Getz Services, Inc. v. Perloe, 69634

• Decision Date: 25 February 1985
• Docket Number: No. 69634,69634
• Parties: GETZ SERVICES, INC. v. PERLOE.
• Court: Georgia Court of Appeals

Page 761

327 S.E.2d 761

173 Ga.App. 532

GETZ SERVICES, INC. v. PERLOE.

No. 69634.

Court of Appeals of Georgia.

Feb. 25, 1985.

Clifford H. Hardwick, John J. Jones, Atlanta, for appellant.

E. Marcus Davis, Atlanta, for appellee.

BEASLEY, Judge.

Defendant Getz appeals from a judgment for plaintiff Perloe for $35,000 actual damages and $20,000 punitive damages in an action for negligent termite inspection of Perloe's house. The case was tried before a jury following reversal of the granting of a motion for directed verdict. Perloe v. Getz Exterminators, 163 Ga.App. 397, 294 S.E.2d 640 (1982).

Perloe contracted to purchase a home. The contract required seller to "provide at time of closing ... a "LETTER OF INSPECTION" from a licensed pest control company stating that subject property was found to be free of termite infestation and/or structural damage caused by termites after having made a visual inspection in accordance with the 'Structural Pest Control Act' of the State of Georgia...." ¹

Perloe had an engineer inspect the house prior to closing. The engineer stated in his report, "The buyer should be furnished a letter from a licensed exterminator re: termite infestation and/or damages [sic] at this time."

The seller hired Getz to inspect the house for termites. Defendant's salesman inspected the home on July 17, 1978, and found active infestation and damage. Although the record is unclear, it appears that Defendant then sent a "treating crew" out to the home which remedied the active infestation problem before the July 20 closing. At closing, a termite clearance letter signed by one of defendant's managers was provided by seller to Perloe. It stated: "At your request, we have re-inspected the property ... Based upon careful visual examination of accessible areas and upon sounding of accessible structural members, we report that at the time of such inspection, we found no evidence of subterranean termite or other wood-destroying insect infestation in the subject property, and, if such infestation previously existed it has been corrected and any damage due to such infestation has also been corrected or alternatively been fully disclosed as follows: NONE." This letter was issued based upon the July 17, 1978 inspection by Defendant's salesman.

Several months after moving into the house, when renovations began, plaintiff discovered termite damage and brought suit against defendant for negligent inspection of the premises or failure to disclose. He sought damages for lost rent, for the expense of repairing the termite damage, for the cost to avoid a previously executed contract for renovation, and for punitive damages.

1. Defendant asserts that the trial court erred in denying its motion for directed verdict with respect to plaintiff's claim for punitive damages and in charging the jury on this issue.

O.C.G.A. § 51-12-5 provides for punitive damages in certain circumstances, including those in which there was an entire want of care and a conscious indifference to consequences. Southern R. Co. v. O'Bryan, 119 Ga. 147(1), 45 S.E. 1000 (1903); Deavers v. Standridge, 144 Ga.App. 673, 242 S.E.2d 331 (1978). The court so charged the jury.

" '[O]rdinarily the question of imposition of punitive damages is for the jury. However the controlling question ... is whether there was any evidence to support [such an award]'." Alliance Transp. v. Mayer, 165 Ga.App. 344, 345, 301 S.E.2d 290 (1983).

Getz's own inspector reported active termite infestation and damage, and yet three days later Getz certified that there was neither infestation nor unrepaired damage. What was found was not disclosed, frustrating much of the purpose of the clearance letter. Thus, the issue of punitive damages was properly submitted to the jury. See O'Bryan, 119 Ga. 147, 45 S.E. 1000, supra; Morgan v. Hawkins, 155 Ga.App. 836, 273 S.E.2d 221 (1980); Gordon v. Ogden, 154 Ga.App. 641, 269 S.E.2d 499 (1980); Jackson v. Co-op Cab Co., 102 Ga.App. 688, 117 S.E.2d 627 (1960).

2. Defendant claims that the verdict was contrary to law and evidence and was strongly against the weight of the evidence.

