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FRAUD - BRYANT BANK V. TALMAGE KIRKLAND & COMPANY, INC., D/B/A/ KIRKLAND & COMPANY, ET. AL.

Bryant Bank v. Talmage Kirkland & Company, Inc., d/b/a/ Kirkland & Company, et. al. [Ms. 1130080, May 23, 2014] __ So. 3d __ (Ala. 2014). In a fraud case, a statement of opinion may constitute a misrepresentation of material fact under the following principle, quoted with approval from a Fourth Circuit opinion: "if the defendant has a pecuniary interest in making the statement and he possesses expertise or special knowledge that would ordinarily make it reasonable for another to rely on his judgment or ability to make careful enquiry, the law places on him a duty of care with respect to representations made to plaintiff." Bryant Bank hired Talmage Kirkland (TKC) to perform an appraisal on property that was to be collateral on a loan. The parties entered into an agreement that stated: "The appraisal report is intended for use as an aid in property underwriting, loan classification and/or disposition of the asset." Although the agreement clearly stated that Bryant Bank would rely on the appraisal in making decisions, TKC argued that it contained only an opinion and therefore could not support plaintiff's negligent misrepresentation claim. The Court quotes from Kaye v. Pawnee Construction Co., 680 F.2d 1360, 1368 (11th Cir. 1982): " 'Even an opinion on value is actionable ... if the recipient states his ignorance and invites the opinion, and the speaker understands the recipient relies on the speaker's opinion as a fact so that the onus of a confidential relation results: if the recipient forbears independent inquiry because of an opinion elicited under these circumstances of confidence, Alabama courts will treat the statement as a fact reasonably relied upon.' " The Court earlier held in Fisher v. Comer Plantation, Inc., 772 So. 2d 445 (Ala. 2000), relying on Restatement (Second) of Torts ¤ 552 (1977), that a real estate appraiser may be held liable for a negligently conducted appraisal. The Court relied on Kaye, Fisher, and other authorities to hold that Bryant Bank presented substantial evidence that TKC misrepresented a material fact. The Court also rejected TKC's argument that the statute of limitations had run and held that Bryant Bank reasonably relied on TKC's appraisal of the property in its decision to make a loan. The Court reversed the partial summary judgment granted to TKC on the fraud claim.

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