Maples v. Charles Burt Realtor, Inc.

Decision Date09 April 1985
Docket NumberNo. 13455,13455
Citation690 S.W.2d 202
PartiesRobert MAPLES and Shirley Maples, his wife, Plaintiffs-Respondents, v. CHARLES BURT REALTOR, INC., Defendant-Appellant.
CourtMissouri Court of Appeals

Glenn R. Gulick, Jr., Hershewe & Gulick, Joplin, for plaintiffs-respondents.

James E. Brown, Joplin, Bruce K. Kirby, Keeter, Karchmer, Nelms, Kirby & Johnson, Springfield, for defendant-appellant.

TITUS, Presiding Judge.

Defendant Charles Burt Realtor, Inc., appeals from a judgment entered on a jury verdict for plaintiffs Robert and Shirley Maples. The gravamen of plaintiffs' action sounds in fraud, the principal alternative contentions to the effect that defendant, through its agents, either made an affirmative misrepresentation to plaintiffs concerning the condition of a home plaintiffs purchased through defendant or failed to disclose to plaintiffs, contrary to alleged duty, certain facts about that home. More specifically, plaintiffs base their charge of affirmative misrepresentation upon defendant's having "provided" them with a termite inspection report showing the home in question to be free of termite infestation at a time when termites constituted at least an incipient scourge. As for the alternative theory of failure to disclose, plaintiffs assert that a previously completed termite inspection known to defendant revealed termite damage to some extent and that defendant was duty-bound to disclose this fact, notwithstanding the existence of the subsequent "clean" report. Defendant's numerous points assail the trial court's determinations relative to these and other issues.

The events leading to the filing of this action commenced in the spring of 1978, when Mr. and Mrs. Richard Porath decided to sell their home at 2407 Montana Place, Joplin. The Poraths listed their home with defendant, through whose services Mr. and Mrs. Robert Tignor were procured as buyers. The Poraths and Tignors entered into a contract on April 25, 1978. One of the printed terms of this standard real estate contract provided that "Seller agrees to deliver to buyer prior to the date of delivery of deed a termite certificate issued by a licensed termite inspection company showing subject property to be free of any visible termite infestation." In regard to this item Mr. Porath testified, "I didn't know who to get to have the termite inspection made so I just asked my Realtor, Ron Coffey [then a salesman for defendant], and they (sic) said they used Mr. Plimmer on occasions, so I said, 'Go ahead and get him.' "

An inspection of the subject premises was done on May 15, 1978, by Bill Longstaff, an employee of Mr. Plimmer. Mr. Porath testified that Ron Coffey told him sometime shortly thereafter that Mr. Plimmer "wanted to speak with me because he had found something at the house, so I called [him] and that is how I found out about a report." 1 Mr. Plimmer related to Mr. Porath that "evidence of past prints" had been discovered at the house but that "[t]hey are not there now," "[t]here is no damage." Nevertheless, Mr. Plimmer suggested it would be a good idea to have the house treated while it was vacant. He quoted a figure of "I think $225, it was over $200" as an estimate of the cost of treatment. Asked by Mr. Plimmer if he wanted the treatment done, Mr. Porath replied, "No, I will get back with you."

As it happened, Mr. Porath did not have Plimmer perform the treatment. He testified he told Ron Coffey he had received an estimate from Plimmer he "personally felt ... was kind of high" and that he "wanted another opinion or estimate." Mr. Coffey was said to have responded by saying "that is your business, you can do that if you want." Mr. Porath did not obtain another inspection or treatment estimate in connection with the "Tignor deal," as it "fell through" when the Tignors were unable to obtain financing.

Defendant continued its sales efforts on behalf of the Poraths and within two months procured as prospective buyers Mr. and Mrs. Robert Maples, plaintiffs herein. Plaintiffs had previously enlisted the aid of Pat Carney, a salesman for defendant, in finding a home. Perusal of defendant's "multi-list book" resulted in their discovery of the Poraths' house, which Mrs. Maples said "caught our eyes." She and her husband decided to look at it, despite that the list price was "higher than what we were interested in paying."

During their brief ("about 20 minutes") inspection, plaintiffs observed "obvious" defects, such as holes in the bathroom door and garage ceiling. Mr. Maples suggested that perhaps these problems could be remedied before he and his wife bought the house. Mr. Carney evidently took note of this request, as repair of the above-mentioned and other defects was made a condition of sale in the ensuing contract. Plaintiffs made but one other visit to the house, solely to measure for a stove they planned to install.

