                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                 January 24, 2013 Session

ISLAND PROPERTIES ASSOCIATES v. THE REAVES FIRM, INC., d/b/a
          REAVES, SWEENEY, AND MARCUM, ET AL.

               Direct Appeal from the Circuit Court for Shelby County
                    No. CT-005755-03      Karen Williams, Judge


                 No. W2012-00202-COA-R3-CV - Filed March 6, 2013


        This is a surveyor negligence case. Appellee developer filed suit against Appellant
surveyor, claiming two distinct acts of negligence on surveyor’s part. The first claim of
negligence involved an error allegedly made by surveyor in a 1993 survey. The second claim
of negligence involved Appellee’s claim that, upon discovering the 1993 survey error in a
subsequent survey that it performed in 2002, surveyor had a duty to inform Appellee of the
error. We conclude that any negligence arising from the 1993 survey claim is barred by the
statute of repose, Tennessee Code Annotated Section 28-3-114(a). Despite Appellant’s
numerous motions to exclude this cause of action as time barred, the trial court ultimately
allowed the 1993 negligent survey claim to be tried to the jury. The jury was then instructed
as to both claims of negligence and the jury returned a verdict, wherein it found Appellant
surveyor to be forty percent at fault and awarded damages in favor of Appellee. Appellant
surveyor appeals. Because the jury was improperly instructed and was allowed to consider
the time-barred claim of negligence, we conclude that the jury was mislead by the
instructions. Accordingly, we vacate the judgment on the jury verdict and remand for a new
trial. Vacated and remanded.

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Vacated and
                                    Remanded

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and H OLLY M. K IRBY, J., joined.

William M. Jeter and Meredith A. Lucas, Memphis, Tennessee, for the appellant, The Reaves
Firm.

Richard Glassman, and Lewis W. Lyons, Memphis, Tennessee, for the appellee, Island
Properties Associates.
                                          OPINION

       Appellee Island Properties Associates (“IPA,” or “Appellee”) is a Tennessee General
Partnership consisting of Henry Turley and Brooks Road Associates, an entity of Belz. IPA
is engaged in the business of real estate development, management and ownership.
Appellant The Reaves Firm, Inc. (“Reaves” or “Appellant”) is a Tennessee corporation
engaged in the business of real estate surveying and engineering.

       In 1988, IPA purchased 137 acres of undeveloped land on what is now known as
Harbor Town on Mud Island in Memphis. IPA’s development plan involved numerous
phases, which spanned some thirty years to completion. IPA’s Development Director on this
project was Tony Bologna. At the time IPA was developing the phases at issue in this
appeal, one of its attorneys was Keith Novick.

        The development phases were not all started at the same time. Rather, IPA tackled
phases gradually, allowing itself flexibility to modify the phases as the development grew.
When IPA wanted to start or change a phase, Reaves would create a plat, which would then
be recorded by IPA. IPA would then convey individual lots within the phase to purchasers,
with IPA retaining ownership of the neutral areas within the various phases, in part so that
it could adjust boundary lines of the phases at a later date if needed. In drafting plats, Reaves
worked closely with Mr. Bologna. Often, Mr. Bologna would instruct Reaves to draft a phase
initially, with the intention that the plat would be modified numerous times as plans
developed.

         The property that is disputed in this case concerns an area in the original Phase 11
(i.e., as evidenced by Reaves’ initial survey) and the final Phase 11 (i.e., as represented on
later modifications of the initial Phase 11 survey). The original Phase 11 was created in 1992
and involved a layout for a dockominium and marina on the west shore of Mud Island. A
dockominium is a series of boat slips on a dock that can be sold individually. Under the
Tennessee Horizontal Property Act, Tennessee Code Annotated Section 66-27-101, et seq.
(which is not the subject of this appeal), dockominiums are governed by the same rules as
condominiums.

