Velotta v. Leo Petronzio Landscaping, Inc.

• Citation: 69 Ohio St.2d 376,23 O.O.3d 346,433 N.E.2d 147
• Decision Date: 24 February 1982
• Docket Number: No. 81-662,81-662
• Parties: , 23 O.O.3d 346 VELOTTA, Appellant, v. LEO PETRONZIO LANDSCAPING, INC., Appellee.
• Court: United States State Supreme Court of Ohio

Page 376

69 Ohio St.2d 376

433 N.E.2d 147, 23 O.O.3d 346

VELOTTA, Appellant, v. LEO PETRONZIO LANDSCAPING, INC., Appellee.

No. 81-662.

Supreme Court of Ohio.

Feb. 24, 1982.

Syllabus by the Court

1. An action by a vendee against the builder-vendor of a completed residence for damages proximately caused by failure to construct in a workmanlike manner using ordinary care-a duty imposed by law-is an action in tort to which the four-year statute of limitations set forth in R.C. 2305.09(D) applies.

2. When negligence does not immediately result in damages, a cause of action for damages arising from negligent construction does not accrue until actual injury or damage ensues.

3. A motion to dismiss based on the bar of the statute of limitations is erroneously granted when the complaint does not conclusively show on its face the action is barred by the statute of limitations.

In December of 1970, vendee-appellant, Michael Velotta, and vendor-appellee, Leo Petronzio Landscaping, Inc., entered into a contract for the sale of a completed residence which appellee had built and then sold new to appellant. The standard form purchase agreement provided the structure was being sold "as is" and there were "no outside conditions, representations, warranties, or agreements." According to the complaint, appellant began experiencing serious water drainage problems in his home sometime in 1975. On June 1, 1979, appellant filed suit in the Chardon Municipal Court, and in spite of the above clauses in the purchase of sale, appellant alleged he "was assured that said residence was sound and fit for occupancy, and had been constructed in a workmanlike manner." Appellant pleaded negligence and fraud alternatively viz., " * * * the drainage tile under and around said residence was negligently installed. * * * (D)efendant either negligently or willfully failed to install concrete * * *. As the result of the negligence or fraud of the defendant * * * plaintiff has suffered damages * * *."

On the day of trial, the parties stipulated there were no express warranties orally made by appellee. Appellee then moved to dismiss, arguing the action was barred by the four-year statute of limitations applicable to torts. The trial court agreed, finding the case to be an action ex delicto, not ex contractu, and the applicable limitations period to be four years as set forth in R.C. 2305.09, governing tort actions, not 15 years as set forth in R.C. 2305.06, governing contract actions.

The Court of Appeals affirmed.

This cause is now before this court pursuant to the allowance of a motion to certify the record.

Irving Bell, Cleveland, for appellant.

Baker, Hackenberg, Haskell & Collins Co., L.P.A., and Richard L. Collins, Jr., Painesville, for appellee.

Benesch, Friedlander, Coplan & Aronoff and Mary B. Ballard, Cleveland, for Ohio Home Builders Assn.

KRUPANSKY, Justice.

This case requires an initial determination of whether an action by a vendee against the builder-vendor of a completed residence for failure to construct in a workmanlike manner using ordinary care sounds in tort or in contract.

We note at the outset this case presents no issues of contractual warranty, either express or implied. The parties stipulated there were no express warranties orally made, and the contract of sale does not set forth any express warranties. Pursuant to our holding in Mitchem v. Johnson (1966), 7 Ohio St.2d 66, 218 N.E.2d 594, there can be no cause of action arising out of any implied warranty imposed on the builder-vendor.

In Mitchem, we carefully distinguished between (1) an implied warranty of suitability for the purpose intended, which we declined to impose on the builder-vendor, and (2) the duty to construct in a workmanlike manner using ordinary care, which we held to be a duty imposed by law on the builder-vendor. Under implied warranty, not imposed by Mitchem, the vendee would recover upon showing merely a defect in the structure and causation, even though the builder-vendor proved ordinary care and skill in the construction of the residence. To permit recovery under implied warranty without requiring proof of negligence would be in the nature of strict liability; it would make the builder-vendor an insurer and would disregard " * * * the harsh truth that unfortunate problems arise on real estate and in real structures which no prudence can avoid and which defy every reasonable skill." Id., at page 70, 218 N.E.2d 594. We, therefore, held in Mitchem there was no implied warranty of suitability for the purpose intended. We also held the vendee must prove lack of ordinary care and skill, or negligence.

The duty implied in the sale between the builder-vendor and the immediate vendee ¹ is the duty imposed by law on all persons to exercise ordinary care. In an action by a vendee against the builder-vendor of a completed residence for failure to construct in a workmanlike manner using ordinary care, the essential allegation is, viz., the builder-vendor's negligence proximately caused the vendee's damages. The action, therefore, arises ex delicto, ² and the four-year statute of limitations set forth in R.C. 2305.09(D) applies. ³ The obligation to perform in a workmanlike manner using ordinary care may arise from or out of a contract, i.e., from the purchase agreement, but the cause of action is not based on contract; rather it is based on a duty imposed by law.

Having determined appellant's action sounds in tort, we turn to a consideration of whether the suit was timely filed pursuant to R.C. 2305.09.

In a case such as this, where the wrongful conduct complained of is not presently harmful, the cause of action does not accrue until actual damage occurs. See State, ex rel. Local Union 377, v. Youngstown (1977), 50 Ohio St.2d 200, 364 N.E.2d 18. In his complaint, appellant alleged he was not damaged by appellee's negligence until "sometime in 1975." Since the complaint was filed June 1, 1979, it is not apparent from the face of the complaint that appellant's action accrued outside the four-year limitations period. A motion to dismiss a complaint under Civ.R. 12(B) which is based upon the statute of limitations is erroneously granted where the complaint does not conclusively show on its face the action is barred by the statute of limitations. Scheer v. Air-Shields, Inc. (1979), 61 Ohio App.2d 205, 401 N.E.2d 478; Durham v. Anka Research Limited (1978), 60 Ohio App.2d 239, 396 N.E.2d 799.

The record indicates appellee's attorney before trial made "an oral motion pursuant to Civil Rules of Procedure to dismiss the complaint." In ruling on this motion, the trial court considered only the amended complaint which incorporated the purchase agreement and the stipulation of the parties that no express warranties were orally made. Thus, appellee's motion was directed at the face of the complaint; since the complaint did not reveal that the action was barred, the burden of proving the bar of the statute of limitations should have remained on appellee. The Court of Appeals, therefore, erred in affirming the dismissal of appellant's allegations of negligence because a determination that the statute of limitations barred the claim could not have been made by the trial court from the face of the complaint.

The Court of Appeals similarly erred in affirming the dismissal of appellant's allegations of fraud. It is well established a cause of action for fraud accrues when the fraud is discovered. R.C. 2305.09. Appellant's complaint can fairly be read to allege discovery of appellee's fraud "sometime in 1975," conceivably within the four-year limitations period applicable to fraud actions. Dismissal would be proper where upon the face of the complaint it appears with certainty the fraud was discovered more than four years before filing suit. Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 297...