                    IN THE COURT OF APPEALS OF TENNESSEE
                                  AT KNOXVILLE
                         Assigned on Briefs, October 31, 2002

                  KEVIN McNAMARA v. MARSHALL MONROE

                  Direct Appeal from the Circuit Court for Knox County
                 No. 3-784-96  Hon. Wheeler A. Rosenbalm, Circuit Judge

                                   FILED JANUARY 29, 2003

                                 No. E2002-00407-COA-R3-CV



In this Breach of Contract and Negligence action, the Trial Court held Appellant did not reasonably
rely on Appellee’s survey and dismissed the action. On appeal, we Affirm.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed.

HERSCHEL PICKENS FRANKS , J., delivered the opinion of the court, in which CHARLES D. SUSANO,
JR., J., and D. MICHAEL SWINEY, J., joined.


William S. Lockett, Jr., Knoxville, Tennessee, for Appellant.

Robert A. Cole, Knoxville, Tennessee, for Appellee.



                                             OPINION




               This action originated in General Sessions Court by the appellee who sought payment
for surveying fees from appellant, Kevin McNamara. McNamara cross-filed, seeking damages for
breach of contract and/or negligent performance of the survey. The case was appealed to Circuit
Court and the Trial Court, after dismissing all claims, on Motion reinstated appellant’s claims against
appellee.

                A trial was then held, and at its conclusion, the Trial Court ruled that in order for
appellant to prevail, he had to demonstrate appellee was negligent in the representation he made, and
that defendant deviated from the standard of care in the performance of his work, and that plaintiff
was thereby injured. In ruling against the appellant, the Court found there was not sufficient proof
of reliance by the plaintiff on the survey by appellee, and observed that appellant immediately
refused to pay appellee for his work. The Court also found credible the testimony of a witness who
testified unequivocally that she told the appellant about the encroachment on the property that
appellant was purchasing, before he closed on the deal.

                Our review of the Trial Court’s Judgment is de novo with a presumption of
correctness of the Trial Court’s findings of fact, unless the evidence preponderates otherwise. Tenn.
R. App. P. 13(d); McCarty v. McCarty, 863 S.W.2d 716 (Tenn. Ct. App. 1992). No presumption
of correctness attaches to the trial court’s legal conclusions. Union Carbide Corp. v. Huddleston,
854 S.W.2d 87 (Tenn. 1993).

               Appellant claimed that appellee was liable for negligent misrepresentation, which
requires a showing that:

               1.)     Defendant, acting in the course of his business or profession,

               2.)     Supplied false/faulty information for the guidance of others in their business
                       transactions, and

               3.)     Defendant failed to exercise reasonable care in obtaining or communicating
                       the information, and

               4.)     Plaintiff justifiably relied on said information.

Robinson v. Omer, 952 S.W.2d 423 (Tenn. 1997).

               There is no requirement that it be shown that defendant breached the applicable
standard of care, as the Trial Court held. Rather, it must be shown that defendant failed to exercise
reasonable care in obtaining or communicating faulty information.

                In this case, appellant offered evidence that appellee was acting in the course of his
profession, and that the information he provided was faulty. Appellant also showed that defendant
failed to exercise reasonable care in communicating the information to appellant, and to the title
company. The Court found that the appellant did not carry his burden of proof which requires him
to show that he justifiably relied upon the information provided by appellee. The Court noted that
plaintiff obtained a check for the survey fee at closing made out to him and appellee, but that he
failed to endorse the check or pay appellee for the survey. Appellee testified that he had an issue
with the survey, but admitted that he felt the survey was inaccurate from the beginning, and the Court
held that appellant was aware of the problem with the survey and that this is why he refused to pay
for it. The evidence does not preponderate against the Trial Court’s finding. Tenn. R. App. P. 13(d).

               As this Court has previously explained:


                                                 -2-
                In order to succeed in any action based upon fraudulent or negligent
                misrepresentation, the plaintiff must prove that it relied justifiably on the defendant's
                statements. The burden is not upon the defendant to show that it was not negligent,
                but rather, the burden is upon the plaintiff to show that its reliance upon any
                statements defendants may have made was reasonable.

