NATHAN DICKEY v. POSEY STORAGE SOLUTIONS

11/06/2026 IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE May 12, 2026 Session NATHAN DICKEY, ET AL. v. POSEY STORAGE SOLUTIONS, ET AL. Appeal from the Circuit Court for Bradley County No. V-21-411 Jerri Bryant, Chancellor1 ___________________________________ No. E2025-01465-COA-R3-CV ___________________________________ This case arises out of the theft of personal property from two storage units at a facility owned and operated by the appellants. Following a bench trial, the trial court entered judgment against the appellants for, inter alia, fraudulent misrepresentation, gross negligence, and violation of the Tennessee Consumer Protection Act. We affirm, in toto, the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded JOHN W. MCCLARTY, P.J., E.S., delivered the opinion of the court, in which W. NEAL MCBRAYER and KRISTI M. DAVIS, JJ., joined. Joshua H. Jenne, Cleveland, Tennessee, for the appellants, Posey Storage Solutions and Tim Posey. Kelsey E. Keef, Chattanooga, Tennessee, for the appellees, Devan Dickey and Nathan Dickey. OPINION I. BACKGROUND The defendant, Tim Posey (“Owner”), began acquiring storage facilities in the Cleveland, Tennessee area, in the early 2000s. As of 2024, Owner owned five storage facilities including the facility at issue, Posey Storage Solutions (“Storage Solutions”). Owner claims that he operates Storage Solutions as a sole proprietorship; the record, 1 Sitting via interchange. however, appears to reflect one employee named Tim who at times took items that appeared to have been discarded or abandoned from the premises. On December 20, 2019, appellee, Devan Dickey (“Wife”), had a conversation with Owner concerning her storage needs at the Storage Solutions’ office, which was supplied with electricity. Nathan Dickey (“Husband”) did not accompany Wife to this meeting. Owner was informed that because the couple were selling their home and moving from the area, two storage units were needed. When negotiating the rental contract (“Agreement”) Owner described his security measures. According to Wife, Owner told her about security cameras on the premises, and she observed cameras on the corners of the storage units. Owner informed Wife that he patrolled the facility in his vehicle three to four times per day. Owner further suggested to Wife that she purchase locks he sold because they were stronger than others commercially available and could not be easily cut with bolt cutters. Wife purchased two locks from Owner for ten dollars each. Each lock came with two keys. Owner did not advise Wife that he retained a master key to the locks. Without visiting the storage units because of the rainy weather, Wife rented two non-climate controlled units. She established monthly automatic rent payments. According to Wife, Owner did not explain anything about the doors on the units. The Agreement provided as follows: OCCUPANT shall at his/her its own expense obtain his/her its own insurance, if any, on the property stored on said premises, and OWNER shall not be responsible for loss or damage to said property caused by fire, theft, water, rain, storms, tornado, explosion, riot, rodents, civil disturbance, insects, sonic boom, land vehicles or any other cause whatsoever; nor shall OWNER be liable for loss or damage resulting from failure, interruptions, or malfunction of utilities provided to OCCUPANT under this agreement [nor] shall OWNER be liable for any personal injuries on the premises. (initial item _______). The Dickeys acknowledge the complete absence within the Agreement of any language or reference to security cameras, surveillance systems, or oversight. Wife and her father subsequently loaded items into unit 517 over the course of several days. The unit included the Dickeys’ heavy furniture, including a mattress, as well as some irreplaceable items passed down to Wife by her grandmother. An itemized list of the contents in the storage unit was approximately valued at $5,500. Wife retained one of her two keys; she left the other key with her father. Husband packed the second storage unit, 543, alone, aside from a heavy tool box that required the help of another man. Husband’s unit contained a variety of expensive, work related items, the value of which totaled approximately $28,350. Husband kept both keys to his storage unit. -2-  In the summer of 2020, Husband returned to his storage unit to retrieve a weed eater. He found his unit in good order at that time. He picked out the tool and locked his unit before leaving. In regard to the door