Statute of Limitations for Tennessee Consumer Protection Act Claims
The TCPA provides protection and various forms of relief for persons that have suffered “an ascertainable loss of money or property, . . . as a result of the use or employment by another person of an unfair or deceptive act or practice described in [Tenn. Code Ann.] § 47-18-104(b) . . .” Tenn. Code Ann. § 47-18-109. Thus, to recover under the TCPA a Plaintiff must establish both (1) that Defendant engaged in an unfair or deceptive act that is unlawful under the TCPA, and (2) that Defendant's unfair or deceptive act caused the ascertainable loss of money or property. Tucker v. Sierra Bldrs., 180 S.W.3d 109, 115 (Tenn. Ct. App. 2005) (citing Tenn. Code Ann. § 47-18-109(a)(1)).
1. Accrual of Action
An affirmative defense predicated on the running of the statute of limitations “triggers the consideration of three components — the length of the limitations period, the accrual of the cause of action, and the applicability of any relevant tolling doctrines.” Redwing v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436, 457 (Tenn. 2012).
The length of the limitations period for TCPA claims is one year. Tenn. Code Ann. § 47-18-110. A cause of action under the TCPA accrues when the person who has suffered the ascertainable loss as a result of an unfair or deceptive practice has notice of the TCPA violation. Eldrige v. Savage, No. M2012-00973-COA-R3-CV, 2012 WL 6757941, at *4 (Tenn. Ct. App. Dec. 28, 2012) (citing Redwing, 363 S.W.3d at 459). Thus, a party must bring a TCPA claim within one year from the date that they knew, “or in the reasonable exercise of reasonable case and diligence, [should have known] that an injury was sustained.” Fortune v. Unum Life Ins. Co. of Am., 360 S.W.3d 390, 402 (Tenn. Ct. App. 2010) (quoting Schmank v. Sonic Automotive, Inc., No. E2007-01857-COA-R3-CV, 2008 WL 2078076, *2-3 (Tenn. Ct. App. May 16, 2008)).
The Tennessee discovery rule does allow a plaintiff to delay the filing of a suit until they know the full extent of their damages. Redwing, 363 S.W.3d at 459.
2. Notice of Alleged Injury More than One Year Before Initiating Action
There are two general forms of notice sufficient to trigger the running of the statute of limitations in Tennessee, actual and constructive. Blevins v. Johnson Cnty., 746 S.W.2d 678, 682-83 (Tenn. 1998). “Constructive notice encourages diligence in protecting one’s rights and prevents fraud.” Blevins, 746 S.W.2d at 683. Constructive notice imputes notice and knowledge of an injury or a wrong on a person when there is a statute that provides a means for that person to discover the injury or wrong. Id. When there is no statute that provides a means for constructive notice, through which a person could discover the injury, the statute of limitations will begin to run only when a plaintiff has actual notice of the injury. See id.; Tucker v. Am. Aviation & Gen. Ins. Co., 278 S.W.2d 677, 680 (Tenn. 1955).
Actual notice does not necessarily mean what its name might indicate, rather actual notice is when a plaintiff knows, or, with the exercise of reasonable care and diligence should have known, that they suffered an injury. Blevins, 746 S.W.2d at 683 (“The words ‘actual notice’ do not always mean in law what in metaphysical strictness they import; they more often mean knowledge of facts and circumstances sufficiently pertinent in character to enable reasonably cautious and prudent persons to investigate and ascertain as to the ultimate facts.’”) (quoting Texas Co. v. Aycock, 277 S.W.2d 41, 46 (Tenn. 1950) (internal quotation marks omitted). In Tennessee, actual notice also includes what is known as “inquiry notice.” Blevins, 746 S.W.2d at 683 (“Some authorities classify inquiry notice as a type of constructive notice, but in Tennessee, it has come to be considered as a variant of actual notice.”).
Inquiry notice occurs and triggers the running of the statute of limitations when a person has knowledge of facts, or possesses information or facts, that would be sufficient to put a person on notice that they may have suffered an injury. Redwing, 363 S.W.3d at 459; Frinks v. Horvath, No. E2016-00944-COA-R3-CV, 2017 WL 782720, at *12 (Tenn. Ct. App. Feb. 28, 2017) (holding that inquiry notice is implicated when a person simply possesses “information or facts sufficient to cause a reasonable person to make further inquiry . . .”). Also stated, inquiry notice is when a person has facts that would or should lead them to inquire as to whether or not they have been injured. Blevins, 746 S.W.2d at 683 (citing City Fin. Co. v. Perry, 257 S.W.2d 1, 2 (Tenn. 1953)). When inquiry notice is implicated it “charges a plaintiff with knowledge of those facts that a reasonable investigation would have disclosed.” Redwing, 363 S.W.3d at 459 (quoting Sherrill v. Souder, 325 S.W.3d 584, 593 n.7 (Tenn. 2010)); Holiday Hospitality Franchising v. States Resources Inc., 232 S.W.3d 41, 49 (Tenn. Ct. App. 2006). Importantly, inquiry notice is triggered when a person is in possession of the information or facts that would be sufficient to cause a reasonable person to make inquiry.
The scope of actual notice, including inquiry notice, is consistent with the Tennessee discovery rule as well as other holdings regarding knowledge of injury, accrual of the cause of action, and the running of the statute of limitations for TCPA claims. See e.g., Fortune v. Unum Life Ins. Co. of Am., 360 S.W.3d 390, 401-03 (Tenn. Ct. App. 2010) (Noting that the Tennessee discovery rule states that causes of action accrue “and the statute of limitations begins to run when the inquiry occurs or is discovered, or when in the exercise of reasonable care and diligence it should have been discovered.”) (quoting Potts v. Celotex Corp., 796 S.W.2d 678, 680 (Tenn. 1990).