discovered within the 90 day limitation period, thus leaving the buyer without a remedy

for latent defects despite the defect[-free] guarantee, then the repair or replacement limitation is

without effect.”)(emphasis added). The Zeigler Court also stated:

-5-

The second count asserts a breach of express warranty;

specifically that the defendants warranted “the Sony DVD/DVP

products were in a defect-free and merchantable condition” when sold

though, in fact, they contained defective electrical systems.

***

The plaintiff states that the defendants “expressly warranted”

the products were in a “defect-free” condition. The defendants deny

that but fail to provide the court with any documentary evidence or

other means of resolving these antagonistic assertions - i.e., an

affidavit stating no express warranty the product was defect-free was

ever provided. Again, the court, on a motion to strike, is obligated to

construe the pleading in favor of … [the pleader]. The defendants'

inability to address what is asserted in the complaint and to establish

conclusively the absence of a “remedial conflict” defeats their motion

on the second count.

Zeigler, 849 A.2d at 23-24.

There is one critical and obvious difference between Zeigler and the present case.

Specifically, in the present case there is an affidavit from Sony stating that no other warranty was

provided to Plaintiff other than what is contained in the “Limited Warranty.” Because this affidavit

was considered by the Trial Court, Sony’s motion on the warranty claims must be treated as a motion

for summary judgment, not a motion to dismiss for failure to state a claim. Accordingly, whether

the complaint technically states a claim for breach of express and implied warranties is not the issue.

Rather, the issue is whether a genuine issue of material fact exists on Plaintiff’s claims that Sony

breached express and implied warranties. In short, what was lacking in Zeigler is present here.

The DeRosa affidavit successfully negated Plaintiff’s claim that Sony expressly

warranted its DVD players to be “defect-free” as such a warranty clearly is not contained within the

Limited Warranty set forth above. A reasonable reading of the Limited Warranty actually provided

by Sony in this case is not that Sony warranted the DVD player to be “defect-free” but rather that

Sony warranted that the product would be repaired or replaced, under certain limited circumstances,

if the product had any defect in material or workmanship. Plaintiff thus was required to establish

a genuine issue of material fact on this claim, which he failed to do. Plaintiff directs this Court to

nothing that would support a claim that Sony actually warranted the DVD player to be “defect-free,”

other than bare allegations in the complaint. While such bare allegations may be sufficient to

withstand a Rule 12.02(6) motion to dismiss, they are insufficient to defeat a properly supported

motion for summary judgment. Furthermore, absent any affirmative proof that such a warranty

actually was made, there is no “remedial conflict” as was present in Zeigler and the repair and

replace warranty which was provided by Sony cannot be said to fail of its essential purpose.

-6-

As noted, Plaintiff also contends that Sony warranted the DVD players to be in a

“merchantable condition.” It is unclear whether Plaintiff is referring to an express warranty or an

implied warranty of merchantability. Either way, Plaintiff loses. The warranty quoted above states

“repair or replacement as provided under this warranty is the exclusive remedy …. Any implied

warranty of merchantability or fitness for a particular purpose on this product is limited in duration

to the duration of this warranty.” This language can be viewed in two ways. It can be read as

disclaiming any implied warranty of merchantability only to the extent that such an implied warranty

would exceed the one year duration of the express warranty. Another way to read this language is

as totally disclaiming any implied warranty of merchantability and replacing it with an express

warranty of merchantability for a one year period. Regardless of which way this language is

interpreted, Plaintiff’s complaint establishes that he had no problems whatsoever with his DVD

player until approximately two years and nine months after the date of purchase. Plaintiff, therefore,

cannot establish either a breach of a one-year express warranty of merchantability or a one-year

implied warranty of merchantability. It is worth mentioning that Plaintiff does not allege that his

DVD player failed within the one year warranty period, that it was thereafter presented for repair,

or that Sony or its representative failed to provide any contractually required repairs. We conclude

that the Trial Court correctly granted summary judgment to Sony on Plaintiff’s claim for breach of

express warranty as well as his claim for breach of implied warranty.

II. Plaintiff’s Claims for Unjust Enrichment and Money Had and Received.

No extraneous material was relied upon by the Trial Court when dismissing Plaintiff’s

remaining claims. Therefore, we will review the dismissal of these claims under a different standard.

Our standard of review as to the granting of a motion to dismiss is set out in Stein v. Davidson Hotel

Co., 945 S.W.2d 714 (Tenn. 1997). In Stein, our Supreme Court explained:

A Rule 12.02(6), Tenn. R. Civ. P., motion to dismiss for failure to

state a claim upon which relief can be granted tests only the legal

sufficiency of the complaint, not the strength of a plaintiff's proof.