        IPA built the dockominium on the water next to the shore of Phase 11, but opted (at
that time) not to proceed with other planned amenities such as a marina, boat store, and
restaurant. As Mr. Turley states in his testimony, IPA intended to convey each of the boat
slips to individual buyers and to create only the dock as a common area. Mr. Novick was
charged with preparing the deeds. On October 26, 1992, Mr. Novick sent a letter to Mr.
Turley, outlining his intentions to prepare a master deed. Mr. Novick then requested that
Reaves prepare an exhibit showing all of the boat slip numbers on the plat. In a second letter,

                                               -2-
dated January 4, 1993, Mr. Novick suggested that Reaves use the same plat drawing that it
had prepared to establish the original Phase 11, and to merely insert the numbers on the
individual dock slips. It is important to note that the Reaves firm was not directly involved
with the preparation of the master deed; rather, it was only involved in rendering the exhibits
to that deed, including a property description and survey (the “1993 Survey”). On March 16,
1993, Mr. Novick recorded the master deed on behalf of IPA, establishing the dockominium
as a Tennessee Horizontal Property Regime.

        Although IPA’s intention was to transfer only the boat slips, the testimony at trial
reveals that, in contravention of that intention, the master deed converted the entire Original
Phase 11 into a Tennessee Horizontal Property Regime, such that the purchaser of each boat
slip was granted not only the intended boat slip and interest in the dock, but was also granted
an undivided two percent (2%) interest in the land on the hillside above the shore (the
“disputed property”) as a common element. Both Messrs. Turley and Bologna testified that
it was never IPA’s intention to convey the hillside property to the boat slip purchasers. This
lawsuit involves, inter alia, IPA’s assertion that the disputed property was erroneously
transferred to the boat slip purchasers because IPA relied upon the 1993 Survey prepared by
Reaves, which allegedly included the disputed property in error.

        Shortly after recording the master deed in 1993, IPA began selling marina
condominium boat slips to various private individuals, who are not parties to this appeal. As
is relevant to this lawsuit, the warranty deeds executed by IPA in favor of these individuals
included an undivided interest in the disputed property. In all, thirty-eight of the fifty slips
were sold to third party owners.

       Around 2001, as the project development continued, Mr. Bologna began to focus on
Phase 21 of the project, which would be located southwest of the original Phase 11. Phase
21 involved the development of residential properties, including two condominium buildings,
The Regatta and The Beacon, and twelve cottages. IPA again hired Reaves to prepare a
survey of the property to be included in the Regatta and Beacon developments. Reaves
prepared a second survey (the “2002 Survey”). The 2002 Survey was incorporated into the
Final Plat for Phase 21. At some point during the process, it became apparent that the 2002
Survey for Phase 21 overlapped with the original Phase 11, i.e., the 1993 Survey. Mr.
Bologna realized that the original Phase 11 would need to be modified in order for Phase 21
to be completed as planned. As noted above, it was IPA’s intention to retain the right to
make those modifications. Reaves prepared and amended final Phase 11 and Phase 21 as it
was instructed to do by Mr. Bologna.

       The 2002 Survey was submitted to Lawyer’s Title Insurance Company (“Lawyer’s
Title”) for the purpose of preparing a title search setting forth the chain of title on the

                                              -3-
property to be included in the Beacon and Regatta developments. Lawyer’s Title allegedly
searched the title of the property only back to the issuance of the mortgagee’s title insurance
policy as part of the development in 1999. Therefore, the October 3, 2002 title policy that
Lawyer’s Title issued only covered property south of Phase 11 and, therefore, the search did
not include the title history of Phase 11. Consequently, the master deed, setting forth the
common elements of the marina condominium was not included in the title search.
Allegedly, neither Reaves, nor Lawyer’s Title, informed IPA of the problem with the
disputed property and IPA began construction on the Beacon and Regatta developments.

       On or about February 3, 2003, Mike Williams, one of IPA’s lawyers, became aware
of the language in the 1993 master deed for the dockominium that was created by Mr.
Novick. The discovery revealed that the master deed had conveyed the land to the west,
above the shoreline in the original Phase 11, i.e., the disputed property, to the boat slip
purchasers as a common element. Part of the Beacon and four of the cottages were located
on this portion of property. IPA had already begun construction of these buildings, which
had been contracted through Patton & Taylor. On or about May 30, 2003, IPA ordered
Patton & Taylor to cease all work on the Beacon and the cottages until the disputed property
could be settled. IPA subsequently negotiated settlement with all of the marina slip owners,
whereby IPA essentially repurchased the disputed property that was unintentionally conveyed
and the slip owners re-deeded the portions of the disputed property back to IPA.

