Private Mortgage Inv v. Hotel and Club Assoc

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PRIVATE MORTGAGE INVESTMENT 
SERVICES, INCORPORATED,
Plaintiff-Appellee,
v.  No. 01-1834
HOTEL AND CLUB ASSOCIATES,
INCORPORATED; ANDY HINDS,
Defendants-Appellants.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Margaret B. Seymour, District Judge.
(CA-99-4237)
Argued: April 3, 2002
Decided: July 19, 2002
Before WILKINS and MICHAEL, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Senior Judge Hamilton wrote the
opinion, in which Judge Wilkins and Judge Michael joined.
COUNSEL
ARGUED: Michael Wallace Tighe, CALLISON, TIGHE & ROBIN-
SON, L.L.P., Columbia, South Carolina, for Appellants. Jeffrey Law-
rence Payne, TURNER, PADGET, GRAHAM & LANEY, P.A.,
Florence, South Carolina, for Appellee. ON BRIEF: Louis H. Lang,
2 PRIVATE MORTGAGE INVESTMENT v. HOTEL AND CLUB ASSOC.
CALLISON, TIGHE & ROBINSON, L.L.P., Columbia, South Caro-
lina, for Appellants.
OPINION
HAMILTON, Senior Circuit Judge:
The principal question in this appeal is whether South Carolina’s
highest court would hold a professional appraiser liable to a third
party for negligent misrepresentation, under South Carolina common
law, in the event the third party detrimentally relied upon the profes-
sional appraiser’s materially inaccurate and negligent appraisal of the
"as is" market value of a parcel of real property. Based upon the trend
of South Carolina jurisprudence, we answer this question in the affir-
mative.
I.
The controversy in this case stems from a professional real estate
appraisal of a parcel of real property (the Property) located in Dar-
lington County, South Carolina. The Property consists of a nearly
three-acre tract of land with a two-story wood frame house built in
approximately 1880. On September 5, 1997, Burley Smith (Smith)
purchased the Property from Cypress Creek Enterprises, Incorporated
(Cypress Creek) for the stated consideration of $389,000. Notably,
Smith was a corporate officer of Cypress Creek. Another corporate
officer of Cypress Creek, Gerald Wisener (Wisener), executed the
transaction documents on behalf of Cypress Creek.
The transaction was owner-financed in part by way of a purchase-
money note and mortgage. Specifically, Cypress Creek held a
$330,650 purchase-money note and mortgage (the Cypress Creek
Note and Mortgage) on the Property.
Just days after the transaction closed, Wisener, on behalf of
Cypress Creek, hired the real estate appraisal firm Hotel and Club
Associates, Incorporated of Greensboro, North Carolina to appraise
the Property in order to assist Cypress Creek in selling the Cypress
PRIVATE MORTGAGE INVESTMENT v. HOTEL AND CLUB ASSOC. 3
Creek Note and Mortgage. Hotel and Club Associates, Incorporated
specializes in appraising hospitality properties and is owned and oper-
ated by Andy Hinds (Hinds).
Hinds agreed to appraise the Property and provide Cypress Creek
with "a limited appraisal with summary report including the informa-
tion, the methods of analysis used, and the conclusions drawn in the
valuation process." (J.A. 386). The fact that the appraisal would be a
"limited" one signified that Hinds would value the Property using
only one or two professionally accepted methods of valuation rather
than all three of the professionally accepted methods of valuation.
The three accepted methods of valuation are the income approach, the
sales comparison approach, and the cost approach. Ultimately, Hinds
valued the Property using the income approach and the sales compari-
son approach.
Hinds completed his limited appraisal and summary report of the
Property (the Appraisal Report) on September 19, 1997. In the
Appraisal Report, Hinds estimated that the "as is" market value of the
Property under both the income approach and the sales comparison
approach was $400,000 on September 10, 1997. The Appraisal Report
defined "as is" market value as "[a]n estimate of the market value of
a property in the condition observed upon inspection and as it physi-
cally and legally exists without hypothetical conditions, assumptions,
or qualifications as of the date the appraisal is prepared." (J.A. 393).
