J. DANIEL BREEN, District Judge.
Plaintiffs, Cynthia and Timothy Holt, filed suit against Defendants, Macy's Retail Holdings ("Macy's") and Department Stores National Bank ("DSNB"), in the
Cynthia Holt ("Cynthia") purchased several pieces of expensive jewelry from Macy's in Jackson, Tennessee on October 12, 2007, and again on November 4, 2007. (D.E. No. 71, Second Amended Complaint, ¶¶ 9, 17-18.) The exact net amount that she spent on the items is not clear because the Complaint contains allegations that make it appear as though Cynthia was able to exchange some of the October 12 merchandise for part of the November 4 jewelry purchases, and that she received and perhaps used Macy's gift cards to defray some of the purchase costs. (Id. at ¶¶ 16-19, 24-26, 32.) However, the combined gross amount that Cynthia spent on jewelry on these two occasions was $112,006.06. (Id. at ¶¶ 9, 18.) Cynthia encountered problems with two of the pieces of jewelry she purchased on October 12. Specifically, she maintains that a silver necklace was irreparably tarnished and a sapphire ring was unable to be sized so that it would fit her finger. (Id. ¶¶ 14-15.) It is undisputed, however, that Cynthia successfully returned both of these items on November 4, 2007. (D.E. No. 69-2, Defendants' Statement of Undisputed Facts, ¶ 20.)
The Plaintiffs made most of these purchases using a Macy's credit card ("the Card")—issued by DSNB—that Plaintiffs claim originally was issued to Cynthia individually, but subsequently was converted into a joint account held by both Cynthia and her husband, Timothy Holt ("Timothy"), without their knowledge. (D.E. No. 71, Second Amended Complaint, at ¶¶ 10-11.) Plaintiffs contend that Cynthia never was required to furnish her signature when she made the aforementioned purchases, but that her "name was signed and/or initialed by another and/or others besides Cynthia herself." (Id. at ¶¶ 18, 20.) Nevertheless, Plaintiffs do not deny that she made the purchases for which her signature allegedly was "forged." Instead, they claim that Cynthia suffers dissociative episodes brought about by post-traumatic stress disorder ("PTSD"), and that her behavior in making these purchases comports with the type of conduct associated with PTSD. (Id. at ¶¶ 6-8.)
Macy's also held a promotion during the November 4, 2007 LeVian Trunk Show
The gravamen of the primary dispute between the parties is Defendants' refusal to allow Cynthia to return some of the jewelry she purchased on November 4, 2007, which Plaintiffs assert violated the terms under which the Card was issued. In particular, they maintain that Macy's ignored its previously advertised return policy of 180 days for purchases of more than fifty dollars ($50) made within 100 miles of the cardholder's mailing address. (D.E. No. 71, Second Amended Complaint, at ¶ 13.) However, Defendants claim that there were numerous notifications posted throughout the store and printed on receipts advising customers that jewelry purchases were subject to a special exception to the usual return policy and were returnable only within thirty (30) days of purchase. (D.E. No. 69-1, Motion for SJ, p. 6.) Plaintiffs aver that Cynthia was never so notified. (D.E. No. 71, Second Amended Complaint, ¶ 30.) Because the Holts have been unable to return some of the merchandise and have stopped making payments to Defendants on the debt,
As a result of the above actions, Plaintiffs are seeking damages against Defendants for: breach of contrary and/or warranty; fraud and/or misrepresentation; violations of the Tennessee Consumer Protection Act ("TCPA"); detrimental reliance (also known as "promissory estoppel"); money had and received; trespass to chattels, forgery and/or theft of property; unjust enrichment; outrageous conduct and/or intentional infliction of emotional distress; other intentional, reckless, and/or negligent actions or omissions; and negligent hiring.
