Stemple v. Dobson

• Decision Date: 12 December 1990
• Docket Number: No. 19559,19559
• Citation: 184 W.Va. 317,400 S.E.2d 561
• Court: West Virginia Supreme Court
• Parties: , 8 A.L.R.5th 957 Jeffrey W. STEMPLE and Judith E. Stemple v. Lewis M. DOBSON, Carol Y. Dobson, and Ace Exterminators, Inc., a West Virginia Corporation.

Page 561

400 S.E.2d 561

184 W.Va. 317, 8 A.L.R.5th 957

Jeffrey W. STEMPLE and Judith E. Stemple v. Lewis M. DOBSON, Carol Y. Dobson, and Ace Exterminators Inc., a West Virginia Corporation.

No. 19559.

Supreme Court of Appeals of West Virginia.

Dec. 12, 1990.

Syllabus by the Court

1. "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syllabus Point 3, Aetna Casualty & Sur. Co. v. Federal Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963).

2. "A party who moves for summary judgment has the burden of showing that there is no genuine issue of fact and any doubt as to the existence of such issue is resolved against the movant for such judgment." Syllabus Point 6, Aetna Casualty & Sur. Co. v. Federal Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963).

3. Where a cause of action is based on tort or on a claim of fraud, the statute of limitations does not begin to run until the injured person knows, or by the exercise of reasonable diligence should know, of the nature of his injury, and determining that point in time is a question of fact to be answered by the jury.

4. The existence of an "as is" clause in a contract of sale for real estate will not relieve the vendor of his obligation to disclose a condition which substantially affects the value or habitability of the property and which condition is known to the vendor, but not to the purchaser, and would not be disclosed by a reasonable and diligent inspection. Such failure to disclose constitutes fraud.

James H. McCauley, McCauley, Webster & Emrick, Belpre, Ohio, for Jeffrey W. Stemple, Judith E. Stemple.

David G. Palmer, Parkersburg, for Lewis M. Dobson, Carol Y. Dobson.

Larry N. Sullivan, Parkersburg, for Ace Exterminators, Inc.

MILLER, Justice:

This is an appeal by the plaintiffs below, Jeffrey W. Stemple and Judith E. Stemple, from an adverse summary judgment ruling by the Circuit Court of Wood County in an action to recover for damage to their home due to termite activity. The plaintiffs brought suit against the former owners of the house, Lewis M. Dobson and Carol Y. Dobson, on grounds of breach of contract and fraudulent concealment. The plaintiffs also sued Ace Exterminators, Inc. (Ace) for negligently failing to discover the damage. The circuit court ruled that the actions were not maintainable as a matter of law. We disagree, and we reverse the judgment of the circuit court and remand the case for further proceedings.

I.

On October 8, 1985, the plaintiffs entered into a contract to purchase a house in Vienna, Wood County, from the Dobsons. The contract provided that the plaintiffs were purchasing the dwelling "as is," based upon their own examination of the premises rather than upon any representations of the Dobsons. ¹

The contract also required the Dobsons to furnish a written termite inspection report, a condition apparently inserted at the insistence of Magnet Mortgages, Inc., the lending institution financing the purchase. At the Dobsons' request, Ace conducted an inspection of the premises on October 7, 1985, and furnished the plaintiffs with a written report on October 9, 1985. The report stated that there was evidence of a previous termite infestation, now inactive, and that no evidence of structural damage had been observed. The report also contained a disclaimer expressly advising consumers that it was not intended as a structural damage report. However, the report did not emphasize the disclaimer ² and specifically stated elsewhere that the inspector had observed no structural damage.

The closing occurred on November 18, 1985, and the plaintiffs took possession of the dwelling on December 8, 1985. Not long thereafter, Mrs. Stemple noticed flying insects in the house. The plaintiffs called another exterminator, Bruce-Terminix Service, Inc. (Terminix), which inspected the home on January 22, 1986. The inspector told the plaintiffs that there were carpenter ants living in the old termite tunnels and noted some termite damage to the exterior perimeter of the house due to the prior infestation. The plaintiffs, however, testified that the inspector told them the damage was not serious and there was nothing to worry about in that regard. Moreover, the Terminix inspector made no notation of visible damage in the appropriate place on the inspection report. The plaintiffs purchased a termite protection plan from Terminix and subsequently made $3,300 in improvements to the house.

On February 23, 1988, another termite inspection was conducted by Eastern Burkholder Exterminating Service (Burkholder). In the basement, the inspector discovered substantial structural damage due to the prior termite infestation. It was subsequently estimated that correction of the damage would require raising the house on jacks and replacing the structure's main beam, seal plate, box sill, siding, and subfloor. The Burkholder inspector estimated that the damage was as much as twenty years old, but could not have occurred within the previous three years.

