# 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 boundaryline dispute. Here she alleges that the defendant negligentlyand erroneously conducted a survey of t he d isputed2

propertyline. 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 propertyline, 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 voluntarydismissal of this lawsuit was entered by Pinson, however, in January of 1991.
Subsequently, in January 1992, Pinson employed another attorneyand 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 both3

parties and their counsel. On Apri 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 requestedHopkins 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 summary judgment. In a rather unusual twist, all four judges for the Circuit Court of Hamilton County recused themselves insuccession. 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 isentitled 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 summaryjudgment only when both the facts and theconclusions 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 summaryjudgment. 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 findingsof the other surveyors than in the independent measurement and review of the boundaries of my propertyitself. 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.5Based 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 my surveywith 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 surveyto my lawyer. Fro mour 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 surveywas 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 saythose 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 , 7801 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 suchfacts as would be admissible in evidence , and shall show affirmativelythat 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 ythe petitioner does not meet these criteria. It is replete with hearsayand 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, the7

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 inthe State of Tennessee. I am pres iden t of Hopkins Surveying Group, Inc., and personallydealt 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 ana ccurate and reliable manner using those methods, standards, and practices whichare 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 the8

plaintiff's conclusion "that the mistakes were material and had affected the boundaryline 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 whichwe deem apposite to the circumstances of this case:

The services of experts are sought because of their special skill. They have a dutyto exercise the ordinary skill and competence of members of their profession, and a failure to discharge that duty will subj ect them to liabilityfor negligence. Those who hire such persons are not justified in expecting infallibility, but canexpect 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 countrythat an a c countant does not guarantee correct judgment, or even the best p r ofessional judgment, but merelyreasonable 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 customaryin the trade." There is no evid ence that "mistakes in the final survey," without more, demonstrates a deviation from the dutyto 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 therewere 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 pecuniaryinterest, supplies false information for the guidance of others in their business trans a ctions, is subject to liabilityfor pecuniary loss caused to them by their justifiable reliance upon such information, if he fails to exercise reasonable care or competence 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 standing11

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 JudgeIN 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 ChanceryCourt 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