Bridges v. Ferrell

• Decision Date: 10 April 1984
• Docket Number: No. 1,No. 60114,60114,1
• Citation: Bridges v. Ferrell, 685 P.2d 409 (Okla. Civ. App. 1984)
• Parties: 1984 OK CIV APP 19 Carl Gregory BRIDGES, et al., Appellees, v. Dan FERRELL, Appellant
• Court: United States State Court of Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 409

685 P.2d 409

1984 OK CIV APP 19

Carl Gregory BRIDGES, et al., Appellees, v. Dan FERRELL, Appellant.

No. 60114.

Court of Appeals of Oklahoma Division No. 1.

April 10, 1984.

Rehearing Denied May 29, 1984.

Certiorari Denied July 25, 1984.

Released for Publication by Order of

Court of Appeals July 30, 1984.

Appeal from the District Court in Pottawatomie County; Milton C. Craig, Judge.

AFFIRMED.

Mattingly, Conyers & Snow by Jack Mattingly, Seminole, for appellees.

Clarke & Van Wagner, Inc. by George Van Wagner, Shawnee, for appellant.

ROBINSON, Judge:

Appellant-defendant, Dan Ferrell [Builder], built a single-family residence in Shawnee, Oklahoma in 1980 and sold the residence to a private party who subsequently resold the house in 1981 to Appellees-plaintiffs, Greg and Terry Bridges [Homeowners]. The original contract for sale provided the following language: "Seller to provide one-year Builder's Warranty". The real estate purchase contract for resale of the home to Homeowners provided that "Builder's Warranty [is] to be transferred to Buyer." Shortly after Homeowners took possession in September, 1981, they experienced structural problems with the home. Homeowners then sued Builder for breach of implied warranty of habitability, recovering $9,000.00 in damages. From the jury verdict, and judgment thereon Builder appeals.

The sole proposition of error cited by Builder is that the "Court erred in instructing the jury that the implied warranty of habitability controls over an express warranty agreed on by the parties." Essentially, Builder requested the trial court to instruct the jury that if it was found that a written warranty was agreed to by the parties for one year, then that warranty controlled over an implied warranty for a reasonable time. Builder's requested instruction in that regard reads in part:

When a Builder sells a new home, if he warrants the home in writing, then such express warranty determines the extent and duration of the Builder's responsibility. If the Builder expressly warrants for one year then the Builder is not responsible for defects which occur more than one year after construction.

Builder's requested instruction is not a correct statement of the law, and we hold that the mere existence of an express warranty providing for specified protection for a limited period of time, does not, in the absence of agreement to the contrary, displace the obligations arising by operation of law under an implied warranty of habitability. We further hold, that to relieve a builder-vendor of its obligation under an implied warranty of habitability, there must be clear and conspicuous language evidencing builder's disclaimer of its obligations arising under an implied warranty of habitability.

In Jones v. Gatewood, 381 P.2d 158 (Okl.1963), the Supreme Court found that the seller of a house which was sold during the construction phase impliedly warrants that when the house is completed it will be completed in a workmanlike manner and reasonably fit for occupancy, in the absence of an agreement to the contrary. Later, in Jeanguneat v. Jackie Hames Const. Co., 576 P.2d 761 (Okl.1978), the Court held that when a builder vendor sells a new home, it impliedly warrants that the new home is or will be completed in a workmanlike manner and is or will be reasonably fit for occupancy, in the absence of an agreement to the contrary, and that the warranty exists, as a matter of law, whether the new home being sold is completely constructed or, at the time of the sale, is in the construction phase. The Court subsequently extended the protection afforded under the implied warranty of habitability to subsequent purchasers of a home, as was the case at bar. Elden v. Simmons, 631 P.2d 739 (Okl.1981).

In each of...