Fed.R.Civ.P. 56(c) provides that
Fed.R.Civ.P. 56(c)(2); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Canderm Pharmacal, Ltd. v. Elder Pharms., Inc., 862 F.2d 597, 601 (6th Cir.1988). In reviewing a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
"To maintain an action for breach of contract, a plaintiff must establish (1) the existence of an enforceable contract, (2) non-performance of the contract amounting to a breach of that contract, and (3) damages flowing from the defendant's nonperformance." Byrd & Associates, PLC v. Siliski, 2007 WL 3132929, at *6 (Tenn.Ct.App.2007) (citing Ingram v. Cendant Mobility Fin. Corp., 215 S.W.3d 367, 374 (Tenn.Ct.App.2006)). Plaintiffs aver that Defendants committed a breach of contract because of the following acts and omissions: (1) selling two pieces of jewelry to Plaintiffs that could not be properly cleaned or sized to fit on Cynthia's finger;
It is undisputed that Cynthia received a full refund from Macy's for the price of the
Furthermore, the Court finds unavailing Plaintiffs' argument that Defendants committed a breach of contract by unilaterally increasing the credit limit on the Macy's card. First, other than conclusory assertions, Plaintiffs have offered no proof whatsoever
Accordingly, the only contention that potentially could form the basis of a contract claim is that Defendants' failure to accept returns of several pieces of jewelry was a violation of the cardholder agreement. Assuming that the credit card agreement created a valid contract between the parties,
(D.E. No. 70-2, Credit Card Documents, p. 13.) None of the documents mentioned in that paragraph contain any reference to the store's return policy.
Even if the return policy itself created a discrete contractual obligation for the Defendants, they have asserted that they also placed several notices in various locations that read:
(D.E. No. 69-1, Motion for SJ, p. 6) (emphasis added). Defendants argue that this language was printed on the back of all register receipts, was posted on signs next to all cash registers and on the sales counter, and was placed on the terminal where customers signed for their purchases. (Id. at pp. 5-6.) Plaintiffs dispute all of these contentions,
To establish a claim for fraud, a plaintiff must establish "(1) an intentional misrepresentation of a material fact, (2) knowledge of the representation's falsity, (3) an injury caused by reasonable reliance on the representation, and (4) [that the misrepresentation] involve[d] a past or existing fact." Kincaid v. SouthTrust Bank, 221 S.W.3d 32, 40 (Tenn.Ct.App.2006) (citing Dobbs v. Guenther, 846 S.W.2d 270, 274 (Tenn.Ct.App.1992)). Plaintiffs' claim for fraud is based upon essentially the same allegations as their claim for breach of contract—namely, that two jewelry pieces were defective; Cynthia was unable to use the Macy's money gift certificates; the Defendants unilaterally increased the credit limit on the card; and Defendants did not allow Plaintiffs to return some of the jewelry.
Plaintiffs' claims with respect to the defective jewelry, the Macy's money gift certificates, and the alleged increase in the credit limit are without merit for the reasons articulated supra in Section A: Plaintiffs returned the defective jewelry; they were able to use the Macy's money; and even if the Holts could establish that the
Likewise, the Holts' contention that Defendants committed fraud by failing to allow Plaintiffs to return some of the jewelry fails as well. Plaintiffs aver that because Macy's advertised easy returns on purchases over $50, they committed an intentional misrepresentation that they knew was false when they refused to allow Plaintiffs return the items. (D.E. No. 80-2, Response to Motion for SJ, p. 4.) Defendants counter that the jewelry at issue was not subject to the regular return policy, citing the numerous notices that a more restrictive return policy was in effect. (D.E. No. 69-1, Motion for SJ, p. 12); see supra Section A. However, even assuming that the 180-day allowance applied to these jewelry items, Defendants nevertheless contend that the "misrepresentation" at issue—that the items could be returned any time within 180 days of purchase—was a promise of future action and not a representation involving a past or existing fact. (D.E. No. 69-1, Motion for SJ, p. 12); Kincaid, 221 S.W.3d at 40 (internal citation omitted). Finally, Defendants maintain that any misrepresentation on their part cannot have been intentional, given the fact that Defendants at least attempted to notify customers that the return policy differed with respect to fine jewelry purchases—even if Cynthia contends those efforts were unsuccessful. (D.E. No. 69-1, Motion for SJ, p. 12.)
