Please brief the case Clarkson v Orkin Exterminating Co Inc

Please brief the case Clarkson v. Orkin Exterminating Co., Inc. on pages 396-397 of the textbook in the required format.

Required case format :

1. FACTS: This section will constitute a very short (two or three sentences) summary of the events that brought the parties to the courtroom.

2. ISSUE: This is the legal issue that the court is being asked to resolve.

3.  HOLDING: This is the rule of law pronounced by the court as it applies to the facts of the particular case. This is the portion of the court\'s written opinion that has precedential authority to lower courts in the same jurisdiction.     

4. REASONING: In this section we will relate the court\'s logic in reaching its decision.  Please be sure to acknowledge the opposing arguments and explain why one prevailed over the other.

Clarkson v. Orkin Exterminating Co., Inc.
761 F.2d 189

U.S. Court of Appeals, Fourth Circuit

May 9, 1985

Haynsworth, Senior Circuit Judge. I

A jury awarded the plaintiff damages on three sepa- rate claims. She claimed breach of a contract to inspect for termites and to treat again if necessary. There was a claim of fraud and of a violation of South Carolina’s Unfair Trade Practices Act. § 39–0(a), Code of Laws of South Carolina, 1976. There was adequate proof that Orkin broke its contract, though an improper measure of damages was applied. There is no evidence in the record, how- ever, to support the finding of fraud or a violation of the Unfair Trade Practices Act. Hence, we reverse in part and affirm in part, but remand the contract claim for an appropriate assessment of damages.

I

In 1976 Mrs. Clarkson purchased a house. Orkin had contracted with her predecessor in title to retreat the house in the event that a termite problem developed. Orkin also promised, for a fee, to inspect the house yearly and, if necessary, retreat it for ter- mites before certifying that the house remained free of termites.
In early 1983, Mrs. Clarkson offered her home for sale. When prospective purchasers noticed evi- dence of termite infestation, Mrs. Clarkson called Orkin and requested that they inspect the house. Orkin complied with her request and issued a report that the house was free of termites. The report also mentioned the presence of a moisture problem, which had been reported to Mrs. Clarkson on sev- eral earlier occasions but which remained uncor- rected. For the moisture problem, Orkin had unsuccessfully attempted to sell a protective chemi- cal treatment to Mrs. Clarkson.
The day after Orkin’s 1983 inspection, Mrs. Clarkson had the house inspected by the representa- tive of another exterminating company. He found two termite tunnels and damage from water. He attributed the water damage to a drainage problem and expressed the opinion that the water damage would progress unless there were alterations to a porch to prevent drainage of water into the basement.
After a contractor had made the necessary re- pairs and the recommended alterations, Mrs. Clarkson sought to have Orkin reimburse her for her entire cost of the reconstruction work. She also asked that Orkin reinspect the house and certify that the house was free of termite infestation. Orkin refused both requests.
A jury awarded Mrs. Clarkson $613.47 on the breach of contract claim, $551 on the Unfair Trade Practices Act Claim and $1,148 actual damages and $5,000 punitive damages on the fraud claim. The dis- trict judge concluded that the Unfair Trade Practices Act claim was a willful one and tripled the award on that claim and ordered Orkin to pay the plaintiff’s attorneys’ fees.
II
As proof of a violation of the South Carolina Unfair Trade Practices Act, Mrs. Clarkson points (1) to the fact that Orkin certified in 1983 that the house was free of termites when significant infestation was visible, and (2) the fact that Orkin on several occasions had at- tempted, though unsuccessfully, to sell to Mrs. Clark- son a “moisture problem treatment package” that would not have been an adequate corrective of an improper drainage problem.
It is abundantly clear that in its 1983 inspection Orkin’s representative failed to discover termite infestation which was present and visible. This, how- ever, does not establish a violation of the South Car- olina Unfair Trade Practices Act. It shows no more than that Orkin’s representative was negligent or incompetent. Mrs. Clarkson had not directed his attention to the area where the infestation was pres- ent, though she did direct the attention of the other exterminator to that area....
III
There is enough to support a finding of contract violation. Orkin failed to retreat the house when a termite infestation was present, and it refused Mrs. Clarkson’s subsequent request that it reinspect and spray the house after the repairs had been made.
There is no claim that Mrs. Clarkson lost an opportunity to sell the house because of the termite problem. What she claimed was the cost of repairs and alterations. On the breach of contract claim, the jury assessed the damaged at $613.47, which was precisely the cost to Mrs. Clarkson of replacing the wood damaged by the termites. In effect, the jury converted Orkin’s retreatment contract into a repair contract.
Orkin offers its customers alternatives. It will promise and guarantee to provide retreatment if there is a later termite infestation. For a higher fee, it will promise and guarantee to effect necessary repairs after a termite infestation has occurred. Mrs. Clarkson’s predecessor in title, and she, elected to take the lower option. In Orkin’s guarantee to Mrs. Clarkson, there is an express recital of her waiver and release of Orkin from any liability for damage to the structure occa- sioned by termites. Mrs. Clarkson cannot now claim the benefits of a repair guarantee she chose not to purchase.
Mrs. Clarkson was entitled to a proper perfor- mance by Orkin of its contract, which was to inspect and treat again if an infestation was found. That promise was not properly performed, and Mrs. Clark- son is entitled to any damage she suffered by reason of that non-performance. Since she knew of the termite infestation one day after Orkin failed to detect it, her damage would apparently be limited to the cost of inspection by the other exterminator plus the cost of any retreatment she may have procured.
While we agree that the evidence supports a finding of a breach of contract, we remand that claim for further proceedings on damages as may be consis- tent with this opinion. Judgment in the plaintiff’s favor on the unfair trade practice and fraud claims is reversed.
Reversed in part; Affirmed in part, and remanded.

Solution

FACTS: Mrs. Clarkson purchased a home in 1976. She purchased a plan from Orkin Extermenting Inc. for a yearly termite inspection. Mrs. Clarkson found a termite problem in the house one day post the inspection from Orkin. She appointed another contractor to reconstruct and repair the same. She filed a case against Orkin in the US court of appeal seeking reimbursement from Orkin for the entire reconstruction work.

ISSUE: There was a claim of fraud and of a violation of South Carolina’s Unfair Trade Practices by Mrs. Clarkson on Orkin Inc. The claim was regarding an unfair and faulty inspection from Orkin at Mrs. Clarkson house.

HOLDING:

here was a claim of fraud and of a violation of South Carolina’s Unfair Trade Practices Act. § 39–0(a), Code of Laws of South Carolina, 1976. There was adequate proof that Orkin broke its contract, though an improper measure of damages was applied. There is no evidence in the record, however, to support the finding of fraud or a violation of the Unfair Trade Practices Act. Hence, we reverse in part and affirm in part, but remand the contract claim for an appropriate assessment of damages.

REASONING: Orkin claim of Mrs. Clarkson not asking the inspector to visit a certain section of the house which was infected was held true. However, it was under Orkin\'s role to fully inspect the house before declaring it termite free and hence the court ruled that the Orkin\'s penalty would be limited to the cost of inspection by the other exterminator plus the cost of any retreatment she may have procured.