                       IN THE COURT OF APPEALS OF TENNESSEE
                                  AT NASHVILLE



BRUCE WALKER and VICTORIA             )
                                                                FILED
WALKER,                               )
                                      )                        September 17, 1999
       Plaintiffs/Appellants,         )      Davidson Circuit No. 97C-200
                                      )                        Cecil Crowson, Jr.
v.                                    )                       Appellate Court Clerk
                                      )      Appeal No. 01A01-9809-CV-00492
ARROW EXTERMINATORS, INC.             )
and DOUG SNYDER, Individually,        )
                                      )
       Defendants/Appellees.          )



             APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
                          AT NASHVILLE, TENNESSEE


                  THE HONORABLE HAMILTON V. GAYDEN, JUDGE


For the Plaintiffs/Appellants:        For the Defendants/Appellees:

James L. Harris                       D. Brett Burrow
Nashville, Tennessee                  Sharon E. England
                                      Nashville, Tennessee




                                      AFFIRMED


                                      HOLLY KIRBY LILLARD, J.



CONCURS:

ALAN E. HIGHERS, J.

DAVID R. FARMER, J.
                                              OPINION



       This case involves alleged negligence in the termite inspection of a house. The trial court

granted summary judgment in favor of the defendant exterminators, finding insufficient evidence

of termite infestation at the time of inspection. We affirm.

       In February 1996, Plaintiffs/Appellants Bruce and Victoria Walker (“the Walkers”) were

prospective buyers of a house located at 305 Cotton Blossom Court in Nashville, Tennessee. The

real estate company handling the sale of the house asked Defendant/Appellee Arrow Exterminators,

Inc. (“Arrow Exterminators”) to inspect the home for termite infestation. On February 22, 1996,

Defendant/Appellee Doug Snyder (“Snyder”), an employee of Arrow Exterminators, visually

inspected the home. His inspection report noted that some areas of the residence were inaccessible,

but that no visual evidence of termite infestation was found as of that date. The report stated: “[t]his

report is indicative of the condition of the subject structure(s) on the date of the inspection only….”

(emphasis in original).

       The Walkers purchased the house, with the closing on February 26, 1996. Subsequently, the

Walkers contacted another exterminating company, Tennessee Valley Exterminators, to purchase

a contract to have the house sprayed for termites and other pests. On March 9, 1996, a sales

representative of Tennessee Valley Exterminators visited the home to give the Walkers an estimate

for the extermination services.

        The next day, there was a swarm of termites at the Walkers’ home. The Walkers contacted

Tennessee Valley Exterminators, which immediately canceled its contract for extermination services.

The house was eventually treated for termite infestation by Cook’s Pest Control.

        The Walkers filed a lawsuit on January 21, 1997, against Arrow Exterminators and Snyder,

asserting that the defendants breached their duty of reasonable care in failing to properly inspect and

disclose evidence of termite infestation. The defendants denied that there was visual evidence of

termite infestation on the date of the inspection, February 22, 1996.

        After opportunity for discovery, on July 21, 1998, the defendants moved for summary

judgment, arguing that the Walkers had failed to present evidence from which the trier of fact could

reasonably infer that there was termite infestation on the date of the defendants’ inspection. In
support of the defendants’ motion, defendant Snyder submitted an affidavit in which he asserted that

his visual inspection of the home was in accordance with pest control industry standards, that there

was no visible evidence of termite infestation on the date of his report, and that because of “. . . the

potential for rapid growth of termites in the spring, it was possible that termite infestation was

present at the time [he] conducted [his] inspection but no visible evidence of this infestation would

be evident.”

        In opposition to the defendants’ motion, the Walkers argued that the inspection report did

not indicate whether Snyder inspected the crawl space under the house. Further, the Walkers

asserted that the addition to the original house included a portion in which wood structure was

touching the ground, which purportedly increased the risk of termite infestation. The Walkers noted

that Snyder’s inspection report had a section for “Additional Comments,” which was left blank, and

argued that Snyder should have brought to their attention the section of the addition that had wood

touching the ground. The Walkers maintained that there was a genuine issue of material fact as to

whether Snyder performed a careful inspection of the house.

        The trial court reviewed the parties’ pleadings, depositions, and the deposition and affidavit

of Doug Snyder. It concluded that the record contained “no evidence sufficient to contradict the

affidavit of Mr. Snyder that he complied both with the terms of the inspection agreement and the

standards set by the industry.” The trial court emphasized that the inspection report spoke to “the

condition of the residence on the day the report was made.” Consequently, the trial court granted

the defendants’ motion for summary judgment. From this order, the Walkers now appeal.

        On appeal, the Walkers argue that the trial court erred in granting the defendants’ motion for

summary judgment. They contend that a genuine issue of material fact exists as to whether Snyder

was negligent because the report does not indicate that Snyder checked the crawl space, the exterior,

and the addition to the home. The Walkers also argue that Snyder failed to note on the “Additional

Comments” section of the inspection report that the addition to the home included wood structure

touching the ground. The Walkers also argue that the inspection report’s limitation to the date of

the inspection only makes it a contract of adhesion, contrary to Tennessee public policy.




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        Under Tenn.R.Civ.P. 56.04, summary judgment is to be granted 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.” Rule 56.06 provides that the nonmoving party “may not rest upon the

mere allegations or denials of [h]is pleading, but his . . . response, by affidavits or . . . [otherwise],

must set forth specific facts showing that there is a genuine issue for trial.” Moreover, the party

seeking summary judgment must carry the burden of persuading the court that no genuine and

material factual issues exist and that it is, therefore, entitled to judgment as a matter of law. See

Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993).

        Once the moving party establishes that there is no genuine issue of material fact, the

nonmoving party must then demonstrate, by affidavits or discovery materials, that there is a genuine,

material fact dispute to warrant a trial. The nonmoving party cannot simply rely upon his pleadings

but must set forth specific facts showing that there is a genuine issue of material fact for trial. “If

he does not so respond, summary judgment . . . shall be entered against him.” Id. at 211 (citing

Tenn.R.Civ.P. 56.05, now Tenn.R.Civ.P. 56.06).

        In this case, the inspection report is dated February 22, 1996. The report states expressly that

it indicates the condition of the house “on the date of the inspection only. . . .” It noted that some

areas were inaccessible but that no visual evidence of termite infestation was found. The termite

swarm occurred on March 10, 1996.

        Snyder’s affidavit in support of the motion for summary judgment asserts that the inspection

complied with industry standards. The Walkers offered no expert testimony to refute this. Snyder’s

affidavit also observes that termite swarms can grow rapidly in the spring, and notes that a termite

infestation could have been present on the date of his inspection and yet not have been visible. This

assertion is likewise unrefuted in the record.

        A similar set of facts existed in Fuller v. Feingold, No. 02A01-9809-CV-000252, 1999

Tenn. App. LEXIS 275 (Tenn. App. Apr. 28, 1999), in which a termite inspection was performed

prior to the purchase of a home, and active termite infestation was detected some time later, after the

closing on the house. Id. at *3. In Fuller, the plaintiffs produced expert testimony, but nevertheless

could not establish that the termite inspection was negligently performed or that there was active

termite infestation on the date of the inspection. The Court of Appeals stated:


                                                    3
       [w]ithout proof that the inspection performed by Terminix fell below the normal
       standard of care or that termites were present when the Terminix inspection occurred.
       . ., the Fullers cannot prove any breach of duty by Terminix, nor that any act or
       omission by Terminix was the cause in fact or proximate cause of the damages
       claimed by the Fullers.

Fuller, at *10. Thus, without expert testimony to refute Snyder’s assertions, the Walkers “cannot

prove any breach of duty” by the defendants in this cause.

       The Walkers argue on appeal that the inspection report’s limitation to the date of the

inspection only makes it a contract of adhesion, contrary to Tennessee public policy. However, this

argument was not raised to the trial court and therefore will not be considered on appeal. See

Landry v. Wood, 936 S.W.2d 635, 637 (Tenn. App. 1996).

       In sum, the Walkers failed to produce evidence to create a genuine issue of material fact as

to whether Snyder’s inspection of the home was negligent or whether there was an active infestation

of termites on the date of inspection that should have been detected by a visual inspection.

Therefore, the trial court did not err in granting the defendants’ motion for summary judgment. The

Walkers’ argument that the inspection report is contrary to public policy was not raised in the trial

court and therefore will not be considered on appeal.

       The decision of the trial court is affirmed. Costs are assessed against the Appellants, for

which execution may issue if necessary.




                                      HOLLY KIRBY LILLARD, J.

CONCUR:



ALAN E. HIGHERS, J.



DAVID R. FARMER, J.




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