Session February 27, 2015
Appeal from the Circuit Court for Rutherford County No. 63540 Robert E. Corlew, III, Judge
Christina Duncan and J. Stanley Rogers, Manchester, Tennessee, for the appellant, Terry Pritchett.
Aaron S. Guin, Nashville, Tennessee, for the appellee, Comas Montgomery Realty & Auction Company, Inc.
G. Sumner Bouldin, Jr., Murfreesboro, Tennessee, for the appellee, BGS Limited, a Tennessee Limited Partnership.
Frank G. Clement, Jr., P.J., M.S., delivered the opinion of the Court, in which Richard H. Dinkins and W. Neal McBrayer, JJ., joined.
FRANK G. CLEMENT, JR., JUDGE
In March 2010, Comas Montgomery Realty & Auction Company, Inc. ("Defendant") conducted an auction of a commercial building on behalf of the property owner. Terry Pritchett ("Plaintiff") attended the auction due in part to advertisements circulated by Defendant, which stated that the building to be auctioned contained 11, 556 square feet.
On the day of the auction but prior to its commencement, Plaintiff signed a "Terms of Sale" form that stated "[e]verything will be sold
'AS IS, WHERE IS', with no guarantee of any kind, regardless of statement or condition made from the auctioneer. Buyer shall rely entirely on their own inspection and information." Additionally, immediately prior to the commencement of the auction, Defendant's auctioneer announced to those in attendance that "[y]our bids today are based solely upon your inspection. This real estate's being sold without physical warranty in as-is condition." After making this announcement the auction commenced.
At the conclusion of the auction Plaintiff was recognized as the successful bidder, and he signed the contract of sale. The contract states in pertinent part that the parties agreed "that this instrument contains the entire agreement between the parties and that acceptance herein notes that there are no oral or collateral conditions, agreements or representations, all such having been incorporated and resolved in this Contract." The contract additionally states "[b]uyer specifically acknowledges herein that the property is being purchased
'as is' and that neither the Seller nor [Defendant] makes any warranties or representations, express or implied, as to the habitability or condition of the real property contained herein." Furthermore, the contract of sale does not contain a representation concerning the dimensions of the building.
After acquiring the property, Plaintiff determined that the building comprised 9, 353 square feet rather than 11, 556 as advertised. As a consequence, Plaintiff commenced this action against Defendant alleging that it negligently misrepresented the size of the building. After conducting discovery and taking the deposition of Plaintiff's expert, Defendant filed a motion for summary judgment arguing: (1) expert testimony was required to establish the standard of care for auctioneers and that Plaintiff's expert failed to establish the standard of care; and (2) Plaintiff could not have relied on the representation of square feet because of the "as is" language he agreed to in the contract of sale, Terms of Sale form, and pre-auction announcement.
The trial court granted Defendant's motion for summary judgment on the ground that Plaintiff had not established the standard of care. This appeal followed.
Standard of Review
This appeal arises from the grant of summary judgment. Summary judgments do not enjoy a presumption of correctness on appeal. BellSouth Adver. & Publ 'g Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn. 2003). The resolution of a motion for summary judgment is a matter of law, thus we review the trial court's judgment de novo with no presumption of correctness. Id. The appellate court makes a fresh determination that the ...