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McLean v. Bourget's Bike Works10/7/2005
that Bourget's committed an unfair or deceptive act or practice by calling its 1997 Python T6 a motorcycle because it was "not worthy of being called a motorcycle." Despite its rhetorical intensity, we find little merit in this claim.
The Tennessee Consumer Protection Act was enacted to "protect consumers and legitimate enterprises from those who engage in unfair or deceptive acts or practices in the conduct of any trade or commerce in part or wholly within this state . . . ." Tenn. Code Ann. ยง 47-18- 102(2) (2001). Liability under the Act is premised on the commission of an unfair or deceptive act. McDonald's Corp. v. Shop at Home, Inc., 82 F. Supp. 2d 801, 817 (M.D. Tenn. 2000). Thus, a plaintiff will not succeed with a claim under the Act without an allegation and proof that the defendant committed an unfair or deceptive act. Hamer v. Harris, No. M2002-00220-COA-R3-CV, 2002 WL 31469213, at *1-2 (Tenn. Ct. App. Nov. 6, 2002) perm. app denied (Tenn. Feb. 18, 2003).
Claims under the Tennessee Consumer Protection Act must be pleaded with the same particularity that Tenn. R. Civ. P. 9.02 requires of common-law fraud claims. Harvey v. Ford Motor Credit Co., 8 S.W.3d 273, 275 (Tenn. Ct. App. 1999); Humphries v. West End Terrace, Inc., 795 S.W.2d 128, 131-32 (Tenn. Ct. App. 1990). Mr. McLean's complaint falls far short of this standard. Neither his complaint nor his response to Bourget's summary judgment motion contain any specific factual allegation or assertion that Bourget's made any representations to him, either directly or through advertising, regarding the Python T6. All the representations regarding the motorcycle were made by Mr. Appleton who, though an agent of Custom Cycle, was not an agent of Bourget's. In the absence of specific allegations that Bourget's had committed an unfair or deceptive practice, Bourget's was entitled to a dismissal of Mr. McLean's Tennessee Consumer Protection Act claim as a matter of law.
VII.
We affirm the summary judgment dismissing Mr. McLean's complaint against Bourget's and remand the case to the trial court for any further proceedings consistent with this opinion that may be required. We tax the costs of this appeal to Mark Jay Scott McLean and his surety for which execution, if necessary, may issue.
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