                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                      January 21, 2011 Session

                ROBERT H. GOODALL, JR. v. WILLIAM B. AKERS

                      Appeal from the Circuit Court for Sumner County
                         No. 26169-C     Tom E. Gray, Chancellor


                    No. M2010-01584-COA-R3-CV - Filed March 1, 2011




F RANK G. C LEMENT, J R., J., dissenting.

        Unlike the majority, I do not believe the trial court abused its discretion by prohibiting
Mr. Akers’ two expert witnesses from giving their opinions on whether Mr. Goodall’s
reliance on Mr. Akers’ representations was reasonable. Furthermore, even if the exclusion
of this testimony was error, I find it to be harmless error. Therefore, I respectfully dissent.

       First, I submit it was not error for the trial court to prohibit the experts from giving
their opinions on whether Mr. Goodall’s reliance was reasonable, the ultimate issue in this
case. Expert witnesses are permitted to give opinions on ultimate issues under Tenn. R. Evid.
704, provided however, that the testimony is “otherwise admissible.” Pursuant to Tenn. R.
Evid. 702, expert testimony is admissible only if it will “substantially assist the trier of fact
to understand the evidence or to determine a fact in issue.” See Neil P. Cohen, Sarah Y.
Sheppeard & Donald F. Paine, Tennessee Law of Evidence, § 7.04[3](c) (5th ed. 2005). I
submit the trial court was just as qualified as the expert witnesses to draw a conclusion
concerning whether Mr. Goodall’s reliance on Mr. Akers’ representations was reasonable
based on the facts of this case.1 The conclusions to be drawn from the relevant facts,
including Mr. Goodall’s level of sophistication in business matters and real estate
transactions, the nature of his relationship with Mr. Akers, simply did not require explanation
by the two expert witnesses at issue, an attorney and a real estate developer.




        1
          The Advisory Committee’s Note to Fed. R. Evid. 704, a rule virtually identical to Tenn. R. Evid.
704, states: “The abolition of the ultimate issue rule does not lower the bar so as to admit all opinions. Under
Rules 701 and 702, opinions must be helpful to the trier of fact . . . .”
        Therefore, the expert opinions were appropriately excluded because they failed to
satisfy “the substantial assistance rule” of Tenn. R. Evid. 702, and the trial court did not
abuse its discretion by prohibiting Mr. Akers’ two expert witnesses from testifying regarding
this particular issue.

        Second, it is critical to note that the trial court did not prohibit the experts from
testifying altogether; rather, Mr. Akers chose not to have the experts testify as to other
matters which may have been relevant. Pursuant to Tenn. R. App. P. 36, his failure to do so
should bar him from receiving the relief he now seeks before this court.2 As Tenn. R. App.
P. 36 provides, this court:

       [S]hall grant the relief on the law and facts to which the party is entitled or the
       proceeding otherwise requires and may grant any relief, including the giving
       of any judgment and making of any order; provided, however, relief may not
       be granted in contravention of the province of the trier of fact. Nothing in this
       rule shall be construed as requiring relief be granted to a party responsible for
       an error or who failed to take whatever action was reasonably available to
       prevent or nullify the harmful effect of an error.

        In the June 10, 2010 Memorandum regarding its ruling on the testimony at issue, the
trial court specifically provided that, “[n]o prohibition was made by the court that the
defendant’s expert witnesses could not testify; they would not be allowed to give an
opinion on the ultimate issue to be decided by the court after determination of fact.”
(Emphasis added).

       As the trial court clearly stated, Mr. Akers’ experts could have testified, for example,
about how the facts of this case compared with industry customs and practices concerning
the purchase and sale of real property similarly situated, or the availability of information
about the dam and any opportunities Mr. Goodall may have had to discover Mr. Akers’
alleged fraud. These matters could have been discussed by the experts without the need to
opine on the ultimate issue of reasonable reliance. With that additional testimony, the trial
court could have reached its own conclusion concerning whether Mr. Goodall’s reliance was
reasonable.

        By failing to introduce the testimony of his expert witnesses to the extent permitted
by the trial court, Mr. Akers failed to take the “action reasonably available to prevent or



       2
         Admittedly, the defendant made an offer of proof by proposing to introduce their discovery
depositions; which the trial court properly rejected as the majority found.

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nullify the harmful effect” of the error he has alleged; thus, I submit Mr. Akers is not entitled
to relief under Tenn. R. App. P. 36.

       Third, even if the trial court’s exclusion of the experts’ opinions regarding the ultimate
issue of reasonable reliance was error, it is my belief that such an error would be harmless.
Our Supreme Court addressed the issue of harmless error at length in Blackburn v. Murphy,
737 S.W.2d 529 (Tenn.1987):

       Under Rule 36(b), T.R.A.P., an error does not of itself necessarily require
       reversal; a judgment “shall not be set aside unless, considering the whole
       record, error involving a substantial right more probably than not affected the
       judgment or would result in prejudice to the judicial process.” In a recent
       criminal case, this Court was called upon to decide whether an error was
       harmless or prejudicial. We stated that

              “[a]n error is harmless or prejudicial depending on the extent to
              which the proof in the record exceeds the standard necessary to
              sustain a jury decision. . . . Thus, the more convincing the
              evidence, the less prejudicial the error.”

