                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


Buyer of real property brought suit against seller for intentional misrepresentation, fraudulent
misrepresentation, breach of contract, and breach of express warranty. The trial court
determined that the buyer’s reliance upon the seller’s representations was reasonable. On
appeal, the seller argues that the evidence does not support the trial court’s decision and that
the trial court erred in excluding expert testimony offered by the seller. Because we have
determined that the trial court erred in excluding the expert testimony in question, we reverse
and remand.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                                    Remanded

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which R ICHARD H. D INKINS, J.,
joined. F RANK G. C LEMENT, J R., J., dissenting.

George Edward Barrett and Scott Patton Tift, Nashville, Tennessee, for the appellant,
William B. Akers.

Barbara Jones Perutelli, Nashville, Tennessee, for the appellee, Robert H. Goodall, Jr.
                                                 OPINION

                            F ACTUAL AND P ROCEDURAL B ACKGROUND1

        William B. Akers owned a 716-acre tract of property in Sumner County that included
a four-or-five-acre lake. Robert Goodall, a real estate broker and developer, entered into a
contract with Akers on November 4, 2003, to purchase the property. On November 8, 2003,
Ed Kittrell, a neighbor who helped Akers with the property, told Goodall that the earthen
dam built to create the lake had been “condemned” by the Corps of Engineers. Goodall
requested and received a property disclosure statement from Akers. On the property
disclosure statement, Akers answered “No” to the question, “Have you received notices by
governmental or quasi-governmental agency affecting the Property including but not limited
to road changes, zoning changes, assessments, etc.?” and to questions regarding earth
stability and drainage or flooding problems.

       Prior to the closing, Goodall talked to his attorney, Kay Housch, about the information
he had learned from Kittrell. Housch contacted Akers’s attorney, who reassured Housch and
informed her that Akers would put an additional warranty in the contract to address these
concerns. In an amendment to the sale contract, Akers added the following warranty: “[T]o
Seller’s knowledge there have been no problems with the existing dam on the lake on the
Property since same was repaired by Seller and since Seller constructed an enlarged spill way
years ago.”2 The amendment was dated February 24, 2004.

      The closing occurred on March 2, 2004. Goodall thereafter learned of previous
communications between Akers and state dam safety officials concerning the condition of
the dam.

                                   Prior history of dam safety issues

       In April 1982, the Division of Water Resources of the Tennessee Department of
Conservation notified Akers that he was to file a certificate of approval and safety regarding
the dam. This letter referenced an October 1981 safety inspection conducted by the state and
the Army Corps of Engineers, a copy of which had been sent to Akers; according to the

        1
         Our summary of the facts is largely a duplication of the facts set forth in our opinion in the previous
appeal in this case. See Goodall v. Akers, No. M2008-01608-COA-R3-CV, 2009 WL 528784, at *1 (Tenn.
Ct. App. Mar. 3, 2009). The operative facts are not in dispute.
        2
         A few years after purchasing the property in the late 1950's, Akers and his brother had the earthen
dam built to create the lake. Prior to 1970, the dam washed out and was reconstructed with an enlarged
spillway.

                                                      -2-
letter, the report outlined “a number of significant safety deficiencies” and recommendations
for correction.

        In July 1985, Akers received a letter from the Division of Water Management of the
Tennessee Department of Health & Environment3 (“TDHE”) attaching a recent safety
inspection report and stating that, “[b]ased on the deficiencies found during this inspection,
a Certificate of Approval and Safety cannot be issued at this time.” The dam was classified
as “a small dam with a high potential for downstream hazard.” Among the problems cited
in the letter was the inspector’s finding that the “downstream face of the dam is leaking
significantly over an area near to the top of the dam.” The letter referenced a recent
telephone conversation with Akers in which he was told that the lake should be drained as
soon as possible. Within 30 days of receiving the letter, Akers was to consult an engineer
concerning the condition of the dam. In a reply letter, Akers informed the TDHE that the
level of the lake had been lowered about ten feet and that it was his intention to drain the lake
and leave it drained. In October 1985, the TDHE notified Akers that, “[d]ue to the hazard
category of your dam and to the signs of instability of the structure itself, the dam cannot be
certified for operation even in the drained condition.” Akers was directed to contact an
engineer to assess the dam and propose actions to rehabilitate it. In January 1986, a letter
from the TDHE notified Akers that the lake had been classified as a farm pond and that the
TDHE therefore did not intend to regulate it.

