JOHN W. McCLARTY, Judge.
This appeal involves the plaintiffs' complaint for breach of common law and statutory warranties, violations of the Tennessee Consumer Protection Act, and promissory estoppel regarding the purchase of drywall that was later found defective. The plaintiffs voluntarily dismissed their claim for breach of common law and statutory warranties, while the seller sought summary judgment. Following a hearing, the trial judge recused himself before ruling on the motion for summary judgment. Thereafter, he entered an order granting partial summary judgment. The new judge then entered a final order of dismissal, confirming the grant of summary judgment and dismissing the case in its entirety. The plaintiffs appeal, claiming that remand is appropriate because not all issues were resolved by the grant of summary judgment. We agree and reverse.
Phyllis and Gary Arrington (collectively "Plaintiffs") purchased drywall from B.J. Broyles, doing business as Bargain Salvage and Ace Development, Incorporated, ("Seller") on October 11, 2007. Plaintiffs later installed the drywall at some point in 2011. Upon discovering that the drywall was a banned product from China that contained sulfur compounds, Plaintiffs spoke with Seller, who allegedly agreed to remove the defective product.
On July 7, 2012, Plaintiffs filed suit against Seller. An amended complaint was later filed with the assistance of counsel. The amended complaint included claims for breach of common law and statutory warranties, violations of the Tennessee Consumer Protection Act ("TCPA"), and promissory estoppel.
Seller responded by denying wrongdoing and filing a motion to dismiss the claim in its entirety, alleging that dismissal was appropriate pursuant to the applicable statute of limitations. Seller also claimed that dismissal was appropriate because Plaintiffs failed to join the original seller and manufacturer of the drywall as indispensable parties. An agreed order was later entered that documented the nonsuit of the breach of warranty claims without prejudice and the voluntary withdrawal of the motion to dismiss. The order did not address the TCPA or promissory estoppel claims.
On June 3, 2015, Seller filed a motion for summary judgment of the TCPA claim. Seller alleged that he had no knowledge of the defective nature of the product at the time of the sale in 2007, that his company quit selling the product once the defect was discovered, and that he advised Mrs. Arrington of the defective nature of the product prior to her installation of the product. Seller alleged that he did not engage in a deceptive practice, that Plaintiffs failed to present evidence of any damages, and that Plaintiffs failed to mitigate any alleged damages by installing the drywall with full knowledge of the potential defective nature of the product. Seller attached a statement of undisputed material facts and affidavits in support of his request for summary judgment dismissal of the TCPA claim.
Seller attested that Mrs. Arrington installed the drywall after he advised her not to install the product until he could determine whether it was defective. He later inspected the home and found that some of the drywall had been obtained from a different manufacturer whose products are sold at Lowes, Home Depot, and Drywall Wholesalers, not Bargain Salvage. He "offered to potentially help [her] remediate the home, if needed, if she would provide" the necessary contact information for the contractor who installed the drywall. He claimed that she could not provide the necessary information and further stated,
Andy Broyles confirmed Seller's account of the inspection of the residence and their lack of knowledge of the defective nature of the product at the time of the purchase.
Agreeing that the only germane issue left for the court to decide was the validity of the TCPA claim, Plaintiffs responded by asserting that the motion for summary judgment was untimely, that the affidavits were inadmissible because neither contained an averment of personal knowledge, and that genuine issues of material fact remained. Plaintiffs attached their own affidavits in support of their response, alleging, in pertinent part, that they were not advised of the defective nature of the product at the time of purchase, that Seller promised on several occasions to "make it right" or "see what he can do" about the defective product, that Seller never advised them not to install or to test the product prior to installation, and that they provided the contact information for the contractor that installed the product.
A hearing on the motion for summary judgment was held on June 11, 2015. Following the hearing, Tom Wright, Circuit Court Judge, entered an order providing, in pertinent part, as follows:
(Emphasis added.). Judge Wright further found that a potential conflict of interest may exist if the case proceeded to a trial. Accordingly, he continued as follows:
The case was then transferred to Chancellor Jenkins by entry of an interchange order on June 18, 2015.
The next day, on June 19, 2015, Plaintiffs filed a second amended complaint that recited the same allegations in the first amended complaint verbatim with the exception of the following sentence:
Seller responded by denying wrongdoing and requesting dismissal.
Despite his recusal, on July 7, 2015, Judge Wright entered an order granting summary judgment on the TCPA claim, finding as follows:
Plaintiffs moved to set aside the order, arguing that Judge Wright recused himself prior to granting partial summary judgment. Seller filed a motion to dismiss, claiming that dismissal was appropriate because all claims had been ruled upon in his favor. He noted that the second amended complaint raised claims that had either been voluntarily dismissed or rejected following the hearing on the motion for summary judgment.
