Pietramale v. Dugay, 86-17-I
| Decision Date | 04 August 1986 |
| Docket Number | No. 86-17-I,86-17-I |
| Citation | 714 S.W.2d 281 |
| Parties | Michael PIETRAMALE and Wife, Joan Pietramale, Plaintiffs-Appellants, v. Michael J. DUGAY and Wife, Prudence Dugay, Huntland Realty Company, Chicago Title Insurance Company, Simmons Pest Control Company and Dobson & Johnson, Inc., Defendants-Appellees. |
| Court | Tennessee Supreme Court |
Kenneth M. Switzer and Gary J. Mitchell, Nashville, for plaintiffs-appellants.
J.K. Woodard, Hendersonville, Lawrence D. Wilson and James V. Barr, III, Nashville, for defendants-appellees.
The plaintiffs in this action are the Pietramales, a husband and wife who purchased a home not knowing that it had termite damage. They appeal from summary judgments granted in favor of Huntland Realty Co., the sellers' agent, and Simmons Pest Control Co., the firm that inspected the home for termites.
When the Pietramales purchased a home from the Dugays, the parties executed a sales contract which contained the following provision: Since Simmons Pest Control had a current service contract on the house, the sellers suggested that Huntland contact Simmons for a termite inspection of the home. Huntland called Simmons and ordered a "certifying letter" by phone.
When the Simmons inspector inspected the house, he found no active termite infestation, but he did find existing termite damage. In providing Huntland with these inspection results, Simmons reported both the finding of no infestation and the finding of existing damage. Simmons failed, however, to report these findings in a single letter.
Instead of sending one certifying letter containing all the information, Simmons sent Huntland three pages stapled together. The top page was a letter stating: "Based upon careful visual inspection of accessible areas and on sounding of accessible structural members, there are no active termites in the timbers of the subject property as of this date." This top page made no reference to the existence of termite damage. The second of the three pages was a copy of the first letter. The third page was a different letter which stated: "There are no active termites in the timbers of the subject property as of this date but there is old termite damage to sills and joists."
Huntland sent the three pages, still stapled together, to the closing agent. At closing, the Pietramales received the original of the first letter from the top of the stack, while the closing agent kept the bottom pages of the stack including the copy of the first letter and the second letter. None of the parties noticed that the third page was a different letter; instead they assumed that it was another copy of the letter stapled on top.
When the Pietramales discovered that their home had termite damage, they filed this suit, alleging in part that Huntland Realty Co. and Simmons Pest Control Co. are liable for damages resulting from the purchase of the house. In the present appeal, the Pietramales challenge summary judgments rendered by the trial court and affirmed by the Court of Appeals in favor of both Huntland Realty and Simmons Pest Control.
Summary judgment is authorized by Tenn.R.Civ.P. 56 which provides, in pertinent part:
"The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
When considering a summary judgment motion, a court must view the pleadings and evidence, if any, before it in the light most favorable to the opponent of the motion. Also, if the court entertains any doubt whether or not a genuine...
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