Point of Beginning

A Legal Look

October 1, 2004
The extent of surveyor supervision.

Case law regarding subjects germane to the surveying profession-and with national implications-is very hard to find. Almost all property law is governed by state specific case law and statute. Similarly, our profession is regulated by each state's specific statutes and administrative rules. Controversies over these subjects will often be settled before they leave a state's judicial system. Rarely will these controversies end up in federal court because there is rarely a federal issue. Unless the controversy arises under the Constitution or the laws and treaties of the United States, it will be resolved at the state level. Even if a case goes to federal court over some federal issue, the court is obligated to resolve all state issues by applying state law. Therefore, most cases you read or review will have state specific implications and will only have limited national implications, if any at all. The more novel the controversy, the more likely it is to have national implications because state courts will look to other jurisdictions for guidance if they have no precedence of their own.

One such novel case is one from Alabama. As far as Alabama cases go, it's one-of-a-kind. I can only imagine that it is equally novel in many other states. There are no federal issues here so I haven't found, nor would I expect to find, a similar case in the federal reports. This case initiated over a fee dispute-not so novel-but ended up deciding the issue of surveyor supervision over subordinates. Sound interesting? Read on.

Lawler and Company v. Hare

In Lawler and Company v. Hare [1], the story starts out like so many other surveyor stories: surveyor does work, surveyor doesn't get paid. The plaintiff, Lawler, brought an action against his client to get paid. The client's excuse for not paying was that the surveyor who did the work, one of Lawler's subordinates-a Mr. Larry Baker-was not a licensed surveyor.

Baker, who at the time of the trial had been working for Lawler for 12 years, took the initial order from Hare to perform a boundary survey to resolve a timber cutting controversy. Apparently, Baker was managing a small office for Lawler, took the order for the survey and did all of the fieldwork. From reading the case it can be inferred that Baker was the only surveyor that Hare ever saw or had contact with. Baker wasn't working alone, however. Baker had conferred with Lawler about the survey, Baker turned in field notes to Lawler, Lawler performed calculations, and Lawler made the final decisions about the survey.

Fees for Services

It seems that things started to go south when Baker submitted the Lawler and Company bill for services of $5,000. This was more than Hare was willing to pay. It's impossible to say if the bill was too high, too low or just right. But the first lesson to be learned from this case is that surveyors shouldn't allow their fees for services to be a surprise to their clients. Even the court didn't like the fees. Based on Lawler's hourly rate, the court awarded a fee of $1,128. Second lesson to be learned: If a surveyor goes after a client in a fee dispute, he should make sure he can justify his fee. Unless he has a lump sum contract, his hours will more than likely be matched against his hourly rate to see if his fee is in line with the magnitude of the work.

The Argument

Hare successfully argued that since Baker wasn't a licensed surveyor, that Hare shouldn't have to pay for the survey-at least not a $5,000 survey. Hare agreed that some money was owed and the court lowered the fee owed to Lawler. Lawler, for his part, argued that Baker had been working for him since 1979, and since 1984 had been a manager of an office. Lawler brought two other licensed surveyors into court to testify as to the fairness of Lawler's fees. Hare offered no expert witness testimony to contradict this testimony. Baker testified that he had been told what to do by Lawler, and that the two conferred often throughout the project. When the fieldwork was complete, Baker and Lawler sat down together and reviewed the field notes, calculations and the map of survey. The nail in the coffin, however, appears to be that Lawler testified he had never stepped foot on the property, and, at the time the survey was performed, was not even in the state.

The Appellate Decision

Lawler was awarded his reduced fee in District Court and appealed to the 11th U.S. Circuit Court of Appeals. The circuit court refused to overturn the trial court and added its own insult to injury: "Larry Baker was not a licensed surveyor and further ... the plaintiff, Lawler and Company, did not provide the appropriate direction and supervision that is contemplated by Alabama law. Based on the foregoing, the court would ordinarily find in favor of the defendant and not require the payment of any of the plaintiff's claim. However, the defendant, Myra Jean Hare, testified that the defendants owed the plaintiff some money. Therefore, the Court finds in favor of the plaintiff and awards a sum of $1,128, based on testimony as to the hourly rate earned by Mr. Baker and his crew." [2]

Being a glutton for punishment, Lawler appealed to the U.S. Court of Appeals in Alabama. The appeals court added the following:

Lawler and Company appeals, asserting that the Hares are obligated to pay their indebtedness to Lawler and Company, based on Lawler and Company's contention that Mr. Baker did only the physical work and that W.J. Lawler, a licensed surveyor, properly supervised and did the technical work on the survey. Chapter 11 of Title 34, Code 1975, deals with the professions of engineering and land surveying and regulates who may engage in these professions. In general, only registered land surveyors may perform land surveys. However, pursuant to [the Code Section], there is a limited exception to the registration required of persons who engage in land surveying. Specifically, the nonregistered employee of a registered land surveyor may engage in such work if it "is done under the responsibility and supervision" of the registered surveyor... . In this case, the trial court determined that Lawler failed to provide the appropriate direction and supervision for Mr. Baker... [W]hen a trial court hears conflicting testimony and then enters its findings of fact, those findings are presumed correct and will not be disturbed on appeal unless they are palpably wrong. [3]

The Dissenting Opinion

Oftentimes, as much or more information can be gathered about a case by looking at the dissenting opinion. Not all opinions have a dissent, but when they do, it's worth the read. In our case, the judge was of a differing opinion. Overall, he felt that the level of supervision was adequate under the statute cited. He was disturbed that the expert witnesses who testified as to the adequacy of the fees had seemingly been dismissed by the trial court. Normally, uncontested expert witness testimony is pretty damaging to the opposing side. Nevertheless, we are left to conclude that because the trial court saw a lack of adequate supervision, the fee testimony was irrelevant.

Another interesting comment from the dissenting judge in this case came at the end of his opinion. "Additionally, I observe that out of a simple fee dispute case, the trial court's judgment, if it stands, may very well establish a new standard that could stifle a professional's effective use of auxiliary personnel. Indeed, as the same pertains to licensed land surveyors, it appears to suggest that the licensee be on one end of the chain." [4]

Conclusion

When I first read this case several years ago, I was in almost total agreement with the dissenting judge. Of course, at the time, I was an office bound surveyor who never saw 80 percent of the project that I worked on. I was in total reliance on field personnel, field notes, collected data, and all of the associated documentation that comes along with a project file. Who has the time to visit every site, let alone do any of the fieldwork? I certainly didn't. And while I personally don't agree that the "licensee be on one end of the chain," I do believe many surveyors have gotten too far away from the field and have delegated too much responsibility, especially for boundary decisions, to technical personnel. Even though this case may have no implications for you in your jurisdiction, it has definite implications for the soul of every living, breathing boundary surveyor.