      On October 13, 2003, IPA filed suit against Reaves and Lawyer’s Title.1 Concerning
Reaves, the original complaint states:

                 Defendant The Reaves Firm . . . negligently conducted a survey
                 of the property at issue and negligently failed to detect that a
                 portion of the property had been previously deeded to the

        1
           IPA and Lawyer’s Title ultimately reached a settlement agreement. On June 30, 2011, the trial
court entered a consent order, dismissing IPA’s claims against Lawyer’s Title with prejudice. Lawyer’s Title
is not a party to this appeal. Despite this fact, we note that the appellate record contains numerous filings
and transcript sections that relate solely to IPA’s case against Lawyer’s Title. The problem with including
extraneous filings in the record is that it places upon this Court a duty that falls to the Appellant—to prepare
a correct and complete record on appeal. Tenn. R. App. P. 24(b). In making that record, the Appellant should,
of course, adhere to the mandates contained in Tennessee Rule of Appellate Procedure 24(a), but should also
endeavor to tailor the record to include only the filings that are necessary based upon the parties to the appeal
and the issues specific to those parties. It is too often the case that appellants simply include every filing
made in the trial court in the appellate record. This practice is not in keeping with the spirit of the Rules of
Appellate Procedure and the role of the Appellant in that process. This Court endeavors to file its opinions
in a timely manner; however, when placed in the position of having to review volumes of extraneous,
unnecessary, and irrelevant filings, our goal is hindered and the interests of judicial economy are stymied.


                                                      -4-
              Marina at Harbortown condominium owners association in
              1993. The actions of Defendant the Reaves Firm, Inc. in
              performing this negligent survey deviated from the acceptable
              standard of care expected of a similarly situated engineering
              and/or surveying firm in Memphis, Shelby County, Tennessee.
              The Defendant’s negligence, failures and omissions were a
              direct and proximate cause of substantial monetary injury, los[s]
              and damage to IPA.

       On January 12, 2004, the Reaves firm filed an answer, denying the material
allegations made in the complaint and raising, as a defense, the expiration of the statute of
repose. On or about October 19, 2007, Reaves filed a motion for summary judgment,
relying, inter alia, upon the statute of repose. In its response in opposition to Reaves’ motion
for summary judgment, IPA argues, inter alia, that its claims of negligence are based not
only on the 1993 Survey conducted by Reaves, but also on the 2002 Survey that was prepared
in contemplation of Phase 21, supra. IPA’s response specifically states:

              IPA’s second allegation of negligence on the part of Reaves is
              based on Reaves’ acts or omissions that occurred after 1999 . .
              . . IPA hired Reaves to prepare and Reaves did in fact prepare a
              survey of the property to be included in [the Beacon and Regatta
              developments] . . . .

              Reaves failed to notify IPA. . .that Phase 21 included part of
              Phase 11 which was owned not by IPA but by the Marina
              Association. . . .

       Reaves argued that IPA had failed to aver any negligence arising from the 2002 survey
in its original complaint. IPA then moved the trial court for permission to amend its
complaint, which motion was granted over Reaves’ objection. IPA filed its amended
complaint on or about July 9, 2008. The amended complaint avers that Reaves was not only
negligent in its preparation of the 1993 Survey, but that it was also negligent in connection
with the 2002 Survey prepared for Phase 21:

              15. The second negligent survey(s) performed by . . . The Reaves Firm
              . . . and submitted to . . . Lawyer’s Title included the “disputed
              property” and the master tract as being owned by IPA. Defendant,
              Lawyer’s Title, through its agents and employees, negligently failed to
              discover the 1993 conveyance of the “disputed property” and
              negligently instructed the title search attorney to beg[i]n the title search

                                              -5-
                 starting in 1999.

