Rayner v. Wise Realty Co. of Tallahassee, s. BL-111

• Decision Date: 06 April 1987
• Docket Number: Nos. BL-111,BK-433,s. BL-111
• Citation: 504 So.2d 1361,12 Fla. L. Weekly 938
• Parties: 12 Fla. L. Weekly 938 Peter R. RAYNER, Appellant, v. WISE REALTY COMPANY OF TALLAHASSEE; Charles W. Walter; Tallahassee Realty Company; James G. Lassetter and Maggie S. Lassetter, his wife, doing business as, Tallahassee Realty Company, Appellees. Peter R. RAYNER, Appellant, v. Charles T. NOEGEL, doing business as Seminole Gator Exterminator, Appellee.
• Court: Florida District Court of Appeals

Page 1361

504 So.2d 1361

12 Fla. L. Weekly 938

Peter R. RAYNER, Appellant, v. WISE REALTY COMPANY OF TALLAHASSEE; Charles W. Walter; Tallahassee Realty Company; James G. Lassetter and Maggie S. Lassetter, his wife, doing business as, Tallahassee Realty Company, Appellees.

Peter R. RAYNER, Appellant, v. Charles T. NOEGEL, doing business as Seminole Gator Exterminator, Appellee.

Nos. BL-111, BK-433.

District Court of Appeal of Florida First District.

April 6, 1987.

Brian S. Duffy, Richard Johnston, Jr. and Robert M. Ervin, Jr., of Ervin, Varn Jacobs, Odom & Kitchen, Tallahassee, for appellant.

S. Lindsey Gorman of Gorman & Matthew, P.A., Tallahassee, for appellees/Wise Realty and Charles W. Walter.

George H. Gwynn of Oven, Gwynn & Lewis, Tallahassee, for appellee/Tallahassee Realty Co.

O. Earl Black Jr., of Welch, Munroe & Black, P.A., Tallahassee, for appellee/Noegel.

SMITH, Judge.

Rayner appeals an order dismissing with prejudice his third amended complaint against Wise Realty Company of Tallahassee (Wise Realty), and others, in Case No. BL-111. He also appeals a final summary judgment entered in favor of Noegel, d/b/a Seminole Gator Exterminator (Noegel), in Case No. BK-433. We reverse in both cases.

We agree, for the reasons stated below, that Rayner's third amended complaint against Wise Realty and others sufficiently alleges that these defendants fraudulently failed to disclose the existence and contents of a termite inspection report from Florida Pest Control and Chemical Company (Florida Pest Control), revealing that wet rot, visible termite damage and evidence of termite infestation were observed in a house Rayner intended to purchase. Rayner later purchased the house after receiving, at closing, a termite clearance letter from Noegel stating that there was no active termite infestation on the property. We also agree that genuine issues of material fact exist as to whether Noegel was negligent in submitting a termite clearance letter instead of a termite inspection report which was required by Rule 10D-55.142(2)(c), Florida Administrative Code, and section 482.226(1), Florida Statutes (1979), and in failing to set forth in a written report that the residence which Rayner eventually purchased contained evidence of termite infestation and damage.

A brief recitation of the facts and circumstances giving rise to this litigation is necessary. Wise Realty secured a real estate listing agreement from Mr. and Mrs. Williams to sell their residential property for $49,500. Rayner, who was looking for a residence, sought the assistance of other realtors, James G. Lassetter and Maggie S. Lassetter, d/b/a Tallahassee Realty Company (Tallahassee Realty). The Lassetters showed Rayner the property belonging to Mr. and Mrs. Williams. After inspecting the property, Rayner offered to buy the property for $38,500 "as is." A written contract was prepared by the Lassetters containing, among other things, several provisions as to termite inspection.

In paragraph eleven of the contract, dated August 10, 1980, Mr. and Mrs. Williams agreed to have the improvements inspected for termite and other wood-destroying insects by a licensed exterminating company and a written report furnished to Rayner prior to closing and in accordance with Standard E of the contract. Standard E provided that if, during the course of the termite inspection, visible damage from present or previous infestation was found, "it shall be stated" in the written report and that the seller "may make repairs as required." Further, if the seller "elects not to make repairs," the buyer "shall have the option" of accepting the property in an "as is" condition, or voiding the contract and having the deposit returned. The contract also contained a special typewritten clause which was inserted in the contract to the effect that Rayner agreed to pay $38,500 and accept the property in an "as is" condition at time of inspection.

Prior to closing, Charles W. Walter, a real estate broker employed by Wise Realty, requested a termite inspection from Florida Pest Control. Florida Pest Control submitted to Wise Realty and Walter a Wood-Destroying Organism Inspection Report on HRS Form 1145, June 1979. This report stated that active termite infestation was not observed, but that wet rot, visible termite damage and evidence of termite infestation were observed. The report stated that termite treatment would be required to guarantee the absence of termites.

When Mr. and Mrs. Williams were made aware of the Florida Pest Control report, they told Walter that they could not put any more money into the property and that this was an "as is" sale. Mr. and Mrs. Williams showed Walter the brief letter they received from Noegel when they purchased the house in 1978 (Noegel had prepared a termite report for that closing), stating simply that there were no termites. Mr. and Mrs. Williams requested Walter to get a second opinion, telling him they were only willing to offer the same type of report they had been offered when they bought the property.

Walter requested another termite report from Noegel. Noegel delivered a brief one-sentence report to Wise Realty which stated: "Based on a careful visual inspection we have found no evidence of termite or other wood-destroying insect infestation on the subject property." Noegel testified that Walter contracted with him to do a "termite clearance letter," not a "termite inspection report," and that the two are different. According to Noegel, the termite clearance letter has a specific purpose--to ascertain whether there is termite infestation at the time of inspection. Noegel testified that when requested to do a termite clearance letter he does not include a statement regarding structural damage because of past termite infestation, but he does inform the person for whom he is working of such damage. He testified that when he delivered the termite clearance letter, he gave an oral report to Wise Realty that there was termite damage on the property. Noegel testified that this termite clearance letter which he delivered in October 1980 was one of the last he wrote before he started using a form required by the Department of Health and Rehabilitative Services (HRS).

Section 482.226(1), Florida Statutes (1979), requires that a termite or other wood-destroying organism inspection report be on a form prescribed by HRS Rule 10D-55.142(2)(c), implementing section 482.226(1), requires licensees, certified in the category of termite or other wood-destroying organism control, to report their findings on HRS Form 1145. This form provides for the reporting of, among other things, active infestation observed, other evidence of infestation observed, visible damage observed, and evidence of previous treatment.

Noegel's report, which was not in compliance with the statute or rule, was submitted at closing and Rayner took possession of the property. Rayner alleged that after taking possession of the property he became aware of extensive and serious termite infestation and termite damage behind walls, beneath carpets, in the roof and in other places not observable upon reasonable inspection.

Rayner filed suit against Noegel, Wise Realty, Walter, Tallahassee Realty, and the Lassetters. As to Noegel, he alleged that Noegel fraudulently, or--alternatively--negligently, misrepresented the condition of the property in his termite inspection report. As to each of the other defendants, he alleged fraudulent nondisclosure and negligent nondisclosure.

After some discovery, Noegel moved for summary judgment arguing, first, that his acts were irrelevant because of the "as is" language of the contract; and second, that he only did what he was told to do and was required to do nothing more. The trial court granted the motion for summary judgment.

Wise Realty and the other defendants in Case No. BL-111 moved the trial court for entry of an order dismissing the third amended complaint for failure to state a cause of action. They contended that they owed no duty to Rayner to advise him of the termite damage to the property because Rayner had agreed to...