McAlhany v. Carter
| Decision Date | 12 November 2015 |
| Docket Number | Appellate Case No. 2013–000578.,No. 5360.,5360. |
| Citation | 415 S.C. 54,781 S.E.2d 105 |
| Court | South Carolina Court of Appeals |
| Parties | Claude McALHANY, Appellant, v. Kenneth A. CARTER, Sr. d/b/a Carter & Son Pest Control, Carter & Son Pest Control, Inc., and Erick Cogburn, Respondents. |
Richard Alexander Murdaugh and William Franklin Barnes, III, both of Peters, Murdaugh, Parker, Eltzroth & Detrick, PA, of Hampton, for appellant.
Richard B. Ness and Alison Dennis Hood, both of Ness & Jett, LLC, of Bamberg, for respondent Erick Cogburn; and Danielle F. Payne, of Grier, Cox, & Cranshaw, LLC, of Columbia, for respondents, Kenneth A. Carter, Sr. d/b/a Carter & Son Pest Control and Carter & Son Pest Control, Inc.
In this negligence action, Claude McAlhany appeals the trial court's grant of summary judgment to Respondents Kenneth A. Carter, Sr. d/b/a Carter & Son Pest Control, Carter & Son Pest Control, Inc., and Erick Cogburn. McAlhany argues the trial court erred in finding the statute of limitations barred his property damage and personal injury claims. He further asserts the trial court erred in finding there was no evidence to support his personal injury claim. We reverse the trial court's grant of summary judgment and remand for further proceedings.
In March 2007, Erick Cogburn purchased a house located at 3633 Faust Street (the home) in Bamberg. As part of the purchase, Cogburn asked Respondents Kenneth A. Carter, Sr. (Kenneth) d/b/a Carter & Son Pest Control and Carter & Son Pest Control, Inc. (collectively, Carter) to conduct a termite inspection on the home because Cogburn intended to "flip it." On March 20, 2007, Carter inspected the home and issued a South Carolina Wood Infestation Report, also known as a CL–100 (the March 2007 CL–100). According to the March 2007 CL–100, "[d]ue to the presence of water damage to the window sills, [Carter] has recommended termite treatment." The report noted "[t]here is visible water damage to the front [and] rear window sills." It further stated, "Wood and ground moisture is not available due to the building being on a cement slab." Finally, the report stated the visible water damage to the front and rear window sills was "being repaired by a licensed contractor." After the March 2007 inspection, Cogburn purchased a termite warranty from Carter that covered the cost of additional termite treatment for one year.
After purchasing the home, Cogburn began making repairs, including a new roof, new crown molding, new baseboard molding, new cabinet facings, tile on the kitchen backsplash, ceramic tile on the kitchen countertops, and new flooring. Cogburn stated that during the time he made the repairs, he never saw any "water seepage issues" or mold inside the home.
On November 5, 2007, Cogburn sold the home to McAlhany. Prior to the closing, Carter again inspected the home for termites and issued a second CL–100 on October 19, 2007 (the October 2007 CL–100). The October 2007 CL–100 found no "visible evidence of active ... subterranean termites" or "other wood destroying insects," but it did find evidence of a prior infestation of subterranean termites. Like the March 2007 CL–100, the October 2007 CL–100 stated, "Wood and ground moisture is not available due to the building being on a cement slab."
On April 7, 2011, McAlhany sued Carter and Cogburn, alleging Carter was negligent in its October 2007 inspection of the home and the October 2007 CL–100 was not performed in accordance with the South Carolina Pesticide Control Act (the Act).1 According to his complaint, McAlhany was injured on August 16, 2009, while painting one of the home's interior walls, when a paint roller penetrated sheetrock, releasing mold spores into the air, which he inhaled. Upon further investigation, McAlhany discovered mold behind the home's interior walls. McAlhany claimed Carter was negligent in failing to conduct a reasonable inspection of the home's premises, failing to act as a reasonably prudent company would act under the same or similar circumstances, and failing to satisfy the applicable provisions of the Act. As a result of Carter's negligence, McAlhany claimed property damages to his home and personal injury damages. McAlhany explained in his deposition that the mold spores had caused him sinus problems, his eyes "burn and itch like crazy," he developed sores on his body, suffered nosebleeds, and suffered lost wages. In addition to the negligence claim against Carter, McAlhany sued Cogburn for negligent misrepresentation for failing to accurately disclose the home's condition prior to selling it to him.
