Carlotta v. T.R. Stark & Associates, Inc.

GARRITY, Judge. On February 25, 1982, the appellants, Frank P. Carlotta and his wife, Rita M. Carlotta, filed an amended declaration in the Circuit Court for Baltimore County against Willie A. Heath, his wife, Mary L. Heath, and T.R. Stark & Associates, Inc. The appellant alleged that the Heaths, who ⁴⁶⁹ owned real property adjacent to real property owned by the Carlottas, had committed a continuing trespass upon the Carlottas’ property, and had fraudulently attempted to gain ownership of a portion of Carlottas’ property. The appellants also alleged that T.R. Stark & Associates, Inc. (Stark), a registered land surveyor, had aided and abetted the Heaths by negligently preparing an erroneous survey plat of the disputed property boundary. They alleged that the plat prepared by Stark had been based upon a monument suggested to him by the Heaths as the point of beginning, which the Heaths knew or should have known to be false.

On April 29,1982, Stark filed a demurrer to the Carlottas’ amended declaration. Stark asserted that the Carlottas had failed to allege facts to support their conclusion that Stark owed a legal duty to the Carlottas to prepare a plat of the disputed property which conformed to the description in the Carlotta deed. Stark also stated that the Carlottas failed to allege that the plat prepared by Stark was relied upon by the Heaths in the assertion of the Heaths’ claims, and that the Carlottas’ declaration, therefore, failed to state a cause of action against Stark. 1 Following a hearing on Stark’s demurrer, the circuit court on May 20, 1982, sustained the demurrer with leave to amend within 30 days. A second amended declaration was not filed by the Carlottas.

On February 23, 1983, a final ⁴⁷⁰ judgment was entered in favor of Stark on its motion for judgment non pros, 2 On appeal, the Carlottas contend that the circuit court erred in sustaining the appellee’s demurrer. The appellants assert that the demurrer should have been overruled because a property owner ought to be allowed to “maintain a cause of action against a surveyor of the adjacent property who negligently surveys that property and who is caused to suffer damages as a result of the erroneous survey.” The appellants concede that no reported decision of a Maryland appellate court recognizes such a cause of action. They argue instead that this Court should grant a cause of action to adjacent property owners against surveyors, despite the absence of privity of contract, on the basis of public policy. The Carlottas assert that the right to this cause of action is a necessary because of the “dependence of the citizenry upon the adherence by registered land surveyors to standards of professional responsibility.” Stark contends, on the other hand, that the plat was prepared “in connection with a boundary line dispute involving a claim of title by adverse possession ... at the specific request and direction of the employer/client [and that] there was no duty owed to the Appellant.” The appellants refer this Court to a series of relatively recent decisions of the appellate courts of foreign jurisdictions.

The appellant cites these cases as authority for the proposition that “a cause of action against a registered land surveyor can be maintained by a party other than the person or property owner with which the surveyor has entered into a contractual relationship.” The cases cited by the appellants are: Hutchinson v. Dubeau, et al., 161 Ga.App. 65 , 289 S.E.2d 4, 5 (1982); Kent v. Bartlett, 49 Cal.App.3d 724 , 122 Cal.Rptr. 615 (1975); Tartera v. Palumbo, 224 Tenn. 262 , 453 S.W.2d 780 (1970); and Rozny v. Marnul, 43 Ill.2d 54 , 250 N.E.2d 656 (1969). ⁴⁷¹ In Hutchinson, supra, 161 Ga.App. at 66 , 289 S.E.2d 4 , the Court of Appeals of Georgia ruled that a surveyor could be liable to a subsequent landowner with whom he is not in privity because a Georgia statute imposed upon registered land surveyors an