Williams v. Berube & Associates, 26 S.W.3d 640, 645 (Tenn. Ct. App. 2000)(citations omitted).

                Appellant also claimed that appellee was guilty of professional malpractice in the
performance of the survey. The evidence did establish by defendant’s own admission, that his
conduct fell below the standard of care. The Supreme Court has previously held that the standard
of care may be established by defendant’s own admissions. See Cardwell v. Bechtol, 724 S.W.2d
739 (Tenn. 1987); Tutton v. Patterson, 714 S.W.2d 268 (Tenn. 1986). In this case, appellee admitted
that it would be a deviation from the standard of care if he had knowledge that the right-of-way went
through the house and failed to show it on the survey. Defendant maintained throughout his trial
testimony that he knew the right-of-way went through the house, but claimed that he adequately
showed same on his “original” survey.

               More compelling, however, is that in addition to this concession there was also an
admission contained in Exhibit 13 wherein defendant agreed to a finding that the survey in question
“does not comply with the minimal accepted standards of practice”. The Trial Court found this
admissible as a party admission. In this regard, see McGee v. Nashville White Trucks, Inc., 633
S.W.2d 311, 317 (Tenn. Ct. App. 1981).

                In this case, it is unclear whether the Trial Court actually considered plaintiff’s claim
for malpractice in addition to plaintiff’s claim for negligent misrepresentation. The cause of action
for malpractice, however, differs from a cause of action for negligent misrepresentation, in that a
cause of action for malpractice requires an employment relationship or privity, whereas an action for
negligent misrepresentation does not. See Stinson v. Brand, 738 S.W.2d 186 (Tenn. 187). The Trial
Judge held that the plaintiff did not make out a prima facie case of negligent misrepresentation
because he did not establish reasonable reliance on the appellee’s representations. In any event,
comparative fault in Tennessee is applicable. We said in Staggs v. Sells, et al., 2001 WL 1613882
(Tenn. Ct. App. 2001)(permission to appeal denied by the Supreme Court, May 20, 2002):

                The doctrine of comparative fault in Tennessee is applied to negligence cases, and
                negligent misrepresentation is an action “in tort determined by the general principles
                of the law of negligence.” Tartera v. Palumbo, 224 Tenn. 262, 453 S.W.2d 780, 784
                (Tenn. 1970). “If the plaintiff meets the burden of establishing the defendant’s duty
                in a particular case, as well as the other elements of the negligence claim, the trier of
                fact must apply the principles of McIntyre v. Balentine.” Bond v. Belle Meade Fund,
                No. 96C-4542, 1998 WL 775662, at *4 (Tenn. Ct. App. Nov. 9, 1998). However, it
                is only after a plaintiff proves all the elements of a negligence claim that the
                principles set out in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), and Bond


                                                  -3-
               v. Belle Meade Fund are applicable. “[S]o long as a plaintiff’s negligence remains
               less than the defendant’s negligence, the plaintiff may recover; in such a case,
               plaintiff’s damages are to be reduced in proportion to the percentage of the total
               negligence attributable to the plaintiff.” McIntyre, 833 S.W.2d at 57. “A plaintiff
               whose negligence is less than that of a tort feasor may now recover damages reduced
               by a percentage of the plaintiff’s own negligence.” Bond, 1998 WL 775662 at *4.

As to the malpractice claim, assuming arguendo that plaintiff has established the “elements of the
negligence claim,” it is clear that from the Trial Court’s ruling that appellant did not reasonably rely
upon the survey, and his proceeding to close the transaction on the facts found by the Trial Court is
negligence sufficient to bar any recovery under this theory.

                For the foregoing reasons, we affirm the Judgment of the Trial Court and remand with
the costs of the appeal assessed to Kevin McNamara.




                                                        _________________________
                                                        HERSCHEL PICKENS FRANKS , J.




                                                  -4-
