Clyde Fuller v. Sheldon Feingold

Citation: Not availableDocket: 02A01-9809-CV-00252

Court: Court of Appeals of Tennessee; April 28, 1999; Tennessee; State Appellate Court

Original Court Document: View Document

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Clyde Gerald Fuller, Jr. and Brenda S. Fuller, the appellants, filed an appeal against Sheldon B. Feingold, Annie M. Feingold, and Terminix International Company Limited Partnership, the appellees, after the trial court granted summary judgment in favor of the appellees regarding all claims made by the Fullers. The case originated from the sale of a property located at 258 Whippoorwill Circle, where the Fullers signed a real estate contract on October 25, 1995. A Wood Destroying Insect Infestation Report from Terminix, dated November 22, 1995, indicated no visible insect infestation but noted certain areas as obstructed or inaccessible.

In early spring of 1996, the Fullers discovered termite infestation. An inspection by Terry Pafford revealed active termites and extensive damage within the residence. The Fullers subsequently filed a complaint on October 25, 1996, against Terminix for negligent inspection and misrepresentation, and against the Feingolds for fraud, misrepresentation, violation of the Tennessee Consumer Protection Act, and breach of contract. The Fullers contended that the Terminix report misrepresented the condition of the property and that the Feingolds had knowledge of existing termite issues, contrary to a statement in the Tennessee Residential Disclosure Form claiming a current termite contract, which was later admitted to be incorrect. Terminix acknowledged not inspecting the interior of the home and clarified that the absence of a termite contract does not imply the absence of termites.

Termite contracts are not inherently transferable, placing the responsibility on new homeowners to arrange contract transfers with the termite company. Expert testimony from Mr. Pafford indicated that termites could infest a home rapidly, with a swarm season from March to May, and he estimated that termites had been present in the Fullers' home for two to six months, though he could not confirm their presence as of November 1995. The trial court granted summary judgment to Terminix and the Feingolds, concluding that the first evidence of termites appeared months after the closing and that all experts agreed termites could have entered the property post-closing. There was no evidence that termites were present at closing or that Terminix was negligent in their inspection, which reported no visible infestation on November 22, 1995. The court found no termite contract existed between the parties, and even if a document was marked as such, the plaintiffs failed to secure an assignment or renewal of any potential contract. The Fullers' claims of negligent inspection and misrepresentation by Terminix were evaluated under Rule 56, which mandates summary judgment if no genuine issue of material fact exists. The Fullers did not provide sufficient evidence to contest the summary judgment, leading to the court's decision in favor of the defendants.

In April 1995, termites swarmed, but evidence indicates they were first observed months after a property closing. Terminix inspector David Harber and expert Terry Pafford confirmed that the termite report issued by Terminix was not a guarantee against future infestations but rather a certification of no visible evidence at the time of inspection on November 22, 1995. Harber conducted a thorough inspection, including under the house, for about 20 minutes. The Fullers claimed through Pafford that termites must have been visible then, but Pafford, inspecting the property on April 2, 1997, found active termites and noted that termites can enter quickly. He could not definitively state whether termites were present during the November inspection, admitting that his belief they had been there for two to six months was speculative. 

The Fullers alleged negligence on Terminix's part in inspecting the home; however, Harber did not inspect the interior of the premises and reported that it was accessible but not necessary for his inspection. The termite report included a section on inaccessible areas, which Harber marked for the porch but did not mark for the main level. He explained that if it had been a slab home, he would have inspected the interior. The Fullers failed to provide evidence of negligence in Terminix's inspection or proof that termites were present at the time of the inspection. Consequently, the trial court concluded that the Fullers could not establish a breach of duty by Terminix or a causal link to their claimed damages, affirming the summary judgment in favor of Terminix.

The Fullers filed a complaint against the Feingolds alleging fraud, misrepresentation, violation of the Tennessee Consumer Protection Act, and breach of contract, claiming the Feingolds failed to disclose known termite issues and misrepresented the existence of a termite contract. The Feingolds executed a property condition disclosure statement indicating a current termite contract, which was later proven to be false. The Fullers relied on this representation to their detriment, claiming damages and a material breach of contract. The Feingolds defended that the indication of a termite contract was an error, asserting they had informed their agent of the absence of such a contract. Testimony indicated that a termite contract does not guarantee the absence of termites and requires active transfer by the homeowner, which the Fullers did not pursue. The court found no evidence that the Feingolds had prior knowledge of termites, and the Fullers' expert could not confirm termite presence at the time of closing. As the Fullers did not present sufficient evidence to support their claims, the court determined there were no genuine issues of material fact, leading to the Feingolds being entitled to summary judgment. The trial court's decision was affirmed, with costs of the appeal charged to the Appellants.