Carolina Winds Owners' Ass'n, Inc. v. Joe Harden Builder, Inc.

• Decision Date: 30 November 1988
• Court: South Carolina Court of Appeals
• Parties: CAROLINA WINDS OWNERS' ASSOCIATION, INC., Appellant, v. JOE HARDEN BUILDER, INC., Baker Masonry, Inc., Grayco Steel, Inc., Richard E. Martin, AIA Associates, and United States Fidelity and Guaranty Company, Defendants, Of whom Joe Harden Builder, Inc., Baker Masonry, Inc., and United States Fidelity and Guaranty Company, are Respondents.

Page 463

383 S.E.2d 463

299 S.C. 224

CAROLINA WINDS OWNERS' ASSOCIATION, INC., Appellant, v. JOE HARDEN BUILDER, INC., Baker Masonry, Inc., Grayco Steel,

Inc., Richard E. Martin, AIA Associates, and

United States Fidelity and Guaranty

Company, Defendants,

Of whom Joe Harden Builder, Inc., Baker Masonry, Inc., and

United States Fidelity and Guaranty Company, are

Respondents.

Court of Appeals of South Carolina.

Nov. 30, 1988.

John P. Henry and Emma Ruth Brittain of Thompson, Henry & Gwin, P.A., Conway, for appellant.

[299 S.C. 225] Michael W. Battle of Lovelace & Battle, John B. McCutcheon, Jr. of McCutcheon, McCutcheon & Baxter, Conway, Hubert J. Bell, Jr. of Smith, Currie & Hancock, J. Alexander Porter and Sidney R. Barrett, Jr. of Porter & Doster, Atlanta, Ga., Thomas E. Pederson, Charleston, and Dewitt T. Black, III of Black & Beil, Hilton Head Island, for respondents.

S.C. Trial Lawyers' Ass'n, J. Marvin Mullis, Columbia, amicus curiae.

ORDER ON REHEARING

PER CURIAM:

We granted rehearing to reconsider two issues raised by the petition and also by the amicus curiae brief of the South Carolina Trial Lawyers' Association.

The first issue is whether a building contractor who builds a new residence but does not sell it to a home buyer should be liable on the implied warranty of habitability recognized in Rutledge v. Dodenhoff, 254 S.C. 407, 175 S.E.2d 792 (1970). In Arvai v. Shaw, 289 S.C. 161, 345 S.E.2d 715 (1986), the Supreme Court held that the implied warranty of habitability arises strictly from the contract of sale. Therefore, a builder who did not make the initial sale of the house was not liable on the warranty. Counsel concedes that Arvai forecloses the argument he makes in this case. However, the Owners and the amicus curiae suggest we should overrule or modify Arvai to include liability for builders who are not vendors. This Court is bound by the decisions of the Supreme Court and has no authority to overrule or change the law as declared by those decisions. Shea v. State Dept. of Mental Retardation, 279 S.C. 604, 310 S.E.2d 819 (Ct.App.1983).

The second issue is whether the builder's implied warranty that the dwelling is constructed in a careful, diligent, workmanlike manner should be extended to a home buyer who is not a party to the construction contract from which the warranty arises. Although this issue has been argued at length on appeal, it was not raised by the pleadings nor argued in the circuit court. Consequently, we...