The Court finds Defendants' arguments to be persuasive. Even accepting as true the Holts' assertion that Cynthia never saw the signs containing an exception to the standard return policy, they have presented no proof that Defendants did not at least attempt to notify customers of the exception. For that matter, there is nothing in the record to suggest that Defendants made any representations to the Holts with an intent to deceive them. Plaintiffs have not attempted to rebut these arguments, instead persisting in their claim that the Defendants misrepresented material facts. Once again, this is nothing more than a conclusory allegation, which cannot defeat a motion for summary judgment. Arendale, 519 F.3d at 605. Accordingly, Defendants are entitled to summary judgment on Plaintiffs' claims for fraud.
The TCPA prohibits "[u]nfair or deceptive acts or practices," and provides a private right of action to recover actual damages to "[a]ny person who suffers an ascertainable loss of money or property, real, personal, or mixed, or any other article, commodity, or thing of value wherever situated, as a result of the use or employment by another person of an unfair or deceptive act or practice declared to be unlawful by this part...." Tenn.Code Ann. §§ 47-18-104(a), -109(a)(1). Tennessee courts have interpreted the TCPA as imposing two distinct proof obligations on a plaintiff seeking to establish a cause of action: "(1) that the defendant engaged in an unfair or deceptive act or practice declared unlawful by the TCPA and (2) that the defendant's conduct caused an `ascertainable loss of money or property, real, personal, or mixed, or any other article, commodity, or thing of value wherever situated....'" Tucker v. Sierra Builders, 180 S.W.3d 109, 115 (Tenn.Ct.App.2005) (quoting Tenn.Code Ann. § 47-18-109(a)(1)) (emphasis added). A plaintiff need not prove that the defendant's conduct was willful, but if it was, the TCPA allows the trial judge to award treble damages. Tucker, 180 S.W.3d at 115-16 (internal citations omitted). The TCPA is much broader in scope than common-law fraud because it "applies to any act or
Plaintiffs list no fewer than eighteen (18) ways in which they believe Defendants have violated the TCPA.
Promissory estoppel is based upon "[a] promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance...." Chavez v. Broadway Elec. Service Corp., 245 S.W.3d 398, 404 (Tenn.Ct. App.2007) (citations omitted). To succeed under a promissory estoppel theory, a plaintiff must show "(1) that a promise was made; (2) that the promise was unambiguous and not unenforceably vague; and (3) that [she] reasonably relied on the promise to [her] detriment." Id. at 404 (citations omitted).
Tennessee courts generally disfavor claims based upon promissory estoppel: "Tennessee does not liberally apply the doctrine of promissory estoppel. To the contrary, it limits application of the doctrine to exceptional cases." Id. at 406 (quoting Barnes & Robinson Co. v. One-Source Facility Services, Inc., 195 S.W.3d 637, 645 (Tenn.Ct.App.2006); see also Johnson v. Allison, 2004 WL 2266796, at *8 (Tenn.Ct.App.2004)) (holding that because promissory estoppel operates as "an exception to the Statute of Frauds, it should not be applied too liberally lest the exception swallow the rule"); and Shedd v. Gaylord Entertainment Co., 118 S.W.3d 695,
Although such information is nowhere to be found in any of the Holts' pleadings, the Court assumes they intend to assert quasi-contractual remedies as an alternative to their claim for breach of contract; otherwise, having insisted quite exhaustively that Defendants are guilty of breaching a valid contract, the Plaintiffs would be unable to invoke promissory estoppel. However, even if Plaintiffs were able to argue successfully that the credit card agreement was somehow invalid, their promissory estoppel claim nevertheless fails. First, Plaintiffs have made no showing that theirs is the sort of "exceptional" situation that Tennessee courts require in order to grant relief on this theory. Chavez, 245 S.W.3d at 406. Moreover, even if the Holts could establish that they relied upon an unambiguous promise the Defendants made to them, they have not proffered any evidence of damage. As noted infra Section E, the Plaintiffs still retain possession of both the jewelry they purchased and the funds owing to Macy's as a result of those purchases. Thus, because they cannot demonstrate how they have been damaged by relying on the Defendants' alleged promises, the Holts cannot establish an element of their claim for promissory estoppel, which therefore must fail.