In calculating the "as is" market value of the Property under the
income approach and the sales comparison approach, Hinds assumed
that the highest and best use of the Property was as a traditional bed
and breakfast. Notably, although the Appraisal Report states that
approximately $50,000 worth of improvements to the house were
needed in order for the Property to operate as a bed and breakfast, the
Appraisal Report unequivocally states that the "as is" market value of
the Property reflects the market value of the Property without these
improvements.
In November 1997, Private Mortgage Investment Services, Incor-
porated (Private Mortgage) purchased the Cypress Creek Note and
Mortgage from Cypress Creek for $200,000. Private Mortgage also
paid a $12,000 commission to the broker who brokered the transac-
tion. In deciding to purchase the Cypress Creek Note and Mortgage,
4 PRIVATE MORTGAGE INVESTMENT v. HOTEL AND CLUB ASSOC.
Private Mortgage heavily relied upon the "as is" market value of the
Property as stated in the Appraisal Report. Private Mortgage had no
expertise with respect to this type of property in Darlington County,
South Carolina.
Much to Private Mortgage’s disappointment, Smith never made a
payment on the Cypress Creek Note and Mortgage. Private Mortgage
had no choice but to foreclose on the Property. Private Mortgage
acquired the Property at the foreclosure sale for $125,000. In Decem-
ber 1999, Private Mortgage sold the Property on a best efforts basis
for $60,000 to a third party, the only party expressing any interest in
the Property.
Private Mortgage subsequently brought the present civil action in
South Carolina state court against Hotel and Club Associates, Incor-
porated and Hinds (collectively the Defendants). The complaint
alleged two claims—professional negligence and negligent misrepre-
sentation. Only the negligent misrepresentation claim is at issue in
this appeal. With respect to that claim, Private Mortgage primarily
alleged that the Defendants’ appraisal of the "as is" market value of
the Property at September 10, 1997, as stated in the Appraisal Report,
constituted a negligent misrepresentation.
The Defendants removed the action to the United States District
Court for the District of South Carolina on the basis of diversity juris-
diction. 28 U.S.C. § 1332. The case proceeded to trial by a jury on
February 27, 2001. At the close of Private Mortgage’s evidence, the
Defendants moved for judgment as a matter of law with respect to
both claims. Fed. R. Civ. P. 50(a). The Defendants, inter alia, sought
judgment as a matter of law on the negligent misrepresentation claim
on the ground that a professional real estate appraiser’s appraisal of
the market value of a parcel of real property is not actionable as a
negligent misrepresentation under South Carolina common law. The
district court granted the motion with respect to the professional neg-
ligence claim, but denied it with respect to the negligent misrepresen-
tation claim. At the close of all evidence, the Defendants renewed
their motion for judgment as a matter of law with respect to the negli-
gent misrepresentation claim, but the district court again denied the
motion. Id.PRIVATE MORTGAGE INVESTMENT v. HOTEL AND CLUB ASSOC. 5
The jury found in favor of Private Mortgage on the negligent mis-
representation claim, and, although the jury found that Private Mort-
gage had suffered $57,500 in damages, the jury determined that the
Defendants and Private Mortgage were equally at fault in causing
such damages. Accordingly, the district court then applied South Car-
olina’s comparative fault rule to reduce the verdict in favor of Private
Mortgage to $28,750. The Defendants next renewed their motion for
judgment as a matter of law, and alternatively, sought a new trial.
Fed. R. Civ. P. 50(b)-(c), 59(a). The district court denied the alterna-
tive motions in toto and entered judgment in favor of Private Mort-
gage for $28,750.
The Defendants noted a timely appeal of the district court’s denial
of their motion for judgment as a matter of law with respect to Private
Mortgage’s negligent misrepresentation claim.
II.
We review the district court’s denial of the Defendants’ motion for
judgment as a matter of law de novo, and we must view the evidence
in the light most favorable to Private Mortgage as the non-movant.
Knussman v. Maryland, 272 F.3d 625, 634 (4th Cir. 2001). Judgment
as a matter of law is appropriate when there is no legally sufficient
evidentiary basis to support the jury’s verdict. Fed. R. Civ. P.
50(a)(1).
III.
On appeal, the Defendants contend the district court erred by deny-
ing their motion for judgment as a matter of law with respect to Pri-
vate Mortgage’s negligent misrepresentation claim. According to the
Defendants, the district court should have granted their motion on the
basis that a professional appraiser’s appraisal of the "as is" market
value of a parcel of real property is not actionable as a negligent mis-
representation under South Carolina common law.1 We disagree.
