           IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION
                                    AT JACKSON
               _______________________________________________________

                                              )       C. A. No. 02A01-9605-CH-00102
LAMAR FLETCHER,                               )       Shelby County Chancery Court
                                              )       No. 105699-1 R.D.
   Plaintiff/Appellant.                       )
                                              )       HON. NEAL SMALL, CHANCELLOR
VS.                                           )

JOHN W. CAMPBELL,
                                              )
                                              )
                                              )
                                                      AFFIRMED                 FILED
   Defendant/Appellee.                        )       OPINION FILED:            October 3, 1996
                                              )
                                                                              Cecil Crowson, Jr.
Lamar Fletcher, Pro Se                                                         Appellate C ourt Clerk

Donnie E. Wilson, County Attorney, Memphis, Tennessee
Danny Presley, Executive Assistant County Attorney, Memphis, Tennessee
For Defendant/Appellee.
______________________________________________________________________________

                          MEMORANDUM OPINION1
______________________________________________________________________________

                                              FARMER, J.

                Plaintiff-Appellant, Lamar Fletcher (“Fletcher”), appearing pro se, appeals the trial

court’s order granting the motion to dismiss filed by Defendant-Appellee, John W. Campbell

(“Campbell”).



                In May 1995, Fletcher filed a complaint for fraud against Campbell. The essence of

Fletcher’s fraud claim was that Campbell, Fletcher’s former attorney, testified untruthfully at a

December 1992 hearing held on Fletcher’s petition for post-conviction relief in a criminal case2 and

that, relying upon these misrepresentations, the criminal court judge hearing the case denied

Fletcher’s petition.




       1
          Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The Court, with
concurrence of all judges participating in the case, may affirm, reverse or modify the actions of
the trial court by memorandum opinion when a formal opinion would have no precedential value.
When a case is decided by memorandum opinion it shall be designated “MEMORANDUM
OPINION,” shall not be published, and shall not be cited or relied on for any reason in a
subsequent unrelated case.
       2
        Fletcher’s petition for post-conviction relief was based on his claim of ineffective
assistance of counsel.

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               Campbell responded to the complaint by filing a motion to dismiss in which he

asserted that the complaint was barred by the statute of limitations, that the allegations in the

complaint did not state an actionable claim for fraud, and that the complaint failed to state a claim

upon which relief could be granted.



               Finding that the motion to dismiss was well-taken, the trial court granted the motion

and dismissed Fletcher’s complaint. On appeal, Fletcher presents the following issues for review,

which we have restated for purposes of clarity:



                     1. Whether the trial court erred in dismissing Fletcher’s
               complaint based upon the defense of the statute of limitations.

                      2. Whether the trial court erred in dismissing Fletcher’s
               complaint for failure to state a claim upon which relief could be
               granted.



               We conclude that resolution of the second issue is dispositive and affirm. In order

to state a claim for fraudulent misrepresentation, the plaintiff must allege, inter alia, “that the

plaintiff reasonably relied on the misrepresentation and suffered damage.” Stacks v. Saunders, 812

S.W.2d 587, 592 (Tenn. App. 1990); accord Metropolitan Gov’t v. McKinney, 852 S.W.2d 233, 237

(Tenn. App. 1992); Lambdin v. Garland, 723 S.W.2d 953, 956 (Tenn. App. 1986); Williams v. Van

Hersh, 578 S.W.2d 373, 376 (Tenn. App. 1978). Here, Fletcher failed to state a claim for fraudulent

misrepresentation because, although Fletcher alleged that he was damaged by Campbell’s

representations, Fletcher failed to allege that he actually relied on the statements. Rather, Fletcher’s

complaint alleged that he was damaged because of the criminal court’s reliance on Fletcher’s

statements.



               This case is analogous to Deed v. Condrell, 568 N.Y.S.2d 679 (N.Y. Sup. Ct.), aff’d,

579 N.Y.S.2d 930 (N.Y. App. Div. 1991). There, the plaintiff sued a court-appointed psychologist

for fraudulent misrepresentation after a court, relying on the psychologist’s recommendations,

awarded sole custody of the plaintiff’s child to the plaintiff’s former husband. The basis of the

plaintiff’s fraud claim was that the psychologist had misrepresented his proficiency in child custody


                                                   2
cases. In its opinion granting the psychologist’s motion to dismiss, the court reasoned that:



               Although [the complaint] avers that defendant misrepresented his
               proficiency in child custody cases it otherwise does not appear that
               [plaintiff’s] reliance on these alleged misrepresentations injured
               plaintiff. . . . the only injury alleged in this case relates to the entry of
               [the] custody order.



Deed v. Condrell, 568 N.Y.S.2d at 681.



               In the present case, the complaint alleged that Campbell made certain

misrepresentations which damaged Fletcher. The complaint, however, failed to allege that Fletcher

relied upon the statements to his detriment. As in Deed v. Condrell, the court issuing the detrimental

order, and not the plaintiff, relied on the statements. Under these circumstances, Fletcher’s

complaint has failed to state a cause of action upon which relief can be granted.



               The judgment of the trial court dismissing Fletcher’s complaint is affirmed. Costs

of this appeal are taxed to Fletcher, for which execution may issue if necessary.



                                                         ______________________________
                                                         FARMER, J.



______________________________
CRAWFORD, P.J., W.S. (Concurs)



______________________________
LILLARD, J. (Concurs)




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