The plaintiffs subsequently contacted Craig Bandy, who had owned the home before the Dobsons. Mr. Bandy reported that there had been visible termite damage to the floor joists when he purchased the house in 1977. After examining the premises with the plaintiffs, Mr. Bandy further stated that several of the damaged timbers, in place when he sold the house to the Dobsons in 1982, had been replaced and stained to match the old wood.

On April 7, 1988, the plaintiffs filed suit in the Circuit Court of Wood County against the Dobsons and Ace. ³ The complaint charged the Dobsons with breach of contract and with willfully and fraudulently concealing from the plaintiffs the structural damage caused by the prior termite infestation. The plaintiffs also charged Ace with negligence in failing to discover the damage in the course of its termite inspection.

Prior to trial, the defendants filed motions for summary judgment with the circuit court. They asserted that the plaintiffs' negligence and fraud claims were barred by the statute of limitations. It was also asserted that the "as is" clause in the contract of sale precluded the plaintiffs from pursuing their claims against the Dobsons. The lower court apparently agreed and, by order dated January 4, 1990, granted the motions. ⁴ It is from this order that the plaintiffs now appeal.

II.

At issue here is the correctness of the trial court's summary judgment ruling. In Syllabus Point 3 of Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963), we stated the standard for determining the appropriateness of summary judgment under Rule 56(c) of the West Virginia Rules of Civil Procedure:

"A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." ⁵

In Syllabus Point 6 of Aetna, we also stated:

"A party who moves for summary judgment has the burden of showing that there is no genuine issue of fact and any doubt as to the existence of such issue is resolved against the movant for such judgment."

See Prudential Ins. Co. of Am. v. Couch, 180 W.Va. 210, 376 S.E.2d 104 (1988); Hoskins v. C & P Tel. Co., 169 W.Va. 397, 287 S.E.2d 513 (1982); Karnell v. Nutting, 166 W.Va. 269, 273 S.E.2d 93 (1980); Anderson v. Turner, 155 W.Va. 283, 184 S.E.2d 304 (1971). As we held in Syllabus Point 1 of Masinter v. WEBCO Co., 164 W.Va. 241, 262 S.E.2d 433 (1980): "Even if the trial judge is of the opinion to direct a verdict, he should nevertheless ordinarily hear evidence and, upon a trial, direct a verdict rather than try the case in advance on a motion for summary judgment." See Dawson v. Woodson, 180 W.Va. 307 , 376 S.E.2d 321 (1988); Truman v. Farmers & Merchants Bank, 180 W.Va. 133s, 375 S.E.2d 765 (1988); Romano v. New England Mut. Life Ins. Co., 178 W.Va. 523 , 362 S.E.2d 334 (1987); Brown v. Bluefield Mun. Bldg. Comm'n, 167 W.Va. 318, 280 S.E.2d 101 (1981); Lengyel v. Lint, 167 W.Va. 272, 280 S.E.2d 66 (1981).

III.

The first contention on appeal is that the plaintiffs' fraud claim against the Dobsons and their negligence claim against Ace were barred by the statute of limitations. W.Va.Code, 55-2-12 (1959), provides that personal actions for damage to property or personal injury for which no other limitations period is prescribed must be brought within "two years next after the right to bring the same shall have accrued." ⁶

We have held in a variety of cases that a right of action does not "accrue" for purposes of the statute of limitations until the plaintiffs knew or should have known by the exercise of reasonable diligence of the nature of their claims. In Syllabus Point 1 of Sewell v. Gregory, 179 W.Va. 585, 371 S.E.2d 82 (1988), we stated:

"The two year statute of limitation for a tort action arising from latent defects in the construction of a house begins to run when the injured parties knew, or by the exercise of reasonable diligence should have known, of the nature of their injury and its sources, and determining that point in time is a question of fact to be answered by the jury."

We have applied this discovery rule in various tort cases. E.g., Hickman v. Grover, 178 W.Va. 249 , 358 S.E.2d 810 (1987); Family Sav. & Loan, Inc. v. Ciccarello, 157 W.Va. 983, 207 S.E.2d 157 (1974); Morgan v. Grace Hosp., Inc., 149 W.Va. 783, 144 S.E.2d 156 (1965). We have also recognized its applicability to cases of fraud or fraudulent concealment. E.g., Hundley v. Martinez, 151 W.Va. 977, 158 S.E.2d 159 (1967); Baker v. Hendrix, 126 W.Va. 37, 27 S.E.2d 275 (1943); Plant v. Humphries, 66 W.Va. 88, 66 S.E. 94 (1909). See also Harless v. Western & S. Life Ins. Co., 119 W.Va. 102, 192 S.E. 137 (1937); Petrelli v. West...