1
Notably, the Defendants do not challenge on appeal the sufficiency of
the evidence to support the jury’s apparent finding that they failed to use
due care in formulating the appraisal of the "as is" market value of the
Property as of September 10, 1997.
6 PRIVATE MORTGAGE INVESTMENT v. HOTEL AND CLUB ASSOC.
As a federal court sitting in diversity, we have an obligation to
apply the jurisprudence of South Carolina’s highest court, the South
Carolina Supreme Court.2 Wells v. Liddy, 186 F.3d 505, 527-28 (4th
Cir. 1999); Liberty Mut. Ins. Co. v. Triangle Indus., Inc., 957 F.2d
1153, 1156 (4th Cir. 1992). But in a situation where the South Caro-
lina Supreme Court has spoken neither directly nor indirectly on the
particular issue before us, we are called upon to predict how that court
would rule if presented with the issue. Id. In so predicting, the South
Carolina Court of Appeals’ decisions, as the state’s intermediate
appellate court, "‘constitute the next best indicia of what state law is,’
although such decisions ‘may be disregarded if the federal court is
convinced by other persuasive data that the highest court of the state
would decide otherwise.’" Liberty Mut. Ins. Co., 957 F.2d at 1156
(quoting 19 Charles A. Wright, Arthur R. Miller & Edward H. Coo-
per, Federal Practice & Procedure § 4507, at 94-95 (1982)). In pre-
dicting a ruling by the South Carolina Supreme Court, we may also
consider, inter alia: restatements of the law, treatises, and well con-
sidered dicta. Id.
We begin our task of determining the state of South Carolina com-
mon law regarding the issue before us by setting forth the basic ele-
ments of a negligent misrepresentation claim under South Carolina
common law:
(1) the defendant made a false representation to the plaintiff;
(2) the defendant had a pecuniary interest in making the
statement; (3) the defendant owed a duty of care to see that
he communicated truthful information to the plaintiff; (4)
the defendant breached that duty by failing to exercise due
care; (5) the plaintiff justifiably relied on the representation;
and (6) the plaintiff suffered a pecuniary loss as the proxi-
mate result of his reliance on the representation.
Fields v. Melrose Ltd. P’ship, 439 S.E.2d 283, 285 (S.C. Ct. App.
1993). The general rule under South Carolina common law is that in
order to be actionable as a negligent misrepresentation, the false rep-
2
All parties agree that South Carolina substantive law controls with
respect to the viability of Private Mortgage’s negligent misrepresentation
claim.
PRIVATE MORTGAGE INVESTMENT v. HOTEL AND CLUB ASSOC. 7
resentation must relate to a present or preexisting fact that is false
when made. Koontz v. Thomas, 511 S.E.2d 407, 413 (S.C. Ct. App.
1999). The corollary of this general rule is that the representation at
issue cannot ordinarily be based on unfulfilled promises or statements
as to future events. Id.Unfortunately, the South Carolina Supreme Court has neither
directly nor indirectly spoken to the issue before us. That issue is
whether, under South Carolina common law, an exception to the gen-
eral rule that a negligent misrepresentation must relate to a present or
preexisting fact exists when the negligent misrepresentation is in the
nature of a professional opinion, given by a person who intends it for
the guidance of others, and a third party detrimentally relies upon it.
Fortunately for our court, however, several other indicators of how
the South Carolina Supreme Court would resolve the issue if pre-
sented with it, when taken together, strongly suggest that the court
would rule as urged by Private Mortgage.
The first indicator of how the South Carolina Supreme Court would
rule is its response to the South Carolina Court of Appeals’ decision
in ML-Lee Acquisition Fund v. Deloitte & Touche, 463 S.E.2d 618(S.C. Ct. App. 1995), rev’d in part on other grounds, 489 S.E.2d 470(S.C. 1997). In that case, the South Carolina Court of Appeals
adopted the Restatement (Second) of Torts’ approach for determining
the scope of an accountant’s duty to third parties who use and rely on
the accountant’s work—Restatement (Second) of Torts § 552. ML-
Lee, 463 S.E.2d at 635.
