FILED

August 20, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF APPEALS

AT KNOXVILLE

REBA PINSON, ) HAMILTON CIRCUIT 

 ) C.A. NO. 03A01-9712-CV-00533

 )

 Plaintiff-Appellant )

 )

vs. )

 ) HON. DOUGLAS A. MEYER 

 ) JUDGE 

 )

HOPKINS SURVEYING GROUP, INC.,)

 )

 Defendant-Appellee ) AFFIRMED AND REMANDED

 

CHARLES P. DUPREE, Chattanooga, for Appellant.

R. DEE HOBBS, Chattanooga, for Appellee.

O P I N I O N

McMurray, J.

The genesis of this action is a property boundary line dispute

between the p lainti ff and others. Plaintiff, Reba Pinson, filed

suit against Hopkins Surveying Group, Inc., alleging that she had

hired the defendant to survey her property in conjunction with the

boundary line dispute. Here she alleges that the defendant

negligently and erroneously conducted a survey of t he d isputed
2

property line. Defendant moved for summary judgment and the trial

court granted the motion and dismissed the case. This appeal

resulted. We affirm the judgment of the trial court.

I t appears from the affidavits in the record that sometime in

1989, Pinson became involved in a boundary line dispute with her

neighbors. Pinson's attorney at that time contacted David Hopkins,

principal of the defendant corporation, and requested that he

travel to the property site and walk the property with Pinson.

Hopkins contracted to survey the property line, verify the corners

o f the property line, and locate any improvements and encro ach -

ments. Hopkin s subsequently prepared a survey drawing of the

property line.

After the survey was completed, Hopkins rece ived correspondence from Pinson's attorney, advising him that litigation between

Pinson and her neighbors (Mr. and Mrs. Snyder) had ensued, and

requesting that he appear on behalf of Pinson in that case. A

voluntary dismissal of this lawsuit was entered by Pinson, however,

in January of 1991. 

Subsequently, in January 1992, Pinson employed another

attorney and again filed suit against the Snyders. A settlement

agreement as to the location of the property line was eventually

reache d , and Hopkins returned to the property, meeting with both
3

parties and their counsel. On A pri l 7, 1993, Pinson and the

S nyders announced to the Hamilton County Chancery Court th at al l

matters in controversy had been settled. The chancellor approved

the settlement , an d Pinson's attorney at that time requested

Hopkins to stake the property line in accordance with the settlement agreement. 

O n Ju ly 13, 1994, Pinson filed a complaint against Hopkins

Surveying Group, Inc., alleging "a breach of co ntract and an

intentional misrepresentation of the ability and quality of the

services to be rendered." Defendant answered, denying the

complaint's allegations, and H opki ns filed an affidavit alleging

that the survey was accurate and performed in a timely and

professional manner, "using those methods, standards and practices

which are reasonable and customary in the trade."

Defendant moved for sum mary judgment. In a rather unusual

twist, all four judges for the Circuit Court of Hamilton County

recused themselves in succession. The Honorable Douglas A. Meyer,

Presiding Judge of the Criminal Court of Hamilton County, agreed to

hear the case. He granted defendant's motion for summary judgment.

Our standard of review of a trial court's grant of summary

judgment is well-settled:
4

Tenn.R.Civ.P. 56.03 provides that summary judgment

i s only appropriate where: (1) there is no genuine issue

with regard to the material facts relevant to the claim

o r defense contained in the motion , B yrd v. Hall , 847

S.W.2d 208, 210 (Tenn. 1993); and (2) the moving party is

entitled to a judgment as a matter of law on the undisputed facts. Anderson v. Standa r d Register Co. ,857

S.W.2d 555, 559 (Tenn. 1993). The moving party has the

b u rden of proving that its motion satisfies the s e

requirements. Downen v. Allstate I ns. Co. , 811 S.W.2d

523, 524 (Tenn.1991).

The standards governing the assessment of evidence

i n the su mmar y judgment context are also well established. Courts must view the evidence in the light most

favorable to the nonmoving party and must also draw all

reasonable inferences in the nonmoving party's favor.

Byrd , 847 S.W.2d at 210-11. Co urt s should grant a

summary judgment only when both the facts and the

conclusions to be drawn from the facts permit a reasonable person to reach only one conclusion. Id.

Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995).

Pinson filed her own affidavit in response to the motion for

summary judgment. In it, she states the following in relevant

part:

A s the survey progressed, it appeared to me that the

employees doing the survey were more intere sted in

obtaining an agreement with the conclusions and findings

of the other surveyors than in the independent measurement and review of the boundaries of my property itself.

When I asked about this procedure, I was told that this

was the proper way to determine a disputed boundary and

i t was being done to eliminate mistakes. When I questioned the employee-surveyor further, he denied that

there were any mistakes in the survey. My lawyer was

later delivered a report and survey by Defendant, which

was represented to be accurate by Defendant and its

employees. 
5

Based on the representations of accuracy by Defendant and its employees and the placement of the boundary

line as was set out in their survey, the legal dispute

was settled and the boundary line was placed as set out.

