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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