Feinour v. Ricker Co.

• Decision Date: 06 June 2002
• Docket Number: No. A02A0449.,A02A0449.
• Citation: 255 Ga. App. 651,566 S.E.2d 396
• Parties: FEINOUR v. RICKER COMPANY.
• Court: Georgia Court of Appeals

566 S.E.2d 396

255 Ga. App. 651

FEINOUR v. RICKER COMPANY.

No. A02A0449.

Court of Appeals of Georgia.

June 6, 2002.

Charles F. Peebles, Norcross, Lane R. Frostbaum, for appellant.

Weinberg, Wheeler, Hudgins, Gunn & Dial, John M. Hawkins, Atlanta, for appellee.

MILLER, Judge.

The question on appeal concerns when the six-year statute of limitation begins to run on a claim for breach of an express warranty on a new house construction. We hold that the statute begins to run, in this case, from the date on which the builder attempted to repair the construction defect covered by the warranty, which repair was inadequate. Since the present suit was filed within six years of that date, we reverse the portion of the summary judgment order that was granted in favor of the builder on the breach of express warranty claim. The remainder of the summary judgment order is affirmed.

As this is an appeal from the grant of summary judgment, we review the evidence de novo, construing all inferences in favor of the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga.App. 459(1), 486 S.E.2d 684 (1997). Summary judgment is proper only when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c); Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).

So construed, the evidence showed that Barbara Feinour contracted to buy a house being constructed by the Ricker Company that was clad in synthetic stucco on the exterior walls. The certificate of occupancy on the house issued on September 23, 1993, and the closing took place later that month. On September 30, Ricker agreed to a one-year limited warranty on the house, obligating Ricker to repair or replace defects in construction.

As the year on the limited warranty approached expiration, Feinour on September 18, 1994, notified Ricker of water leakage problems in the master bathroom. Ricker responded that a workman would be sent over to correct the problem, which occurred a few days later on October 3. Although the workman represented that the problem was fixed, the workman only temporarily or cosmetically corrected the underlying problem, which apparently arose out of the general improper installation of the synthetic stucco.

Six years later in 2000, Feinour hired an expert who determined that the improper installation of the synthetic stucco had resulted in major water damage to the infrastructure of the house. Feinour sued Ricker on September 28, 2000, asserting claims for breach of the construction contract, breach of implied warranty, breach of express warranty, fraud in concealing the defects, and negligent construction. The court granted summary judgment to Ricker, holding (1) the tort claims (fraud and negligent construction) expired in 1997, four years after the certificate of occupancy issued, (2) the contract, implied warranty, and express warranty claims all expired on September 23, 1999, six years after the certificate of occupancy issued, and (3) no evidence showed any actual fraud by Ricker that deterred Feinour from discovering her injury sooner.

Feinour appeals, asserting that the express warranty claim did not arise until October 3, 1994 (the date of the attempted repair), and that the cosmetic actions by the workman on that date prevented her from learning the truth sooner. We agree that the express warranty claim did not arise until October 3 but hold that his actions were not actual fraud that deterred Feinour from learning the truth sooner. Accordingly, we affirm in part and reverse in part.

1. Feinour first argues that the court erred in granting summary judgment on her breach of express warranty claim, which she contends did not accrue until October 3, 1994, when Ricker inadequately repaired the house. We agree and reverse this portion of the judgment.

We have repeatedly held that the six-year statute of limitation set out in OCGA § 9-3-24 applies to contract claims (whether breach of implied warranty, breach of express warranty, or breach of sale/construction contract) by homeowners against professional builder-sellers and have specifically applied this to contract claims arising out of damages caused by water leakage through synthetic stucco. Rosenheimer v. Tidal Constr. Co., 250 Ga.App. 145, 146-147(2), 550 S.E.2d 698 (2001); Hickey v. Bowden, 248 Ga.App. 647, 648-649(1), 548 S.E.2d 347 (2001); Stimson v. George Laycock, Inc., 247 Ga.App. 1, 3-4(1), 542 S.E.2d 121 (2000); Mitchell v. Jones, 247 Ga.App. 113, 114-115(1), 541 S.E.2d 103 (2000). The four-year period set out in OCGA § 9-3-30(a) applies to related tort claims. Rosenheimer, supra, 250 Ga.App. at 146(1),550 S.E.2d 698; Hickey, supra, 248 Ga.App. at 649(2),548 S.E.2d 347. With regard to tort claims and claims for breach of implied warranty and breach of the sale/construction contract, we have held that the applicable statutes of limitation begin to run on the date of substantial completion, i.e., the date that the certificate of occupancy is issued. Hickey, supra, 248 Ga.App. at 649-650(1), (2),548 S.E.2d 347; see Rosenheimer, supra, 250 Ga.App. at 146(1), 550 S.E.2d 698.¹ Unless those statutes were tolled by actual fraud (discussed in Division 2 below), the fraud, negligent construction, breach of implied warranty, and breach of the sale/construction contract claims brought by Feinour are all barred, since suit was not filed until 2000, more than six years after the certificate of occupancy issued in 1993.

We treat the start date for the breach of express warranty claim differently. Benning Constr. Co. v. Lakeshore Plaza Enterprises, 240 Ga. 426, 429, 241 S.E.2d 184 (1977), held that the contractor's obligation under an express warranty to repair or replace any defects in materials or workmanship does not arise until the landowner notifies the contractor of the alleged defects. "No breach of the `guarantee' could have occurred until that time." Id. Thus, Benning Constr. concluded that the six-year statute of limitation commenced to run from the date that the landowner notified the contractor of the alleged defects in construction. Id. at 429-430, 241 S.E.2d 184; see Howe v. Roberts, 259 Ga. 617, 618(1), n. 4, 385 S.E.2d 276 (1989) ("Since the builder could not have corrected defects per the warranty agreement until he received notice, the statute would have begun running no sooner than [the date on which he received that notice]. [Cit.]"). In Benning Constr., however, the contractor had never attempted to correct the defect. Id. at 426, 241 S.E.2d 184.

Space Leasing Assoc. v. Atlantic Bldg. Systems, 144 Ga.App. 320, 241 S.E.2d 438 (1977), did involve an attempt to repair. There the installer of a roof had expressly warranted the roof for six years from the date of completion. Id. at 321, 241 S.E.2d 438. Construction was completed in May 1969, and the roof began to leak, leading to repair efforts in 1971. Id. at 321-322, 241 S.E.2d 438. Dissatisfied, the owner filed suit in November 1975, which was more than six years after completion of construction, thus mandating summary judgment on the owner's claim for breach of the construction contract. Id. at 324(2), 241 S.E.2d 438. The court, however, reversed summary judgment on the breach of express warranty claim, explaining that it was "the refusal to remedy within a reasonable time, or a lack of success in the attempts to remedy which would constitute a breach of warranty." (Citations and punctuation omitted; emphasis in original.) Id. at 325(4), 241 S.E.2d 438; see Teledyne Indus. v. Patron Aviation, 161 Ga.App. 596, 598(2), 288 S.E.2d 911 (1982). Thus, the applicable statute of limitation was to run from the time the jury determined that the installer had abandoned its warranty obligations and refused or failed to perform further corrective work. Space Leasing, supra, 144 Ga.App. at 327(4), 241 S.E.2d 438.

Citing Benning Constr. and Space Leasing, we held in Versico, Inc. v. Engineered Fabrics Corp., 238 Ga.App. 837, 842(3), 520 S.E.2d 505 (1999), that the breach of an...