Sacred Heart So. Missions v. Terminix Intern.

• Decision Date: 11 October 1979
• Docket Number: No. DC 79-105-S-P.,DC 79-105-S-P.
• Citation: 479 F. Supp. 348
• Parties: SACRED HEART SOUTHERN MISSIONS, INC., a Mississippi Corporation, Plaintiff, v. TERMINIX INTERNATIONAL, INC., a Tennessee Corporation, Defendant.
• Court: U.S. District Court — Northern District of Mississippi

479 F. Supp. 348

SACRED HEART SOUTHERN MISSIONS, INC., a Mississippi Corporation, Plaintiff, v. TERMINIX INTERNATIONAL, INC., a Tennessee Corporation, Defendant.

No. DC 79-105-S-P.

United States District Court, N. D. Mississippi, Delta Division.

October 11, 1979.

Charles W. Broun, III, Southaven, Miss., for plaintiff.

John J. Corlew, III, Waring, Cox, Sklar, Allen, Chafetz & Watson, Memphis, Tenn., for defendant.

MEMORANDUM OF DECISION

ORMA R. SMITH, District Judge.

This action is before the court upon the motion of the defendant Terminix International, Inc., for summary judgment, pursuant to Rule 56, Fed.R.Civ.P. The action was originally brought in the Circuit Court of DeSoto County, Mississippi, but the defendant filed a timely petition for removal to this court under 28 U.S.C. § 1446. Defendant has alleged in its petition for removal that there is diversity of citizenship between the parties, that the amount in controversy exceeds $10,000, and that this court therefore has jurisdiction pursuant to 28 U.S.C. §§ 1332 & 1441.

Plaintiff Sacred Heart Southern Missions, Inc., a corporation organized and existing under the laws of the State of Mississippi, alleges that the defendant Terminix International, Inc., entered into a contract with the plaintiff on July 17, 1964. This contract, which was for protection against termites at certain buildings of Sacred Heart School, has been renewed annually since 1964, and the plaintiff has made renewal payments. It is a contract for service only, and specifically states that it is not a guarantee "against present or future damage to property or contents." The liability of Terminix International, Inc., was not to exceed $5,000, but this was liability only for the failure to provide service protection.

The plaintiff further alleges that in response to a letter from the defendant requesting a renewal payment, the plaintiff made such a payment on March 6, 1979, covering service from July 17, 1978 to July 16, 1979. In that letter requesting a renewal payment, the plaintiff maintains that the defendant agreed to insure the buildings against termite damage, up to an amount of $150,000.¹ This is substantially different from the original contract, which provides no guarantee against property damage. In April of 1979, the plaintiff discovered extensive termite damage to one of the buildings covered by the service contract and the plaintiff now seeks to recover costs of repairing that damage from the defendant.

The defendant has filed a motion for summary judgment, together with supporting affidavits, alleging that it is entitled to a judgment as a matter of law. Defendant maintains that the notice of renewal which contained the insurance against termite damage was sent as a result of a clerical error, and was such an obvious mistake that the plaintiff could not have accepted it in good faith as a modification of the original contract. Defendant also alleges that the letter was not supported by consideration. The affidavit of Edward Phelan, who was the manager of the Memphis branch of the defendant at the time the renewal notice was sent, states that the notice was sent as the result of a routine check of customer records. The particular notice which was sent to the plaintiff pertained to a contract containing a damage guarantee, and should not have been sent to the plaintiff. Mr. Phelan further states that any modification or amendment to an existing contract would have required his approval under standard branch procedures, and there was no such approval in the instant case.

The affidavit of Ronald Dixon, who succeeded Mr. Phelan as branch manager in Memphis, also states that there were no modifications to the service contract. The final affidavit submitted by the defendant is that of Mr. Charles J. Hromada, who is the Senior Vice President of Licensee Operations/Technical Services. He states that the same treatment services are provided the defendant's customers, regardless of whether or not the contract also guarantees against termite damage.

Defendant's motion, supported by these affidavits, emphasizes that the plaintiff was sent the wrong form of cancellation notice, because of a clerical error. The form sent to plaintiff referred to an existing termite protection contract, which was not the type of contract covering the plaintiff. This notice, according to the defendant, was not intended as a modification of the existing contract; it was simply a clerical mistake. Defendant argues that under applicable Mississippi law, the alleged modification cannot be enforced because it was the result of the defendant's unilateral mistake. Even if there was a valid modification, the defendant argues that a lack of consideration rendered that modification unenforceable.

The plaintiff has not responded to the defendant's motion and affidavits in a manner which is contemplated by Rule 56. Defendant has presented supporting affidavits which the court finds to be in compliance with Rule 56(e).² Since the defendant's motion has been supported in this manner, the plaintiff should not be allowed to rest on the allegations contained in its original declaration. Its response to the defendant's motion "by affidavits or as otherwise provided in Rule 56, must set forth specific facts showing that there is a genuine issue for trial." The Rule also provides that affidavits may be opposed "by depositions, answers to interrogatories, or further affidavits"; however, the plaintiff has submitted nothing in opposition to the defendant's affidavits except a response to the motion and a memorandum of authorities as required by the Local Rules of this court. In accordance with the language of Rule 56, therefore, this court shall enter a summary judgment against the plaintiff, if it is otherwise appropriate. See, e. g., Saenz v. University Interscholastic League, 487 F.2d 1026 (5th Cir. 1973); Beal v....