Such a motion admits the truth of all relevant and material averments

contained in the complaint, but asserts that such facts do not

constitute a cause of action. In considering a motion to dismiss,

courts should construe the complaint liberally in favor of the plaintiff,

taking all allegations of fact as true, and deny the motion unless it

appears that the plaintiff can prove no set of facts in support of her

claim that would entitle her to relief. Cook v. Spinnaker's of

Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn. 1994). In considering

this appeal from the trial court's grant of the defendant's motion to

dismiss, we take all allegations of fact in the plaintiff's complaint as

true, and review the lower court's legal conclusions de novo with no

presumption of correctness. Tenn. R. App. P. 13(d); Owens v.

Truckstops of America, 915 S.W.2d 420, 424 (Tenn. 1996); Cook,

supra.

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Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997).

Very recently, our Supreme Court had occasion to discuss claims of unjust

enrichment in Freeman Indus., LLC v. Eastman Chemical Co., 172 S.W.3d 512 (Tenn. 2005). Each

of the defendants in Freeman had previously pled guilty to fixing the price of sorbates in violation

of the federal Sherman Antitrust Act, 15 U.S.C. § 1, et seq.4 Freeman, 172 S.W.3d at 516. The

plaintiff in Freeman was an end-user of food products which contained sorbates and which were

purchased at supermarkets in New York. The plaintiff sued the defendants alleging a violation of

the Tennessee Trade Practices Act, Tenn. Code Ann. § 47-25-101, et seq., and unjust enrichment.

Freeman, 172 S.W.3d at 516. With respect to the unjust enrichment claim, the Court stated:

We have previously recognized two types of implied

contracts: contracts implied in fact and contracts implied in law. See

Paschall's, Inc. v. Dozier, 219 Tenn. 45, 407 S.W.2d 150, 153-54

(1966). Contracts implied in fact arise under circumstances

establishing the parties' mutual intention to contract. Id. at 154

(citation omitted). Contracts implied in law or quasi contracts are

created by law without the parties' assent and are based upon reason

and justice. Id. (citation omitted); Angus v. City of Jackson, 968

S.W.2d 804, 808 (Tenn. Ct. App. 1997). Courts may impose a

contract implied in law where no contract exists under various quasi

contractual theories, including unjust enrichment. Whitehaven Cmty.

Baptist Church v. Holloway, 973 S.W.2d 592, 596 (Tenn. 1998).

The elements of an unjust enrichment claim are: 1) “[a]

benefit conferred upon the defendant by the plaintiff”; 2)

“appreciation by the defendant of such benefit”; and 3) “acceptance

of such benefit under such circumstances that it would be inequitable

for him to retain the benefit without payment of the value thereof.”

Paschall's, Inc., 407 S.W.2d at 155. The most significant

requirement of an unjust enrichment claim is that the benefit to the

defendant be unjust. Id.; Whitehaven Cmty. Baptist Church, 973

S.W.2d at 596. The plaintiff must further demonstrate that he or she

has exhausted all remedies against the person with whom the plaintiff

enjoyed privity of contract. Paschall's, Inc., 407 S.W.2d at 155;

Whitehaven Cmty. Baptist Church, 973 S.W.2d at 596.

Freeman, 172 S.W.3d at 524-25 (emphasis added). See also Whitehaven Cmty. Baptist Church v.

Holloway, 973 S.W.2d 592, 596 (Tenn. 1998)(“Courts will impose a contractual obligation under

an unjust enrichment theory when: (1) there is no contract between the parties or a contract has

4

Sorbates are food preservatives used to slow the growth of mold in certain foods.

-8-

become unenforceable or invalid; and (2) the defendant will be unjustly enriched absent a

quasi-contractual obligation.”) (emphasis added).

The foregoing makes clear that one of the underlying requirements for stating an

unjust enrichment claim is that there be no valid and enforceable contract between the parties. In

the present case, the Limited Warranty provided by Sony certainly constitutes a contract between

Sony and Plaintiff, and needless to say it is a contract which touches upon the very heart of

Plaintiff’s lawsuit. We decline to hold that Plaintiff stated a claim for unjust enrichment simply

because something he purchased broke after the contractual warranty period expired. Because

Plaintiff’s complaint establishes the existence of a valid and enforceable contract between Plaintiff

and Sony, Plaintiff failed to state a claim upon which relief can be granted for unjust enrichment, and

the Trial Court properly dismissed this claim.5

With regard to Plaintiff’s claim for money had and received, while this claim is

mentioned in the heading for the argument on unjust enrichment, the body of Plaintiff’s brief never

mentions this claim. Plaintiff does not set forth the requirements for stating a claim for money had

and received, how his complaint sufficiently states such a claim, or why the Trial Court erred when

it dismissed this claim. Accordingly, we assume Plaintiff has abandoned this issue. See Hawkins

v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct. App. 2001)(“In order for an issue to be considered on appeal,

a party must, in his brief, develop the theories or contain authority to support the averred position

as required by Tennessee Rules of Appellate Procedure 27(a). ‘Where a party makes no legal

argument and cites no authority in support of a position, such issue is deemed to be waived and will

not be considered on appeal.’”) (quoting Branum v. Akins, 978 S.W.2d 554, 557 n.2 (Tenn. Ct. App.