Tennessee case law on the tort of trespass to chattels is virtually nonexistent. However, Section 217 of the Restatement 2nd of Torts says that a trespass to chattel "may be committed by intentionally dispossessing another of the chattel, or using or intermeddling with a chattel in the possession of another." A person who commits a trespass to chattel may be liable to the possessor of (or to someone who may become entitled to possess) the chattel if: (a) the chattel is impaired as to its condition, quality, or value, or (b) the possessor is deprived of the use of the chattel for a substantial time, or (c) the trespass causes bodily harm to the possessor or to some person or thing in which he has a legally protected interest. Restatement (Second) of Torts, §§ 218-220 (1965). "Though not amounting to conversion, the defendant's interference must, to be actionable, have caused some injury to the chattel or to the plaintiff's rights in it." Jamgotchian v. Slender, 170 Cal.App.4th 1384, 89 Cal.Rptr.3d 122, 134 (2009). Said differently, "one who intentionally interferes with another's chattel is liable only if there [sic] results in harm to `the [owner's] materially valuable interest in the physical condition, quality, or value of the chattel, or if the [owner] is deprived of the use of the chattel for a substantial time.'" School of Visual Arts v. Kuprewicz, 3 Misc.3d 278, 771 N.Y.S.2d 804, 807-08 (N.Y.Sup.Ct.2003) (quoting Restatement (Second) of Torts, § 218 cmt. e (1965)).
The basis of this claim is that Defendants have failed to allow Plaintiffs to return certain of their jewelry purchases. Because they are retaining funds to which the Holts have a "right of possession,"
(D.E. No. 69-1, Motion for SJ, p. 16.) Plaintiffs' only response to these arguments is reiterating their claims from the complaint—they do not cite any supporting law, nor do they refer to any part of the factual record of this case.
Plaintiffs aver, citing Sections 39-14-114 and 39-14-103 of the Tennessee Code, that Defendants have committed forgery and theft. (D.E. No. 71, Second Amended Complaint, ¶¶ 85-88.) Both of these statutes involve offenses under Tennessee criminal law, and Plaintiffs have not attempted to argue that there is any private right of action for Defendants' alleged violation.
"[U]njust enrichment and money had and received are essentially the same cause of action, [both being] quasi-contractual actions." Bennett v. Visa U.S.A., Inc., 198 S.W.3d 747, 755 (Tenn.Ct.App.2006). The Tennessee Supreme Court has explained unjust enrichment as follows:
Whitehaven Comm'y Baptist Church v. Holloway, 973 S.W.2d 592, 596 (Tenn.1998) (emphasis added).
As discussed supra Section D, because a quasi-contractual remedy such as unjust enrichment requires the absence of a valid contract, the Court will assume that Plaintiffs intended to plead this cause of action as an alternative to their claim for breach of contract. However, even if the Holts were able to establish that the credit card agreement was invalid, they cannot make out a claim for unjust enrichment. As the Court has pointed out supra in Sections D and E, it strains credulity to believe that the Defendants have been unjustly enriched, given that the Plaintiffs retain possession of both the jewelry that is the subject of this lawsuit and the funds to pay for their purchases. It is actually the Defendants who have been deprived of money and/or property. Thus, because Defendants have not been "enriched" at all by these transactions, the Holts cannot make out a colorable claim for unjust enrichment. The Defendants are entitled to summary judgment on this cause of action.