and the lock, Husband testified, “I slid it over. I checked it, jiggled it. I mean, I made sure because everything I had [was] in there. . . .” On November 11, 2020, Husband returned to Tennessee to obtain welding recertifications for work purposes. Upon traveling to his storage unit to retrieve a welding hood, he unlocked it and discovered that all of his items, other than a table and crockpot, were gone. Husband contacted law enforcement to report the burglary. He had Wife’s key with him in case she wanted him to retrieve any items from the other unit to bring to Nevada. In the presence of local law enforcement, Husband checked the other unit and confirmed that all of its contents were still present. With law enforcement observing, Husband relocked Wife’s unit. Subsequently, Wife called Owner, who advised that he would review his surveillance footage. Owner stated that the review “would be a lengthy process and he would get back to me.” Husband testified that he “saw the cameras. I took it as that and he said he would review footage.” Owner informed Wife “that he had suspicions of one of his guys.” According to Wife: “That was a quote exactly what he said.” Husband heard Owner tell a police officer, over the phone, that he suspected this man to be responsible. Owner acknowledged to Wife that he had a master key. Several weeks later Husband and Wife returned to Storage Solutions to retrieve the remaining items from the burglarized unit, only to discover that the other unit had also been burglarized as well and was almost completely empty. Upon unlocking the unit, Wife realized that the door opened too easily; a mattress had previously rested against it, making it harder to open. She observed that the lock on her unit was intact and did not look like any one had forced it open or tampered with it. Inside her unit, only destroyed Christmas ornaments and a broken blanket ladder remained. The Dickeys contacted the police and another investigation ensued. Owner expressed shock that this happened a second time. He stated that he would review the security footage and scheduled a meeting at the facility the following day so they could look at the images together. The next day, however, Owner never showed up and ignored Husband’s phone calls. No security footage was ever provided. Following these incidents Owner confirmed that he had his master keys and no keys were missing. Although the Dickeys had not been immediately suspicious of Owner, once they learned that he had retained an undisclosed master key, misrepresented that his cameras were real, and subsequently refused to return their calls or assist in the investigation, they concluded that Owner was involved in the burglaries in some capacity and filed a lawsuit. They advanced theories of recovery based upon (1) Fraudulent Misrepresentation, (2) Negligence/Recklessness, (3) Negligent Supervision, (4) Negligent Retention, (5) Theft, (6) Breach of Contract, (7) Violation of the Tennessee Consumer Protection Act (“TCPA”), and (8) Conversion. -3-  At trial, Ann Harrod testified that in 2017, she also had rented a unit from Owner and later discovered several items were missing. She had purchased her lock from Owner and found, after the theft, that it displayed no tampering. When she called Owner to report the theft, he informed her that he would check his security cameras but never returned her call. The police report made by Ms. Harrod after the incident states Owner “advised he looked on the camera and hasn’t found anything yet.” Some of her items were later discovered at a local flea market. In 2018, Cynthia Sarapata stored household items in a unit at the facility during repairs to her home. She later realized that a reverse painted glass globe for a lamp worth approximately $4,000 was missing. She called Owner and described the missing globe. According to Ms. Sarapata, Owner responded that he knew exactly where her globe was and that he would bring it to her. However, he never returned the item. When she contacted Owner again to further discuss the situation, he denied having previously spoken to her about the matter. Ms. Sarapata then showed up to Owner’s office, at which time he stated he would ask his wife to contact her to provide his insurance information so she could file a claim. But Ms. Sarapata never heard from Owner or his wife. She subsequently filed a police report. Upon contacting the Better Business Bureau, she testified she was notified that Owner “had so many other cases against him and he never responded to any of them.” Prior to December 2019, there