STEPHANIE DRAIN et al. v. JULE L. HARRISON d/b/a HARRISON PEST CONTROL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4490-04T54490-04T5

STEPHANIE DRAIN and ALBERT

DRAIN,

Plaintiffs-Respondents,

v.

JULE L. HARRISON d/b/a HARRISON

PEST CONTROL,

Defendant-Appellant.

____________________________________

 

Submitted December 7, 2005 - Decided June 9, 2006

Before Judges Wecker and Fuentes.

On appeal from the Superior Court of New

Jersey, Law Division, Cumberland County

SC-349-05.

Jule L. Harrison, appellant pro se.

Albert and Stephanie Drain, respondents

pro se.

PER CURIAM

Defendant appeals from a judgment entered in the Special Civil Part in favor of plaintiffs. Plaintiffs were the contract purchasers of a home when their home inspection report revealed evidence of termite damage. In accordance with plaintiffs' contract with the sellers, defendant was engaged to perform a termite inspection of the structure, and did so on May 15, 2004. Defendant's written inspection report set forth this critical finding: "No Visible evidence of a wood destroying insect infestation was observed." The report also provided: "[N]o treatment recommended at this time."

The report provided:

This report is indicative of the condition of the subject structure(s) on the date of the inspection only and is Not to be construed as an express or implied warranty or guarantee against latent, concealed, or future infestation or defects.

An additional paragraph, under the heading "Attention Homebuyer," noted: "This report is not a guarantee or warranty as to the absence of wood destroying insects nor is it a report as to structural integrity." In addition, there is a provision that the "report shall be considered invalid for purposes of securing a mortgage and/or settlement of property transfer if not used within ninety (90) days from the inspection date."

More than ninety days later, in the fall of 2004, when plaintiffs attempted to resell the property, a new inspection alerted them to evidence of termite infestation. They had four different inspections performed, and each inspector reported the presence of termite infestation and damage in the floor joists in the basement. Plaintiffs also learned that there was evidence of infestation by "powder post" beetles. The inspectors' estimates to repair the damage ranged from $1,558 to $2,500. Plaintiffs provided photographs as evidence of visible insect damage in the house.

Sometime after plaintiffs received one or more of these reports, defendant returned to reinspect the property. He maintained at trial that when he conducted that reinspection, there still was no visible sign of infestation or termite damage.

As the judge recognized at trial, the issue for decision was whether it was likely that the damage that was plainly evident on the photographs was present on May 15, 2004, when defendant performed his inspection. The judge concluded that it was and awarded damages in the amount of the lowest repair estimate plaintiffs received. The judge's critical findings were as follows:

What we do have is a situation where an inspection was done on May 15th, and then within a few months thereafter, an act of infestation and damage was found. Mr. Harrison has testified that when he did his inspection on May 15th, he used his usual procedures. He poked around with a screwdriver; didn't see any mud tunnels and didn't see any swarmers. There was testimony from Mr. Harrison, however, that he did see some dirt or other detritus, whatever, filtering down from one area of the flooring, and that he did not subsequently go up and inspect the area above where that dirt was falling down, even though there didn't appear to be any floor covering preventing him from doing so. This was a full basement area. It wasn't a crawlspace. He wasn't physically limited from going in and doing a thorough inspection.

. . . .

[T]his Court . . . has to find whether or not a proper inspection was undertaken by Mr. Harrison when he did it.

Mr. Harrison indicates that it would have been to his advantage to find infestation, because he would have financially benefited in all likelihood, if he had found infestation [because] it's likely that [he] would have been contracted to do the treatment and/or the repair work if [he] had found infestation. So . . . there's actually a financial reason for him to find infestation as opposed to not finding it. What the Court finds somewhat troubling is the fact that Mr. Harrison apparently did go back to the property. He can't remember when that occurred.

. . . .

So it was later than three months after, more than 90 days after the inspection, that's for sure. More like four, five, or six months later.

But he says when he went back in, even being told that there was a problem, that he still didn't find any. I don't find that very credible. I find the believable testimony in this matter to be more so, much more so that of the plaintiffs.

The plaintiffs had gone the extra mile. They didn't just get one other test, they didn't just get one reinspection. They had it done three or four times. They're willing to be reasonable about the cost of repairs and treatment. I find in this matter that the testimony of Mr. Harrison is not credible with respect to the results of his reinspection, and that his testimony that it occurred some 90 days after the sale or when he did the first inspection doesn't really fit in with the facts, that it occurred later than that.

I also find based upon the fact that the area of infestation and damage was in an accessible area as opposed to an inaccessible, hidden crawlspace or within walls that would have had to been opened up, etcetera, that a proper inspection did have the active infestation and the damage in that I find the testimony to be more credible that that infestation and damage existed as of May 15th as opposed to it all occurring after May 15th.

I am satisfied that the testimony of the plaintiffs in this matter has been credible, believable, forthright, candid. They were direct and non-evasive in their answers. And I otherwise find that their testimony was credible. In essence, they relied on the certification and they were damaged by relying on it.

. . . .

[Defendant's] examination and inspection of the property should have revealed that there was termite damage and termite infestation.

I, quite frankly, do not believe do not find credible that the extent of the damage revealed by soon thereafter the inspection could have occurred in that intervening period as opposed to [having] been present as of May of that year. There's no testimony here I also find that given the fact that there was dirt or some kind of material filtering through the floor into the basement, that further investigation should have been undertaken as a result. And there's been no plausible explanation offered as to how the powder post beetle, visible infestation was not discovered.

Therefore, I am going to enter judgment against the defendant and in favor of the plaintiffs. But the damage is going to be limited to the sum of $1,558.20, plus costs, being the lowest of the estimates received by the plaintiffs as the costs of the necessary repairs and treatment. I am not awarding any portion of the $800 in closing costs or anticipatory expenses that they incurred by trying to sell the property. I don't find that to be part of the damages that they can recover against this defendant.

So judgment is entered in favor of the plaintiffs, against the defendant, Harrison Pest Control, in the amount of $1,558.20, plus court costs.

We affirm substantially for the reasons set forth by Judge Richard J. Geiger on the record on March 2, 2005.

 

One estimate of $900 was to treat the condition, but not to repair.

(continued)

(continued)

6

A-4490-04T5

June 9, 2006