Restatement (Second) of Torts § 552 provides as follows:
(1) 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 guid-
ance of others in their business transactions, is subject to lia-
bility for pecuniary loss caused to them by their justifiable
reliance upon the information, if he fails to exercise reason-
able care or competence in obtaining or communicating the
information.
(2) . . . [T]he liability stated in Subsection (1) is limited to
loss suffered
8 PRIVATE MORTGAGE INVESTMENT v. HOTEL AND CLUB ASSOC.
(a) by the person or one of a limited group of per-
sons for whose benefit and guidance he intends to
supply the information or knows that the recipient
intends to supply it; and
(b) through reliance upon it in a transaction that he
intends the information to influence or knows that
the recipient so intends or in a substantially similar
transaction.
Restatement (Second) of Torts § 552 (1977).3 The Court of Appeals
also explained that under Restatement (Second) of Torts § 552,
although the accountant must have actual knowledge that the informa-
tion that it supplies will be supplied to a limited group of persons for
the purpose of influencing those persons, "there is no requirement that
the accountant know the precise identity of the third party . . . ." ML-
Lee, 463 S.E.2d at 627. According to the South Carolina Court of
Appeals, "the Restatement approach represents the soundest method
of determining the scope of an accountant’s duty to third persons for
negligent misrepresentation" because it "balances the need to hold
accountants to a standard that accounts for their contemporary role in
the financial world with the need to protect them from liability that
unreasonably exceeds the bounds of their real undertaking." Id. at 627(internal quotation marks omitted). On a writ of certiorari to the
South Carolina Supreme Court in the same case, the South Carolina
Supreme Court expressly adopted "the § 552 standard of liability for
the reasons set forth in the Court of Appeals’ decision." ML-Lee
3
Factually, ML-Lee involved an investment partnership that allegedly
relied upon a professionally audited financial report and professionally
audited financial statements of a textile company in making significant
investments in the textile company. ML-Lee, 463 S.E.2d at 622-24. The
financial report and financial statements at issue had been audited by a
professional accounting firm retained by the textile company. Id. at 629.
When the accounting firm prepared the audited financial report and
financial statements, it knew that the textile company intended to use the
documents to lure potential investors. Id. at 629-630. The financial state-
ments overstated the textile company’s inventory, which in turn caused
the financial report to overstate the financial condition of the company.
Id. at 623, 630 n.11.
PRIVATE MORTGAGE INVESTMENT v. HOTEL AND CLUB ASSOC. 9
Acquisition Fund v. Deloitte & Touche, 489 S.E.2d 470, 471 n.3 (S.C.
1997).
Notably for our purposes, Comment b. to Restatement (Second) of
Torts § 552 provides that "[t]he rule stated in this Section applies not
only to information given as to the existence of facts but also to an
opinion given upon facts equally well known to both the supplier and
the recipient." Restatement (Second) of Torts § 552, cmt. b. (1977)
(emphasis added). To be sure, the alleged negligent misrepresenta-
tions in ML-Lee did not involve expressions of opinion, but rather
involved misstatements of fact. Accordingly, neither court had occa-
sion to address Comment b. to Restatement (Second) of Torts § 552
in ML-Lee.
Such circumstance, however, far from keeps us in the dark about
how the South Carolina Supreme Court would rule if presented with
the issue before us. First, common sense tells us that if the South Car-
olina Supreme Court was comfortable in adopting the Restatement
(Second) of Torts § 552 with respect to the liability of a professional
accounting firm to a third party in the context of a misrepresentation
of fact negligently supplied for the guidance of others, the court, if
presented with the opportunity, would not hesitate to adopt Comment
b. to § 552 with respect to the liability of a professional real estate
appraisal firm to a third party in the context of a negligent appraisal
of a parcel of real property supplied for the guidance of others. After
all, Comment b. is the drafters of the Restatement (Second) of Torts’
considered explanation of when § 552 applies to a particular fact pat-
tern. Moreover, as with accountants, the Restatement (Second) of
Torts’ approach represents the soundest method of determining the
scope of a professional real estate appraiser’s duty to third persons for
negligent misrepresentation because it balances the need to hold pro-
fessional real estate appraisers to a standard that accounts for their
contemporary role in the financial world with the need to protect them
from liability that unreasonably exceeds the bounds of their real
undertaking.
