### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE August 7, 2001 Session ANTHONY D. MYERS, ET AL 

### . v. W. A LLEN BR YAN, III Appeal from the Chancery Court for Williamson County No. I 25483 Russ Heldman, Chancellor

No. M2000-03188-COA-R3-CV - Filed December 10, 2001

This case originated as a suit ag ainst a subdivision developer, W. Allen Bry an, II I, (“B ryan ”), for fraud, negligent misrepresentation, and violation of the Te nnessee Consumer P

rotectio n Act, all pred icated on the failu

re of a s ubdivision

plat plan

to refle ct an existing dra inage e asement

. Thereafter, Bry an filed

a third-p arty

complain

t seeking indemnif ica tion from the surveyor w ho prepared the plat plan, Ragan-Smith, Associates, I nc. (“Ragan-Smith”), in the event Bry an was c ast in judgmen

t. On this Te

nn. R. App. P. 54.02 appeal, w e are presented with the issue of whether Brya n’s cause of action for

failure to reflect the drainage ea sement on the plat plan is barred by the four-ye ar statute of repose for survey ing errors. The court below g rant ed Ragan -Smith summary judgmen t, finding that Bry an’s claim is barred by the aforesaid statute of repose. Brya n appeals , arguing that Rag an-Smith is n ot entitled to summary judgment bec ause, according to Bry an, the omission of the drainage easement is an eng ineering error, not a survey ing error, and hence, so the argument goes, th e subjec t claim is n ot barre d by the four -y ear sta tute of re pose for survey ing err ors. In the alternative, B ryan

argue s that eve

n if the fa ilure to reflect the drainage e asement on the plat plan is a s urvey

ing err or, his thir

d-party complain t was timel

y f iled. We a

ffirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Affirmed; Case Remanded
C HARLES D. S USANO , J R ., J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and H ERSCHEL P. F RANKS , J., joined.
Loui s W . Ol iv er, III, He nde rso nvi ll e, T enn ess ee, for th e ap pel lan t, W. All en B ryan , III. Jefferson C. Orr, Nashville, Tennessee, for the appe llee, Ragan-Smith Associates, I nc.
OPINION-2- I. Facts
In 1992, Brya

n, a subdivision deve loper, purc ha se d a tr ac t o f l an d i n W il li am so n C ou nt y, which he later developed into a subdivision known as Be ech Tree. Shortly after purchasing the property, he

entered into an oral agreement with Raga n-Smith, a surveying c ompany, to prepar e a plat plan for the subdivision. On December 7, 1993, a plat plan entitled “Final Plat,” outlining the 16 lots in the subdivision by metes and bounds, was completed, c ertified, and stamped by Roger H. Fuqua, a Registered L

and Surveyor e

mployed by

Ragan-Smith.
On or before January

1, 1995, Bry an reque sted that R agan- Smith make a minor rev

ision to the plat plan for Lot No. 15 in the subdivision. As stated on the plat plan, the sole purp ose of thi s revision was to “sit [sic] out an easement for subsurface disposal sy stems” for a neig hboring landowner. This revision to the plat plan, entitled “Minor Revision Lot No. 15 Beech Tr ee”(“Minor Revision”), was completed by Fuqua on January 5, 1995. The original plaintiffs, Anthony D. Myers and his wife, Tina Mye rs (“collectively

referred to in this opi ni on as “t he Mye rs” ), e nt ere d i nt o a c ont rac t wi th Bryan to pur cha se Lo t No . 15 . In 1997, the Myersdiscovered a drainage ravine on their lot running through the building site, the effect of which wa s to substa

ntially decrea se the size

of the hou se that c ould be built on th e lot. T his ravine, however, was not reflected on th e plat pla n that Br ya n had shown the My

ers. As a result, on May 22, 1998, t

he Myers instit

uted the u nderly ing act ion aga inst Brya n , alleging fraud, negligent misrepresentation, and viola tion of t he Tenne ssee Cons umer Prot ection Act, with re spect to th eir purchas e of Lot No. 15. They alleged that the plat