Carter and Cogburn both filed answers, asserting the statute of limitations as a defense, among others. They later moved for summary judgment on the grounds that the statute of limitations barred all of McAlhany's claims. McAlhany argued the statute of limitations did not bar his claims because he did not discover mold in the home until August 2009 when he was injured by the mold spores, and he filed his claim within three years of that date. At the summary judgment hearing, the trial court considered the following evidence.
Kenneth explained in a deposition that a CL–100 inspection determines if a home has an infestation of termites, rotten wood caused by termites, or visible damage caused by termites. A bank typically requires a CL–100 inspection if the purchaser is borrowing money to buy the home. As part of conducting a CL–100 inspection, the inspector crawls under the home with a flashlight and "moisture reader," looking for visible damage from moisture and termites. Upon touching the surface of the wood with the moisture reader, the probe gives an immediate reading. Kenneth stated he looks for moisture and termites in every CL–100 inspection; however, he does not use a moisture reader to check moisture levels unless he sees visible evidence of moisture or termite damage. He explained that moisture levels in wood "cannot be above 20[%] ... 28[%] max" because fungus can develop. According to Kenneth, fungus "leaves a white powder" on wood, which prompts him to do a moisture test. He stated, however, that the Official Code of the South Carolina Pesticide and Fertilizer Regulations do not require that he check moisture levels in areas of the home where there is no visible damage. He further stated a CL–100 inspection does not check a home for mold, he was not licensed to deal with mold, and "[m]old has nothing to do with infestation of termites." Kenneth explained that he was prevented from checking the moisture levels on the first floor of the home during both the March and October 2007 inspections because the home had "slab flooring."
The following colloquy occurred during Kenneth's deposition:
Kenneth explained that at the time of the March 2007 CL–100, he knew the home had "water issues," which is a common problem for homes built on an incline of more than five feet. Kenneth stated he was "sure" he informed Cogburn of the water issues within the home before Cogburn sold the home to McAlhany. Specifically, Kenneth testified that before his company re-inspected the home in October 2007, Cogburn had repaired the water damage to the home that was discovered in the March 2007 CL–100. Cogburn, however, stated Kenneth never told him of any of the water damage found during the March 2007 CL–100 inspection. According to Cogburn, he first learned of moisture problems or mold damage in the home in August 2009 when McAlhany showed him molded sheetrock in one of the downstairs bedrooms.
In his deposition, McAlhany explained that he was suing Carter for negligence because his company failed to conduct moisture tests on the home during the October 2007 CL– 100 that would have revealed high moisture levels in the walls.
McAlhany asserted that had he known there were high moisture levels in the home, he would have cut the sheetrock out of the walls to determine the source of the moisture. He explained that he reviewed the October 2007 CL–100 when it was issued and saw nothing that concerned him. McAlhany testified Kristi Lenox of Clemson University later told him a CL–100 required the inspector to check moisture levels in the home. He introduced into evidence a "Report of Structural Pest Inspection" issued on October 9, 2009, by Clemson University (the Clemson report). The Clemson report found the October 2007 CL–100
McAlhany testified he moved into the home approximately two weeks before the closing, which would have been mid to late October 2007. He stated that prior to purchasing the home, Cogburn informed him that the home had been treated for termites by Carter. McAlhany did not request nor was a property disclosure form filled out by Cogburn and given to McAlhany prior to the purchase of the home. Although McAlhany inspected the home prior to purchasing it, he was unsure if a building inspector inspected the home.
After McAlhany moved in, he painted the living room, painted some upstairs rooms, and replaced the floor on the first floor. He stated the floor had to be replaced because the home flooded about seven months after he moved in. He further stated Cogburn first told him the home had flooding problems around June 2008, and he would not have purchased the home had he known it had flooding problems.
McAlhany's testimony was unclear as to when he discovered mold within the home. Initially, he claimed he first...
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