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NORMAN GEORGE DENNIS v. CHARLES ROGER SEARLE AND WIFE

OCTOBER 10, 1984

NORMAN GEORGE DENNIS
v.
CHARLES ROGER SEARLE AND WIFE, SUSAN M. SEARLE



BEFORE ROY NOBLE LEE, P.J., DAN M. LEE AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This termite damage case presents issues bigger than termites. The purchaser of a residence in Pearl River County has found substantial termite infestation in his new home. The contract of sale having addressed the subject, albeit ambiguously, the purchaser has brought suit against the sellers seeking damages.

 The Chancery Court of Pearl River County sustained the sellers' motion for summary judgment, Rule 56, Miss. R. Civ. P., and entered final judgment against the purchaser, who brings this appeal. On at least one theory of recovery advanced by the purchaser plaintiff, we hold that the defendant sellers did not establish that there were no genuine issues of material fact or that they were entitled to judgment as a matter of law.

 We reverse in part and remand for trial on the merits.

 II.

 A.

 On April 10, 1980, Charles Roger Searle and Susan M. Searle, as sellers, and Norman George Dennis, as purchaser, entered into a contract for the sale and purchase of a dwelling in Poplarville, Mississippi. Paragraph 9 of the contract included the following language:

 (9) SPECIAL PROVISIONS:

 Sale conditioned on . . . house free of termites based on certificate of pest control concern acceptable to purchaser and termite damage repaired. . . .

 On May 23, 1980, the final closing took place in the office of Dennis' attorney. At that time, Mrs. Searle tendered to Dennis a document from All-I-Good Pest Control, Inc. According to Mr. Dennis, in his deposition, the paper he received at closing was a contract between the Searles and All-I-Good for pest control and termite treatment, not a certificate stating that the house was free of termite infestation at the time. As an exhibit to his complaint, Dennis attached a copy of this termite service agreement between the Searles and All-I-Good dated April 21, 1980, approximately one month prior to closing.

 The Searles have placed in the record a wood infestation report prepared by All-I-Good dated March 27, 1979 - some fourteen months prior to closing. That report indicates no termite damage present in the house at that time. Dennis contends that he never saw the actual wood infestation report until it was attached as an exhibit to the Searles' answer in this lawsuit.

 At the closing no further question was raised regarding the termite provision of the contract. Insofar as the record discloses, the purchase and sale were at that time otherwise consummated in accordance with the contract.

 Subsequent to closing, Dennis discovered that there was substantial termite infestation of the home. Dennis has produced a statement of one J. C. Arban dated June 12, 1980 - just twenty days after the closing - to the effect that there was" apparent termite damage "inside the sill on the back wall and possibly across the front under the front door. Approximately a year later Stephen R. Leker,

 District Entomologist, Department of Agriculture and Commerce, State of Mississippi, examined the residence and found extensive and serious termite damage in the lumber of the floor support beams, inside sills, plates and sub-flooring. Entomologist Leker stated in his affidavit,

 In my judgment this damage had been incurred one and one-half to two years prior to my inspection. In other words, the termite damage had occurred well before the 15th day of December, 1979.

 Dennis charges that the cost of repairing the termite damage is approximately $5,621.56.

 B.

 On February 2, 1982, Norman George Dennis commenced this civil action by filing his complaint against Charles Roger Searle and Susan M. Searle in the Chancery Court of Pearl River County, Mississippi. In his complaint, Dennis alleged two theories of recovery: fraud and breach of contract. He demanded as damages $1,600 as the cost of a termite treatment job, $5,621.56 for repair of the termite damage in the house, and $25,000 for the loss or decrease of the fair market value of the house because of the termite damage, for a total demand of $32,221.56. Dennis also demanded that the Searles be required to pay his attorneys fees.

 The Searles answered denying the fraud charges and asserting that they had complied with all of their obligations under the contract and in any event that Dennis, by accepting the certificate of All-I-Good at closing and proceeding with the purchase of the property, was estopped from seeking relief.

 Amended pleadings were subsequently filed and discovery was indulged in. Matters were brought to a head, for the moment at least, on September 2, 1982, when the Searles filed their motion for summary judgment in accordance with Rule 56, Miss. R. Civ. P. The chancellor took up and heard the motion on September 22, 1982. At that time he had before him the sworn complaint *fn1 and amended complaint, the admissions made in the answer of the Searles, the deposition of Norman George Dennis taken June 16, 1982, the affidavit of Patty Palmer dated July 9, 1982, the affidavit of Norman George Dennis dated September 11, 1982, the affidavit of Entomologist Stephen R. Leker dated September 9, 1982.

 Following the hearing the learned chancellor held that there was no genuine issue of material fact and that the Searles were entitled to judgment as a matter of law. Accordingly,

 he entered judgment summarily in favor of the Searles and against Dennis. Enroute the chancellor held on the fraud count that Dennis had simply not presented credible evidence that the Searles had been guilty of a fraudulent misrepresentation or that they knew of the termite infestation in the house at the time ...


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