had been five reported incidents of theft or burglary at Storage Solutions. Owner himself reported two separate burglaries at the facility, including claims that checks had been taken from his office drop box and that his Toyota Tacoma had been stolen. Abby Bianucci, the senior records clerk at the Cleveland Police Department, tendered nine police reports into evidence at trial; each report was made following a theft/burglary between 2015 and 2021. Of particular note is a 2021 report asserting that one of Owner’s employees stole the complainant’s checkbook from his storage unit and forged a check. The trial began on November 20, 2024. The bench trial was conducted over multiple days and concluded on January 16, 2025. Owner testified that he is completely unaware of the date, time, or method by which the property at issue was taken or stolen. He claimed that he is unaware of who might be responsible. He opined that the Dickeys did not properly lock their storage units and some unknown individual is responsible for the theft. Owner related that several “dummy” or “decoy” cameras were affixed to the corners of the roofs of the storage buildings during the 2008 construction, but the cameras were never connected to an electrical source and could not be activated. Owner denied having “ever represented” that he implemented security cameras at Storage Solutions and did not recall ever advertising working cameras despite the fact that, at the time of trial, his website actively advertised “state of the art security” including “high definition surveillance -4- cameras” and 24/7 security cameras. He claimed that he would not have told anyone that he would “check footage” because there was no footage to review. Owner admitted, in his answer to the complaint, that he told the Dickeys he would check to see if “the person referenced” in the complaint had a master key. The “person referenced” in the complaint was the person that Owner told the Dickeys he had hired to clean out storage units. The trial court heard Owner’s deposition testimony wherein he stated that he “met a gentleman on a moving job that was working with . . . an electrician or a handy man and he had mentioned if we ever have anything extra . . . .” He recalled that his name was Tim, and this individual apparently came to clean out storage units and to clear away items that were left behind. When asked about what he hired Tim to do, Owner related: Q: Were there any kind of rules or regulations you put in place for Tim to know what he could and couldn’t do while he was there? A: Not that I remember. Tim apparently would just come to the property “randomly” and did not need to let Owner know whether he found items to be removed. At trial, however, Owner claimed that he had absolutely no recollection of Tim and that he did not know a Tim. Upon being asked whether he knew if Tim even exists, Owner testified, “[t]oday I don’t – I don’t know. I don’t know. I don’t know. I don’t know.” The court, in its final order and judgment, found that Owner was not liable for breach of contract and that the language of the Agreement released Owner for responsibility for theft by others. The court concluded that the Agreement’s language “any other cause whatsoever” is overly broad and does not waive intentional acts, reckless conduct or gross negligence. The court found that the exculpatory provision in the Agreement would not apply to “acts of theft of Mr. Posey or theft committed with his consent or due to his gross negligent or reckless conduct” because “[a] party may not, for public policy reasons, exempt itself from liability for gross negligence, reckless conduct, or intentional wrongdoing.” The court further found that Owner had waived any applicable defenses under the exculpatory clause because the defense was not plead in Owner’s answer pursuant to Rule 8.03 of the Tennessee Rules of Civil Procedure. The trial court concluded that the exculpatory clause did not apply to the claims predicated upon intentional torts, fraud, gross negligence, recklessness, and the TCPA. The trial court credited the Dickeys’ testimony that Owner pointed to cameras and represented them as working surveillance equipment when he knew they were fake and made representations concerning locks without disclosing that he retained a master key. The trial court found that the Dickeys had “proven [Owner] showed them security cameras at his facility to induce them to leave their property with him ….” The court specifically -5- made a finding of fact that on December 20, 2019, “Mr. Posey told Plaintiffs