Russenberger v. Thomas Pest Control, Inc.

394 S.W.3d 303, 2012 Ark. App. 86, 2012 WL 206487, 2012 Ark. App. LEXIS 186
CourtCourt of Appeals of Arkansas
DecidedJanuary 25, 2012
DocketNo. CA 11-808
StatusPublished
Cited by1 cases

This text of 394 S.W.3d 303 (Russenberger v. Thomas Pest Control, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Russenberger v. Thomas Pest Control, Inc., 394 S.W.3d 303, 2012 Ark. App. 86, 2012 WL 206487, 2012 Ark. App. LEXIS 186 (Ark. Ct. App. 2012).

Opinion

RITA W. GRUBER, Judge.

| ¶ Appellant Jamie Russenberger appeals from the trial court’s order dismissing her complaint against appellees Thomas Pest Control, Inc.; Marilyn Thomas Robison, individually; Marilyn Robison d/b/a Thomas Pest Control, Inc.; Bobby Hill, individually; Bobby Hill as “Operations Manager” of Thomas Pest Control, Inc.; and Western Surety Company.1 For simplicity, we will refer to the first five parties as the Thomas appellees. The principal issue on appeal is whether appellant alleged facts in the complaint sufficient to | ¡.support the doctrine of fraudulent concealment. Because we hold that the complaint does allege sufficient facts, we reverse the trial court’s order dismissing this case and remand for further proceedings. Appellant also appeals from the court’s order awarding attorney’s fees to the Thomas appel-lees. In light of our decision reversing the court’s order of dismissal, we also reverse its order awarding attorney’s fees.

In our review of a case in which a plaintiff claims that the trial court erred in granting a motion to dismiss pursuant to Rule 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Biedenharn v. Thicksten, 361 Ark. 438, 441, 206 S.W.3d 837, 840 (2005). In viewing the facts in the light most favorable to the plaintiff, the facts should be liberally construed in the plaintiffs favor. Id. Our rules require fact pleading, and a eom-plaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id. Of particular import in this case, Arkansas law requires the complaint to contain facts sufficient to support the application of fraudulent concealment to toll the statute of limitations. Floyd v. Koenig, 101 Ark.App. 230, 231, 274 S.W.3d 339, 340 (2008). Finally, in testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. Carlson v. Kelso Drafting and Design, Inc., 2010 Ark. App. 205, at 1-2, 374 S.W.3d 726.

I.

For appellant’s first point on appeal, we turn to the allegations in her complaint. Appellees filed a motion to dismiss appellant’s original complaint prompting appellant to file an amended complaint, which is at issue here. Appellant alleged the following in her |samended complaint. She bought a home in Little Rock on November 18, 2004. Before purchasing the home, appellant contracted with appellee Thomas Pest Control, Inc. (TPC) to perform an inspection of the property for active and previous termite damage. TPC was a licensed, bonded, pest-control company regulated by the State of Arkansas. TPC performed an inspection on October 29, 2004, and on November 11, 2004, TPC (through Operations Manager Bobby Hill) delivered to appellant a “Clearance Letter” and a “Termite Contract” based on its inspection. Neither TPC’s clearance letter nor the graph attached to the letter indicated any current or past damage or structural defects to the property. Relying on this clearance letter, appellant executed all necessary documents to purchase the home on November 18, 2004.

Appellant continued to contract annually with TPC from November 2004 through December 2009 to treat the property under the terms of the termite contract executed on November 11, 2004. Appellant alleged that she relied upon TPC’s professionalism and license to perform inspections and treatments and to promptly notify her of any occurrence of current or previous termite, insect, or other damage it discovered. TPC never notified her of any current or previous damage to the property during any of the annual inspections and treatments from 2004 through 2009.

Then, in January 2010, appellant hired a contractor to remodel her kitchen and add a laundry room to the rear of her home. During the preliminary stages of this work, the contractor discovered damage to the substructure and subflooring of the kitchen area and informed appellant that the floor needed to be removed in order to have adequate access to 1 ¿perform the repairs. During this process, the contractor discovered termite and other damage to the structure. Appellant requested TPC to inspect and treat the propérty under its contract. TPC informed appellant that there was existing insect and structural damage, including the termite damage that TPC was previously aware of (and that appellant alleges TPC intentionally concealed and hid from her), and that TPC would not treat the home due to problems of clearance under the structure. TPC informed appellant that it was her responsibility to have the understructure of the home excavated before TPC would treat the structure.

Appellant then filed a complaint against TPC at the Arkansas State Plant Board (Plant Board). The Plant Board’s inspector reported that TPC failed to comply with the laws, rules, and standards set forth by the Arkansas Legislature due to various substandard issues including access, wood debris, clearance, shelter tubes, outside grade, and an area that was not drilled and treated as would have been required when TPC originally treated the home in 2000. The Plant Board issued a “pink slip” to Thomas listing repairs that must be made to bring the structure up to state minimum requirements. The state inspector indicated that there was severe damage to the understructure of the home and that he found previous termite damage, other insect damage, and rot under the structure. Appellant alleged that this was the first indication to her that there was any substructure insect damage to her home. The Plant Board issued three “pink slips” before TPC finally complied and cleared the area under the structure so that the state inspector could adequately inspect the home for damage.

15Appellant filed a request under the Freedom of Information Act2 with the Plant Board and learned that TPC had submitted a clearance letter in 2003 for a previous owner that showed extensive damage to the substructure of appellant’s property in the form of active termites, other insects, mold, and fungi. Appellant also discovered that TPC had issued a “Termite Contract” to her on November 9, 2004 (dated two days before the date of the “Termite Contract” that TPC actually gave to her) based upon an inspection by Henry Thomas that was alleged to have occurred on October 29, 2004, the same date of the inspection in the termite contract that TPC provided to her. This November 9, 2004, contract — which was not provided to appellant — indicated current damage, past damage, and other structural defects to the structure. This contract also expressly stated that “TPC will repair damages caused by termites.” Appellant’s complaint alleged that this version was never delivered to her and that TPC and Bobby Hill “retained possession of this document and actively, intentionally, and with malice concealed the existence of this document” from her until 2010. The graph attached to the contract showed the damaged areas and structural defects. The areas and extent of damage reflected on the Plant Board’s graph from its 2010 inspection of appellant’s property exactly matched the graph TPC filed with its “Termite Contract” on November 9, 2004.

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394 S.W.3d 303, 2012 Ark. App. 86, 2012 WL 206487, 2012 Ark. App. LEXIS 186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russenberger-v-thomas-pest-control-inc-arkctapp-2012.