      In August 1996, an inspector from the Safe Dams Section of the Division of Water
Supply of the Tennessee Department of Environment and Conservation 4 (“TDEC”)
performed a farm pond review and sent Akers a report stating that “the dam is not stable” and
suggesting that the lake be drained. Among the problematic conditions cited was seepage
around the outlet pipe. The inspector informed Akers that if he wanted to keep the lake “he
needed to have a licensed engineer evaluate the conditions of the dam and make
recommendations” to Akers. A July 2001 inspection report states that the property was
unchanged; Akers advised the inspector that the public was still not allowed on the property.

                                            Lawsuit

        Goodall filed the instant lawsuit against Akers on November 1, 2004, alleging causes
of action for intentional misrepresentation, fraudulent concealment, breach of contract, and


       3
        It appears that the Department of Health & Environment took over the dam inspection
responsibilities previously performed by the Department of Conservation.
       4
        The Tennessee Department of Environment and Conservation took over the dam safety
responsibilities previously performed by the TDHE.

                                               -3-
breach of express warranty. In February 2006, Akers filed a motion for summary judgment.
Goodall filed a motion for partial summary judgment as to liability; he submitted an affidavit
from his attorney in the real estate transaction, Kay Housch. Both parties relied on the
depositions of Akers and Goodall.5 The trial court denied Akers’s motion for summary
judgment and granted Goodall’s motion for partial summary judgment as to liability. On
appeal, this court reversed the grant of summary judgment because there was “a genuine
issue of material fact as to whether [Goodall] reasonably relied upon [Akers’]
misrepresentations” concerning the condition of the dam. Goodall, 2009 WL 528784, at *1.

       Back in the trial court, the parties filed a joint stipulation, which included their
agreement that the only issue remaining for trial was “the reasonableness of Mr. Goodall’s
reliance under the circumstances of Mr. Akers’s alleged representations.” The parties also
stipulated to the qualifications of their respective expert witnesses “to testify as experts to
matters pertaining to their respective fields.”

       On April 6, 2010, Goodall filed a motion in limine asking the court to exclude the
expert testimony of Jeff Guild and Albert Buckley. Goodall asserted that Akers intended to
use these expert witnesses to testify “on the issue of whether Mr. Goodall’s reliance in this
case was reasonable” and, he argued, “[t]he determination of reasonable reliance is a legal
conclusion, not an opinion of fact.” At the beginning of the trial on April 9, 2010, the court
heard arguments on and granted the plaintiff’s motion in limine. The defendant made an
offer of proof as to both witnesses.

       The plaintiff put on testimony from Kay Housch, the real estate attorney who
represented him during the real estate transaction at issue, and Goodall himself testified. The
defendant moved for a directed verdict after the plaintiff’s proof; the court denied the motion
and took the case under advisement. In a memorandum opinion entered on June 10, 2010,
the court entered judgment in favor of the plaintiff and detailed its factual findings. The
court entered its order on June 22, 2010, stating: “For the reason set forth in the
Memorandum, the Court finds that the Plaintiff’s reliance on the representations made by the
Defendant was reasonable, that the Plaintiff has carried the burden of proof on the elements
of intentional misrepresentation and should have a judgment against the Defendant.” The
court entered judgment in favor of the plaintiff in the amount of $250,000 plus reasonable
attorney fees.




       5
       A summary of these depositions appears in our previous opinion in this case. See Goodall, 2009
WL 528784, at *2-4.

                                                 -4-
      On appeal, Akers argues that the trial court erred (1) in holding that it was reasonable
for Goodall to rely on Akers’s representations concerning the earthen dam and (2) in
excluding the testimony of Akers’s expert witnesses.

