Paul Leonard vs. Leo's Exterminating Services, Inc.

In May 1997, Paul Leonard ("the Homeowner") discovered termites in his home. On June 11, 1997, he contracted with Leo's Exterminating Services, Inc., to treat his home. Leo's performed the initial treatment. The contract provided for annual renewals at a reduced rate. The Homeowner renewed twice. The last renewal was on June 11, 1999, which renewal qualified the Homeowner to receive, free of additional charge, retreatment for a "live infestation" until June 11, 2000. Unfortunately, the initial treatment did not eliminate the termites. The Homeowner reported a recurrence of termites several times between 1997 and 1999. Leo's made additional treatments. In 1998, Leo's assisted the homeowner with repairs to a sagging hallway over the area of infestation. In 1999, the Homeowner switched to another exterminator who installed a "bait" system to control the termites. On July 24, 2000, the Homeowner filed this action against Leo's in which he alleged that his home had been damaged as a result of deficient treatment by Leo's. He alleged a breach of contract and violation of the Tennessee Consumer Protection Act ("the TCPA"), Tenn. Code Ann. _ 47-18-101 et seq. (2001). In the bench trial that ensued, Leo's challenged almost every aspect of the Homeowner's case including the causal connection between the deficiencies and the damage. Leo's also raised the defense that the contract limited the Homeowner's remedy to retreatment only, and that the statute of limitations had expired on the TCPA claim. In its opinion and order, entered as the final judgment, the trial court found that Leo's had failed to control the termites and that its failure amounted to a breach of the contract; that the Homeowner sustained damages of $39,910.87 as a result of the breach; and that Leo's was guilty of willful deception in violation of the TCPA, justifying trebled damages of $119,732.61. The trial court also awarded the Homeowner his resonable attorney's fees of $30,000. Leo's appeals. We affirm that part of the judgment awarding damages of $39,910.87 for breach of the contract. We reverse that part of the judgment awarding treble damages and attorney's fees under the TCPA because we find that the TCPA claim is barred by the statute of limitations.