1998)). The judgment of the Trial Court dismissing Plaintiff’s claim for money had and received

is affirmed.

III. Plaintiff’s Claim Under the Tennessee Consumer Protection Act.

The gist of Plaintiff’s claim under the Tennessee Consumer Protection Act (“TCPA”)

is that Sony’s advertisements about the quality and performance of its DVD players were false and

misleading. What must be remembered is that whether Plaintiff ultimately can prove this claim is

not the issue now before us. At this motion to dismiss stage of the proceedings, we are only

reviewing the complaint to determine whether it states a cause of action for a violation of the TCPA.

In so doing, we must assume “all allegations of fact in the plaintiff's complaint as true ….” Stein v.

Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997). Plaintiff’s complaint contains the

following:

5

Due to our resolution of this issue, we pretermit Sony’s argument that Plaintiff’s unjust enrichment claim was

properly dismissed because Plaintiff failed to exhaust his potential remedies against Circuit City, the business from which

Plaintiff actually purchased the DVD player at issue. See Freeman, 172 S.W .3d at 525-26.

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30. Publicly, the company has spoken only in the most

positive terms about its products generally, and its DVD business and

DVD players specifically.

***

34. With respect to promotion of its DVD players,

specifically, Sony repeatedly described itself as “setting the standard

in the DVD-Video category,” “the market leader in the fastest-

growing A/V product category,” and as responsive to “increasing

consumer demands for high quality DVD performance.”… Moreover,

Sony has dubbed itself “the groundbreaking technology innovator and

market leader in DVD Video[”;] and, as such, claims “Sony continues

to provide superior DVD products that allow consumers to take full

advantage of their growing DVD libraries.”

***

50. Defendants’ non-disclosures and false and misleading

statements, express or implied, as to the characteristics, ingredients,

uses, quantities or benefits of Sony DVD Players were intended to

induce, and did in fact induce, Plaintiff and members of the Class to

purchase for personal use products, which they would not have

otherwise purschase[d].

51. Defendants’ non-disclosures and false and misleading

statements, express or implied, in connection with their marketing

and advertising of Sony DVD Players and those products’

characteristics, ingredients, uses[,] quantities or benefits as described

herein, are likely to mislead a reasonable consumer acting reasonably

under the circumstances to his or her detriment.

***

53. The advertising and written promotional materials and

all other written promotional efforts undertaken and disseminated by

Defendants and complained of herein also constitute unfair or

deceptive acts or practices with the capacity to deceive consumers as

to material facts within the meaning of the … [TCPA].

54. The standardized advertising, and written promotional

materials and all other written promotional efforts undertaken by

Defendants constitute public and commercial statements made in

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connection with the sale of a product, which include statements which

are untrue or misleading, and which are known by Defendants, or by

the exercise of reasonable care should have been known, to be untrue

or misleading, in violation of the … [TCPA].…

Tenn. Code Ann. § 47-18-104(a) provides that “[u]nfair or deceptive acts or practices

affecting the conduct of any trade or commerce constitute unlawful acts or practices and are Class

B misdemeanors.” The next subsection, subsection (b), lists forty acts or practices which are to be

considered unfair and deceptive under the Act. However, prior to setting forth the forty specific acts

or practices which are considered unlawful, the introduction to subsection (b) states that the

specifically listed acts are not intended to “[limit] the scope of subsection (a) ….” See Tenn. Code

Ann. § 47-18-104(b). In other words, although an extensive list of acts or practices which are

specifically deemed to be unfair or deceptive is set forth, the Act expressly states that this list is not

to be considered exclusive.

In his complaint, Plaintiff alleged that Sony’s false advertising resulted in violations

of five of the specifically listed unfair acts or practices contained in subsection (b).6 When

dismissing Plaintiff’s TCPA claims, the Trial Court ruled that Sony’s advertisements, as a matter of

law, were nothing more than puffing and were not actionable. Thus, since there was no unfair or

deceptive act, the Trial Court did not undertake to examine whether Plaintiff stated a claim for a

violation of the five specifically identified subsections.

