Dunant v. Wilmock, Inc., 70780
| Decision Date | 16 September 1985 |
| Docket Number | No. 70780,70780 |
| Parties | DUNANT, et al. v. WILMOCK, INC. |
| Court | Georgia Court of Appeals |
Stephen R. Yekel, Savannah, for appellants.
Gregory I. Hodges, Delano Maurice, Phillip R. McCorkle, C. Ashley Royal, Marshall R. Wood, Savannah, for appellee.
In 1980, the appellants purchased a home which had been constructed by the appellee. Soon after moving in, they began to notice that during periods of wet weather, waste water tended to back up into the house from the septic tank system. Upon learning that this was not an uncommon problem in the portion of the subdivision in which their home was located, they filed suit against the appellee, naming as additional defendants the subdivision developer, the engineering firm employed by the developer to perform soil percolation tests and design the subdivision's drainage system, and the subcontractor hired by the appellee-builder to install the septic tank. This appeal is from the grant of the appellee's motion for summary judgment.
The appellants did not purchase the home directly from the appellee but from another individual, Steven Gantt, who had purchased it from the appellee two years earlier. Held:
As a general rule, "neither caveat emptor nor merger by deed is a viable defense by a builder-seller against a homeowner's tort-negligence and breach of contract claims seeking recovery for latent building construction defects about which the purchaser-homeowner did not know and in the exercise of ordinary care would not have discovered, which defects either were known to the builder-seller or in the exercise of ordinary care would have been discovered by him." Worthey v. Holmes, 249 Ga. 104, 106, 287 S.E.2d 9 (1982), aff'g Holmes v. Worthey, 159 Ga.App. 262, 282 S.E.2d 919 (1981). The existence of any such liability on the part of the appellee in this case, however, is negated by the uncontroverted evidence of record. No claim for breach of any express or implied warranty exists because the appellee did not sell the house to the appellants and consequently is not in privity with them. As for negligence, it appears without dispute from the affidavit of the appellee's president that the appellee took no part in the planning or construction of the septic tank system and had no knowledge of the existence of any defects therein, having left this aspect of the construction entirely to the subcontractor who installed it. It further appears without...
To continue reading
Request your trial
-
Lempke v. Dagenais
...289 S.C. 161, 345 S.E.2d 715 (1986); Butler v. Caldwell & Cook, Inc., 122 A.D.2d 559, 505 N.Y.S.2d 288 (1986); Dunant v. Wilmock, Inc., 176 Ga.App. 48, 335 S.E.2d 162 (1985); Fretschel v. Burbank, 351 N.W.2d 403 (Minn.App.1984); John H. Armbruster & Co. v. Hayden Company-Builder Developer, ......
-
Speight v. Walters Development Co., Ltd.
...of on other grounds by Casa Clara Condo. Ass'n, Inc. v. Charley Toppino & Sons, Inc., 620 So.2d 1244 (Fla.1993); Dunant v. Wilmock, Inc., 176 Ga. App. 48, 335 S.E.2d 162 (1985); Miles v. Love, 1 Kan.App.2d 630, 573 P.2d 622 (1977); Real Estate Mktg., Inc. v. Franz, 885 S.W.2d 921 (Ky.1994);......
-
Dremak v. Iovate Health Scis. Grp., Inc. (In re Hydroxycut Mktg. & Sales Practices Litig.), Case No. 09md2087 BTM (CAB).S.D. Cal. No. 09cv1088.
...Under Georgia law, privity is required to maintain an action for breach of express or implied warranty. Dunant v. Wilmock, Inc., 176 Ga.App. 48, 335 S.E.2d 162, 163 (1985). Under the laws of Alabama, Florida, and New York, it appears that privity is required in implied warranty cases only. ......
-
Moore v. Meeks
...waiver and estoppel. 1. As a subsequent purchaser, Moore has no claim for breach of implied warranty. See Dunant v. Wilmock, Inc., 176 Ga.App. 48, 335 S.E.2d 162 (1985) (caveat emptor defense applies to subsequent purchasers). The trial court also properly granted Meeks' motion for summary ......
-
Corrosion by Codification: the Deficiencies in the Statutory Versions of the Implied Warranty of Workmanlike Construction
...Inc., 146 S.W.3d 411, 417 (Mo. Ct. App. 2004). 75. Summer Chase, 146 S.W.3d at 417. 76. See, e.g., Dunant v. Wilmock, Inc., 335 S.E.2d 162 (Ga. Ct. App. 1985) (requiring privity); Stancliff v. Brown & Webb Builders, Inc., 561 S.E.2d 438, 440 (Ga. Ct. App. 2002) (holding that no privity was ......