Aft e r the lawsuit had concluded, I had to pay the

Defendant's bill for the surveying. I went to the office

t o pay the bill and while I was there I discusse d m y

survey with David Hopkins. For the first time, I was

told that there were mistakes in the final s urvey that

had been done and that he (David Hopkins) had known about

the mistakes prior to submitting the report and survey to

my lawyer.

Fro m our discussion, it appeared to me that th e

mistakes were material and had affected the boundary line

pla cement to my detriment, resulting in the line bein g

placed where I received less usable property.

The defen dan t denies that any admission of mistakes in the

survey was ever made. Thus, from the record before us, we find

there is an issue of fact, however, it is necessary to examine the

matter further. Before an issue of fact can preclude a sum mar y

judgment, it must be a genuine issue and further, it must be a

m a terial issue. If the issue fails either test, it does no t

preclude a summary judgment.

The phrase "genuine issue" contained in Rule 56.03

refers to genuine factual issues and does not include

issues involving legal conclusions to be drawn from the

facts. Price v. Mercury Supply Co. , 682 S.W.2d 924, 929

(Tenn. App. 1984). The critical focus is limited to facts

deemed "material", Evc o [C orp v. Ross , 528 S.W.2d 20

(Tenn. 1975)] 528 S.W.2d at 24, 25, which is to say those

facts that must be decided in order to r eso lve the

substantive claim or defense at which the motion is

directed. Knoxville Traction Co. v. Brown , 115 Tenn. 323,

331, 89 S.W. 319, 321 (1905); Rollins v. Winn Dixie , 780
1

David Hopkins is not a party to this lawsuit. For purposes of this appeal,

however, we will assume that he, as president of the corporation, has the authority

to speak for the defendant, Hopkins Surveying Group, Inc., and that his admissions

relating to mistakes may be considered against the defendant.

6

S.W.2d 765, 767 (Tenn. App. 1989); Schwarzer , 139 F.R.D.

at 476.

Byrd v. Hall , 847 S.W.2d 208 (Tenn. 1993).

Before further discussion, we should note that the affidavit

filed by the plaintiff, in many respects, falls short of the

requirements set out in Rule 56, Tennessee Rules of Civil Procedure. Rule 56 expressly provides: "Supporting and opposing

affidavits shall be made on personal know led ge, shall set forth

such facts as would be admissible in evidence , and shall show

affirmatively that the affian t is competent to testify to the

matters stated therein." (Emphasis added). See Fo wle r v. Happy

Goodman Family , 575 S.W.2d 496 (Tenn. 1978). The affidavit filed

b y the petitioner does not meet these criteria. It is replete with

hearsay and co nclusions and contains little by way of facts.

Viewing the competent matters asserted in the affidavit in the

light most favorable to the plaintiff and giving due consideration

t o all inferences that may be properly drawn therefrom, the only

fact which we are able to extract from the affidavit is that the

defendant admitted that there were mistakes in the final survey. 1

O n the other hand, the defendant fi led several affidavits

including the affidavit of the plaintiff's former attorney, the
7

Snyders' former atto rney, and more importantly, the affidavit of

the president of the defendant corporation, David L. Hopkins, Jr.

Mr. Hopkins deposed, inter alia, as follows:

I am a surveyor licensed in the State of Tennessee.

I am pres iden t of Hopkins Surveying Group, Inc., and

personally dealt with Reba Pinson an d h er counsel

relative to the matters in dispute in this lawsuit;

* * * *

The work performed by my firm on beha lf of Ms.

Pinson was accomplished in an a ccurate and reliable

manner using those methods, standards, and practices

which are reasonable and customary in th e t rade. The

results of our work were not obtained by relying on the

conclusions of others but rather were the product of our

own efforts.

The question of whether a summary judgment was appropriate

hinges on the question of whether an admission by Hopkins "that

there were mistakes in the final survey that had been done and that

h e (David Hopkins) had known about the mistakes prior to submitting

the report and survey to my lawyer" constitutes a genuine issue of

a material fact as contemplated by Rule 56, Tennessee Rules of

Civil Procedure. We are of t he opinion that it does not. The

plaintiff's affidavit, for example, does not contain facts

demonstrating that the "mistakes" were material to the plaintiff's

case or resulted in any damages to her. The affidavit does not

reveal who made the "mi stakes" or facts from which it can be

determined who wa s responsible for the "mistakes." More importantly, the affidavit contains no facts whatsoever to support the
8

plaintiff's conclusion "that the mistakes were material and had

affected the boundary line placement to my detriment, resulting in

the line being placed where I received less usable property."

I n Benson v. Tennessee Valley Elec. Co-op. , 868 S.W.2d 63 0

(Tenn. App. 1993), this court quoting from Metropolitan Gas Repair

Serv., Inc. v. Kulik , 621 P.2d 313 (Colo. 1980), we find th e

following statement which we deem apposite to the circumstances of

this case:

The services of experts are sought because of their

special skill. They have a duty to exercise the ordinary

skill and competence of members of their profession, and

a failure to discharge that duty will subj ect them to

liability for negligence. Those who hire such persons are

not justified in expecting infallibility, but can expect

only reasonable care and competence.

