                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                   January 23, 2002 Session

                   JOHN ASBURY and DIANA ASBURY
                                v.
              LAGONIA-SHERMAN, LLC and LAGONIA REALTY

                     An Appeal from the Circuit Court for Shelby County
                         No. CT-001369-00    D’Army Bailey, Judge



                   No. W2001-01821-COA-R3-CV - Filed October 15, 2002


         This appeal arises from the sale of real property. Prior to closing, the buyers questioned the
sellers about the property lines. The sellers contacted a surveyor to mark the property corners. The
buyers did not receive the survey prior to the closing, but nevertheless went ahead with the closing.
After the closing, the buyers received the survey. It showed less square footage than what the buyers
allege had been represented to them. The buyers filed a lawsuit against the sellers, alleging breach
of contract, unjust enrichment, detrimental reliance, fraud or misrepresentation, and violation of the
Tennessee Consumer Protection Act. The sellers filed a motion to dismiss for failure to state a claim
upon which relief may be granted, or, in the alternative, for summary judgment. The trial court
dismissed the buyers’ claim. On appeal, buyers argue that the trial court erred in dismissing their
case, and that genuine issues of fact remain. We affirm, on the basis that the buyers failed to look
at the publicly recorded plat on the property, referenced in the sales contract.

     Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court is Affirmed

HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which DAVID R. FARMER , J., joined.
ALAN E. HIGHERS, J., filed a dissenting opinion.

Kevin A. Snider, Germantown, Tennessee, for the appellants John Asbury and Diana Asbury.

John B. Turner, Jr., Germantown, Tennessee, for appellees Lagonia-Sherman, LLC and Lagonia
Realty.


                                             OPINION

         On April 30, 1999, the Plaintiffs/Appellants, John and Diana Asbury (“the Asburys”), entered
into a real estate contract with Defendant/Appellee, Lagonia-Sherman, LLC (“Lagonia-Sherman”),
to purchase a house on lot thirty-seven of the Appling-LaGrange Subdivision in Cordova, Tennessee,
for $119,000. Defendant/Appellee Lagonia Realty acted as Lagonia-Sherman’s agent during the
execution of the real estate contract.

        On May 18, 1999, the Asburys and Lagonia-Sherman’s sales manager, Brandi Vines
(“Vines”), conducted a walk-through of the property. The Asburys questioned Vines about the
location of the property lines on lot thirty-seven. The Asburys claim that Vines said with certainty
that the northeast property line was in a straight line, perpendicular to the back property line, starting
from a crow’s foot on the left-front curb to the left-rear corner of the property, and that the property
included a tree in the front of the lot. The Asburys claim that Vines assured them that the property
lines would be determined prior to the closing, and that new sod would be laid to mark the property
lines.

          Vines says that she showed the Asburys the left-front property corner but told the Asburys
that the rear corners can be difficult to locate because rear property markers easily sink into the
ground or are pulled up out of the ground. Vines asserts that she told the Asburys that the sod line
was not the property line. Vines claims that she told the Asburys that the tree did not appear to be
on their property. During the course of the walk-through, the Asburys and Vines compiled a punch
list, or list of repairs, that were to be made prior to closing. Under the heading “exterior work” on
the punch list, item three stated that the left-front and left-rear property corners should be
determined, item four stated to sod if needed, and item eleven stated that dead sod should be
replaced. The punch list made no mention of using sod to mark the property lines.

        On May 24, 1999, Vines contacted AFA Engineering to mark the property corners on lot
thirty-seven. On May 30, 1999, AFA Engineering representative Bill Perry (“Perry”) marked the
property corners. The Asburys claim that their closing attorney, Michael Champlin, told them that
a copy of the survey would be supplied to them at the closing on the property. On June 4, 1999,
when the Asburys closed on the property, they had not yet received the survey; nevertheless, they
went ahead with the closing. The Asburys said that they went ahead with the closing without the
survey because of Vines’s representations about the property lines. The Asburys never checked the
Plat Book in which lot thirty-seven was publicly recorded.