       Reaves answered the amended complaint on January 13, 2011, denying the allegations
contained in Paragraph 15, supra. In addition to denying the material allegations made
against it, Reaves’ answer to the amended complaint again raises the defense of the
expiration of the applicable statute of limitations and/or repose.

        The case was tried to a jury on January 18 through February 3, 2011. At the close of
IPA’s proof, Reaves moved for a directed verdict, which motion was denied. At the close
of all proof, Reaves renewed its motion for a directed verdict. The trial court declined to rule
on the motion until after the jury had returned a verdict. After deliberating, the jury returned
a general verdict form, apportioning forty percent (40%) of fault to Reaves, fifty percent
(50%) of fault to Lawyer’s Title, and ten percent (10%) of fault to IPA. On February 18,
2011, the trial court entered judgment on the jury verdict, awarding IPA a judgment against
Reaves in the amount of $345,533.26. On March 21, 2011, Reaves filed a motion for new
trial. On November 30, 2011, the trial court entered separate orders, denying both the motion
for directed verdict and the motion for new trial. Reaves filed a notice of appeal on
December 29, 2011.

        Reaves raises the following issues as stated in its brief:

                 1. Whether a defendant surveyor is entitled to judgment as a
                 matter of law when the plaintiff failed to produce any expert
                 testimony establishing the professional standard of care and
                 breach of the standard?

                 2. Whether a plaintiff has standing to claim and recover
                 damages which were suffered by non-parties?

                 3. Whether the statute of repose under Tenn. Code Ann. §28-3-
                 114 is tolled for claims of negligence relating to a nine year old
                 survey, when there are allegations of a separate subsequent
                 negligent act?

                 4. Whether a joint-tortfeasor may recover attorney fees under an
                 independent tort theory of law? 2


        2
          We note that these issues were properly raised in Reaves’ Motion for New Trial. See Tenn. R. App.
P. 3(e) (requiring that issues on appeal from a jury verdict be specifically raised in a motion for new trial).
                                                                                                 (continued...)

                                                     -6-
       These issues require us to determine whether the trial court erred in denying Reaves’
motion for directed verdict and/or new trial. Our review of a trial court's decision regarding
a post-trial motion for entry of judgment in accordance with a motion for a directed verdict
is gauged by the standard applicable to motions for a directed verdict. Holmes v. Wilson, 551
S.W.2d 682, 685 (Tenn. 1977). Directed verdicts are appropriate only when reasonable minds
cannot differ as to the conclusions to be drawn from the evidence. Alexander v. Armentrout,
24 S.W.3d 267, 271 (Tenn. 2000); Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn. 1994);
Ingram v. Earthman, 993 S.W.2d 611, 627 (Tenn. Ct. App. 1998). A case should not be
taken away from the jury, even when the facts are undisputed, if reasonable persons could
draw different conclusions from the facts. Gulf, M. & O.R. Co. v. Underwood, 187 S.W.2d
777, 779 (Tenn. 1945); Hurley v. Tenn. Farmers Mut. Ins. Co., 922 S.W.2d 887, 891 (Tenn.
Ct. App. 1995). A trial court may, however, direct a verdict with regard to an issue that can
properly be decided as a question of law because deciding purely legal questions is the court's
responsibility, not the jury's.

       In appeals from a decision on a directed verdict, reviewing courts do not weigh the
evidence, Conatser v. Clarksville Coca–Cola Bottling Co., 920 S.W.2d 646, 647 (Tenn.
1995); Benton v. Snyder, 825 S.W.2d 409, 413 (Tenn. 1992), or evaluate the credibility of
the witnesses. Benson v. Tenn. Valley Elec. Coop., 868 S.W.2d 630, 638–39 (Tenn. Ct. App.
1993). Instead, they review the evidence in the light most favorable to the motion's opponent,
give the motion's opponent the benefit of all reasonable inferences, and disregard all
evidence contrary to that party's position. Alexander v. Armentrout, 24 S.W.3d at 271; Eaton
v. McLain, 891 S.W.2d at 590; Smith v. Bridgestone/Firestone, Inc., 2 S.W.3d 197, 199
(Tenn. Ct. App. 1999). A trial court may, however, direct a verdict with regard to an issue
that can properly be decided as a question of law because deciding purely legal questions is
the court's responsibility, not the jury's.

