April 15, 2015
COMAS MONTGOMERY REALTY & AUCTION COMPANY, INC. ET AL.
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 requirements of Tenn. R. Civ. P. 56 have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997).
Summary judgment is appropriate when a party establishes that there is no genuine issue as to any material fact and that a judgment may be rendered as a matter of law. Tenn. R. Civ. P. 56.04; Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003). It is appropriate in virtually all civil cases that can be resolved on the basis of legal issues alone. Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Pendleton v. Mills, 73 S.W.3d 115, 121 (Tenn. Ct. App. 2001). It is not appropriate when genuine disputes regarding material facts exist. See Pendleton, 73 S.W.3d at 121; Tenn. R. Civ. P. 56.04.
This case was filed after July 1, 2011; therefore, the summary judgment standard set forth in Tenn. Code Ann. § 20-16-101 applies. Pursuant to this statutory standard, in order to prevail in its motion, Defendant must submit affirmative evidence that negates an essential element of Plaintiff's claim or demonstrate to the court that Plaintiff's evidence is insufficient to establish an essential element of his claim. See Tenn. Code Ann. §20-16-101.
Plaintiff contends that the trial court erred in granting summary judgment because expert testimony is not required to establish the standard of care for auctioneers and genuine issues of material fact exist regarding possible violations of the rules and regulations governing auctioneers.
For its part, Defendant insists it was entitled to summary judgment on each of the two grounds it relied upon. Specifically, Defendant insists that the trial court correctly determined that Plaintiff failed to establish the applicable standard of care; however, Defendant also contends the trial court should have additionally ruled that Defendant negated the element of justifiable reliance by establishing without dispute that Plaintiff agreed to the written "Terms of Sale" prior to the auction which stated that "[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, " and agreed to the terms as announced by the auctioneer immediately prior to the commencement of the auction that the property was being sold "as is" and that all bidders must rely on their own inspections of the property.
For the reasons stated below, we affirm the summary dismissal of Plaintiff's claim upon different grounds than those stated by the trial court,  that Defendant negated the essential element of reliance due to the undisputed fact that Plaintiff agreed to rely entirely on his own inspection and information and that he was purchasing the building "'AS IS, WHERE IS', with no guarantee of any kind, regardless of statement or condition made from the auctioneer."
Negligent misrepresentation occurs when a plaintiff justifiably relies on faulty information supplied by a defendant who, acting in the course of her business, profession, or a transaction in which she has pecuniary interest, has failed to exercise reasonable care in obtaining or communicating that information. See Robinson v. Omer, 952 S.W.2d 423, 427 (Tenn. 1997); see also Restatement (Second) of Torts § 552 (1977). The essential elements of a claim for negligent misrepresentation are: (1) the defendant was acting in the course of its business or profession or in a transaction in which it had a pecuniary interest; (2) the defendant supplied faulty information meant to guide others in their business transactions; (3) the defendant failed to exercise reasonable care in obtaining or communicating the information; and (4) the plaintiff justifiably relied upon the information. Robinson, 952 S.W.2d at 427. To sustain a claim for negligent misrepresentation, the plaintiff must establish each of these elements by a preponderance of the evidence. Id. Therefore, Plaintiff cannot succeed on a negligent misrepresentation claim unless he can establish the essential element of reliance. See McNeil v. Nofal, 185 S.W.3d 402, 409 (Tenn. Ct. App. 2005).
Justifiable or reasonable reliance involves two different issues: whether the plaintiff actually relied on the misrepresentation and whether that reliance was reasonable. See Edmondson v. Coates, No. 01-A-01-9109-CH00324, 1992 WL 108717, at *2 n.1 (Tenn. Ct. App. May 22, 1992). The issue the parties have presented in this appeal is whether the exculpatory language in the Terms of Sale agreement and the oral terms announced immediately prior to the commencement of the auction negates Plaintiffs actual reliance.
Parties may agree to disclaim reliance on another's representations. See Ingram v. Cendant Mobility Financial Corp., 215 S.W.3d 367, 371-72 (Tenn. Ct. App. 2006). In Ingram, the plaintiff purchased a home and signed a sale contract that stated "[n]either party has relied upon any statement or representations made by the other party or the sales representative bringing the parties together not contained [in this contract]." Id. This court enforced this provision as written and held that it negated the plaintiffs' contention that they relied on representations that the seller's representative had made. Id. at 372; see Morgan Dev., LLC v. Morrow, No. E2010-00610-COA-R3-CV, 2011 WL 662948, at *4 (Tenn. Ct. App. Feb. 23, 2011) (noting that signing a contract containing a disclaimer of a broker's obligation to verify certain characteristics of the property at issue implicitly admits that any reliance on representations about those characteristics was not justifiable).
Similarly, agreeing to accept real property "as is" may negate any reliance on representations about the condition of that property. See Stafford v. Emberton, No. M2008-02250-COA-R3-CV, 2009 WL 2960391, at *3 (Tenn. Ct. App. Sept. 15, 2009). In Stafford, the misrepresentation at issue involved the completion of certain repairs on the property. Id. at *1. Before purchasing the property, the plaintiffs signed an agreement stating that "[b]uyer agrees that they have carefully inspected the premises prior to signing this Agreement, and without reservation accept the Property as suitable and ready for use as their home, that all repairs or replacement have been completed to their satisfaction . . . ." Id. at *2. This court held that the plaintiffs had agreed to purchase the property "as is" and that doing so negated any reliance on the misrepresentation. Id. at *2-3.
Although Plaintiff voluntarily dismissed his claim that Defendant's conduct was intentional or grossly negligent,  Plaintiff contends that generic "as is" language is not sufficient to negate his reliance on Defendant's statements. We are not persuaded by this argument. Although the disclaimer language in Stafford specifically addressed the issue of repairs on the property, this court did not base its decision on the specificity of the language the plaintiffs signed. See id. at *2-3. Instead, we concluded that "the agreement by the [plaintiffs] to accept the property
'as is' defeats any negligent misrepresentation claims." Id. at *3 (emphasis in original).
It is undisputed that the Terms of Sale agreement that Plaintiff signed prior to making a bid and the announcement that immediately preceded the auction clearly and unequivocally stated that the property was being sold "as is." It is also undisputed that the Terms of Sale and the announcement both established that Plaintiff shall rely entirely on his own inspection and information.
Conditions of a sale at auction that are announced at the auction are binding on the bidder. Cunningham v. Lester, 138 S.W.3d 877, 881 (Tenn. Ct. App. 2003); Moore v. Berry, 288 S.W.2d 465, 468 (Tenn. Ct. App. 1955). Therefore, since there is no claim that Defendant engaged in fraud, intentional misconduct, or gross negligence, we have concluded that Defendant successfully negated the essential element that Plaintiff relied on Defendant's misrepresentation that the building was 11, 556 square feet. Because Defendant negated an essential element of Plaintiff's claim, Defendant is entitled to summary judgment. Accordingly, we affirm the summary dismissal of Plaintiff s claim on different grounds than those relied on by the trial court.
The judgment of the trial court is affirmed, and this matter is remanded with costs of appeal assessed against Plaintiff, Terry Pritchett.