On July 10, 1978, plaintiffs and the Poraths entered into a contract, on a standard form provided by defendant. Mr. Maples testified that before signing or even reading the contract he inquired sua sponte of Ron Coffey about a termite report. Mr. Coffey was said to have replied that "he already had one, don't worry about it" and that "he ... would take care of it." This exchange constituted the extent of the conversation at the time of contracting in regard to a termite report. No such report was shown to Mr. Maples at that time.

Mr. Porath stated he was aware that, per the contract, he had to furnish a termite inspection certificate. Asked at trial if Ron Coffey had told him to get another certificate besides the one previously completed by Plimmer for the Tignor contract, Mr. Porath responded: "No, I think I just on my own felt that I had to get one at the time because we had another offer, to get my other estimate, so I did that on my own." Further testimony by Mr. Porath on this subject was as follows:

Q. [D]id you get the other inspection in mind with getting an estimate that would be cheaper than Plimmers?

A. Right.

Q. What happened next, how did you get the people to do the inspection over, who did you get?

A. Well, I didn't know anybody else to do the termite inspection, ABC Termite, they answered their phone, that is the man we had.

Q. And you told them to come out?

A. I said, 'I have a house for sale, I need it inspected.'

Q. Did you ever get a copy of their report?

A. At the closing I saw a pink slip saying that the house was inspected.

Q. Who furnished it to you at closing?

A. Ron Coffey.

The closing was conducted at a Joplin office of Farm and Home Savings and Loan Association the second week of September, 1978. Plaintiffs had by that time moved into the subject premises, having obtained permission to do so from the Poraths, conditional upon plaintiffs' waiver of those contract provisions requiring certain repairs to be made. At the closing, plaintiffs, the Farm and Home administrator and "maybe" Pat Carney were present in one room; in another room were Mr. and Mrs. Porath, their attorney Fred Laas, Ron Coffey, and Allen Burt, defendant's closing agent. Mr. Maples testified that no one at the closing told him there were two termite reports, one showing infestation, the other showing no infestation. He further stated that no one informed him the property had been treated for termites. Asked if he had ever asked "to see the termite report or reports available in the case," Mr. Maples responded: "I believe when I signed my escrow to closing ... I saw an ABC Report ... saying the house was free and clear...." Mr. Porath testified that when his attorney asked him why there were two termite reports, he responded by saying he had wanted another estimate of the cost of treatment. Ron Coffey was said to have had in his possession both the Plimmer and ABC reports as of the closing. Mr. Porath stated, "I asked Ron whatever happened to the second [i.e., ABC] report, what do we have to do, and he said, 'Here it is,' and handed it to me, and I said, 'It is free and clear, there is nothing,' I said, 'There is nothing at all, no nothing, free and clear.' " Mr. Coffey was said to have then placed the Plimmer report "in his file." As noted supra, n. 1, Mr. Porath did not see that report until after the commencement of this action.

Within one month after plaintiffs moved into the house Mrs. Maples discovered two "whitish green worms" beneath "a very neat row of dirt" along the door facing between the kitchen and dining room. She testified that when "I touched the base of the door facing then I did not touch it with pressure, I touched it, it crumpled, it just began to crumple around my hand...." She immediately called defendant's office and told Pat Carney she suspected termite infestation, to which Mr. Carney was said to have responded, "No problem, I will call Plimmer." When Mrs. Maples thereafter located the termite report she and her husband had received at the closing she discovered it had been prepared by ABC Pest Control and not Plimmer.

The following day Mrs. Plimmer called Mrs. Maples and told her that Plimmer would be unable to perform termite treatment to her home and that Plimmer was not the company that had done the termite inspection in connection with the Maples-Porath transaction. Mrs. Maples related that Mrs. Plimmer told her that Plimmer had done an inspection of the house "for another couple that was going to buy [it] before you came along, and [that] we found termites there, and for some reason or another there was never a key available or entry to the property or whatever, we just were never allowed to go on the property, and take care of the termite work." Mrs. Plimmer said that after the first contract fell through "nothing else was ever said."

We reiterate our observation in n. 1, supra, that the Plimmer report indicated...

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