October 29, 2010

Court Reviews a Contractor’s Mistake in Making a Construction Bid


Prestige Land Company ("Developer") owned land upon which it intended to build a commercial shopping center. An estimate to complete the project was obtained. Thereafter, the project was opened up for bidding. Brian Mullins Excavating Contractors, Inc. ("Contractor") bid on the project. Although Contractor's bid was significantly lower than the next lowest bid, it was only 10% lower than the estimated costs of construction. Contractor was unaware that it had made a unilateral mistake in its bid. Contractor was awarded the project. Eventually, Contractor was unable to complete the project because it ran out of money due to its unilateral bidding mistake.

Developer sued for breach of contract, and Contractor filed a counterclaim for fraud and other claims. The Trial Court awarded Contractor a judgment for $101,357.05. Finding no clear and convincing evidence of fraud by Developer, we vacate the judgment for Contractor and enter a judgment for Developer in the amount of $128,326.56.

Opinion may be found at:

October 28, 2010

Court Reviews Whether Defendant Signed A Credit Application in His Personal Capacity

84 LUMBER COMPANY v. R. BRYAN SMITH, ET AL. (Tenn. Ct. App. October 28, 2010)

84 Lumber Company ("84 Lumber") sued R. Bryan Smith ("Smith") and Allstates Building Systems, LLC ("Allstates") for a balance owed on an open account. Both sides filed motions for summary judgment. The Circuit Court granted 84 Lumber summary judgment, and entered a judgment against Smith and Allstates in the amount of $27,611.31 plus attorney's fees and costs in the amount of $6,500.00. Smith appeals to this Court.

We find that Smith did not sign the credit application in his personal capacity and, therefore, did not guarantee Allstates' debt. We reverse the grant of summary judgment against Smith, and grant summary judgment to Smith. We affirm the grant of summary judgment against Allstates.

Opinion may be found at:

SUSANO, concurring in part and dissenting in part:

October 26, 2010

TN Supreme Court Reviews Whether an Appraisal can Form the Basis of a Fraudulent Misrepresentation Claim

JOSEPH DAVIS ET AL. v. PATRICK J. McGUIGAN ET AL. (Tenn. October 26, 2010)

This appeal arises from a trial court's grant of summary judgment in an action against a real estate appraiser for fraudulent misrepresentation and for violation of the Tennessee Consumer Protection Act. A husband and wife alleged that the appraiser, who was hired by the bank financing the husband and wife's home construction, recklessly overestimated the value of their proposed construction and that they reasonably relied on the appraisal value to their detriment.

The Court of Appeals affirmed the trial court's ruling, holding that an appraisal is an opinion that cannot form the basis for a fraudulent misrepresentation claim. We hold that an opinion can form the basis of a fraudulent misrepresentation claim. We further hold that genuine issues of material fact preclude summary judgment as to the husband and wife's claims against the appraiser. We reverse the Court of Appeals and remand the case to the trial court for further proceedings consistent with this opinion.

Opinion may be found at:

KOCH and CLARK, dissenting: