Clarkson v. Orkin Exterminating Co., Inc.

Citation761 F.2d 189
Decision Date09 May 1985
Docket NumberNo. 84-1497,84-1497
PartiesHelen M. CLARKSON, Appellee, v. ORKIN EXTERMINATING COMPANY, INC., a Corporation, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

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 the water damage would progress unless there were alterations to a porch to prevent drainage of water into the basement.

After a contractor had made the necessary repairs and the recommended alterations, Mrs. Clarkson sought to have Orkin reimburse her for her entire cost of the reconstruction work. She also asked that Orkin reinspect the house and certify that the house was free of termite infestation. Orkin refused both requests.

A jury awarded Mrs. Clarkson $613.47 on the breach of contract claim, $551 on the Unfair Trade Practices Act claim and $1,148 actual damages and $5,000 punitive damages on the fraud claim. The district judge concluded that the Unfair Trade Practices Act claim was a willful one and tripled the award on that claim and ordered Orkin to pay the plaintiff's attorneys' fees.

II.

As proof of a violation of the South Carolina Unfair Trade Practices Act, Mrs. Clarkson points (1) to the fact that Orkin certified in 1983 that the house was free of termites when significant infestation was visible, and (2) the fact that Orkin on several occasions had attempted, though unsuccessfully, to sell to Mrs. Clarkson a "moisture problem treatment package" that would not have been an adequate corrective of an improper drainage problem.

It is abundantly clear that in its 1983 inspection Orkin's representative failed to discover termite infestation which was present and visible. This, however, does not establish a violation of the South Carolina Unfair Trade Practices Act. It shows no more than that Orkin's representative was negligent or incompetent. Mrs. Clarkson had not directed his attention to the area where the infestation was present, though she did direct the attention of the other exterminator to that area.

The South Carolina Unfair Trade Practices Act may be violated if there is "a claim or representation that had the capacity or effect or tendency to deceive." State Ex Rel. McLeod v. C & L Corp., Inc., 280 S.C. 519, 313 S.E.2d 334 (1984). The plaintiff need not show intentional deception, but a plaintiff cannot prevail without showing at least a potential of deception.

All that Mrs. Clarkson showed, however, was that Orkin's representative was negligent or inept. He did not see what a thorough and careful inspection by a qualified person should have uncovered. Moreover, in this particular case, Mrs. Clarkson knew the true state of affairs, and Orkin's certification had no tendency to deceive her. She simply proceeded to have the repair work done.

There is no support in South Carolina law for the proposition that a service...

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    ...to judgment as a matter of law ... so summary judgment will be granted." Id. at 590-91. Similarly, the court in Clarkson v. Orkin Exterminating Co., 761 F.2d 189 (4th Cir.1985) found Orkin liable for breach of contract, but limited damages to the cost of obtaining service from another pest ......
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