        On June 10, 1999, after the closing, the Asburys received the survey of the property. The
survey indicated that the northeast property line did not run in a straight line perpendicular from the
back line of the lot. Rather, the survey indicated that the northeast property line ran diagonally from
the back of the lot to the front of the lot. The Asburys claim that the difference in the angle of the
northeast property line meant that lot thirty-seven consisted of less square feet than had been
represented to them by Vines, and also meant that the tree directly in front of their house was not on
their property.

        On March 30, 2000, the Asburys filed a lawsuit against Lagonia-Sherman and Lagonia Realty
in the Circuit Court of Shelby County. The lawsuit alleged breach of contract, unjust enrichment,
detrimental reliance, fraud or misrepresentation, and violation of the Tennessee Consumer Protection
Act. On May 4, 2000, Lagonia-Sherman and Lagonia Realty filed an answer to the complaint.


                                                   -2-
Almost one year later, on May 1, 2001, Lagonia-Sherman and Lagonia Realty filed a motion to
dismiss the complaint for failure to state a claim upon which relief may be granted or, in the
alternative, for summary judgment. The motion was supported by the depositions of Vines and the
Asburys, as well as the affidavits of the owner of AFA Engineering, AFA representative Perry, and
the sodding subcontractor, Harvey Walden. On July 6, 2001, the trial court entered an order of
dismissal, phrasing its order as a dismissal for failure to state a claim. From this order, the Asburys
now appeal.

         On appeal, the Asburys argue that, if the trial court’s order is considered a dismissal for
failure to state a claim, based on the complaint alone, the complaint states valid claims for breach
of contract, detrimental reliance, unjust enrichment, fraud or misrepresentation, and violation of the
Tennessee Consumer Protection Act. If the order of the trial court is considered a grant of summary
judgment, the Asburys argue that there was a genuine issue of material fact on the breach of contract
claim. On the claims of detrimental reliance and unjust enrichment, the Asburys maintain that a
genuine issue of material fact remains on whether the Asburys reasonably relied on the alleged
representation that new sod was to be placed along the property line. The Asburys argue that the
claims for fraud and for violation of the Tennessee Consumer Protection Act were erroneously
dismissed because issues of material fact remain on whether the alleged misrepresentation was made
recklessly or with knowledge of falsity, as well as whether the Asburys’ reliance was reasonable.
Finally, the Asburys argue that the parol evidence rule should not apply to bar proof of the alleged
misrepresentations. Lagonia-Sherman argues that the order of the trial court was a grant of summary
judgment because materials outside the pleadings were submitted and considered by the trial court.
Regardless, Lagonia-Sherman maintains that dismissal was proper because the complaint failed to
state a claim, and there are no issues of material fact as to any of the Asburys’ claims.

        The threshold issue in this appeal is whether the trial court’s order of dismissal should be
treated as a dismissal for failure to state a claim upon which relief may be granted under Rule
12.02(6) of the Tennessee Rules of Civil Procedure, or as an order of summary judgment under
Tennessee Rule of Civil Procedure 56. After receiving the Asburys’ complaint, Lagonia-Sherman
and Lagonia Realty filed a motion to dismiss the complaint for failure to state a claim upon which
relief may be granted, or, in the alternative, for summary judgment. The trial court dismissed the
Asburys’ claim, couching it as a dismissal for failure to state a claim. Rule 12.02(6), however,
mandates that when “matters outside the pleadings are presented to and not excluded by the court,
the motion shall be treated as one for summary judgment.”1 See Tenn. R. Civ. P. 12.02 (emphasis
added); Pacific E. Corp. v. Gulf Life Holding Co., 902 S.W.2d 946, 952 (Tenn. Ct. App. 1995); see
also Hixson v. Stickley, 493 S.W.2d 471, 473 (Tenn. 1973) (discussing judges’ prerogative to


         1
            A motio n to dism iss is converted to a motion for summary judgment when the trial court states, or the evidence
shows, that it “considered” matters outside the pleading. See J ordan v. Cam pbe ll, No. M1999-00540-COA-R3-CV,
1999 Tenn. Ap p. Lexis 753, at *9 (Tenn. Ct. App. Nov. 10, 199 9); Adams TV, Inc. v. ComCorp. of Tenn., 969 S.W.2d
91, 920 (Te nn. Ct. A pp. 1 997 ); see also Pend leton v. M ills, 73 S.W .3d 115, 120 (Tenn. Ct. App. 2001 ); Pass v. Shelby
Aviation, Inc., No. W 1999-00 018-CO A-R9-CV , 2000 T enn. App. Lexis 247, at *6–7 (Tenn. Ct. App. Apr. 13, 200 0);
Al-Fatlawy v. Chicago Ins. Co., M1999-00195-COA-R9-CV, 2000 Tenn. App. Lexis 186, at *9 (Tenn. Ct. App. March
29, 2 000 ).

