Dennis v. Searle, 54433

• Decision Date: 10 October 1984
• Docket Number: No. 54433,54433
• Parties: Norman George DENNIS v. Charles Roger SEARLE and Wife, Susan M. Searle.
• Court: Mississippi Supreme Court

Page 941

457 So.2d 941

Norman George DENNIS v. Charles Roger SEARLE and Wife, Susan M. Searle.

No. 54433.

Supreme Court of Mississippi.

Oct. 10, 1984.

Rex K. Jones, Hattiesburg, for appellant.

David R. Smith, Colette A. Oldmixon, Smith, Smith, Tate, Stuart & Cruthird, Poplarville, for appellees.

Before ROY NOBLE LEE, P.J., and 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 ¹ 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 of contract and sale. On the contract count, the court reasoned that Dennis had

... agreed that the defendants employed a pest control concern as provided for in the contract which issued a certificate acceptable to plaintiff [Dennis] and his attorney as being in compliance with the terms and conditions of the contract and based thereon elected to proceed to final closing and purchase the property.

From this summary judgment, Dennis prosecutes the instant appeal.

III.

The procedure whereby in a civil action final judgment may be entered summarily and without plenary trial on the merits has been a part of our law since January 1, 1982. Rule 56, Miss.R.Civ.P. Its contours and nuances are becoming familiar and established. See Brown v. Credit Center, Inc., 444 So.2d 358 (Miss.1983); Bourn v. Tomlinson Interests, Inc., 456 So.2d 747 (Miss.1984); Holland v. Kennedy, 454 So.2d 1305 (Miss.1984); Biggers v. Fox, 456 So.2d 761 (Miss.1984); Dethlefs v. Beau Maison Development Corporation, 458 So.2d 714 (Miss.1984).

For present purposes we need keep well in mind the admonition of the Advisory Committee in its Comment to Rule 56:

A motion for summary judgment lies only where there is no genuine issue of material fact; summary judgment is not a substitute for trial of disputed fact issues. Accordingly, the court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues to be tried.

In Brown v. Credit Center, Inc., we stated:

The trial court must review carefully all of the evidentiary matters before it--admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If in this view the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise the motion should be denied.

444 So.2d at 362.

Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says just the opposite. Issues of fact, as a matter of proper construction of Rule 56, also exist where there is more than one reasonable interpretation that may be given undisputed testimony, where materially differing but nevertheless reasonable inferences may be drawn from the uncontradicted facts, or where the purported establishment of the facts has been sufficiently incomplete or inadequate that the trial judge cannot say with reasonable confidence that the full facts of the matter have been disclosed.

In Brown we further recognized that

Reasonable minds may differ on the question of whether there is a genuine issue of material fact .... If there is to be error at the trial level it should be in denying summary judgment and in favor of a full live trial.

444 So.2d at 362-363.

Brown v. Credit Center, Inc. also noted that Rule 56(d), Miss.R.Civ.P., authorizes partial summary judgments, that is, the granting of summary judgment on those issues where there are no disputes of fact and where the moving party is entitled to judgment as a matter of law and leaving the remainder of the case for trial.

Partial summary judgments when granted have the effect of removing from trial issues that ought not be there. The courts and litigants are thus free to concentrate on the real to the exclusion of the pretended.

444 So.2d at 363.

Where motions for summary judgment are filed in the circuit court, care must be taken that a litigant's right to trial by jury is not abridged. Brown v. Credit Center, Inc., 444 So.2d at 362. The case at bar has been brought in chancery court. In such cases some chancellors, consciously or unconsciously, will no doubt study the depositions of the parties, "assume" that they have before them all that the parties have to say about a matter, and decide the case summarily. Yet, if we are to give substantial deference to findings made by a trial judge sitting without a jury because that...