that he regularly patrols the property and has security cameras to help provide his 24/7 security to induce the rental by Plaintiffs.” Owner “represent[ed]… that his storage facility was secure and monitored by surveillance cameras and that he regularly patrolled his units” and further made “misrepresentations as to the quality and existence of security measures and that he failed to disclose the cameras were not functional….” As to the locks, the court found that Owner “represent[ed] to the Plaintiffs that the locks he sold were more secure than regular locks” but “fail[ed] to disclose he would retain a master key to each unit….” Owner stated his locks had certain “characteristics” and “qualities” making them more secure. After hearing testimony that Owner “kept the master key to the locks he sold on a lanyard in his office,” but “not under any security,” the trial court found that Owner was “grossly or recklessly negligent in failing to supervise the master key” and “in supervising the employee ....” It determined that Owner was grossly or recklessly negligent in allowing an employee “unfettered access” to the master key that could be used to access the units of renters who purchased their locks from Owner. Owner was found liable for fraudulent misrepresentation in stating he had security cameras “when he knew these statements were not true at the time he made them.” The trial court determined that “[a]fter the complaints of stolen property to [Owner], he continued to perpetuate the falsehood that he had security cameras and delayed getting in touch with [the Dickeys], stating he ‘needed to review the footage.’ . . . [Owner] changed his testimony several times between his deposition, interrogatories, and trial….” The court concluded that Owner violated the TCPA “by his deceptive actions and/or misrepresentations as to the quality and existence of security measures and that he failed to disclose the cameras were not functional and instead affirmatively testified they were part of his security measures.” In fact, the trial court made specific observations concerning Owner’s behavior on the witness stand and noted: he avoided looking at the court, began to stutter at the beginning of his cross examination, complained he needed water, and requested to check his testimony with his deposition before he answered questions; during rigorous cross-examination Mr. Posey asked to take his medication and leave the courtroom. The Court gave him a break but required him to continue with his testimony; he continued to not answer questions directly and continued to look at the floor. The trial court found that Owner had been impeached “multiple times” concerning his knowledge of past crime problems. Despite the court hearing Owner testify that he was not aware of any prior instances of theft at Storage Solutions, the proof at trial demonstrated that Owner had personally reported two instances of theft, at least two prior customers -6- contacted him about their units being burglarized, and multiple reports of theft over the years were identified by a local law enforcement employee. The trial court found that Owner’s testimony was not credible; the court stated that “the overwhelming evidence” and Owner’s “marked inability to tell the truth” indicated that Owner “was himself responsible for the burglary of the Dickeys’ storage units and/or that he authorized or failed to supervise” an employee who committed the theft and was reckless in doing so. Ultimately, the trial court concluded that Owner was liable for theft/conversion, negligence, gross negligence, negligent supervision, fraudulent misrepresentation, and violation of the TCPA and entered a judgment of $33,500. An additional award of $23,700 was entered against Owner for attorney fees and expenses. This timely appeal ensued. II. STATEMENT OF THE ISSUES Owner raises two chief issues in this appeal. First, Owner argues that the trial court erred in failing to apply the Agreement’s exculpatory clause. Second, Owner contends that the court erred in entering a judgment in favor of the Dickeys predicated on gross negligence, fraud, and/or the TCPA. III. STANDARD OF REVIEW As to questions of fact, this court must review the record de novo and presume that the findings of fact are correct “unless the preponderance of the evidence is otherwise.” Tenn. R. App. P. 13(d); Nashville Ford Tractor, Inc. v. Great Am. Ins. Co., 194 S.W.3d 415, 424 (Tenn. Ct. App. 2005). Because of the presumption, an appellate court is bound to leave a trial court’s findings of fact undisturbed unless the court determines that the aggregate weight of the evidence demonstrates that a finding of fact other than the one found by the trial court is more probably true. Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999). This court shall review the trial court’s resolution of legal issues de novo with no presumption of correctness. Eberbach v. Eberbach, 535 S.W.3d 467, 473 (Tenn. 2017). We must also give great weight to a trial court’s factual findings that rest on determinations of credibility. Nashville Ford Tractor, 194 S.W.3d at 424. Determining the credibility of witnesses is the province of the trier of fact, not appellate courts. Ferguson v. Middle Tennessee State Univ., 451 S.W.3d 375, 380 (Tenn. 2014) (citing State v. Flake, 88 S.W.3d 540, 554 (Tenn. 2002)). When it comes to live, in-court witnesses, appellate courts “should afford trial courts considerable deference when reviewing issues that hinge on the witnesses’ credibility because trial courts are uniquely positioned to observe the demeanor and conduct of witnesses.” Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014) (citing State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000)). “[A]ppellate courts will not re-evaluate a trial judge’s assessment of witness credibility absent clear and convincing evidence to the contrary.” Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999); See also -7- Hughes v. Metro. Gov’t of Nashville & Davidson Cnty., 340 S.W.3d 352, 360 (Tenn. 2011). Tennessee trial courts have “a great deal of discretion when considering the admission or exclusion of evidence.” Brown v. Daly, 83 S.W.3d 153, 157 (Tenn. Ct. App. 2001) (citing White v. Vanderbilt University, 21 S.W.3d 215, 222 (Tenn. Ct. App. 1999); Tire Shredders, Inc. v. ERM-North Central, 15 S.W.3d 849, 859 (Tenn. Ct. App. 1999)). Where the trial court’s discretionary decision is within a range of acceptable alternatives, appellate courts should not substitute their decision for that of the trial court simply because the appellate court would have chosen a different alternative. Id. Stated differently, “appellate courts will not interfere with a trial court’s evidentiary rulings absent a clear abuse of discretion.” Brown, 83 S.W.3d at 157. An issue of statutory construction is a question of law which is reviewed de novo with no presumption of correctness accorded the trial court’s conclusions. Lavin v. Jordon, 16 S.W.3d 362, 364 (Tenn. 2000). “When interpreting statutes, this Court must ascertain and give effect to the legislative intent without restricting or expanding the statute’s intended meaning or application.” Perrin v. Gaylord Entm’t Co., 120 S.W.3d 823, 826 (Tenn. 2003). Because the TCPA is explicitly remedial, this court is required to construe it liberally to protect consumers in Tennessee and elsewhere. Tucker v. Sierra Builders, 180 S.W.3d 109, 115 (Tenn. Ct. App. 2005). Importantly, whether a specific representation in a particular case is “unfair” or “deceptive” is a question of fact. Id. at 116. IV. DISCUSSION A. Exculpatory Clause Rule 8.03 of the Tennessee Rules of Civil Procedure requires that a party shall set forth affirmatively facts in short and plain terms relied upon to constitute … release … and any other matter constituting an affirmative defense. Tenn. R. Civ. P. 8.03. A release is an affirmative defense and must be pleaded by answer. Hixson v. Stickley, 493 S.W.2d 471, 473 (Tenn. 1973); Ottenheimer Publishers, Inc. v. Regal Publishers, Inc., 626 S.W.2d 276, 279 (Tenn. Ct. App. 1981). The language in the Agreement is a release, and Owner was required to affirmatively plead it in his answer, otherwise it is waived. Hixson, 493 S.W.2d at 473 (finding that the defense of release should be raised in an answer). Tennessee courts have conclusively held that “[o]nce an affirmative defense is waived it is gone,” and there is no case law or statute permitting it to be “unwaived.” Pratcher v. Methodist Healthcare Memphis Hosps., 407 S.W.3d 727, 742 (Tenn. 2013) (citing Ternes v. Galichia, 43 Kan. App.2d 857, 234 P. 3d 820, 825 (2010)). Owner failed to affirmatively plead this defense, and he failed to move the trial court to amend his answer to assert the defense, even in his closing after the issue of waiver was raised by the Dickeys. We find that the trial court properly determined that the affirmative defense has been waived due to Owner’s failure to plead it as an affirmative -8- defense. The trial court also properly concluded that “the exculpatory clause does not waive [Owner]’s gross negligence, reckless conduct, or intentional