761 F.2d 189 (4th Cir. 1985), 84-1497, Clarkson v. Orkin Exterminating Co., Inc.

Docket Nº:84-1497.
Citation:761 F.2d 189
Party Name:Helen M. CLARKSON, Appellee, v. ORKIN EXTERMINATING COMPANY, INC., a Corporation, Appellant.
Case Date:May 09, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 189

761 F.2d 189 (4th Cir. 1985)

Helen M. CLARKSON, Appellee,

v.

ORKIN EXTERMINATING COMPANY, INC., a Corporation, Appellant.

No. 84-1497.

United States Court of Appeals, Fourth Circuit

May 9, 1985

Argued Jan. 9, 1985.

Page 190

C. Rauch Wise, Greenwood, S.C. (Wise & Tunstall, Greenwood, S.C., on brief), for appellant.

Stuart G. Anderson, Jr., Greenville, S.C. (Anderson & Fayssoux, Greenville, S.C., on brief), for appellee.

Before RUSSELL and CHAPMAN, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

HAYNSWORTH, Senior Circuit Judge:

A jury awarded the plaintiff damages on three separate claims. She claimed breach of a contract to inspect for termites and to treat again if necessary. There was a claim of fraud and of a violation of South Carolina's Unfair Trade Practices Act. Sec. 39-5-20(a), Code of Laws of South Carolina, 1976.

There was adequate proof that Orkin broke its contract, though an improper measure of damages was applied. There is no evidence in the record, however, to support the finding of fraud or a violation of the Unfair Trade Practices Act. Hence, we reverse in part and affirm in part, but remand the contract claim for an appropriate assessment of damages.

I.

In 1976 Mrs. Clarkson purchased a house. Orkin had contracted with her predecessor in title to retreat the house in the event that a termite problem developed. Orkin also promised, for a fee, to inspect the house yearly and, if necessary, retreat it for termites before certifying that the house remained free of termites.

In early 1983, Mrs. Clarkson offered her home for sale. When prospective purchasers noticed evidence of termite infestation, Mrs. Clarkson called Orkin and requested that they inspect the house. Orkin complied with her request and issued a report that the house was free of termites. The report also mentioned the presence of a moisture problem, which had been reported to Mrs. Clarkson on several earlier occasions but which remained uncorrected. For the moisture problem, Orkin had unsuccessfully attempted to sell a protective chemical treatment to Mrs. Clarkson.

The day after Orkin's 1983 inspection, Mrs. Clarkson had the house inspected by the representative of another exterminating company. He found two termite tunnels and damage from water. He attributed the water damage to a drainage problem and expressed the opinion that...

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