Next, dicta in another decision by the South Carolina Court of
Appeals, namely AMA Management Corp. v. Strasburger, 420 S.E.2d
868 (S.C. Ct. App. 1992), suggests that if faced with the facts of the
present case, that court would adopt Comment b. to Restatement (Sec-
ond) of Torts § 552. In AMA, the plaintiff, a sophisticated commercial
10 PRIVATE MORTGAGE INVESTMENT v. HOTEL AND CLUB ASSOC.
entity, brought a negligent misrepresentation claim against another
sophisticated commercial entity. AMA, 420 S.E.2d at 870. The plain-
tiff alleged that the defendant, via one of its contract negotiators, neg-
ligently misrepresented that certain loan guarantees that it was
offering for purchase were "good." Id. at 875. Before disposing of the
claim on the basis that the plaintiff had failed to prove that the alleged
misrepresentation was false when made, and alternatively on the basis
that the plaintiff’s reliance on the alleged misrepresentation was not
reasonable under the circumstances, id., the court stated in dicta that
although a "mere statement of opinion, commendation of goods or
services, or expression of confidence that a bargain will be satisfac-
tory does not give rise to liability in tort, . . . 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," id. at 874. This language is fully consistent with Com-
ment b. to Restatement (Second) of Torts § 552.
Collectively, the indicators that we have just set forth, along with
the absence of contrary indicators, prompt us to hold that the South
Carolina Supreme Court would adopt Comment b. to Restatement
(Second) of Torts § 552 and hold a professional appraiser liable to a
third party for negligent misrepresentation under South Carolina com-
mon law in the event the third party detrimentally relied upon the pro-
fessional appraiser’s materially inaccurate and negligent appraisal of
the "as is" market value of a parcel of real property.4 Finally, we cau-
4
We expressly reject the Defendants’ argument that the South Carolina
Court of Appeals’ opinion in Koontz requires that we reverse. In Koontz,
the plaintiff asserted that the architectural firm that he had hired to build
him a new home had induced him to enter into a contract with it by way
of the following representations: (1) the construction phase of the project
could be completed for $400,000; (2) the design phase could be com-
pleted in a reasonable time; and (3) the architect’s fees for services ren-
dered would not be excessive. Koontz, 511 S.E.2d at 412. The South
Carolina Court of Appeals characterized these alleged misrepresentations
as representations related to future events, and therefore, not actionable
as negligent misrepresentations. Id. at 413. Relevant for our purposes, the
court did not characterize the statements as ones of professional opinion
nor consider the applicability of Comment b. to Restatement (Second) of
PRIVATE MORTGAGE INVESTMENT v. HOTEL AND CLUB ASSOC. 11
tion that we do not intend our holding to expose a professional
appraiser to liability for an appraisal of the "as is" market value of a
parcel of real property that is materially inaccurate, but nonetheless
had been formulated with due care.
IV.
Alternatively, the Defendants seek reversal on the basis that the
evidence before the jury that Private Mortgage justifiably relied upon
the Appraisal Report in purchasing the Cypress Creek Note and Mort-
gage was insufficient as a matter of law. In this regard, the Defen-
dants argue that Private Mortgage cannot establish justifiable reliance
because the Appraisal Report states in several places that the house
on the Property was to be operated as a bed and breakfast, not that
it was actually operating as a bed and breakfast.
The Defendants’ alternative basis for reversal fares no better than
their first. Critically, although the Appraisal Report stated that
approximately $50,000 worth of improvements to the house were
needed in order for the Property to operate as a bed and breakfast, the
Appraisal Report clearly stated that the "as is" market value of the
Property reflects the market value of the Property without these
improvements. Moreover, the record shows that Private Mortgage’s
president, Chuck Cefalu, testified at length at trial that Private Mort-
gage heavily relied on the "as is" market value of the Property as
stated in the Appraisal Report in deciding to purchase the Cypress
Creek Note and Mortgage for $200,000. For these reasons, we reject
the Defendants’ challenge to the sufficiency of the evidence of justifi-
able reliance.
V.
For the reasons stated, we affirm the judgment of the district court
in favor of Private Mortgage.
AFFIRMED
Torts. The Koontz case is simply a straightforward application under
unremarkable facts of the general rule that in order to be actionable as
a negligent misrepresentation, the misrepresentation must relate to a
present or preexisting fact that is false when made. Koontz, 511 S.E.2d
at 413.