                                     Statute of Repose

       As set out in full context above, IPA’s amended complaint states two distinct causes
of action for negligence against Reaves. First, IPA claims negligence in Reaves’
performance of the 1993 Survey, i.e., that Reaves’ performance fell below the applicable
standard of care for surveyors. The second cause of action involves Reaves’ alleged failure
to inform IPA of the overlap between the 1993 Survey and the 2002 Survey, i.e., when
Reaves realized (or should have realized) that the 2002 Survey did not match with the 1993
Survey, Reaves had a duty to reveal that problem to IPA. When Reaves failed to reveal the
problem, IPA claims that it was negligent.


       2
           (...continued)


                                              -7-
      Because the claims against Reaves arise from survey work it performed, Tennessee
Code Annotated Section 28-3-114(a) applies to all claims. The statute provides:

                 (a) All actions to recover damages against any person engaged
                 in the practice of surveying for any deficiency, defect, omission,
                 error or miscalculation shall be brought within four (4) years
                 from the date the survey is recorded on the plat. Any such action
                 not instituted within this four (4) year period shall be forever
                 barred. The cause of action in such cases shall accrue when the
                 services are performed.
Id.
        In Wannamaker v. Thaxton, No. M2010-01009-COA0-R3-CV, 2011 WL 1087913
(Tenn. Ct. App. Mar. 24, 2011), this Court concluded that “[t]he obvious intent of the
legislature was to place all limits on actions against surveyors into the new statute [i.e.,
Tennessee Code Annotated Section 28-3-114].” Id. at *2–3. Consequently, whether IPA’s
causes of action against Reaves stem from failure to disclose or from faulty surveying, all of
the claims are governed by the limitations period set out at Tennessee Code Annotated
Section 28-3-114.

       In Douglas v. Williams, 857 S.W.2d 51 (Tenn. Ct. App. 1993), perm. app. dismissed
(Tenn. May 14, 1993), this Court held:

                         [A]s used in T.C.A. § 28-3-114, the words, “recorded on
                 the plat” mean the production of some drawing or written
                 instrument evidencing the results of a survey. It appears that the
                 legislative intent was to provide that the statute did not begin to
                 run until some written or drafted statement was produced by the
                 surveyor.

Id. at 54.3


       3
           The Douglas Court also noted:

                         The statute refers to "faulty surveying." Surveying is a derivative
                 of the verb "survey" which means, "of land, to ascertain corners,
                 boundaries, divisions, with distances and directions . . . ." Black's Law
                 Dictionary, Fourth Ed., p. 1614.
                         The noun "survey" means "the process by which a parcel of land
                 is measured and its contents ascertained; also a statement of the result of
                 such survey, with the courses and distances and the quantity of the land."
                                                                                               (continued...)

                                                    -8-
       In Meredith v. Crutchfield Surveys, No. E2004-02460-COA-R3-CV, 2005 WL
1798773 (Tenn. Ct. App. July 28, 2005) perm. app. denied (Tenn. Dec. 5, 2005), this Court
specifically held that Tennessee Code Annotated Section 28-3-114 is a statute of repose:

                    The defendants argue that Tenn. Code Ann. § 28-3-114 is a
                    statute of repose and not a statute of limitations. We agree. The
                    statute refers to a specific event, i.e., “the date the survey is
                    recorded on the plat,” as to when the start of the four-year time
                    period is triggered. Lest there be a doubt about that which
                    triggers the beginning of the applicable time frame, the statute
                    provides that “[t]he cause of action in such case shall accrue
                    when the services are performed.” In Wyatt v. A-Best Products
                    Co., Inc., 924 S.W.2d 98, 102 (Tenn. Ct. App. 1995), we noted
                    that a statute of repose, generally speaking, refers to a specific
                    event as the triggering event rather than referring to the
                    triggering event as the time when the cause of action “accrues”
                    without further descriptive language. Id. A statute employing the
                    general language of “accrues,” without more, generally signals
                    that the statute is one of limitations. Id.

Meredith, 2005 WL 1798773 at *3.