                                           A NALYSIS

        We begin with the evidentiary issue. A trial court’s decisions regarding the admission
or exclusion of evidence are reviewed under an abuse of discretion standard. Brown v.
Crown Equip. Corp., 181 S.W.3d 268, 273 (Tenn. 2005); Mercer v. Vanderbilt Univ., Inc.,
134 S.W.3d 121, 131 (Tenn. 2004). Under this standard, we are required to uphold the trial
court’s ruling “as long as reasonable minds could disagree about its correctness.” Caldwell
v. Hill, 250 S.W.3d 865, 869 (Tenn. Ct. App. 2007). So, “we are not permitted to substitute
our judgment for that of the trial court.” Id.

       In its final order, the court included its ruling on the plaintiff’s motion in limine:

       Prior to trial the court took oral argument on the Motion in Limine and granted
       the motion that the expert witnesses could not give an opinion which is a legal
       conclusion and specifically that the reliance of Mr. Goodall on representation
       of Mr. Akers was not reasonable. No 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.

Akers argues on appeal that the court’s action in excluding the testimony of his two expert
witnesses was erroneous because the court applied an incorrect legal standard in that the
reasonableness of Goodall’s reliance was a factual issue, not a legal issue.

        Tenn. R. Evid. 702 provides: “If scientific, technical, or other specialized knowledge
will substantially assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert . . . may testify in the form of an opinion or otherwise.”
Pursuant to Tenn. R. Evid. 704, “[t]estimony in the form of an opinion or inference otherwise
admissible is not objectionable because it embraces an ultimate issue to be decided by the
trier of fact.” As our Supreme Court has made clear, “expert opinion testimony which
embraces an ultimate issue must be ‘otherwise admissible’ and not objectionable on other
grounds.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997) (citing Neil P. Cohen, Donald
F. Paine & Sarah Y. Sheppeard, T ENNESSEE L AW OF E VIDENCE § 704.3 (2d ed. 1990)).

       Justifiable reliance is an essential element of a claim for fraudulent misrepresentation
or fraudulent concealment. See McNeil v. Nofal, 185 S.W.3d 402, 408 (Tenn. Ct. App.

                                               -5-
2005). Whether the plaintiff’s reliance on a representation was reasonable is a question of
fact. City State Bank v. Dean Witter Reynolds, Inc., 948 S.W.2d 729, 737 (Tenn. Ct. App.
1996); see generally Smith v. Sloan, 225 S.W.2d 539, 541 (Tenn. 1949) (determination of
reasonable conduct as question of fact). There are a number of factors relevant to the
determination of whether a plaintiff’s reliance was reasonable:

        (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, No. M2003-01849-COA-R3-CV, 2004 WL 2951979, at *10 (Tenn. Ct.
App. Dec. 17, 2004); see also Allied Sound, Inc. v. Neely, 58 S.W.3d 119, 122 (Tenn. Ct.
App. 2001).

        Since justifiable reliance is a question of fact, the trial court was in error in basing its
exclusion of the defendant’s expert testimony on the premise that this was a question of law.
Moreover, the fact that justifiable reliance is an ultimate issue to be decided is not a basis for
exclusion of expert testimony. Tenn. R. Evid. 704. The trial court gave no other reason for
its exclusion of the evidence at issue. We must, therefore, conclude that the trial court erred
in excluding the expert testimony offered by Akers on the reasonableness of Goodall’s
reliance on Akers’s representations.6

      In light of our conclusion regarding the evidentiary issue presented, we have
determined that the trial court’s decision must be reversed and remanded.




        6
           The dissent is based on three points: that the proposed testimony would not substantially assist the
trier of fact, that the experts were not prohibited from testifying as to other relevant matters, and that the
exclusion of the experts' opinions, if error, was harmless. We would observe that the first point was not
mentioned by the trial court and amounts to mere speculation. The only reason given by the trial court for
the exclusion of the evidence (that the proposed testimony offered a legal conclusion) is erroneous. The
second point, while accurate, does not address the majority's ruling that the experts were improperly
prohibited from testifying as to the reasonableness of Goodall's reliance. The third point is additional
speculation.

                                                     -6-
                                      C ONCLUSION

       The judgment of the trial court is reversed and the matter is remanded for further
proceedings consistent with this opinion. Costs of the appeal are assessed against the
appellee, for which execution may issue if necessary.


                                                    ______________________________
                                                         ANDY D. BENNETT, JUDGE




                                           -7-
