Terlinde v. Neely
| Citation | 275 S.C. 395,271 S.E.2d 768 |
| Decision Date | 28 October 1980 |
| Docket Number | No. 21319,21319 |
| Court | South Carolina Supreme Court |
| Parties | , 10 A.L.R.4th 379 William R. TERLINDE and Nancy A. Terlinde, Appellants, v. J. F. NEELY, Sr., C. F. Hailey, and J. D. Galloway, Jr., Respondents. |
S. Jackson Kimball, Roddey, Carpenter & White, Rock Hill, for appellants.
John M. Spratt, Jr., York, and Robert M. Ward, Rock Hill, for respondents.
This action seeks damages for the alleged defective construction of a house. The complaint contains two causes of action, one for breach of implied warranty that the house was "merchantable," and suitable and fit for its intended purpose, and the other for negligence, recklessness, and wilfulness in the construction of the house by respondents. The matter is here on appeal by the appellants-purchasers from an order by the trial court granting summary judgment in favor of the respondents-builders. The material facts are not in dispute and are taken from the Statement of the case.
The house in question was constructed by respondents and completed in September 1972. It is located in a subdivision owned and developed by respondents and was built for "speculative" sale, i. e., not pursuant to any contract with a purchaser. In April 1973, respondents sold the house to Kenneth M. and Kathleen S. Johnson. In March 1976, the house evidenced substantial settlement, and respondents, upon being advised of the condition, paid to the Johnsons the sum of $230.18, receiving in return a "Receipt and Release." The Johnsons undertook to remedy some of the damage caused by the settlement of the house.
Thereafter, on July 23, 1976, appellants purchased the house in question from the Johnsons. Within a short period of time after the purchase by appellants, the house evidenced additional substantial settlement of its foundation. Cracks began to appear in the sheetrock walls of the house; the floor began to sink away from the interior walls; doors would not close properly; the brick veneer on the exterior of the house began to crack and separate at the mortar joints; and, upon closer inspection, pillars underneath the house were sinking away from the supporting beams of the floor. An inspection and evaluation by qualified experts indicates that the footings of the house were built on "fill dirt". Estimates to repair the existing damage and remedy all of the cause of the settlement ranged from $5,916.00 to $22,978.73.
The answer of respondents acknowledged that they constructed the house, that they had been advised by the Johnsons (the original purchasers) of the settlement of the house, that they had paid the sum of money to the Johnsons to correct the damage, and received a release for such payment. Summary judgment on the cause of action for breach of implied warranty was sought on the ground that there was no privity of contract between appellants (the second owners of the house) and respondents, in that respondents made no representations or warranties, either express or implied, to appellants. Summary judgment on the action for negligence was sought on the ground that appellants sustained no personal injuries and alleged no negligent or reckless damage to the house by respondents since appellants acquired title to it. It was also asserted, with reference to the cause of action for negligence, that there was no privity of contract between appellants and respondents and that the house is not an inherently dangerous product.
The trial judge, after meticulously analyzing our case law, concluded the reasons expressed in Rutledge v. Dodenhoff, 254 S.C. 407, 175 S.E.2d 792, and Lane v. Trenholm Building Company, 267 S.C. 497, 229 S.E.2d 728, for holding a builder to an implied warranty for a new house do not exist since the home, in this case, is about three years old. Hence, he held the plaintiffs-appellants had no privity to pursue an action in contract. We disagree that the consideration of these cases requires a dismissal and that privity is required.
The central issue in this case is whether or not a subsequent purchaser of a house may pursue a cause of action in contract or tort against a home builder for a reasonable period after the dwelling's construction. We follow the import and holdings of our previous decisions and the precedents of other jurisdictions to deny the respondent-builder's motion for summary judgment and allow the case to proceed to a trial on the merits.
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