"[O]utrageous conduct ... is the equivalent to a claim for intentional infliction of emotional distress." Crowe v. Bradley Equip. Rentals & Sales, Inc., 2010 WL 1241550, at *4 (Tenn.Ct.App. 2010) (citing Bain v. Wells, 936 S.W.2d 618, 622 n. 3 (Tenn.1997)). To establish a claim for intentional infliction of emotional distress ("IIED"), a plaintiff must prove the following: "(1) the conduct complained of must be intentional or reckless; (2) the conduct must be so outrageous that it is not tolerated by civilized society; and (3) the conduct complained of must result in serious mental injury." Bain, 936 S.W.2d at 622 (citations omitted). Tennessee courts have held that a plaintiff's burden in establishing these elements is difficult: "Outrageous conduct does not include `mere insults, indignities, threats, annoyances, petty oppression or other trivialities.'" Lane v. Becker, 2010 WL 669243, at *5 (Tenn.Ct.App.2010) (quoting Levy v. Franks, 159 S.W.3d 66, 83 (Tenn.Ct.App. 2004); Arnett v. Domino's Pizza I, LLC, 124 S.W.3d 529, 539 (Tenn.Ct.App.2003) (quoting Bain, 936 S.W.2d at 622)). "A plaintiff seeking damages for intentional infliction of emotional distress must meet an `exacting standard.'" Lane, 2010 WL 669243, at *5 (quoting Miller v. Willbanks, 8 S.W.3d 607, 614 (Tenn.1999)). "`Recovery for intentional infliction of emotional distress is limited to mental injury which is so severe that no reasonable person would be expected to endure it.'" Lane, 2010 WL 669243, at *5 (quoting Arnett, 124 S.W.3d at 540). Because it is the trial court's province to determine whether a defendant's conduct is outrageous, it may dismiss this legal theory as a matter of law. Lane, 2010 WL 669243, at *6 (citing Restatement (Second) of Torts, § 46 cmt. h (1965)).
The foundation of Plaintiffs' claim for IIED is the alleged altercation that occurred when Cynthia attempted to redeem her Macy's money gift certificates at the Defendant's store in the Wolfchase Mall. (D.E. No. 71, Second Amended Complaint, ¶ 93.) Also, Plaintiffs aver that Defendants caused IIED by refusing to accept their attempted returns, wrongfully increasing their credit limit, and reporting their debt to credit agencies. (Id.) This
Plaintiffs also assert that Macy's has committed the tort of negligent hiring of Renee Bolden, the assistant store manager at the Macy's store in Memphis. (D.E. No. 71, Second Amended Complaint, ¶¶ 98-100.) "Tennessee courts recognize the negligence of an employer in the selection and retention of employees and independent contractors." Doe v. Catholic Bishop for Diocese of Memphis, 306 S.W.3d 712, 717 (Tenn.Ct.App.2008) (citations omitted). "A plaintiff in Tennessee may recover for negligent hiring ... of an employee if he establishes, in addition to the elements of a negligence claim, that the employer had knowledge of the employee's unfitness for the job." Id. at 717 (citation omitted). "A negligence cause of action has five essential elements: (1) a legally recognized duty owed by the defendant to the plaintiff, (2) the defendant's breach of that duty, (3) an injury or loss, (4) causation in fact, and (5) legal cause." Timmons v. Metro. Gov't of Nashville and Davidson County, 307 S.W.3d 735, 741 (Tenn.Ct.App.2009) (citations omitted).
In this case, Plaintiffs have made no effort whatsoever to establish that Macy's was negligent, let alone that it was negligent in hiring Bolden. The extent of Plaintiffs' argument is that Macy's knew or should have known that Bolden would "pose an unreasonable risk to clientele, like Cynthia" based on her "repetitive unprofessional outbursts." (D.E. No. 71, Second Amended Complaint, ¶ 99.) However, they do not present any proof that Macy's knew or should have known about Bolden's alleged unprofessionalism.
For the reasons articulated herein, the Court