plan was not

accurate because it did not show the drainag e easem

ent on the ir lot.
On Dece mber 28, 1 998, Bry

an filed a third-p arty

complain t again st Ragan-Smith, alleging that Brya n was entitled to indemnification from Ragan-Smith for any damages awarded a

gai nst Brya n for deficiencies in the plat plan prepared by

Ragan-Smith. Thereafter, Rag an-Smith filed a motion for summary judgment asserting that Bry an’s cause of action was barred by the f our -year statute of repos e for sur

vey ing err ors set fo rthin T.C.A. § 28-3-114. The trial court granted RaganSmith’s motion, finding “that there is no genuine issue as to any material fact wi th respect to the third-pa rty actio n whic h has b een fil ed again st Ra ga n-SmithAssociates, Inc., and that said thirdparty action is untimely and barred as a matter of law pursuant to T.C.A. § 28-3-114 ....” Brya n appeals, challenging

the trial court’s grant of

summary judgme

nt. Brya n argues that there is a genuine issue of

materia l fact asto whether the absence of a dra inage easement on a plat plan is a surveying

error. In the a

lternative, he argues that even if the omission of the draina g e easement is a survey

ing error, his third party

complaint was timely filed.-3- II

. Standard of Review

In deciding whether a gr

ant of summary judgment is appropriate, courts are to determine “if the pleading s, deposit

ions, answ ers to inte

rroga tories, a nd admissio ns on file , togeth er with the affida vits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgmen t as a matter of law.” Tenn. R. Civ. P. 56.04. When presented with a summary judgment motion, the trial court “must take the strongest legitimate view of the evidence in favor of the nonmoving party , allow all reason able inferences in favor of that party , and discard all countervailing evidence.” Byrd v. Ha ll , 847 S.W.2 d 208, 210-11 (Tenn. 1993 ). If there is a dispute as to any materia l fact, th e motion fo

r summ ary

judgmen t m ust be denied. Id. at 211. A material fact is one that

must be de cided in

order to resolve the claim or defense at whic h the motion is aimed. Id.
The party see

king summary judg

ment has the initial burden of demonstrating that there is no genuineissue of material fact and that it is entitled to a judgment as a matter of la w. Id. at 215. Th

is burden may be met

by either af

firmatively neg ating an essential element of the non-moving pa rty’s claim or by conclusively

establishing an affirmative defense. Id. at 215 n. 5. Once the moving pa rty satisfies its burde

n, the bur den then s hifts to the nonm oving pa rty to establish that there are disputed material facts creating g enuine issues that must be resolved by the trier of fact. Id. at 215.
Since summary judgme

ntpresent s purely

a questio n of law, our revi ew is de novo with no presumption of corr

ectnessas to the tr

ial cour t’s judg ment. Hembree v. State , 925 S.W.2d 513, 515 (Tenn. 1996).
III.
A. Surveying Error v. Engineering Error
The trial cou

rt gra nted Rag an-Smith

summary judgmen t becaus e it found

that Bry an’s cla im agains tRagan-Smith is barred by the four-ye ar

statute of repose for survey ing errors. The

trial court based itsdecision

on T.C.A. § 28-3-114

(a) (20 00), whic

h provide s as follow s: (a) All actions to recover damages a gainst any person engaged in the practice o f survey ing for any deficiency , defect, omission, error or miscalculation shallbe brought within four (4) years from the date the survey is recorded

on the plat. Any

such act ion not insti

tuted with

in this four (4) y ear period shall be forever bar red. The cause

of action in such cases shall accrue when the services are performed. (Emphasi s added). In finding tha t this part icular st atute of repose b arred B ry an’s cla im agai nst Ragan-Smith, the trial court concluded that the

