The Statute of Limitations v. The Stature of Repose

During the past 56 years of my membership in the Maryland Society of Surveyors, and in teaching many classes over those same years dealing with subjects of interest to the surveying community,  two of the very most talked about subjects have been the Statute of Limitations and the Statute of Repose, forgetting for the purposes of this article about the surveyor’s two most favorite subjects, adverse possession and prescriptive easements.

I can vividly remember many phone calls, and conversations at various surveyor get-togethers, from active, soon-to-be retired and retired members, and students asking me the same questions over and over again: “Jimmy (or sometimes, Mr. Demma), when does my potential liability end?... Will my wife, or next-of-kin, be responsible for my errors after my death?... You know, I’ve got a mountain of files and there is a chance that one of my former clients may find an error in a survey that I did years ago… What can I do?… “When does it all end?”

Both of these referred to statutes were enacted to afford some comforting answers to those questions, and I, along with others, have tried our best to explain how these laws operated, but those explanations are somehow often forgotten.

In this very short article I return to yet another explanation prompted by somewhat recent cases on these very same subjects, however, I have tried my best to not clutter up this explanation with a lot of legal citations and references – but maybe just a few, and maybe with a little bit of admitted plagiarizing.

To keep it simple: the Maryland Statute of Limitations, of which there are many, and the one that is the subject of this article applies indirectly to “land surveys,” states:

A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced.

To add a little history in this regard and for whatever it’s worth, this Statute is a descendant of an act passed by the British Parliament in 1623 during the reign of King James I.

The Maryland Statute of Repose, of which there are also many (please notice I am emphasizing and only referring in this article to the law in Maryland), was specifically enacted to deal with errors in “surveys” of land states:

No cause of action for damages, accrue and a person may not seek contribution or indemnity for damages incurred for an error in a survey of and unless an action for damages is brought within 10 years of the survey, or within 3 years after the discovery of the error, whichever occurs first.

Generally speaking, the purposes of both statutes of limitations and statutes of repose contain overlapping features because both encourage plaintiffs to bring claims in a timely manner, provide some measure of repose to defendants, and are based on a balancing of the interests of the parties and society. Putting it another way, both statutes are designed primarily to assure fairness to defendants in the theory that claims, asserted after evidence is gone, memories have faded, witnesses have disappeared, and are so stated as to be unjust.  The policy in our law is that there comes a time when a potential defendant ought to be secure in knowing that the slate has been wiped clean of ancient obligations.

As generally (again, there is that word “generally”) stated in many appeals court decisions, the chief feature of a statute of repose is that it runs from a date that is unrelated to the date of injury [mistake], whereas a statute of limitations always runs from the time the wrong is complete and actionable.

The Statute of Limitations.  The other questions which are always asked of me are: “three years from when?” Or, “when is the time the mistake is complete and actionable?”  The answers to those questions in a routine case of negligence would be when the “injury” or “mistake” was incurred – however, in a surveying context, that moment would be when it was “discovered” and not when the mistake was actually made - that is: the moment of discovery is when the “clock would begin to tick” under this Statute. The seminal case on this legal point is Mattingly v. Hopkins, 254 Md. 88, 253 A.2d 904 (1969) (finally a legal citation!), in which the Court held that in cases dealing with surveyor liability, the “statute of limitations commences to run from the moment of discovery.”  That is, from the language of this Statute “the date it accrues,” meaning the date of the discovery of the error.

The Statute of Repose.  This is a legislative balancing of the economic best interests of the public against the rights of potential plaintiffs, to determine an amount of time after which liability should end and not exist. Unlike the statute of limitations, it is an absolute time limit beyond which liability no longer exists. From the pure language of this statute, if a potential plaintiff discovers an error in a survey of land a legal action must filed – “brought within 10 years of the survey” – presumably, from the date of the survey, or the date when the final act of surveying was taken in the field.

By the plain meaning of this Statute, if an alleged surveyor’s error is discovered (this important word being taken from the Mattingly case) in a survey, the potential plaintiff needs to file a legal action within that 10 year period, OR within 3 years after the discovery of the alleged error, whichever occurs first [emphasis added], and if there is no such filing, that person’s claim would be forever barred. However, and maybe just for trivial purposes only, you should be aware that if a potential plaintiff attempts to file such a legal action on the very last day of this 10 year period, and that day is a Saturday, Sunday, or holiday, Maryland Rule 1-203 states that the latest day to file is the first preceding day which is not a Saturday, Sunday, or holiday.

Another point of which to be aware is that unlike with the Statute of Limitations, the time limit under the Statute of Repose generally cannot be tolled by reason of the injured party claiming being a minor or a mental incompetent.

Although, there have been legions of cases filed and decided by our courts to interpret the Statute of Limitations, to date, no cases have been filed dealing with this particular Statute of Repose.

One final note that should not be forgotten on this subject is that through the great efforts of the Maryland Society of Surveyors the Statute of Repose was first enacted by the State Legislature in 1987 establishing a 20 year period, and through further efforts by the Society that time period was reduced to 15 years in 2005, and then in 2010 that time period was again further reduced to the present 10 year period, all by and with the tenacity of our Society.

Another thing which I believe should be remembered by my fellow surveyors (there is always “another thing”), and completely unrelated to the subject of this article, is that notwithstanding my seemingly great interest in the two statutes discussed in this article, I still believe, that the greatest statute ever enacted by the British Parliament is the Statute of Frauds in 1677, which, in a revised fashion is still a part of Maryland law.  Therefore, please make sure, if possible, that you continue to commit to writing down everything of any consequence to you.

That’s all of have to say for the time being.

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