                                                            -3-
include or exclude extraneous information on a motion to dismiss, and further stating that “on a
motion under Rule [12.02(6)] extraneous matter may not be considered if the court excludes it, but
if the court does not exclude such material the motion shall be treated as a motion for summary
judgment and disposed of as provided in Rule 56.”). Without question, in this case, matters outside
the pleadings were presented to the trial court with the defendants’ motion. The question then
becomes whether those matters were “not excluded” by the trial court.

        Of course, in order to exclude matters outside the pleadings, the trial court need not expressly
state that it has chosen to exclude such matters filed with the motion, but the circumstances may
indicate that it excluded such information. For example, in Winchester v. Little, 996 S.W.2d 818
(Tenn. App. 1998), this court concluded that:

       The trial court’s order is couched in terms of a dismissal rather than summary
       judgment. The trial judge states that his opinion is based upon the pleadings and
       argument of Plaintiff and counsel for Defendant. No mention is made of
       consideration of any matters outside the pleadings. Appellee contends that as to the
       issue of the guardian ad litem’s fee, matters outside the pleading were presented to
       and not excluded by the court. If the guardian ad litem fee was an issue on appeal,
       this Court might find that partial summary judgment was granted on that issue.
       However, this Court finds that all the issues raised in this appeal were dismissed by
       the trial court for failure to state a claim.

Id. at 821. Thus, in Winchester, the trial court did not state expressly that it was excluding matters
outside the pleadings, but rather “couched” its order in terms of a dismissal and stated that it
considered only “the pleadings” and the arguments of the parties, thereby excluding the extraneous
evidence by negative implication. Hence, the order was reviewed on appeal as an order of dismissal
based on the pleadings only. See id. Conversely, on one issue in Winchester in which matters
outside the pleadings were presented and “not excluded,” expressly or by implication, had the issue
been raised on appeal, it would more likely have been considered a grant of partial summary
judgment. Id. In sum, while the trial court need not expressly exclude consideration of matters
outside the pleadings, it can imply that the collateral information was excluded; however, there must
be some indicia that the trial court in fact excluded the additional information. See id.

       This case presents a closer question than was presented in Winchester. Similar to
Winchester, the order of the trial court here is also “couched in terms of a dismissal.” Unlike
Winchester, however, the trial court did not state expressly or by implication what was considered
in making its decision. The situation here is more akin to the issue not raised on appeal in
Winchester, in which the trial court was presented with matters outside the pleadings that were “not
excluded,” and which this court indicated “might” be treated as a grant of partial summary judgment.

        In this case, considerable discovery had been conducted. Numerous depositions and
affidavits were presented to the trial court, along with the plethora of pleadings and attachments
thereto. The trial court noted in its order that the defendants had filed in the alternative, to dismiss


                                                  -4-
or for summary judgment. Although the order is “couched” in terms of dismissal rather than
summary judgment, the trial judge does not state which documents he relied upon in making his
decision.

        We are required, of course, to keep in mind that Rule 12.02 states that if “matters outside the
pleadings are presented to and not excluded by the court, the motion shall be treated as one for
summary judgment.” Considering the record in this case as whole, the circumstances do not indicate
clearly enough that matters outside the pleadings presented to the trial court were in fact excluded
by the trial court. Accordingly, we find that the order of the trial court was an order of summary
judgment.

         Based on this holding, we must now determine whether the trial court erred in granting the
summary judgment in favor of the sellers. A motion for summary judgment should be granted when
the movant demonstrates that there are no genuine issues of material fact and that the moving party
is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.04. The party moving for summary
judgment bears the burden of demonstrating that no genuine issue of material fact exists. Bain v.
Wells, 936 S.W.2d 618, 622 (Tenn. 1997). On a motion for summary judgment, the court must take
the strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable
inferences in favor of that party, and discard all countervailing evidence. Id.