acts.” B. Parol Evidence Owner argues that statements he made on December 20, 2019, that are not included in the Agreement should be barred by the parol evidence rule. Under Tennessee law, “parol evidence is inadmissible to contradict, vary, or alter a written contract where the written instrument is valid, complete and unambiguous, absent fraud or mistake or any claim or allegations thereof.” Airline Constr. v. Barr, 807 S.W.2d 247, 259 (Tenn. Ct. App. 1990). The parol evidence rule, however, applies only to contract claims and does not apply in cases sounding in tort under the TCPA. BKB Properties, LLC v. Sun Trust Bank, No. 3:08- CV-00529, 2009 WL 529860, at *11 (M.D. Tenn. Mar. 2, 2009). In Lipford v. First Family Fin. Servs., No. W2003-01208-COA-R3-CV, 2004 WL 948645 (Tenn. Ct. App. Apr. 29, 2004), this court determined that parol evidence is admissible in a tort action based on allegations of fraud and violations of the TCPA. Id. at *3. In discussing exceptions to the parol evidence rule, this court stated: One such exception is that extrinsic evidence is admissible to show fraud. When parol evidence is offered not to vary or disavow the terms of the contract, but to show an alleged fraud or mistake, this Court is hesitant to exclude the evidence. Thus, the parol evidence rule has been considerably relaxed by the courts “in order that fraud may be thwarted, mistakes corrected, accidents relieved against, trusts set up and enforced, and usury exposed and eliminated.” Id. (internal citations omitted). The trial court properly found the parol evidence rule is inapplicable under the facts of this case. C. TCPA The TCPA offers protection against businesses that prey on the consuming public by use of deceptive or unfair practices. See Tenn. Code Ann. § 47-18-104. “In order to recover under the TCPA, the plaintiff must prove: (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, 180 S.W.3d at 115; Tenn. Code Ann. § 47-18-109(a)(1). Under Section 104 of the TCPA, it is unlawful to engage in the following acts or practices: (b)(5) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have -9-  or that a person has a sponsorship approval, status, affiliation or connection that such person does not have (9) Advertising goods or services with intent not to sell them as advertised; Tenn. Code Ann. § 47-18-104. “Claims under the TCPA are not limited to misrepresentations that are fraudulent or willful.” Smith v. Scott Lewis Chevrolet, Inc., 843 S.W.2d 9, 12–13 (Tenn. Ct. App. 1992). The TCPA actually “applies to any act or practice that is unfair or deceptive to consumers.” Tenn. Code Ann. §§ 47-18-104(a), -104(b)(27). “[D]eceptiveness is a broader, more flexible standard of actionable merchant misconduct than the traditional remedy of common-law fraud.” Tucker, 180 S.W.3d at 116. “A deceptive act or practice is one that causes or tends to cause a consumer to believe what is false or that misleads or tends to mislead a consumer as to a matter of fact.” Id. For the purposes of the TCPA, “the essence of deception is misleading consumers by a merchant’s statements, silence, or actions.” Id. Tennessee Code Annotated section 47-18-113 provides as follows: (a) No provision of this part may be limited or waived by contract, agreement, or otherwise, notwithstanding any other law to the contrary; provided, that this part shall not alter, amend, or repeal the provisions of the Uniform Commercial Code relative to express or implied warranties or the exclusion or modification of such warranties. Thus, even assuming arguendo that Owner did not waive the defense of release, he could not contract to exculpate himself and Storage Solutions from liability under the TCPA. Owner relies on Hancock v. U-Haul Co. of Tennessee, No. 01-A-01-9801-CC- 00001, 1998 WL 850518 (Tenn. Ct. App. Dec. 10, 1998). In Hancock, summary judgment was apparently predicated on the lack of evidence of any statements made by U-Haul or its employees that would constitute fraudulent misrepresentation or a violation of the TCPA. Id. at *3. The Hancock court did not discuss whether the exculpatory clause was valid against the TCPA claim because the court determined that the TCPA claim was not viable; a panel of this court determined that the evidence at the summary judgment stage did not support a claim under the TCPA: [W]hile the [TCPA] can apply to non-verbal as well as oral or written representations, we believe it is stretching the point to contend that the nature of the enclosure around the U-Haul facility amounts to an explicit promise that any specific level