Jones v. Homes

• Decision Date: 09 September 2010
• Docket Number: No. 09AP–1032.,09AP–1032.
• Citation: 939 N.E.2d 1294,189 Ohio App.3d 668
• Parties: JONES et al., Appellants,v.CENTEX HOMES, Appellee. (Two cases.)
• Court: Ohio Court of Appeals

189 Ohio App.3d 668

939 N.E.2d 1294

2010 -Ohio- 4268

JONES et al., Appellants,

v.CENTEX HOMES, Appellee. (Two cases.)

No. 09AP–1032.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided Sept. 9, 2010.

Steve J. Edwards, Grove City, OH, for appellants.Vorys, Sater, Seymour & Pease, L.L.P., Michael G. Long, and Jonathan P. Corwin, Columbus, OH, for appellee.BROWN, Judge.

[Ohio App.3d 670] {¶ 1} In these consolidated appeals, plaintiffs-appellants, Paul Jones, Eric Estep, and Latosha Sanders, appeal from a judgment of the Franklin County Court of Common Pleas, granting summary judgment in favor of defendant-appellee, Centex Homes.

{¶ 2} On August 25, 2004, appellant Eric Estep entered into a real estate sale agreement with Centex, a builder, in which Centex agreed to sell Estep a newly constructed single-family home located at 7488 Hemrich Drive, Canal Winchester, Ohio. On October 30, 2004, appellants Paul Jones and Latosha Sanders entered into a similar agreement with Centex for a newly constructed single-family home [Ohio App.3d 671] located at 7489 Hemrich Drive, Canal Winchester. Each of the agreements included a limited home warranty.

{¶ 3} On February 20, 2007, appellants filed complaints against Centex, alleging causes of action for breach of contract, breach of express and implied warranties, negligence, and failure to perform in a workmanlike manner. In both complaints, appellants alleged that “the metal floor members on the 2nd floor were magnetized,” resulting in interference with televisions, telephones, and computers.

{¶ 4} On November 27, 2007, Centex filed motions for summary judgment against appellants. Appellants filed responses to the motions for summary judgment and attached supporting affidavits. The cases were consolidated for determination pursuant to an order of the trial court filed on April 30, 2008.

{¶ 5} By entries filed October 20, 2009, the trial court granted summary judgment in favor of Centex on appellants' claims. More specifically, the court found that appellants “agreed to waive any claims for property damage other than claims covered under the Limited Home Warranty” and therefore could “only proceed on a claim for breach of the Limited Home Warranty.” Based upon a determination that “the Limited Home Warranty does not cover the magnetization of the steel framing,” the court found that Centex was entitled to summary judgment as to all of appellants' claims.

{¶ 6} Appellants filed timely appeals, and this court sua sponte filed an entry consolidating the two appeals. On appeal, appellants set forth the following assignment of error for this court's review:

The trial court erred to the prejudice of Plaintiffs–Appellants in granting Defendant–Appellee['s] Motion for Summary Judgment.

{¶ 7} Appellants challenge the trial court's grant of summary judgment in favor of Centex, raising several issues with respect to warranty and waiver language contained in the agreements entered between the parties. Specifically, appellants assert that (1) the limited warranty fails its essential purpose, (2) a waiver of the implied duty to construct a home in a workmanlike manner is against public policy, (3) the language employed in the agreements is insufficient to waive appellants' limited warranties, and (4) the waiver of claims and limitations of remedies should not be enforced on grounds of unconscionability.

{¶ 8} This court reviews de novo a trial court's ruling on summary judgment. Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707, ¶ 24, citing Doe v. Shaffer (2000), 90 Ohio St.3d 388, 390, 738 N.E.2d 1243. In accordance with Civ.R. 56(C), “summary judgment shall be granted when the filings in the action, including depositions and affidavits, show [Ohio App.3d 672] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Bonacorsi at ¶ 24.

{¶ 9} As noted under the facts, appellants' complaint alleged that Centex breached its duty to perform in a workmanlike manner because the second-floor metal joists had become magnetized, resulting in interference with electric appliances. In Ohio, “ ‘[t]he duty to perform in a workmanlike manner is imposed by common law upon builders and contractors.’ ” Hanna v. Groom, 10th Dist. No. 07AP–502, 2008-Ohio-765, 2008 WL 500530, ¶ 19, quoting Barton v. Ellis (1986), 34 Ohio App.3d 251, 252, 518 N.E.2d 18.

