Sheibels v. Estes Homes
| Decision Date | 23 February 1989 |
| Docket Number | CA-CV,No. 2,2 |
| Citation | 778 P.2d 1299,161 Ariz. 403 |
| Parties | Albert C. SHEIBELS and Katherine R. Sheibels, husband and wife, Plaintiffs/Appellees, v. ESTES HOMES, an Arizona general partnership, Defendant/Appellant. 88-0165. |
| Court | Arizona Court of Appeals |
Estes Homes appeals from the denial of its pretrial motion for summary judgment based on its argument that the implied warranty of fitness had expired because of the age of the home in question. After hearing the evidence at trial, the jury awarded Albert C. and Katherine R. Sheibels, the owners of the house, $40,000 in damages based on evidence of $38,000 for repair of termite damage, $600 for repair of a shower floor, and costs for termite treatment.
The case was properly submitted to the jury; there was sufficient evidence to support the verdict, and the only issue on appeal is whether under the facts of this case the builder's implied warranty of fitness had expired as a matter of law because the action to enforce the warranty was brought in 1986, four years after the Sheibels purchased the home and 14 years after it was constructed. Estes also argues that the lack of a reasonable inspection by the Sheibels prior to purchase precluded an extension to them of the implied warranty.
We agree with Estes that its implied warranty of fitness did not extend for 14 years and that Sheibels made no reasonable inspection for structural damage prior to purchase. We reverse the judgment of the trial court denying its motions for summary judgment and directed verdict and set aside the jury verdict and judgment.
The relevant facts are stated in favor of Sheibels, who received the jury verdict supporting their version of the facts. Sheibels purchased a home in June of 1982 that was originally built for someone else by Estes in 1972. The Sheibels made no inspection for termite damage at the time they purchased the ten-year-old home. In November 1982, the Sheibels hired an exterminating company to treat the home for termites. The exterminating company repeated the treatments with little success until a crack in the slab was discovered in 1985 running parallel to the master bedroom wall and passing a bathroom shower. An expert believed that additional moisture leaking into the crack from the shower had diluted the chemicals used between 1982 and 1985 and thereby hampered termite control. No one could testify as to the age of the termite damage discovered in the home or whether the home was treated for termite infestation after the original purchase in 1972 and prior to November 1982.
The shower floor was replaced and a membrane installed to prevent leakage at a cost of approximately $600. Costs for termite damage to studs, drywall, etc. were estimated at $38,000. The treatment of the soil at the time of construction in 1972 was estimated to be effective for not more than five years, and testimony by experts at trial established that if a home is not treated after the initial treatment, it can be assumed the home will suffer termite damage. The experts also testified that exterminating companies warrant their treatment for five years and inspect periodically during the warranty period and spot treat when necessary.
The law in Arizona clearly establishes a builder's implied warranty of habitability and proper workmanship and extends the warranty to subsequent purchasers. Richards v. Powercraft Homes, Inc., 139 Ariz. 242, 678 P.2d 427 (1984). However, the implied warranty is not unlimited, and the builder is not an insurer for subsequent purchasers. The supreme court noted in Powercraft as follows:
The implied warranty of habitability and proper workmanship is not unlimited. It does not force the builder-vendor to "act as an insurer for subsequent vendees" as the Court of Appeals feared, Richards, supra, 139 Ariz. at 267, 678 P.2d at 452. It is limited to latent defects which become manifest after the subsequent owner's purchase and which were not discoverable had a reasonable inspection of the structure been made prior to purchase. We adopt the standard set forth by the Indiana Supreme Court in [Barnes v. Mac Brown & Co., Inc., 264 Ind. 227, 342 N.E.2d 619 (1976) ].
264 Ind. at 229, 342 N.E.2d at 621.
139 Ariz. at 245, 678 P.2d at 430. In Moxley v. Laramie Builders, Inc., 600 P.2d 733 (Wyo.1979), cited with approval in Powercraft, the Wyoming Supreme Court stated:
In conclusion, we summarize the rules of this case. A home builder's implied warranty of fitness for habitation extends to subsequent purchasers for a reasonable length of time and is limited to latent defects which become manifest after the purchase.
600 P.2d at 736 (). Because the implied warranty is not unlimited in time, and the standard to be applied to each factual situation is reasonableness, we hold that the facts presented by this case fail to meet the reasonableness standard as to both length of time from construction to discovery of damage by a subsequent purchaser and as to inspection prior to purchase.
The only case discussing as a matter of law the reasonable length of time during which the implied warranty is extended after construction and first sale is Wagner Construction Co., Inc. v. Noonan, 403 N.E.2d 1144 (Ind.App.1980). In Wagner the Indiana Court of Appeals stated:
Wagner contends that a period of five years is an excessive time period to extend...
To continue reading
Request your trial
-
City of Phx. v. Glenayre Elecs., Inc.
...P.3d at 365 (citing Hershey v. Rich Rosen Constr. Co., 169 Ariz. 110, 116, 817 P.2d 55, 61 (App.1991) ; Sheibels v. Estes Homes, 161 Ariz. 403, 404, 778 P.2d 1299, 1300 (App.1989) ; S. Fact Sheet (Mar. 20, 1989), S.B. 1305, 39th Leg., 1st Reg. Sess. (Ariz. 1989); and Evans, 215 Ariz. at 239......
-
Albano v. Shea Homes Ltd. P'ship
...exposure. See, e.g., Hershey v. Rich Rosen Constr. Co., 169 Ariz. 110, 116, 817 P.2d 55, 61 (App.1991); Sheibels v. Estes Homes, 161 Ariz. 403, 404, 778 P.2d 1299, 1300 (App.1989). The Legislature enacted § 12–552 to limit the “time period during which action may be brought against those en......
-
Heath v. Palmer
... ... Celebrity Homes, Inc., 40 Colo.App. 215, 572 P.2d 493, 494 (1977) (limitation in letter of warranty did not apply ... Olenik, 128 Vt. 295, 304, 262 A.2d 461, 467 (1970); accord Sheibels v. Estes Homes, 161 Ariz ... 915 A.2d 1294 ... 403, 778 P.2d 1299, 1301 (Ct.App.1989) (observing ... ...
-
Hershey v. Rich Rosen Const. Co., s. 1
...for a reasonable period of time depending on the component part of the house involved. Sheibels v. Estes Homes, 28 Ariz.Adv.Rep. 24, 25 [161 Ariz. 403, 405, 778 P.2d 1299, 1301] (App. 2/23/89). While five years may be reasonable for a warranty for a septic tank or for termite protection, be......
-
Corrosion by Codification: the Deficiencies in the Statutory Versions of the Implied Warranty of Workmanlike Construction
...v. Ballou, 209 S.E.2d 776 (N.C. 1974). 67. Maycock v. Asilomar Dev., Inc, 88 P.3d 565 (Ariz. Ct. App. 2004). 68. Sheibels v. Estes Homes, 778 P.2d 1299 (Ariz. Ct. App. 1989). 69. Hayden Bus. Ctr. Condos. Ass'n v. Pegasus Dev. Corp., 105 P.3d 157 (Ariz. Ct. App. 2005). 70. Lempke v. Dagenais......