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Guaranty Pest Control12/30/2002
s after the termite damage was discovered. Helen Bush also testified to having suffered emotional distress over the termite infestation and the resulting damage.
Although James Bush testified that Guaranty had represented to him in 1979 that it had "treated" the house, the Bushes adduced evidence tending to cast doubt on the truth of that statement. An Alabama Department of Agriculture inspector, John Belcher, inspected the Bushes' house in February 1999. His report of that inspection indicated that he found termite damage adjacent to the carport and discovered that the damage around the fireplace had been repaired before his inspection. Belcher's report indicates that termite-treatment holes drilled in the brick veneer of the foundation did not penetrate the hollow block foundation in the area of the floating slab or the carport; the report also notes that the carport slab, the basement slab, and the foundation block beneath the storage room had not been drilled, and that the patio slab did not appear to have been drilled.
In his deposition (the pertinent portion of which was disclosed to the jury), Belcher testified that Guaranty, in 1979, should have drilled in the areas he identified in his report unless the consumer (i.e., the Bushes) waived the minimum applicable standards, and that failing to drill in those areas would have cause the treatment not to have met applicable state regulations governing termite treatment. Moreover, Belcher testified that a qualified technician trained and knowledgeable about the state rules and regulations would have noticed the absence of any drilling.
The Bushes claimed in their complaint that Guaranty had breached a contract under which it was to treat and inspect their house; that Guaranty had negligently failed to treat and inspect the Bushes' house; and that Guaranty had negligently, wantonly, or recklessly misrepresented material facts regarding its treatment and inspection of the Bushes' house. The trial court instructed the jury on principles of contract and negligence liability, as well as liability for reckless misrepresentations; the jury returned a verdict finding Guaranty liable to the Bushes on each theory, and Guaranty's Rule 59, Ala. R. Civ. P., motion for a new trial was denied by operation of law because the trial court did not rule on the motion within 90 days of its filing.
Although Guaranty contends that there was not substantial evidence presented to support the Bushes' negligence and breach-of-contract claims, our review of the record, in view of the attendant presumptions in favor of the verdict, convinces us otherwise. With respect to the breach-of-contract claim, the jury could have determined from the evidence that the Bushes entered into a contract with Guaranty pursuant to which the Bushes would pay $200 and Guaranty would undertake a duty to treat the Bushes' house, including drilling the brick veneer foundation walls and treating them with termiticide. Although there is no dispute that the Bushes paid Guaranty, Belcher's report and testimony supports the propositions that Guaranty, in 1979, did not drill far enough into the brick veneer to create a chemical barrier in all subterranean voids below the Bushes' house and thereby did not comply with pertinent state regulations regarding termite treatment. Moreover, there was evidence from which the jury could have properly inferred that Guaranty should have discovered its omissions in its annual inspections, and that the Bushes' house ultimately suffered damage from subterranean termites, i.e., the very condition that the Bushes had contracted with Guaranty to prevent.
Guaranty also challenges the sufficiency of the evidence to support the findi
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