of security will be maintained. We also do not believe that the existence of similar physical barriers at two different U-Haul locations creates a guarantee that the same security measures will be - 10 -  employed at both locations. Id. Thus, the Hancock court did not assess whether an individual could exculpate himself from liability under the TCPA. In the matter before us, the trial court was presented with sufficient evidence upon which it could conclude that Owner was liable under the TCPA and correctly held that the exculpatory clause did not apply to the substantiated TCPA claims. The testimony of the Dickeys, Ms. Harrod, Ms. Sarapata, and Ms. Bianucci, as well as the remaining trial testimony, established that it was Owner’s regular practice to make misleading statements, lie, and evade responsibility. The evidence presented supports the trial court’s determination that Owner engaged in several deceptive practices/acts that misled the Dickeys to their detriment. We further note that Owner’s brief does not address the merits of the TCPA claim. An issue can be waived if there is no argument regarding the merits. Bean v. Bean, 40 S.W.3d 52, 56 (Tenn. Ct. App. 2000). Owner does not address how the trial court erred in determining his actions were unfair/deceptive pursuant to the TCPA. Accordingly, Owner is precluded from seeking relief from the trial court’s judgment premised upon the TCPA, and the court’s judgment in favor of the Dickeys based upon the TCPA is affirmed. D. Fraudulent Misrepresentation In order to sustain a cause of action for fraudulent misrepresentation, a plaintiff must show that: (1) the defendant made a representation of an existing or past fact; (2) the representation was false when made; (3) the representation was in regard to a material fact; (4) the false representation was made either knowingly or without belief in its truth or recklessly; (5) plaintiff reasonably relied on the misrepresented material fact; and (6) plaintiff suffered damage as a result of the misrepresentation. Metro. Gov’t of Nashville & Davidson Cnty. v. McKinney, 852 S.W.2d 233, 237 (Tenn. Ct. App. 1992). The burden of proof is by a preponderance of the evidence. Cato v. Batts, No. M2009-02204-COA-R3- CV, 2011 WL 579153, at *7 (Tenn. Ct. App. Feb. 17, 2011). Again, Owner failed to actually argue the merits of the fraud judgment in his brief. He does not address how the Dickeys failed to prove their claim. As noted previously, an issue can be waived if there is no argument regarding the merits. Bean, 40 S.W.3d at 56. Because Owner failed to argue the merits of the court’s judgment predicated on fraud, we find the issue has been waived. Even finding waiver, we note that the decision of the trial court that Owner’s statements to the Dickeys were fraudulent was based upon ample evidence. The court ultimately credited the Dickeys’ testimony that Owner pointed to cameras and represented them as working cameras, and Wife accepted it as an established fact. As a result of - 11 - Owner’s representations concerning cameras, the Dickeys believed that their belongings were being monitored. The trial court found that Owner fraudulently misrepresented that he employed security cameras even though he knew, at the time of the statement, that the cameras were fake. The court further determined that Owner made affirmative statements to the Dickeys that “he provides security including security cameras” and “drove through the facility 3-4 times per day” “to induce Plaintiffs to enter into a contract. . . .” The proof demonstrated that following the burglaries, Owner continued to perpetuate a falsehood that his cameras were real. Because Owner failed to utilize working cameras, the Dickeys were unable to investigate whether the employee, Owner, or some other party may have been responsible for the thefts for purposes of seeking further criminal prosecution, restitution, or to recover their stolen assets. The court properly determined that the evidence supported Owner’s liability for fraudulent misrepresentation. E. Gross Negligence and Recklessness Gross negligence is defined as “a conscious neglect of duty or a callous indifference to consequences” or “such entire want of care as would raise a presumption of a conscious indifference to consequences.” Thrasher v. Riverbend Stables, LLC, No. M2008-02698- COA-RM-CV 2009 WL 275767 at *4-6 (Tenn. Ct. App. Feb. 5, 2009) (internal citations omitted). To prevail on a claim of gross negligence in Tennessee, a plaintiff must demonstrate ordinary negligence and must then prove that the defendant