While the number of Tennessee cases discussing the concept of “puffing” is limited,

this Court in Ladd v. Honda Motor Co., Ltd., 939 S.W.2d 83 (Tenn. Ct. App. 1996) had the

following to say on this topic:

Liability for misrepresentation under Restatement (Second) of

Torts § 402B arises only with regard to misrepresentations of material

facts concerning the character and quality of the product in question.

It does not arise from statements of opinion and, in particular, to the

“kind of loose general praise of wares sold which, on the part of the

seller, is considered to be ‘sales talk,’ and is commonly called

‘puffing.’” Restatement (Second) of Torts § 402B cmt. g.…

“Puffing” refers to loose general statements made by sellers

in commending their products. These statements embody

exaggerations, the truth or falsity of which cannot be determined

easily, that amount to no more than an expression of the seller's

opinion about the character or quality of the product. Loula v.

Snap-On Tools Corp., 175 Wis.2d 50, 498 N.W.2d 866, 868 (1993).

6

Although the TCPA has been amended several times since the complaint was filed, the five subsections alleged

to have been violated by Sony have remained essentially the same.

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Buyers have no right to rely on these statements. Thus, a seller's

characterization of an automobile as a “dandy” or a “good little car”

or the “pride of our line” or the “best in the American market” will

not give rise to liability under Section 402B. See Restatement

(Second) of Torts § 542 cmt. e (1976).

The courts have generally been cautious about a seller's claim

that its representations were mere puffing. Thus, the question of

whether a particular statement amounts to an actionable

misrepresentation will generally be left to the jury whenever the

circumstances indicate that the buyer reasonably understood that he

or she was receiving something in the way of an assurance as to

specific facts. W. Page Keeton et al., Prosser and Keeton on the Law

of Torts § 109, at 757 (5th ed. 1984). The courts are also more

inclined to send close cases to the jury when the representation at

issue relates directly to the product's safety.…

Ladd, 939 S.W.2d at 100.

We are aware that advertising a product as “superior” has been held to be puffing

under the federal Lanham Act. See, e.g., LensCrafters, Inc. v. Vision World, Inc., 931 F. Supp. 1462,

1469 (D. Minn. 1996)(“the characterization as ‘vastly’ superior is nothing more than common

marketplace sales talk or ‘puffery.’ Such exaggeration or overstatement expressed in broad, vague,

and commendatory language does not violate the Lanham Act and is understood as an expression

of the seller's opinion.”). Decisions interpreting the federal Lanham Act, of course, are not binding

on this Court when interpreting the TCPA. We are explicitly required to give a liberal construction

to the TCPA in order to promote the policies addressed by the statute. See Tenn. Code Ann. § 47-

18-102.

Plaintiff sets forth in the complaint some but not all of the advertisements and

promotional statements which he claims to have relied upon when deciding which DVD player to

purchase. The question is whether these advertisement were such that they were mere puffery and,

as a matter of law, should not have been relied upon by Plaintiff. Again, we emphasize that we are

only determining if the complaint states a claim upon which relief can be granted. Plaintiff asserts

that indeed he did rely upon the advertisements and that they were knowingly false and misleading.

In order to conclude that his reliance was unreasonable, we essentially would have to hold, as a

matter of law, that notwithstanding the amount of money that Sony spends on advertising its DVD

players, Sony never intended for Plaintiff or any consumer actually to rely on so much as even one

of these advertisements and, if there was such reliance by a consumer, it was altogether unjustified.

Being “cautious about [Sony’s] claim that its representations were mere puffing,” we are not

prepared to make such a broad holding at this motion to dismiss stage. Ladd, 939 S.W.2d at 100.

-12-

Plaintiff’s final issue is his claim that the Trial Court erred when it made various

specific factual findings because such findings were unnecessary when deciding a motion to dismiss.

Because we have not relied upon these factual findings of the Trial Court when ruling on the issues

presented in this appeal, whether or not the Trial Court should have made such findings is moot.

In summary, assuming, as we must, that all of the factual allegations contained within

the complaint are true, we conclude that Plaintiff’s complaint does state a claim upon which relief

can be granted for a violation of the TCPA. As the sole basis upon which the Trial Court dismissed

Plaintiff’s TCPA claim was its holding that Sony’s advertisements were, as a matter of law, mere

puffing, and our having held that to be error, we remand this case for further proceedings as

necessary on Plaintiff’s TCPA claim. In all other respects, the judgment of the Trial Court is

affirmed.

Conclusion

The judgment of the Trial Court is affirmed in part and reversed in part, and this cause

is remanded to the Trial Court for further proceedings as necessary and consistent with this Opinion,

and for collection of the costs below. Costs on appeal are assessed one-half against the Appellant

Don Daugherty and his surety, and one-half against the Appellee Sony Electronics, Inc.

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D. MICHAEL SWINEY, JUDGE

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