omission of

a draina ge ea sement fr

om a plat p lan is a surveying

error.-4-

Under Tennessee law, “the practice of land survey ing” is defined as
those activities set forth in § 62-18-102(3), and the establishment or reestablishment

of corne rs, bound aries, a

nd locati ons of lots , parce ls, tracts, or divisions of land, including distances, direc tio ns, and acreage, or fractional parts thereof; and also including, but not limited to, the correct determination and description of the same for the purpose of furnishing a legal description of any land surveye d to be used in de eds or oth

er instru ments of c onvey ances f

or the pur pose of conveying

title to the area surveyed.
T.C.A. § 28-3-114(b) (2000). As pertinent to the issues on this appeal, T.C.A. § 62-18-102(3) (1997) – as alluded to in T.C.A. § 28-3-114(b) – provides that the following are include d within the concept of “the practice of land surve ying” :
any service of work, the

adequate performance of

which involves the ap plication o f special knowledge of the principles of ma thematics, the related phy sical an d applied

science s, and the r

elevant require ments of law fo r adequ ate evi dence t o the a ct of m easuri ng and loc ating lines, angles, elevations, natural and man-made features in the air, on the surfac e of the e arth, wit hin u nderground workings, and on the beds of bodies of water fo r the purpose of determining area s and volumes, f

o r the monumenting of property boundaries, and for the platting and layout of lands a nd subdivisions thereo f, incl uding the to po gr ap hy, drainage, alignment and g rad es o f streets, and for the preparationand perp etuati on of maps, re cords, pl ats, fiel d notes, records and property

descriptions that represent these survey s.... T.C.A. § 62-18-102(3). Brya n argues that Ragan-Smith is not entitled to su mm ar y j udgmen t becaus e there

is a genuineissue of material fact as to whether the failure to reflect the dra inage easement on the final plat is an engineering err

or or survey

ing error. Bryan argues that the placement of a dr a inage easement on a plat map is an engineering function. I n support of this argument, Bry an submitted the affida vit of DeWayne Ca

ldwell, a licensed survey or and engineer. In his affidavit, Caldwell stated that in his opinion

“it is a sur

vey ing function to prepare a site contour map and drainage worksheet but, it is an engineering f

unction to determine the need for a dr ainage easeme nt and the n to calculate the s ize of that

drainag e easem

ent to be s hown on a F

inal Plat in

accord ance with any

applic abl e zoning and subdivision regulations.” Signific antly , there i s no asser tion by Caldwell that the act of placing a draina

ge ea sement on

a plat pla n is an engineering function; rather he opines simply that the determi nation of the need for an easement and the c alculation of the size of the easement are engineering

tasks. Furthermore, Caldwell did not testify that a surveyor

should not

depict the presenceof a drainage easeme nt on a plat plan. Therefore, assuming, without deciding , that this i s-5-

an issue that is susc eptible to expert te stimony , it is clea r that Cal dwell’s t

estimony , when pr

operly analyzed, does not estab lishthat the placing of a drainag e easement on a site plan is an engineer ing function.
As further support for his position that the omission of a dra inage easement is an engineering error, Brya

n argues that the placement of a drainage easement on a plat plan does not fall within “the practice of landsurveying ” as defined by T.C.A. § 28-3-114(b). We disagree. T.C.A. § 28-3-114(b) directs us to T.C.A. § 62-1 8-102 (3) wh ich in turn p rovid es tha t “the practi ce of la nd sur veying” includes “ the act

of measuring and locating lines, angles, elevations, naturaland man-made features in the air [and] on the surfac e of the e arth ....” (Emphasis added). We find that the placement of a drain age easement on a plat plan is an act that reflects the measuring and locating of a natural feature
on the surface of the earth, and therefore, the omission of the drainage easement from the plat plan is a surveying

