1 Rule 10 (Court of Appeals). Memorandum Opinion . -- (b) The Court , with

concurrence of all judges pa rticipating in the case, may affirm, reverse or modify the actions of the trial court by memora ndum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINI ON,” shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case.

2 Fletcher’s petition for post-conviction relief was ba sed on his claim of ineffective assistanc e of coun sel. 1 

# FILED
October 3, 199 6 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) C. A. No. 02A01-9605-CH-00102 LAMAR FLETCHER, ) Shelby County Chancery

Court ) No. 105699-1 R.D. Plaintiff

/Appella nt. ) ) HON. NEAL SMAL L, CHANCEL

LOR VS. ) ) JOHN W. CA MPBELL, ) AFFI RMED ) Defendant/Appellee. ) OPINION FIL ED: ) Lamar Fletcher , Pro Se Donnie E. Wilson , County Attorney , Memphis, Tennessee Danny Presley , Executive Assistant County Attorney , Memphis, Tennessee For Defendant/Appellee.

______________________________________________________________________________ MEMORAN

DUM OP

INION 1

______________________________________________________________________________ FARMER, J. Plaintiff -Appella nt, Lamar Fle tcher ( “Fletc her”), appear ing pro se , appeals the trial court’s order granting the motion to dismiss filed by Defendant-Appellee, John W. Campbell (“Campbell”).

In May 1995, Fletc her filed a complaint for fraud

against Campbell. The essence of Fletcher’s fraud c laim was th at Campbe ll, Fletcher’s f

ormer a ttorney , testified untruthf ully at a December

1992 hearing held on

Fletche r’s petit ion for po st-convi ction relief in a c riminal c ase 2 and that, rely ing upon these misr

e presentations, the criminal court judge hearing the case denied Fletcher’s petition.2 Campbell responded to the co mplaint by filing a motion to dis m iss in whi ch he asserted that the c omplaint w as barr ed by the statut

e of limita

tions, tha t the all egations in the complaint did not state an actionable claim for fraud, and that the c omplaint f

ailed to st atea claim upon which relief could be granted.

Finding that the motion todismiss was well-taken, the trial court granted the motion anddismissed Fletche

r’s comp laint. On a

ppeal, Fletcher presents the following issues for r eview, wh ic h w e h av e r es ta te d f or pu rp os es of cl ar it y:

1. Whether the trial court erred in dismissing Fletch er’ s complain t based up on the def

ense of t he statute of limitati ons. 2. Wheth er the trial court erred in dismissing Fletcher ’s compl aint for failure to state a claim upon which relief could be granted.

We conclude that resolution of the second issue is dispositive and affirm. In orde r to state a c laim for f

raudule nt misrepr

esentat ion, the pl aintif

f must allege, inter alia , “that the plaintiff reasonably

relied on the misrepresentation and suffered damage.” Stacks v. S aunders , 812 S.W.2d 587, 592 (Tenn. Ap p. 1990); accord Metropolitan Gov’t v. McKinney , 852 S.W.2d 233, 237 (Tenn. App. 1992 ); Lambdin v. Garland , 723 S.W.2d 953, 956 (Tenn. A pp. 1986) ; Williams v. Van Hersh , 578 S.W.2d 373, 376 (Tenn. App. 1978). Here, Fletcher failed to state a claim for

fraudulent misrepresentationbecause , althoug h Fletch er all eg ed that he was damaged by Campbell’s repres entation s, Fletcher failed to allege tha the actually r

elied on the statements. Rather, Fletcher’s complaint alleged th at he was damaged because of the criminal court’s reliance on Fletcher ’s statemen ts.

This case is analogous to Deed v. Condrell , 568 N.Y.S.2d 679 (N.Y. Sup. Ct.), aff’d , 579 N.Y.S.2d 930 (N.Y. App. Div. 1991). There, the plain tiff sued a court- appointe d psycholog ist for fraudul ent misre

present a tion aft er a cou

rt, rely ing on the

psy cholog ist’s rec ommendat ions, awarded sole custody of the plaintiff’ s child to the plaintiff’s former husband. The basis of the plaintiff’s fraud claim was that the p syc hologist had misre

present ed his pro ficiency in

child custody3

cases. I n its opinion

granting the p syc

hologist ’s motion to

dismiss, the

court re asoned th at:

Alth ough [the compla

int] aversthat def

endant mi srepre sented hi s proficiency

in child custody

cases it o therwise does not appear that [plaintiff ’s] relianc e on th ese a lleged misrepresentations injured plaintiff. . . . the only injury alleged in this case relates to the entry of [the] custody order.

Deed v. Condrell , 568 N.Y.S.2d at 681.

In the p resent c ase, the complain

t alleg ed that Ca

mpbell mad

e certa in misrepresentations which damaged Fletcher. T he complaint, however, faile d to al lege that Fletcher reliedupon the st

atementsto his detriment. As in Deed v. Condrell , the court issuing the detrimental order, and not the plaintiff, relied on the statements. Under these circumstances, Fletc her’s complaint has failed to state a cause of action upon which re lief can be granted.

The judgmen

t of the tr ial cour t d i smissing F

letcher ’s compla

int is aff irmed. Cos ts of th is ap pe al ar e t ax ed to Fl et ch er , f or wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

______________________________ FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ LI LL ARD, J. (Conc

urs)