Davis v. Tazewell Place Associates

• Decision Date: 12 September 1997
• Docket Number: No. 962102,962102
• Citation: 254 Va. 257,492 S.E.2d 162
• Court: Virginia Supreme Court
• Parties: James E. DAVIS, et al. v. TAZEWELL PLACE ASSOCIATES. Record

Page 162

492 S.E.2d 162

254 Va. 257

James E. DAVIS, et al. v. TAZEWELL PLACE ASSOCIATES.

Record No. 962102.

Supreme Court of Virginia.

Sept. 12, 1997.

Kevin E. Martingayle (Moody E. Stallings, Jr.; Stallings & Richardson, on briefs), Virginia Beach, for appellants.

William F. Devine (Hofheimer, Nusbaum, McPhaul & Samuels, on brief), Norfolk, for appellee.

Present: CARRICO, C.J., and COMPTON, STEPHENSON, ^* LACY, HASSELL, KEENAN and KOONTZ, JJ.

HASSELL, Justice.

In this appeal, we consider issues relating to statutory and express warranties arising from the sale of real property.

This case was decided in the trial court on a motion for summary judgment and, therefore, in accordance with familiar principles, we will state the facts in the light most favorable to the plaintiffs, the non-moving parties, "unless the inferences are strained, forced, or contrary to reason." Bloodworth v. Ellis, 221 Va. 18, 23, 267 S.E.2d 96, 99 (1980).

Plaintiffs, James E. and Delores Z. Davis, executed a sales contract with defendant, Tazewell Place Associates, a Virginia general partnership, for the construction and purchase of a townhouse. The contract required that the defendant construct the townhouse "in a good and workmanlike manner in substantial accordance with the plans and specifications." On March 10, 1993, the plaintiffs and defendant closed on the contract, and the plaintiffs received a deed to the property. The express contractual warranty was not included in the deed.

Several months after the closing, the plaintiffs began to notice structural changes and defects in the townhouse. They made numerous complaints, but the defendant failed to correct or remedy the defects to the plaintiffs' satisfaction.

Subsequently, the plaintiffs retained an architect and contractor to correct the defects. During the course of correcting the defects, the plaintiffs learned that the design of the townhouse was "flawed and inadequate; that the initial construction and the corrective action taken by [the defendant were] both inadequate and insufficient to cure the defects; that the construction as well as the corrections and repairs attempted by [the defendant] had not been designed and/or performed in a competent and/or good and workmanlike manner, and that by virtue of all of this, the defects were exacerbated and made worse."

On April 28, 1995, the plaintiffs filed their motion for judgment against the defendant alleging, inter alia, a claim for breach of contract. The defendant filed responsive pleadings and a motion for summary judgment asserting that it was entitled to judgment because the plaintiffs' action was barred by the statute of limitations contained in Code § 55-70.1(E) and that the express warranty in the sales contract was not included in the deed and, therefore, when the sales contract merged with the deed at closing, the contractual warranty was extinguished. The trial court agreed with the defendant and entered judgment on its behalf. Plaintiffs appeal.

Code § 55-70.1(B) states in part:

"[I]n every contract for the sale of a new dwelling, the vendor, if he is in the business of building or selling such dwellings, shall be held to warrant to the vendee that, at the time of transfer of record title or the vendee's taking possession, whichever occurs first, the dwelling together with all its fixtures is sufficiently (i) free from structural defects, so as to pass without objection in the trade, (ii) constructed in a workmanlike manner, so as to pass without objection in the trade, and (iii) fit for habitation."

Code § 55-70.1(E) states in part:

"The warranty shall extend for a period of one year from the date of transfer of record title or the vendee's taking possession, whichever occurs first.... Any action for its breach shall be brought within two years after the breach thereof."

The plaintiffs contend that the statute of limitations contained in Code § 55-70.1(E) does not bar their cause of action. Continuing, the plaintiffs assert that the defendant must have corrected any defect in the townhouse for a period of one year from the date of transfer of record title and that the statute of limitations did not begin to run until the defendant breached its duty under the warranty by failing to remedy the defects when requested to do so.

The defendant responds that any breach of warranty occurred at, or before, closing and that, at the latest, the statute of limitations began to run on the date of the closing. The defendant says that the plaintiffs' cause of action is barred because their motion for judgment was filed more than two years from the date of the closing.

We will not, as the defendant suggests, decide the meaning of Code §§ 55-70.1(B) and (E) by resorting to our prior decisions on statutes of limitations or legal dictionaries. Rather, resolution of this issue involves simple statutory construction, and we must apply the plain language that the General Assembly chose to employ when enacting these statutes.

We have repeatedly stated the principles of statutory construction that we must apply when statutes, such as Code §§ 55-70.1(B) and (E), are clear and unambiguous.

" 'While in the construction of statutes the constant endeavor of the courts is to ascertain and give effect to the intention of the legislature, that intention must be gathered from the words used, unless a literal construction would involve a manifest absurdity. Where the legislature has used words of a plain and definite import the courts cannot put upon them a construction which amounts to holding the legislature did not mean what it has actually expressed.' "

Barr v. Town & Country Properties, 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990) (quoting Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934)); accord Abbott v. Willey, 253 Va. 88, 91, 479 S.E.2d 528, 529 (1997); Weinberg v. Given, 252 Va. 221, 225, 476 S.E.2d 502, 504 (1996); Dominion Trust Co. v. Kenbridge Constr. Co., 248 Va. 393, 396, 448 S.E.2d 659, 660 (1994).

At common law, a purchaser did not acquire an implied warranty associated with the sale of a new dwelling. See Bruce Farms v. Coupe, 219 Va. 287, 289, 247 S.E.2d 400, 402 (1978). Code §§ 55-70.1(B) and (E), which changed the common law, create certain statutory warranties, provide a warranty period of one year from the date of transfer or possession, and prescribe a statute of limitations of two years from the date of the breach of the warranty. If the buyer notifies the builder of any defects covered by the statutory warranty within the one-year statutory warranty period, and the builder fails to remedy such defects, then the builder has breached its statutory duty, and the buyer is entitled to file an action for damages against the builder within two years from the date that the buyer notified the builder of the defect.

Here, the defendant, who had the burden of proving that the plaintiffs' cause of action was barred by the statute of limitations, failed to establish that the plaintiffs filed their motion for judgment more than two years from the date they notified the defendant of any defects. Accordingly, the trial court erred in holding that the plaintiffs' statutory warranty claim was barred by the statute of limitations.

Next, the plaintiffs argue that the trial court erred in holding that the express warranty contained in the sales contract between the parties was extinguished under "Virginia's merger doctrine." The plaintiffs contend that the doctrine of merger does not apply to collateral agreements such as the defendant's contractual warranty that the townhouse would be constructed in a good and workmanlike manner in substantial accordance with the plans and specifications provided by the defendants. Responding, the defendant argues that "[a]n express warranty concerning the quality of construction of a dwelling which is contained in the contract for sale, but which is not set forth in the [d]eed for the subject property is extinguished by the doctrine of merger recognized in Virginia law." We disagree with the defendant.

In Sale v. Figg, 164 Va. 402, 180 S.E. 173 (1935), we considered whether an oral warranty alleged to have been made contemporaneously...