       In Dale v. B & J Enterprises, No. E2011-01790-COA-R9-CV, 2012 WL 1655778
(Tenn. Ct. App. May 10, 2012),4 this Court acknowledged the holding in Meredith, i.e., that

         3
             (...continued)
                     Ibid. p. 1615.
                              A "plat" or "plot" is "a map, or representation on paper, of a piece
                     of land subdivided into lots, . . . usually drawn to scale." Ibid. p. 1309.
                              The verb, "record," means "to commit to writing, to printing, to
                     inscription, or the like, to make an official note of, to write, transcribe, or
                     enter in a book or on parchment, for the purpose of preserving authentic
                     evidence of, . . . ." Ibid. p. 1437.

Id. at 54.
         4
         In Dale, Appellant homeowners filed suit against Appellee surveyor after discovering sink
holes on their respective properties. Appellee surveyor moved for dismissal on the ground that the
claim was time-barred under Section 28-3-114(a). The trial court dismissed the case and this Court
granted an interlocutory appeal to address, inter alia, the issue of whether Appellants' claims were
timely under Tennessee Code Annotated section 28-3-114 when the claims were brought within four
                                                                                                       (continued...)

                                                          -9-
the surveyor statute is one of repose and not limitations, but ultimately held that the
distinction did not matter based upon the plain language of the statute:

                   [W]e find that it is immaterial whether section 28-3-114 is
                   labeled a statute of limitations or a statute of repose. The statute
                   clearly provides that all actions against persons engaged in the
                   practice of surveying “shall be brought within four (4) years
                   from the date the survey is recorded on the plat.” Tenn. Code
                   Ann. § 28-3-114(a). “Any such action not instituted within this
                   four (4) year period shall be forever barred. The cause of action
                   in such cases shall accrue when the services are performed.” Id.
                   Plaintiffs' claims against Benchmark [i.e., the surveyor] were not
                   brought within four years of the date when the services were
                   performed. Therefore, Plaintiffs' claims are time-barred
                   regardless of whether we label this statute as one of repose, or
                   as a statute of limitations that commences to run when the
                   survey is recorded. Plaintiffs argue that if section 28-3-114 is a
                   statute of limitations, then the discovery rule would toll the
                   running of the statute of limitations until they knew or should
                   have known about their injury. However, we reject Plaintiffs'
                   suggestion that the discovery rule would automatically apply if
                   the statute is construed as one of limitations. “The concept of
                   accrual relates to the date on which the applicable statute of
                   limitations begins to run.” Redwing v. Catholic Bishop for
                   Diocese of Memphis, –––S.W.3d ––––, 2012 WL 604481, at
                   *16 (Tenn. Feb. 27, 2012) (citing Columbian Mut. Life Ins. Co.
                   v. Martin, 175 Tenn. 517, 526, 136 S.W.2d 52, 56 (1940)).
                   Under the traditional accrual rule, a cause of action accrues and
                   the applicable statute of limitations begins to run when the
                   plaintiff has a cause of action and the right to sue, even though
                   the person has no knowledge of his right to sue. Id.
                   Accordingly, under the traditional accrual rule, the cause of


        4
            (...continued)
years of discovery of the injury. In arguing this issue, the parties disputed whether Tennessee Code
Annotated Section 28-3-114 is a statute of limitations or a statute of repose. Appellants argued that
the statute should be construed as a statute of limitations that is subject to the discovery rule, so that
their cause of action did not accrue until they discovered the sink holes in late 2008. In that event,
Appellants argued, their 2010 complaint naming the surveyor as a defendant would have been timely.
The surveyor argued that section 28-3-114 is a statute of repose.