The seller of the house contracted with Getz to inspect the house for termite infestation in order that the buyer would be provided a clearance letter upon the sale. " 'It is axiomatic that a single act or course of conduct may constitute not only a breach of contract but an independent tort as well, if in addition to violating a contract obligation it also violates a duty owed to plaintiff independent of contract to avoid harming him. [Cits.] Such an independent harm may be found because of the relationship between the parties, or because of defendant's calling or because of the nature of the harm.' " Gillis v. Orkin Exterminating Co., 172 Ga.App. 507, 323 S.E.2d 695 (1984). Plaintiff is "not barred from bringing a tort action for the violation of a duty flowing from relations between the parties which were created by contract." City of Douglas v. Johnson, 157 Ga.App. 618, 619, 278 S.E.2d 160 (1981).

Defendant owed a legal duty to plaintiff to meet the standard of care exercised by "ordinarily prudent persons under the same or similar circumstances." O.C.G.A. § 51-1-2.

One of plaintiff's expert witnesses testified that "the standard of care in the pest control industry for home inspection is to make a thorough inspection of a home ... to make a qualified report as to what wood-destroying insects are visible in the home, what signs of wood-destroying insects are in the home, such as previous infestations, and any subsequent damage from any wood-destroying insects in the home ... normal policy is to make an inspection report such as a graph, and indicate on that graph, in other words, something in writing, showing where these problems are." The Getz manager who signed the clearance letter even acknowledged the duty to disclose termite-caused damage. In his testimony at trial, he stated that if any damage had been reported to him he probably would not have even issued the clearance letter, but that if he knew the buyer would accept a letter with damage specified in the letter, he would outline the damage in the letter.

Here Getz's salesman discovered live infestation and damage during his July 17, 1978 inspection and recorded these findings on a graph which he then gave to his manager. Yet the Getz manager not only issued the termite clearance letter, but he did so with no mention of infestation or damage.

Even if defendant remedied and had no obligation to report the current infestation problem, a conclusion we do not make, it still had the duty to disclose termite-caused damage which still existed. This it did not do. Nor does defendant contend that the damage witnessed by its salesman was corrected by the time the clearance letter was issued. Thus, the jury could find that defendant failed to meet the standard of care owed.

Holbrook v. Burrell, 163 Ga.App. 529, 295 S.E.2d 201 (1982), cited by appellant, is distinguishable because plaintiffs there failed to show that termite infestation existed at the time of the exterminator's inspection, warranting a directed verdict. In the case at bar, defendant's employee testified that termite infestation was evident.

Defendant further asserts that even if it were negligent in issuing the clearance letter, it cannot be held liable because plaintiff was "aware of and had notice" of the infestation. Getz argues that had plaintiff exercised ordinary care "he could have avoided any damages incurred." This argument is without merit. Contrary to defendant's contentions, the record is devoid of evidence that plaintiff had notice of the infestation prior to the closing on the home. The record does not reflect defendant's position that the engineer who inspected the premises prior to closing notified plaintiff of the infestation. The engineer expressed no opinion as to the existence or non-existence of termite infestation and damage. He merely advised plaintiff to have a licensed pest control company inspect the house before closing.

Defendant also appears to argue that because plaintiff had himself inspected the house prior to closing, he had already discovered the infestation. Plaintiff testified that he did not know how to inspect for termite damage and that he relied upon the conclusion of Getz's inspection and would not have purchased the home had he known about the termite damage. Nowhere in the record is this testimony contradicted. Defendant cites Moorman v. Williams, 103 Ga.App. 726, 120 S.E.2d 312 (1961), for the proposition that even if the defendant was negligent, but the consequences of this negligence could have been avoided by the plaintiff's use of ordinary care, then recovery by plaintiff is barred. Here, however, there is no evidence that plaintiff failed to exercise ordinary care.

3. Defendant asserts that the verdict is against the weight of the evidence. Defendant has addressed this argument to the wrong forum. This court is limited to a consideration of the sufficiency of the evidence as a matter of law, not the weight of the evidence. Hallford v. Banks, 236 Ga. 472, 224 S.E.2d 35 (1976); Young v. Jones, 149 Ga.App. 819(6), 256 S.E.2d 58 (1979). This enumeration presents nothing for review. Moreover, we have considered the evidence and, as the previous discussion indicates, we find sufficient evidence to support the verdict of the jury.

Under this same enumeration of error defendant infers that the damages awarded improperly included renovation costs. Where there is injury to a building, the measure of damages is the cost of restoration of the building to the original condition, unless restoration to the original condition would be an absurd undertaking. Ga.-Carolina Brick, etc., Co. v. Brown, 153 Ga.App. 747, 756, 266 S.E.2d 531 (1980). Costs of renovation, as opposed to restoration, are not recoverable. Although renovations were done at the same time as the termite repair, evidence...