acted “with utter unconcern for the safety of others, or ... with such a reckless disregard for the rights of others that a conscious indifference to consequences is implied in law.” Leatherwood v. Wadley, 121 S.W.3d 682, 693–94 (Tenn. Ct. App. 2003) (internal citations omitted). Liability for gross negligence cannot be contracted away. Adams, 686 S.W.2d at 75. Owner contends that the Dickeys simply failed to lock their storage units properly and an unknown third party managed to completely clean out the two storage units filled with large items. Owner presented proof that he was well aware that renters fail to properly lock their units. He claimed that over the years he discovered 50-100 improperly locked units at the facility. In response, the Dickeys maintain that in view of Owner’s contention, he breached his duty to make Storage Solutions secure by failing to instruct them on how to properly lock their units. The Dickeys assert Owner further breached his duty by failing to take any conceivable measure to increase security at the facility considering its history. The evidence at trial demonstrated that on December 20, 2019, Owner knew that Storage Solutions had a crime problem. He admitted that fact at trial. Wesley Phillip Robbins, a friend of Owner’s and fellow storage facility owner, testified about similar types of storage unit doors. Mr. Robbins related that some doors can appear to be locked when they are not and stated that whenever a customer rents from him in person, he counsels them on how to properly lock the door. Owner did not provide Wife with similar instructions. The Dickeys persuasively argue that Owner’s failure to instruct Wife of a known locking issue in light of a known crime problem supports the trial court’s - 12 - finding of gross negligence. The record also supports the trial court’s determination that Owner was grossly negligent in the supervision and retention of an employee who had access to the master keys and for whom there were no rules or regulations concerning his job duties. Owner kept his master keys on a lanyard, which included approximately 40 or 50 keys. The trial court found that Owner was “on notice for multiple prior instances of theft from his storage units but failed to take proper steps to block [an] employee from having access to the master key.” Interestingly, Mr. Robbins testified that he “absolutely” does not retain a master key to the locks he sells his customers. Owner declared to the court that he could well afford to run electricity throughout the storage facility in order to install real security cameras. In view of the court’s factual findings that Owner knew there was a crime problem, knew his cameras were fake, but could otherwise afford to have security cameras installed, the court’s determination that Owner was grossly negligent and reckless in providing security at the storage facility must be affirmed. F. Conversion The trial court found Owner liable for conversion; it held that Owner’s “false statements convince this Court that Mr. Posey or someone within his control intentionally opened these units with the master key and took the items owned by the Plaintiffs,” and that the “overwhelming evidence” and Owner’s “marked inability to tell the truth” support a finding that Owner “was himself responsible for the burglary of Plaintiffs’ storage units….” “[S]ignificant deference” must be afforded to the trial court’s determination because the credibility of the witnesses, in a case involving burglary and questions of fraud, conversion and liability for unfair and deceptive acts, is of paramount importance. Davis v. Davis, 223 S.W.3d 233, 238 (Tenn. Ct. App. 2006). The trial court ultimately determined that Owner’s testimony was not believable. The court concluded that Owner was repeatedly impeached and gave contradictory answers between his interrogatory responses, answer to the complaint, deposition testimony, and trial testimony. Based upon its findings, the court was left only with the credible witness testimony that sufficiently established Owner’s liability. We note further that Owner failed to raise the issue of whether the trial court erred in entering a judgment predicated on conversion. Because Owner failed to raise this issue, the judgment must be affirmed. Tenn. R. App. P. 13(b). - 13 -  V. CONCLUSION For the foregoing reasons, the judgment of the trial court is affirmed in toto and the case remanded. Costs of the appeal are assessed to the appellants, Tim Posey and Posey Storage Solutions. s/John W. McClarty JOHN W. McCLARTY, JUDGE - 14 -