                                                  -10-
              action accrued in personal injury cases ‘immediately upon the
              infliction or occurrence of [the] injury.’” Id. (quoting Teeters v.
              Currey, 518 S.W.2d 512, 515–16 (Tenn.1974)). In 1974, our
              Supreme Court recognized and adopted the discovery rule in the
              context of medical malpractice to hold that “the cause of action
              accrues and the statute of limitations commences to run when
              the patient discovers, or in the exercise of reasonable care and
              diligence for his own health and welfare, should have
              discovered the resulting injury.” Id. Since then, the Court has
              expanded the application of the discovery rule to many other
              injuries to persons or property, but it has also declined to apply
              the discovery rule to certain types of claims. Id. Because
              Tennessee Code Annotated section 28-3-114 expressly states
              that a cause of action against surveyors “shall accrue when the
              services are performed,” we conclude that the discovery rule is
              inapplicable to such claims. See Pero's Steak & Spaghetti
              House v. Lee, 90 S.W.3d 614, 620 (Tenn. 2002) (instructing
              courts to consider the specific statutory language at issue when
              determining whether to apply the discovery rule).

Dale, 2012 WL 1655778 at *6 (relying on Wannamaker v. Thaxton, No. M2010-01009-
COA-R3-CV, 2011 WL 1087913 (Tenn. Ct. App. Mar. 24, 2011)) (footnote omitted).

                                        1993 Survey

       IPA’s first claim of negligence against Reaves arises strictly from the 1993 Survey.
Specifically, in its amended complaint, as set out in full context above, IPA avers that Reaves
“negligently conducted a survey of the property at issue and negligently failed to detect that
a portion of the property had been previously deeded to the Marina at Harbortown
condominium owners association in 1993.” IPA asserts that the actions of Reaves in
performing the 1993 Survey “deviated from the acceptable standard of care expected of a
similarly situated engineering and/or surveying firm in Memphis, Shelby County,
Tennessee.”

         We need not reach the substantive requirements to sustain a negligence claim against
a surveyor because it is undisputed in the record that the 1993 Survey was “recorded on the
plat” (as that term is defined by the Douglas Court, supra) sometime in early 1993 (i.e.,
before the March 1993 filing of the Master Deed). IPA filed its lawsuit on October 13, 2003.
Because the question of discovery of the alleged error in the 1993 Survey does not function
to toll the running of the statute of repose, see discussion above, under the plain language of

                                             -11-
the statute, “[a]ny such action not instituted within this four (4) year period [from the date
the survey is “recorded on the plat”] shall be forever barred.” Accordingly, IPA’s first claim
of negligence against Reaves, which stems from the alleged negligence in the 1993 Survey,
is clearly time-barred. Accordingly, the trial court should have dismissed IPA’s claim of
negligence based upon the 1993 Survey.

        On the other hand, any liability arising from Reaves’ alleged negligence directly
related to the 2002 Survey is not time-barred under the statute of repose. The lawsuit was
filed on October 13, 2003, so any negligence arising in 2002 would be within the four year
statutory period. However, we cannot overlook the fact that the trial court allowed both the
time-barred 1993 Survey negligence claim, and the 2002 Survey negligence claim to be tried
to the jury. The question, then, is whether the jury was mislead by the erroneous inclusion
of the 1993 negligence theory, in such a way as to render its results uncertain or flawed. We
now turn to address that question.

                                      Jury Instructions

       In the instant case, the jury was instructed, in relevant part, as follows:

              Plaintiff Island Properties claims that Defendant Reaves Firm
              was negligent in providing legal descriptions. Plaintiff Island
              Properties further alleges that Defendant Reaves Firm failed to
              detect that a portion of the property in Phase 21 had already
              been conveyed to the marina slip owners causing Plaintiff to
              incur damages.

      It is the trial court's duty to instruct the jury on “every factual issue and theory of the
case presented by the parties.” Ricketts v. Robinson, 169 S.W.3d 642, 646 (Tenn. Ct.
App.2002) (citing Cole v. Woods, 548 S.W.2d 640, 642 (Tenn.1977)). Our standard for
reviewing a trial court's jury charge is as follows:

              We review the jury charge in its entirety to determine whether
              the trial judge committed reversible error. Jury instructions are
              not measured against the standard of perfection. The charge will
              not be invalidated if it “fairly defines the legal issues involved
              in the case and does not mislead the jury.” Furthermore, a
              particular instruction must be considered in the context of the
              entire charge.

Id. (citing City of Johnson City v. Outdoor West, Inc., 947 S.W.2d 855, 858 (Tenn. Ct. App.