       State v. Bobo, 727 S.W.2d 945, 955-956 (Tenn.1987). See also Painter v. Toyo
       Kogyo of Japan, 682 S.W.2d 944, 949 (Tenn.App.1984). In Berke v.
       Chattanooga Bar Association, 58 Tenn.App. 636, 654, 436 S.W.2d 296, 304
       (1968), the Court of Appeals stated that “[t]he admission of improper evidence
       of a fact in issue is harmless where the verdict or judgment is supported by
       sufficient competent evidence . . . or where the fact is undisputed.” (Citations
       omitted) Some version of the principle of harmless error has long been applied
       by Tennessee courts and our courts have applied it to analogous circumstances
       to those found in this case. See, e.g., Austin v. City of Memphis, 684 S.W.2d
       624, 631 (Tenn.App.1984); James v. Ross, 51 Tenn App. 413, 422, 369
       S.W.2d 1, 5 (1962); Cook v. Blytheville Canning Co., 210 Tenn. 414, 420, 359
       S.W.2d 828, 831 (1961); Union Railway Co. v. Hunton, supra, 114 Tenn. at
       631, 88 S.W. at 188; Cumberland Telegraph & Telephone Co. v. Dooley,
       supra, 110 Tenn. at 112, 72 S.W. at 459. The soundness of the reasoning of
       this Court in Maddin v. Head, 69 Tenn. 664, 670 (1878), has not been eroded
       during the ensuing 109 years, especially as it is applicable to a case in these
       circumstances:

              “Where the error is such as to deprive the party of that fair
              impartial trial which the law guarantees, then we have no

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              discretion; but if perfectly strict law and literal accuracy be in all
              cases required, then comparatively few judgments could stand,
              and delay and expense would in great measure defeat the ends
              of justice. Strong presumption in favor of the correctness of
              judgments below should prevail in this court.”

Id. at 534.

        I submit the trial court’s exclusion of the expert testimony at issue was harmless error
(if error at all) because, as this court determined in the first appeal of this case, Mr. Akers’
defense of unreasonable reliance was based, in part, upon the contention that “Goodall’s
experience in the business of real estate development, his knowledge of possible problems
with the dam, and his failure to further investigate made his reliance on Mr. Akers’
representations concerning the condition of the dam unreasonable.” Goodall v. Akers, No.
M2008-01608-COA-R3-CV, 2009 WL 528784, at *6 (Tenn. Ct. App. March 3, 2009). As
this court stated in that opinion:

       In determining the reasonableness of a plaintiff’s reliance, a number of factors
       should be considered:

              (1) the plaintiff's business expertise and sophistication; (2) the
              existence of a longstanding business or personal relationship
              between the parties; (3) the availability of the relevant
              information; (4) the existence of a fiduciary relationship; (5) the
              concealment of the fraud; (6) the opportunity to discover the
              fraud; (7) which party initiated the transaction; and (8) the
              specificity of the misrepresentation.

       Pitz v. Woodruff, M2003-01849-COA-R3-CV, 2004 WL 2951979, *10
       (Tenn.Ct.App. Dec. 17, 2004); see also Allied Sound, Inc. v. Neely, 58 S.W.3d
       119, 122 (Tenn. Ct. App. 2001). Akers focuses his argument on the first,
       third, and sixth factors – Goodall’s business experience, the availability
       of information about the dam, and the opportunity to discover the alleged
       fraud. Akers argues that Goodall’s experience in the business of real
       estate development, his knowledge of possible problems with the dam, and
       his failure to further investigate made his reliance on Akers'
       representations concerning the condition of the dam unreasonable.

Id. (emphasis added).



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        Although testimony regarding industry customs and practices, “the availability of
information about the dam, and the opportunity to discover the alleged fraud” from Mr.
Akers’ experts was not prohibited from being introduced, and could possibly have aided the
trial court in deciding whether Mr. Goodall’s reliance was reasonable, Mr. Akers chose not
to present this proof. As for the conclusion to be drawn from the facts that were presented
by the parties, as discussed, the trial court was capable of determining whether Mr. Goodall’s
reliance was reasonable without an expert’s opinion; thus, the exclusion of testimony on that
single issue cannot properly be considered an “error involving a substantial right [which]
more probably than not affected the judgment or would result in prejudice to the judicial
process.” Tenn. R. App. P. 36(b); Blackburn, 737 S.W.2d at 534. Therefore, I submit the trial
court’s decision to prohibit the expert witnesses from opining as to the ultimate issue, if
error, was harmless error.

       Considering the record as a whole, the fact that the trial court did not exclude Mr.
Akers’ experts’ testimony entirely but only as to the ultimate issue of reasonable reliance, and
that Mr. Akers failed to introduce the testimony of his expert witnesses concerning industry
customs and practices or “the availability of information about the dam, and the opportunity
to discover the alleged fraud,” I have no difficulty concluding that ample convincing
evidence exists to affirm the trial court’s finding that Mr. Goodall’s reliance upon Mr. Akers’
material misrepresentations was reasonable as a matter of fact and as a matter of law.

       Accordingly, for the reasons stated above, I would affirm the trial court.




                                                        ______________________________
                                                        FRANK G. CLEMENT, JR., JUDGE




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