I d . at 638. See Also Dooley v. Everett , 805 S.W.2d 380 (Tenn. App.

1990).

Further, in Delmar Vineyard, et al. v. B. A. Timmons, C.P.A.,

et al , we find the following:

Generally, it is established law throughout this

country that an a c countant does not guarantee correct

judgment, or even the best p r ofessional judgment, but

merely reasonable care and competence. B loch, Inc. v.

Klein , 45 Misc.2d 1054, 258 N.Y.S.2d 501; Gammel v. Ernst

& Ernst , 245 Minn. 249, 72 N.W.2d 364, 54 A.L.R.2d 316;

Maryland Casualty Co. v. Cook, D.C. , 35 F.Supp. 160; 54

A.L.R.2d 324.
9

The standard of care applicable to t he c onduct of

audits by public accountants is the same as that applied

t o doctors, lawyers, architects, engineers and others

furnishing skilled services for compensation and that

standard requires reasonable care and competence therein.

... 1 Am.Jur.2d, Accountants, Sec. 15; 54 A.L.R.2d 328.

Id. at page 920.

W e are of the opinion and hold that the same standard of care

applies to registered land surveyors, i.e., they have a duty to

exercise the ordinary skill and competence of members of their

profession, and a failure to discharge that duty will subject them

to liability for negligence.

Thus, applying the rule enunciated above to the facts of this

case , we have the undisputed, unrefuted testimony of Mr. Hopk i n s

that "the work performed by my firm on behalf of Ms. Pinson was

accomplished in an accurate and reliable manner using those

methods, standards, and practices which are reasonable and

customary in the trade." There is no evid ence that "mistakes in

the final survey," without more, demonstrates a deviation from the

duty to exercise the ordinary skill and competence of members of

the land surveying profession.

W e conclude that a disputed fac t r elating to whether there

were mistakes in the final survey, without more, does not constitute a genuine issue of a material fact as required by Rule 56,
10

Ten nessee Rules of Civil Procedure. We further conclude tha t

expert testimony would be required to demonstrate that there was a

deviation from the standards of professional practice prevailing in

the land surveying profession. No such evidence is to be found in

the record.

A s to any issue of misrepresentation, the law is well-settled.

The general rule is set out in Holt v. American Progre ssive Life

Insurance Company , 731 S.W.2d 923 (Tenn. App. 1987).

One who, in the course of his business, profession,

o r employment, or during a transaction in which he had a

pecuniary interest, supplies false information for the

guidance of others in their business trans a ctions, is

subject to liability for pecuniary loss caused to them by

their justifiable reliance upon such information, if he

fails to exercise reasonable care or com petence in

obtaining or communicating the information. Jasper

Aviation, Inc. v. McCollum Aviation, Inc. , 497 S.W.2d 240

(Tenn. 1972); Hunt v. Walker , 483 S.W.2d 732 (Tenn. App.

1971). This standard of liability substitutes a reasonable care standard for the common law scienter requirement. In othe r w ords, in business transactions, a

defendant can be held liable for negligent misrepresentations.

Id. at page 927

There is no issue raised concerning the communication of

information from the defendant to the plaintiff or her attorney in

the boundary line dispute. The affidavit of Mr. Hopkins likewise

disposes of the issue of negligen t mi srepresentation by standing
11

unrefuted as it relates to the methods, standards and practices

which are reasonable and customary in the trade.

W e find that this case was an appropriate case for disposition

by summary judgment.

The appellee asks that we find this appeal to be frivolous and

award damages accordingly. We do not find this ap pea l to be

frivolous. The judgment of the tr ial court is affirmed in all

respects. Cos ts are ass essed to the appellant and this case is

remanded to the trial court.

 _______________________________

 Don T. McMurray, Judge

CONCUR:

___________________________________

Herschel P. Franks, Judge

___________________________________

William H. Inman, Senior Judge
IN THE COURT OF APPEALS

AT KNOXVILLE

REBA PINSON, ) HAMILTON CIRCUIT 

 ) C.A. NO. 03A01-9712-CV-00533

 )

 Plaintiff-Appellant )

 )

vs. )

 ) HON. DOUGLAS A. MEYER 

 ) JUDGE 

 )

HOPKINS SURVEYING GROUP, INC.,)

 )

 Defendant-Appellee ) AFFIRMED AND REMANDED

 

JUDGMENT

This appeal came on to be heard upon the record from the

Chancery Court of Hamilton County, briefs and argument of counsel.

Upon consideration thereof, this Court is of opinion that there was

no reversible error in the trial court.

The judgment of the trial court is affirmed in all respects.

Costs are assessed to the appellant and this case is rema nded t o

the trial court.

PER CURIAM