Cleveland v. Dyn-A-Mite Pest Control, Inc.

• Decision Date: 30 April 2002
• Docket Number: No. 95,680.,95,680.
• Citation: 57 P.3d 119,2002 OK CIV APP 95
• Parties: Larry D. CLEVELAND and Brenda K. Cleveland, Plaintiffs/Appellees, v. DYN-A-MITE PEST CONTROL, INC., d/b/a Brewer-Russell Exterminating Co., Defendant/Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

57 P.3d 119

2002 OK CIV APP 95

Larry D. CLEVELAND and Brenda K. Cleveland, Plaintiffs/Appellees, v. DYN-A-MITE PEST CONTROL, INC., d/b/a Brewer-Russell Exterminating Co., Defendant/Appellant.

No. 95,680.

Court of Civil Appeals of Oklahoma, Division No. 2.

April 30, 2002.

Rehearing Denied June 7, 2002.

Certiorari Denied October 3, 2002.

Mike Barkley, David G. Graves, Barkley, Titus, Hillis & Reynolds, PLLC, Tulsa, for Plaintiffs/Appellees. Lawrence D. Taylor, Tulsa, for Defendant/Appellant.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2. TOM COLBERT, Presiding J.

¶ 1 Dyn-A-Mite Pest Control, Inc., d/b/a Brewer-Russell Exterminating Company (Brewer-Russell), appeals a judgment entered upon a jury verdict in favor of Larry D. Cleveland and Brenda K. Cleveland. The issue on appeal in this action for negligence and deceit is whether the trial court erred in denying Brewer-Russell's motions for directed verdict and judgment notwithstanding the verdict. Based upon our review of the record and applicable law, we find that the trial court did not err and affirm the judgment.

BACKGROUND

¶ 2 In October 1991, Larry and Brenda Cleveland purchased a home located at 2508 W. Greely in Broken Arrow, Oklahoma. They bought the home from Larry and Edith Eggemeyer, who purchased it from John and Linda Dowd. When the Eggemeyers sold the home to the Clevelands, they provided the Clevelands with a "Wood Destroying Insect Information" report, a visual inspection report prepared by Brewer-Russell. The Brewer-Russell service manager who prepared the report placed an "x" next to item number 8(B), which reads, "No visible evidence of infestation from wood destroying insects was observed." Item number 10 of the report provides a space for additional comments by the inspector. In this space, the service manager wrote, "previously treated by Brewer-Russell." No additional information was given.

¶ 3 The Clevelands moved into the home in the first week of November 1991. Within two weeks, they noticed a wet spot along the outside of the shower door in their master bathroom. Shortly thereafter, Larry Cleveland noticed a dust trail under the baseboard in the bathroom. He removed the baseboard and found "thousands of live termites." He later removed the shower to assess the damage. Larry contacted Brewer-Russell, and Dennis Forehand, the company's vice president, went to the home within a day or two to treat the affected area. Larry also made a report to the Department of Agriculture.

¶ 4 In January 1992, Forehand revisited the Clevelands and agreed to pay a portion of the cost for the repair of their bathroom. In February 1992, Larry Cleveland and Charles Forehand (Forehand's father) entered into an oral "settlement agreement," which was memorialized on February 5, 1992. The written release, drafted by Brewer-Russell, provided that Brewer-Russell would pay Larry $250 and treat the property as needed.

¶ 5 In March 1992, the Clevelands experienced a swarm of termites in their kitchen and called Brewer-Russell. An agent of Brewer-Russell went to the home and applied a topical treatment. In September 1992, the Clevelands experienced another swarm of termites in their living room and on their patio. Brewer-Russell again responded and treated the areas. In Spring 1993, the Clevelands experienced a third swarm in their attic, which Brewer-Russell then treated. In August or September 1993, the Clevelands experienced another swarm of termites on their back patio. When they contacted Brewer-Russell, Forehand refused to go back to their home, stating that the Clevelands had not paid their annual $60 inspection fee. Larry Cleveland purchased the treatment and applied it himself.

¶ 6 The $60 annual inspection fee was part of the consideration for an August 1989 contract between Brewer-Russell and John Hausam Realtors, the realtor for the Dowds. The contract was prepared at the time the Dowds were selling the home to the Eggemeyers and provided, "The contractor [Brewer-Russell] agrees to make a thorough inspection annually, and take the necessary measures to eradicate any termites should re-infestation be found for annual fee of $60 payable when re-inspections and re-treatments are made for 10 years." When the Clevelands purchased the home from the Eggemeyers, Larry Cleveland's name was substituted for that of John Hausam on the contract.