The case proceeded to a hearing before Chancellor Jenkins, who entered an order of final dismissal that provided as follows:
This timely appeal followed.
We consolidate and restate the issues on appeal as follows:
III. STANDARD OF REVIEW
The grant of a motion to dismiss is subject to a de novo review with no presumption of correctness. Phillips v. Montgomery Cnty., 442 S.W.3d 233, 237 (Tenn. 2014). "In considering a motion to dismiss, courts must construe the complaint liberally, presuming all factual allegations to be true and giving the plaintiff the benefit of all reasonable inferences." Stewart v. Schofield, 368 S.W.3d 457, 462 (Tenn. 2012). "A trial court should grant a motion to dismiss only when it appears that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief." Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011) (internal quotation and citations omitted).
As a threshold issue, we must first address the question of the court's subject matter jurisdiction. See Tenn. R. App. P. 13(b) (providing this court with the authority to consider the trial court's subject matter jurisdiction whether or not the issue is raised on appeal). "The concept of subject matter jurisdiction involves a court's power to adjudicate a particular type of controversy." Dishmon v. Shelby State Cmty. Coll., 15 S.W.3d 477, 480 (Tenn. Ct. App. 1999) (citing Meighan v. U.S. Sprint Commc'ns Co., 924 S.W.2d 632, 639 (Tenn. 1996); Turpin v. Conner Bros. Excavating Co., 761 S.W.2d 296, 297 (Tenn. 1988)). "Judgments or orders entered by courts without subject matter jurisdiction are void." Id. (citations omitted). Moreover, a trial court's lack of subject matter jurisdiction requires an appellate court to vacate the judgment and dismiss the action without reaching the merits of the appeal. Id.
Here, Judge Wright granted summary judgment on the TCPA claim after he entered an order of recusal and appointed Chancellor Jenkins to hear the case in his stead. This order is void and must be vacated because Judge Wright was without jurisdiction to further adjudicate the matter following the entry of an order of recusal. However, we need not dismiss the action without considering the merits of the appeal because a subsequent order was entered by Chancellor Jenkins, who possessed subject matter jurisdiction to adjudicate the matter based upon the entry of an interchange order.
Plaintiffs do not appeal the summary judgment dismissal of their TCPA claim. Instead, they argue that the court erred in dismissing the case in its entirety without addressing the outstanding claims not disposed of by the grant of summary judgment. They explain that their second amended complaint included claims for breach of common law and statutory warranties, violations of the TCPA, promissory estoppel,
The record reflects that Plaintiffs voluntarily dismissed their breach of common law and statutory warranty claims prior to the hearing on the TCPA claim. Plaintiffs were granted leave to file a second amended complaint; however, such leave was limited to the filing of a potential claim concerning Seller's actions following the discovery of the defective nature of the product. Plaintiffs responded by re-filing the second amended complaint, with the addition of one sentence in further support of their TCPA claim. The re-filing of the same complaint was not in keeping with the court's grant of leave to amend; however, neither Judge Wright nor Chancellor Jenkins ruled upon the claim for promissory estoppel that was included in the first and second amended complaints.
While titled as a claim for "breach of contract by estoppel inducement by defendant" and inartfully drafted, the outstanding claim concerned Seller's actions following the discovery of the defective nature of the product. Indeed, Plaintiffs alleged in both the first and second amended complaint as follows:
In Tennessee, "[p]romissory estoppel is explained as: `A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.'" Calabro v. Calabro, 15 S.W.3d 873, 878 (Tenn. Ct. App. 1999) (quoting Amacher v. Brown-Forman Corp., 826 S.W.2d 480, 482 (Tenn. Ct. App. 1992) (quoting Restatement (Second) of Contracts § 90)); see also Barnes & Robinson Co. v. OneSource Facility Servs., Inc., 195 S.W.3d 637, 645 (Tenn. Ct. App. 2006) (upholding denial of promissory estoppel claim because the reliance was unreasonable in light of the circumstances of the case). A plaintiff may not recover pursuant to a theory of promissory estoppel unless
Calabro, 15 S.W.3d at 879. The doctrine of promissory estoppel is also referred to as "detrimental reliance" because the plaintiff must show not only that a promise was made, but also that the plaintiff reasonably relied on the promise to his detriment. Id. (quoting Engenius Entm't, Inc. v. Herenton, 971 S.W.2d 12, 19-20 (Tenn. Ct. App. 1997)).
With these considerations in mind, we conclude that dismissal was prematurely granted when the trial court failed to address the outstanding claim of promissory estoppel. Upon remand, the trial court should also consider whether Seller may be held individually liable for his actions as pled by Plaintiffs.
The decision of the trial court is reversed. The case is remanded for further proceedings. Costs of the appeal are taxed to the appellee, B.J. Broyles, doing business as Bargain Salvage and Ace Development, Incorporated.