                                              -12-
1996). Whether a jury instruction is erroneous is a question of law and is, therefore, subject
to de novo review with no presumption of correctness. Solomon v. First Am. National Bank
of Nashville, 774 S.W.2d 935, 940 (Tenn. Ct. App. 1989). The legitimacy of a jury's verdict
is dependent on the accuracy of the trial court's instructions, which are the sole source of the
legal principles required for the jury's deliberations. Therefore, a trial court is under a duty
to impart “substantially accurate instructions concerning the law applicable to the matters at
issue.” Hensley v. CSX Transp., Inc., 310 S.W.3d 824, 833 (Tenn. Ct. App. 2009) (quoting
Bara v. Clarksville Mem'l Health Sys., Inc., 104 S.W.3d 1, 3–4 (Tenn. Ct. App. 2002)).
When considering whether a trial court committed prejudicial error in a jury instruction, it
is our duty to review the charge in its entirety and to consider it as a whole. The instruction
will not be invalidated if it “fairly defines the legal issues involved in the case and does not
mislead the jury.” Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 446 (Tenn.1992).
The judgment of a trial court will not be set aside based on an erroneous jury instruction
unless it appears that the erroneous instruction more probably than not affected the judgment
of the jury. Tenn. R. App. P. 36(b); Gorman v. Earhart, 876 S.W.2d 832, 836 (Tenn.1994).

        Although IPA states two distinct causes of action for negligence on the part of Reaves,
one of the problems with this case is that those two theories were never treated as completely
separate acts. Rather, the theories are interwoven in the record and, as such, it is impossible
to determine what portion of the fault the jury assigned to Reaves as a direct result of the
1993 Survey error and what, if any, portion was assigned for the 2002 Survey. As noted
above, the jury returned a general verdict form, wherein it simply assigned the percentages
of fault among the parties without any explanation as to how it arrived at those percentages.
However, we have determined that any negligence flowing from the 1993 Survey is time-
barred. If the record and instructions were such that the jury could clearly distinguish
between the acts of negligence and the respective damages arising therefrom, then this Court
might be in a position to discount the fault and damages arising from the 1993 survey error
and review the damages, if any, attributable to any negligent acts surrounding the 2002
Survey. However, that is not the case here.

       Instead, it is clear that the trial court erred in failing to dismiss any claim of negligence
arising from the 1993 Survey. Accordingly, there can be no doubt that the jury was
erroneously allowed to consider negligence arising from the 1993 Survey. In this regard, the
jury instructions do not “fairly define[] the legal issues involved in the case . . . .” Otis v.
Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 446 (Tenn. 1992). The 1993 Survey error
was not a proper legal issue in the case because it was time-barred. Therefore, when the jury
was allowed to hear evidence on this theory and was further allowed to consider the 1993
negligent act, it was mislead on the proper theory of the case. Because we cannot separate
the two acts of negligence after the fact, and because there can be no doubt that at least a
portion of the fault and damages found by the jury resulted from the 1993 negligent act

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(although what portion is not ascertainable in the record), the fact that the jury was allowed
to consider the 1993 Survey negligence was reversible error, requiring a new trial.

        Having determined that the claim of negligence arising from the 2002 Survey must
be remanded to the trial court, the remaining issues raised by Appellant are ostensibly
rendered moot as they arise from the first trial, which is void. It is uncertain how the parties
will choose to try this case on remand. It is not the purview of this Court to engage in the
rendering of advisory opinions on hypothetical facts. Third Nat'l Bank v. Carver, 218
S.W.2d 66, 69 (Tenn. Ct. App. 1948). Therefore, we decline to consider the remaining issues
raised by Appellant, as the issues concern alleged errors that occurred in the first trial, but
remain only contingent possibilities in any future trial. The parties are free to raise these
issues, should they again become relevant, at the new trial on this cause.

      For the foregoing reasons, the judgment on the jury verdict is vacated and the case is
remanded for a new trial. Costs of this appeal are assessed against the Appellee, Island
Properties Associates, for which execution may issue if necessary.




                                                     _________________________________
                                                     J. STEVEN STAFFORD, JUDGE




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