         Summary judgment is only appropriate when the facts and the legal conclusions drawn from
the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.
1995). Because only questions of law are involved, there is no presumption of correctness regarding
a trial court’s grant of summary judgment. Bain, 936 S.W.2d at 622. Therefore, our review of the
trial court’s grant of summary judgment is de novo on the record before this Court. Warren v. Estate
of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

       When the order of the trial court is reviewed as a grant of summary judgment, it is readily
apparent that the trial court correctly dismissed the breach of contract claim. In order to establish
a claim for breach of contract, the plaintiff must show the existence of a contract and that the
breaching party failed to perform according to the contract. See Tenn. Juris. Contracts § 78 (1997).
The written contract that is the subject of the Asburys’ breach of contract claim includes the standard
clause stating that the written agreement constitutes the entire agreement between the parties,
expressly disclaiming reliance on any promises or warranties made outside of the written agreement.
The written agreement states that it conveys the property at 1036 Appling Meadow “as recorded in
Plat Book 159, page 4.” It is undisputed that the description in the Plat Book is accurate and that the
Asburys, for reasons not apparent from the record, elected not to inspect the Plat Book prior to the
closing. Furthermore, although the Asburys allege that the contract obligates the sellers to place sod
along the property line, there is no such reference in the contract.

       Moreover, even if the breach of contract claim is considered solely from the complaint with
no consideration of the written agreement, the claim fails. The complaint states only that the sellers
represented that the property line was a “straight line” from the back of the lot to the front of the lot.

                                                   -5-
The complaint does not assert that the sellers represented that the property line in dispute was
perpendicular to the back property line. Of course, the true property line is in fact a “straight line”
which begins at the back of the lot and ends at the front of the lot. It is not perpendicular to the back
property line, but that was not alleged in the complaint. Under these circumstances, it is clear that
the Asburys do not have a viable breach of contract claim.

        The Asburys also argue that the trial court erred in dismissing their claim of unjust
enrichment. In order to establish a claim for unjust enrichment, the following two elements must
be met: “(1) there is no contract between the parties or a contract has become unenforceable or
invalid; and (2) the defendant will be unjustly enriched absent a quasi-contractual obligation.”
Whitehaven Cmty. Baptist Church v. Holloway, 973 S.W.2d 592, 596 (Tenn. 1998) (citing
Paschall’s, Inc. v. Dozier, 407 S.W.2d 150, 154–55 (Tenn. 1966)). The Asburys’ complaint readily
admits the existence of a real estate contract between the parties. There is no assertion that the
contract became unenforceable or invalid. Because it is undisputed that there was a contract between
the parties, the trial court did not err in dismissing the claim of unjust enrichment.

        Similar to the claim for unjust enrichment, detrimental reliance, or promissory estoppel, is
an equitable remedy based on a quasi-contractual theory. See Rampy v. ICI Acrylics, 898 S.W.2d
196, 211 (Tenn. Ct. App. 1994). In cases in which there is an absence of consideration between the
parties so that there is no valid contract, detrimental reliance “constitutes a substitute for
consideration, or a sufficient reason for enforcement of the promise without consideration.” Alden
v. Presley, 637 S.W.2d 862, 864 (Tenn. 1982) (quoting L. Simpson, Law of Contracts § 61 (2d ed.
1965)). As noted above, the Asburys’ complaint admits the existence of a contract. Because the
complaint fails to assert that there was a lack of consideration so that promissory estoppel should
have been substituted as a quasi-contractual remedy, the trial court did not err in dismissing the
Asbury’s claim of detrimental reliance.

       The Asburys also argue that the trial court erred in dismissing their claim of fraud and
misrepresentation. In order to state a claim for fraud, the following elements must be established:

        (1) an intentional misrepresentation with regard to a material fact; (2) knowledge of
        the representation[’s] falsity—that the representation was made “knowingly” or
        “without belief in its truth,” or “recklessly” without regard to its truth or falsity; (3)
        that the plaintiff reasonably relied on the misrepresentation and suffered damage; and
        (4) that the misrepresentation relates to an existing or past fact, or, if the claim is
        based on promissory fraud, then the misrepresentation must “embody a promise of
        future action without the present intention to carry out the promise.”