¶ 7 When Brewer-Russell refused to go out to the Clevelands' home after the last incident in 1993, the Clevelands treated the refusal as a breach of the February 1992 release. In September 1994, they sued Brewer-Russell for breach of contract, negligence, and negligent/wilful damage to property. During discovery, the Clevelands learned that, while the Eggemeyers owned the home, they had experienced live infestation of termites on several occasions, and Brewer-Russell had previously treated the home five times. In October 1996, the Clevelands filed a second amended petition, arguing that Brewer-Russell had a duty to disclose the history of previous treatments. The Clevelands added a claim of deceit.

¶ 8 A jury trial was held on May 1-4, 2000. On May 3, Brewer-Russell demurred to the evidence. The trial court overruled the demurrer. At the close of evidence on May 4, Brewer-Russell moved for a directed verdict, which was also denied. On May 5, 2000, the jury rendered a verdict in favor of the Clevelands, awarding them $10,000 in punitive damages, $10,000 in damages for the deceit claim, and $73,000 in damages for the negligence claim. Although the jury found in favor of the Clevelands on the breach of contract claim, it did not award damages. The jury found in favor of Brewer-Russell on a breach of oral contract claim. The trial court journalized the verdict in its June 6, 2000, order.

¶ 9 Brewer-Russell subsequently filed a motion for j.n.o.v. and a motion for a new trial. In an order filed November 29, 2000, the trial court denied both motions. This order also reflects that, on November 21, 2000, the trial court issued a nunc pro tunc order, modifying the June 6, 2000, journal entry to show that, because the jury awarded no damages for breach of contract, judgment was granted in favor of Brewer-Russell on that issue. Brewer-Russell now appeals the trial court's denial of its motions for directed verdict and j.n.o.v.

STANDARDS OF REVIEW

¶ 10 Brewer-Russell's arguments on appeal are addressed to the trial court's denial of its motions for directed verdict and j.n.o.v. When reviewing a trial court's ruling on a motion for j.n.o.v. and a motion for directed verdict, the reviewing court applies the same test. McInturff v. Okla. Natural Gas Transmission Co., 1970 OK 169, ¶ 9, 475 P.2d 160, 162. Conflicting evidence favorable to the movant is disregarded, and, unless there is an entire absence of proof showing the plaintiff's right to recover, the motion should be denied. Sadler v. T.J. Hughes Lumber Co., 1975 OK CIV APP 30, ¶ 4, 537 P.2d 454, 456 (citing Austin v. Wilkerson, Inc., 1974 OK 23, 519 P.2d 899).

¶ 11 Although Brewer-Russell's arguments on appeal are addressed only to the trial court's denial of its motions for directed verdict and j.n.o.v., we will briefly discuss the court's denial of Brewer-Russell's motion for new trial. "A trial court is vested with broad legal discretion in granting or denying a new trial, and unless it clearly appears that the trial court erred in some pure simple question of law or acted arbitrarily, its judgment will not be disturbed on appeal." Dominion Bank of Middle Tenn. v. Masterson, 1996 OK 99, ¶ 16, 928 P.2d 291, 294.

DISCUSSION

I.

¶ 12 Brewer-Russell's primary argument on appeal is that the trial court erred in denying its motions for directed verdict and j.n.o.v. because the company had no duty to disclose the termite history of the Clevelands' home when it prepared the visual inspection report in 1991. Brewer-Russell reasons that the inspection report required only a visual inspection of the property and stated that it was not a warranty against the presence of termites or termite damage. Brewer-Russell objects to the way in which the standard negligence instructions were given to the jury and argues that it was the trial court's duty, and not that of the jury, to first determine whether it had a duty to disclose the history of termite treatment to the Clevelands' home. Brewer-Russell further argues that the instructions as given effectively required the jury to determine whether a duty existed.

¶ 13 The trial court instructed the jury as to the definition of negligence and direct cause, and the requirements for proving damages. See Oklahoma Uniform Jury Instructions (OUJI) 9.1, 9.2, and 9.6.¹ The trial court's journal entry reflects that Brewer-Russell did not object to the instructions before they were presented to the jury. The failure to object to instructions or to request alternate instructions waives the issue on appeal. See Holloway v. State, 1986 OK CR 1, ¶ 4, 712 P.2d 68, 69. Moreover, when a trial court gives a general instruction on an issue, the party opposing the instruction has the duty to request that a more specific instruction be given. See Timmons v. Royal Globe Ins. Co., 1982 OK 97, ¶ 26, 653 P.2d 907, 915. There is nothing in the record which indicates that Brewer-Russell requested that the trial court specifically instruct the jury that Brewer-Russell had a duty to disclose the history of termite treatments to the Clevelands' home. Thus, Brewer-Russell cannot object to the instructions, or the absence of any specific instruction, on appeal. For purposes of clarification, however, we will discuss the issue of duty in more detail.

¶ 14 Section 552 of the Second Restatement of Torts provides:

(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their

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