{¶ 10} At issue in this case are various provisions of the real estate sale agreement and the Limited Warranty. Paragraph 8 of the sale agreement states, “Seller shall provide its standard Limited Home Warranty covering defects in materials and workmanship as described in the Limited Home Warranty documents.” Paragraph 9 of the sale agreement contains a waiver-of-implied-warranties provision:

Purchasers agree that there are no other warranties either expressed or implied and hereby waive and relinquish any and all implied warranties of habitability and fitness and agree to rely solely on Seller's Limited Home Warranty. Purchasers acknowledge and agree that Seller is relying on this waiver and would not sell the property to Purchasers without this waiver.

{¶ 11} Paragraph 33(D) of the sale agreement states, “Purchasers hereby waive and relinquish all claims against Seller for damages to property or personal injury arising after the date of this contract and relating to * * * [a]ny claims for repairs or modifications to the property except as specifically covered by the Sellers Limited Home Warranty.”

{¶ 12} The limited warranty provides, “The Builder makes no housing merchant implied warranty or any other warranties, express or implied, in connection with the attached sales contract or the warranted Home, and all such warranties are excluded, except as expressly provided in this Limited Warranty.” Additionally, the limited warranty states, “There are no warranties which extend beyond the face of this Limited Warranty.” The limited warranty sets forth one-year, two-year, and ten-year coverage periods for various warranted items, and the document details warranty standards under headings for “category” (i.e., foundations, framing, exterior, interior), “observation[s]” (i.e., cracks, warping, leaks), and “action required” by the builder to correct various warranted items.

{¶ 13} We first address appellants' contention that Ohio law does not allow for waiver of the implied duty to construct a home in a workmanlike manner. Appellants argue that the trial court erred in proceeding under the assumption that this duty could be waived.

[Ohio App.3d 673] {¶ 14} In its decision, the trial court noted that appellants were provided express warranties and that they agreed to waive any claims for property damage other than claims covered under the limited warranty. The trial court cited language from this court's decision in Hanna, in which we noted that a builder has a duty to exercise reasonable care to perform in a workmanlike manner “ ‘absent express or implied warranties as to the quality or fitness of work performed.’ ” 2008-Ohio-765, 2008 WL 500530, at ¶ 20, quoting Barton, 34 Ohio App.3d at 253, 518 N.E.2d 18.

{¶ 15} Appellants acknowledge a lack of Ohio case law on the issue whether the duty implied in law to construct a home in a workmanlike manner can be waived. While appellants contend that this court should hold that the duty cannot be waived, appellants rely upon cases from other jurisdictions holding that such a waiver is valid if it is conspicuous, unambiguous, and fully disclosed. See, e.g., Bd. of Mgrs. of the Village Ctr. v. Wilmette Partners (2001), 198 Ill.2d 132, 138, 260 Ill.Dec. 203, 760 N.E.2d 976 (party raising disclaimer of implied warranty of habitability as a defense must show that the disclaimer provision was conspicuous, fully disclosed, and in fact was the agreement reached by the parties); Heath v. Palmer (2006), 181 Vt. 545, 915 A.2d 1290 (exclusions or modifications of warranty of habitability and good workmanship must contain clear and unambiguous provision, agreed to by plaintiffs, waiving defendants' liability for defects).

{¶ 16} Based upon this court's own research, it appears that a majority of jurisdictions considering this issue have adopted the view that waiver of the implied warranty of good workmanship is permissible. See Griffin v. Wheeler–Leonard & Co. (1976), 290 N.C. 185, 202, 225 S.E.2d 557 (“Without question” a builder-vendor and purchaser could enter into a binding agreement that the implied warranty of workmanlike manner would not apply to a particular transaction); Belt v. Spencer (1978), 41 Colo.App. 227, 230, 585 P.2d 922 (warranty that home be built in a workmanlike manner “may be limited by an express provision in the contract between the parties”); Dixon v. Mountain City Constr. Co. (Tenn.1982), 632 S.W.2d 538, 542 (adopting doctrine of implied warranty of workmanship but noting that builder-vendors and purchasers are “free to contract in writing for a warranty upon different terms and conditions or to expressly disclaim any warranty”); O'Mara v. Dykema (1997), 328 Ark. 310, 319, 942 S.W.2d 854 (implied warranties of habitability, sound workmanship, and proper construction may be excluded); Tyus v. Resta (1984), 328 Pa.Super. 11, 476 A.2d 427 (builder-vender can limit or disclaim the implied warranty of reasonable workmanship by clear and unambiguous language).

{¶ 17} Having considered the reasoning of the above authorities, and based upon a review of Ohio case law, we are not persuaded that the law of this state precludes a builder-vendor from offering an express limited home warranty while [Ohio App.3d 674] disclaiming other warranties implied by law. See Barton, 34 Ohio App.3d at 253, 518 N.E.2d 18 (trial court applied the correct standard of law in finding that parties expected work to be performed in a good and workmanlike manner “unless otherwise agreed”).

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