Dempsey v. Chicago Title Ins. Co., 48760

• Decision Date: 25 March 1985
• Docket Number: No. 48760,48760
• Parties: , 20 O.B.R. 111 DEMPSEY; Professional Land Surveyors of Ohio, Appellant, v. CHICAGO TITLE INSURANCE CO., Appellee, et al.
• Court: Ohio Court of Appeals

Page 90

20 Ohio App.3d 90

484 N.E.2d 1064, 20 O.B.R. 111

DEMPSEY; Professional Land Surveyors of Ohio, Appellant, v. CHICAGO TITLE INSURANCE CO., Appellee, et al.

No. 48760.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

March 25, 1985.

Syllabus by the Court

1. Where a party files a motion for relief from judgment pursuant to Civ.R. 60(B), then files a notice of appeal before the trial court has ruled on the Civ.R. 60(B) motion, the notice of appeal deprives the trial court of jurisdiction to vacate the judgment challenged by that appeal.

2. To the extent that a title insurance company undertakes certain activities such as measurement and recording of land boundaries for its own benefit in determining whether to sell title insurance, those activities are incidental to its lawful sale of title insurance and it is not engaging in the profession of surveying. However, to the extent the title insurance company regularly undertakes any of the activities listed in Ohio Adm.Code 4733-31-01 for others and charges for those services, it practices the profession of surveying and violates R.C. 4733.02 if it is unlicensed in surveying.

John C. Bowes and Irving S. Weiss, Cleveland, for appellant.

Walter Rekstis and Richard Gurbst, Cleveland, for appellee.

Anthony J. Celebrezze, Jr., Atty. Gen., and John C. Albert, Columbus, for Ohio State Bd. of Registration for Professional Engineers and Surveyors.

MARKUS, Judge.

An association of professional surveyors seeks to enjoin the defendant title insurance company from engaging in unlicensed surveying activity. The defendant denies that its activities constitute surveying within the meaning of the Ohio license laws. On a previous appeal to this court, another panel rejected the defendant's contention that the state regulatory board had exclusive authority to seek injunctive relief against unlicensed surveyors. Dempsey v. Chicago Title Ins. Co. (1983), 10 Ohio App.3d 281, 462 N.E.2d 184. On remand, both sides filed motions for summary judgment. The trial court denied the plaintiff's motion and granted the defendant's motion. The plaintiff then filed a motion for relief from that judgment, but filed this appeal before the court ruled on that motion.

Plaintiff argues that some of the defendant's activities in providing its "location service" constitute "surveying." Consequently, plaintiff contends that the trial court should have denied the defendant's summary judgment motion and granted plaintiff's, or vacated its judgment to permit a trial. Genuine issues of material fact remain unresolved, so the trial court should have denied both summary judgment motions. We reverse and remand for a trial of those issues.

I

R.C. 4733.02 prohibits unlicensed persons from practicing the profession of surveying:

"Any person practicing or offering to practice the professions of engineering or of surveying, shall submit evidence that he is qualified to practice and shall be registered. No person shall practice or offer to practice the professions of engineering or of surveying, or contract for such services, or use in connection with his name or otherwise, assume, use, or advertise any title or description tending to convey the impression that he is an engineer or a surveyor, unless such person has been registered or exempted under sections 4733.01 to 4733.23, inclusive, of the Revised Code."

Similar prohibitions appear in R.C. 4733.22:

"No person shall practice, or offer to practice, the profession of engineering or surveying without being registered or exempted in accordance with sections 4733.01 to 4733.23 of the Revised Code, or present or attempt to use as his own the certificate of registration, the certificate of authorization, or the seal of another, or give any false or forged evidence of any kind to the state board of registration for professional engineers and surveyors or to any member thereof in obtaining a certificate of registration or certificate of authorization, or falsely impersonate any other registrant or holder of a certificate of authorization of like or different name, or attempt to use an expired or revoked certificate of registration or certificate of authorization, or violate such sections."

Violators are subject to misdemeanor criminal sanctions. R.C. 4733.99.

R.C. 4733.01 defines the terms "surveyor" and "practice of surveying" for these purposes:

"(C) 'Surveyor' means a person who engages in the practice of that branch of engineering commonly known as surveying.

"(D) 'Practice of surveying' means that branch of engineering and applied mathematics which teaches the art of surveying and measuring the area of any portion of the earth's surface, the lengths and directions of the bounding lines, and the contour of the surface, for their correct determination and description and for conveyancing for recording, or for the establishment or re-establishment of land boundaries and the platting of lands and subdivisions; and like measurements and operations involved in the surveying of mines, commonly known as 'mine surveying.' "

The State Board of Registration for Professional Engineers and Surveyors prescribes forms for applicants seeking registration as surveyors. R.C. 4733.12. It determines whether applicants satisfy statutory standards for registration, which generally include four years of formal education, or equivalent training by at least eight years of practical experience, plus four additional years of practical experience, plus satisfactory performance on a two-stage examination administered by the board. R.C. 4733.11(B). Pursuant to its authority under R.C. 4733.07 to "adopt all necessary rules, regulations, and bylaws * * * for the holding of examinations * * * and for governing all other matters requisite to the exercise of its powers," the board issued the following regulation as Section 4733-31-01 of the Ohio Administrative Code:

"Land surveying defined

"(A) Land surveying shall mean any Professional Service performed for the purpose of determining land areas, the monumenting of property boundaries, the platting and layout of lands and sub-divisions thereof, including the topography, the alignment and the preliminary grades of streets, the preparation of: maps, record plats, field note records and property descriptions representing such surveys.

"(B) The adequate performance of such work involves the application of special knowledge of the principles of mathematics, the related physical and applied sciences and the relevant requirements of law for adequate evidence to the act of measuring, and locating lines, angles, elevations, natural and man-made features in the air, on the surface of the earth, within underground workings, and on the beds of bodies of water."

II

The evidentiary materials supporting the respective summary judgment motions included (a) samples of defendant's "location service" reports, (b) an affidavit from the manager of the defendant's location service department, (c) a sample "form" used to certify the accuracy of a land survey accomplished by a licensed surveyor, (d) instructional course materials "approved" by the State Real Estate Board which refer to "location service," (e) "sample" location service reports which two surveyors provided to their respective customers, (f) portions of depositions from two of the defendant's employees and two licensed surveyors, and (g) one of the defendant's sales promotional brochures.

These materials establish without dispute that neither the manager nor any employee of the defendant's location service department is a registered surveyor. They provide substantial factual...