Shahrdar v. Global Hous., Inc., 983 S.W.2d 230, 237 (Tenn. Ct. App. 1998) (quoting Stacks v.
Saunders, 812 S.W.2d 587, 592 (Tenn. Ct. App. 1990)). The Asburys’ complaint asserts that
Lagonia-Sherman and Lagonia Realty “engaged in fraud and/or misrepresentation” in stating that
the northeast property line ran in a straight line from the back of the lot to the front of the lot and that
the northeast property line was located where the sod had been placed. The complaint does not

                                                    -6-
allege that these representations by Lagonia-Sherman and Lagonia Realty were made knowingly or
recklessly. Moreover, the complaint does not include any factual allegations to support an allegation
that the sellers had knowledge of the falsity of the representation. Rather, the complaint simply
makes the conclusory allegation that Lagonia-Sherman and Lagonia Realty engaged in fraud when
they made representations to the Asburys. In addition, since the Asburys admittedly elected not to
look at the publicly recorded Plat Book on the property in advance of the closing, and elected to go
ahead with the closing without having received the survey on the property, the element of reasonable
reliance cannot be established, since their reliance on the alleged misrepresentation was not
reasonable. Under these circumstances, we find no error in the trial court’s dismissal of the claim
of fraud and misrepresentation.

        Finally, the Asburys assert that the trial court erred in dismissing their Consumer Protection
Act claim. The Tennessee Consumer Protection Act, section 47-18-101, et seq. of Tennessee Code
Annotated, provides a right of action for a consumer who is the victim of an unfair or deceptive act
in the course of any trade or commerce. See Tenn. Code Ann. § 47-18-102(2) (1995). The
Tennessee Consumer Protection Act covers real estate transactions as in the case at bar. See
Ganzevoort v. Russell, 949 S.W.2d 293, 298 (Tenn. 1997). Unlike a claim for fraud, the plaintiff
does not have to show that the defendant engaged in unfair or deceptive acts knowingly to satisfy
a claim for actual damages under the Tennessee Consumer Protection Act.2 See Menuskin v.
Williams, 145 F.3d 755, 767–68 (6th Cir. 1998); Tenn. Juris. Fraud and Deceit § 15 (2002). Rather,
a negligent misrepresentation may constitute a violation of the Tennessee Consumer Protection Act.
See Menuskin, 145 F.3d at 768; Tenn. Juris. Fraud and Deceit § 15. Negligent misrepresentation
is defined as:

         One who, in the course of his business, profession or employment, or in any other
         transaction in which he has a pecuniary interest, supplies false information for the
         guidance of others in their business transactions, is subject to liability for pecuniary
         loss caused to them by their justifiable reliance upon the information, if he fails to
         exercise reasonable care or competence in obtaining or communicating the
         information.

Robinson v. Omer, 952 S.W.2d 423, 427 (Tenn. 1997) (quoting Restatement (Second) of Torts §
552 (1977)) (emphasis added). Thus, in order to sustain an action based on negligent
misrepresentation, the plaintiff must justifiably rely on the false information. In their respective
depositions, both Mr. and Mrs. Asbury stated that Vines was uncertain of the property line in
question. Additionally, the Asburys elected not to make even a cursory inspection of the Plat Book,
and also chose to go ahead with the closing without having received the survey on the property.
Under these circumstances, the element of justifiable reliance cannot be established because any
reliance by the Asburys was not justifiable. As such, the sellers’ motion for summary judgment was


         2
           In order to satisfy a claim for treble damages under the T ennessee C onsume r Protection Act, the plaintiff must
establish that the defendant willfully or know ingly engag ed in an unfair o r deceptive act. See Tenn. Code Ann. § 47-18-
109(a)(3) (199 5).

                                                            -7-
property granted with regard to the Asbury’s Tennessee Consumer Protection Act claim. This
holding pretermits any other issues raised on appeal.

       The decision of the trial court is affirmed. Costs of this appeal are taxed against the
Appellants, John Asbury and Diana Asbury, and their surety, for which execution may issue if
necessary.




                                                   ___________________________________
                                                   HOLLY KIRBY LILLARD, JUDGE




                                             -8-