rather than engineering

error.
B. Statute of R epose
The trial court concluded

that Bry an’s thir d-party action a gainst Ra gan-Smi th was “u ntimely
an d barred as a matter of law pursuant to T.C.A. § 28-3-114,” the four- year sta tute of repose for surveying errors. The court concluded that the completion of the Final Plat on December 7, 1993,
was the event that triggered the c ommencement of the four-y ear repose period. As a result, the trial court found that Bry an’s third-party complaint, filed on December 21, 1998, was ba rred by that statute. Brya

n argues that the court below erred in finding no genuine iss ue of mat erial fa ct as to which survey is at issue in the under lying suit. Bryan a sserts that the Minor Revision, completed on January 5, 1995, is the appropriate plat for determining the timeliness of the indemnifica tion action, not the Final Plat.
On the basis of T.C.A. § 28-3-114(a), in order to determine if a cause of action is barred by the four-ye ar statute of repose, i t is essential to determine when the repose period begins to run. According to the statute, the cause of action must be b rought within four y ears from the date the survey is “recorded on the plat.” I n Dou gla s v. Will iams , 857 S.W.2d 51 (Tenn. Ct . App. 199 3), this Courtheld that “as used in T.C.A. § 28-3-11 4, the wor ds, ‘rec orded on

the plat’ mean the production of some drawing or written instrument evidencing the results of a survey .” Id. at 54. With respect to the Final Plat, that occurred on December 7, 1993. Brya n argues that the critical drawing is the Minor Revision, not the Final Plat. He contends that the four-ye ar repose period began on January 5, 1995, the date when thesurveyor c ompleted the drawing of the Minor Revision. Because he filed his third-party complaint on December 21, 1998, he argues that his action was timely filed.
As further

support f or his argument that the Minor Revision is the plat for determining the timelines s of his ac tion, Bry an points out that the

Minor Revi sion state s that it “v oids, vacates and-6-

supercedes Lot No. 15 on the Plan of Bee ch Tree as of re cord in Pla

t Book 20, Page 19 , R.O.W.C. Tenn.” T herefo re, he c ontends, a s to Lo t No. 15, the Final Pl at no long er exists.
We disagree with Bryan’s argument that the Minor Revision is the plat plan for determining the running of the statute of repose. I f Ragan-Smith made a

surve ying error b y omitti ng the d rainage
easeme nt, this error was committed on the Final Plat completed on December 7, 1993. As soon as this drawing was completed, according to Douglas , the f our-year s tatut e of rep ose be gan run ning. The Minor

Revision, c ompleted

on January

5, 1995, di d nothing to change the Final Plat as far as the drainage easement is concerned

. As stated o n the Minor Revision, the sole purpose of the
r evision was to “sit [sic] out an easement for subsurface disposal sy stems for ... [an] adjoinin g propert y owner, and the addition of a small tract to the west [of] Lot 15 to make up the area of easement as agreed to by

both property owne

rs.” The easement for subsurface disposal had nothing to do with the drainage easement om it ted fro m t he F in al P lat . If an error was made, it was made on Decemb er 7, 199 3, the dat e of the F inal Plat.
We find that the original complaint filed by the Myers wa s basedupon the survey re flected
on the Final Plat. Since that suit prom pted the o rig inal def endant–B ry an–to file

his third pa

rty complain t, we find that the latter action was likewise predicated on the Final Plat dated Dece mber 7, 1993. Because the allege d faulty survey occurred more than four y ears before Bry

an filed his third party complain t on Dece mber 21, 1 998, his caus e of action is barred as a matter of law by T.C.A. § 28-3-114. As a result, we find that the trial court correctly gr a nted R aga n-Smith summary judgmen t.
IV. Conclusion
The judgment of the trial cou rt gra nting sum mary judgmen t to Raga n-Smith is a

ffirmed . This
case is remanded for such further proceedings as may be necessary , consistent with this opinion, pur sua nt to app li cab le l aw. Co st s on app eal are tax ed t o t he a ppe ll ant , W . Al len Bryan , III.

_______________________________ CHARLES D. SUSANO, JR., JUDGE