Paul Jones and Latosha Sanders bought a new house from Centex Homes. After they moved in, they found that their electronic equipment didn’t work right. They alleged that the reason was because metal joists in the house were magnetized. Another couple, Eric and Ginger Estep, brought a lawsuit against Centex with identical issues. The homeowners claimed the builder breached express and implied warranties, and failed to build the houses in a workmanlike manner. The two suits were consolidated.
The contract that the homeowners signed contained a provision that waived all warranties except specific express warranties provided in a separate Limited Home Warranty, which did not cover magnetized joists. The trial court granted summary judgment on this basis.
The Tenth District Court of Appeals affirmed the decision of the trial court, holding that a waiver of the implied duty to construct a house in a workmanlike manner was permissible so long as it was conspicuous, unambiguous, and fully disclosed. Both couples appealed to the Supreme Court.
Velotta v. Leo Petronozio Landscaping, Inc., 69 Ohio St.2d 376 (1982). ¶ 1 of syllabus: “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.”
Mitchem v. Johnson, 7 Ohio St.2d 66 (1966). ¶ 3 of syllabus: “A duty is imposed by law upon a builder-vendor of a real-property structure to construct the same in a workmanlike manner and to employ such care and skill in the choice of materials and work as will be commensurate with the gravity of the risk involved in protecting the structure against faults and hazards, including those inherent in its site. If the violation of that duty proximately causes a defect hidden from revelation by an inspection reasonably available to the vendee, the vendor is answerable to the vendee for the resulting damages.”
On March 14, 2012, the court handed down a merit decision in Jones v. Centex Homes, 2012-Ohio-1001. The court sided with the homeowners, finding the duty to construct a house in a workmanlike manner is a tort duty imposed by law, which cannot be waived. In a unanimous opinion written by Justice Pfeifer, in which Justice Cupp concurred in judgment only, the court concluded that the “duty to construct a house in a workmanlike manner using ordinary care is imposed by law on all home builders,” which is common law negligence language. The opinion clarifies and follows Velotta and Mitchem.
Ultimately, the court did not give the plaintiffs’ an outright win, but remanded the case to the Franklin County Court of Common Pleas for a trial on the tort claims.
A home builder’s duty to construct a house in a workmanlike manner using ordinary care is a duty imposed by law, and a home buyer’s right to enforce that duty cannot be waived. (Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376, 433 N.E.2d 147 (1982), paragraph one of the syllabus, and Mitchem v. Johnson, 7 Ohio St.2d 66, 218 N.E.2d 594 (1966), paragraph three of the syllabus, clarified and followed.)
What Happened on Remand
On April 27, 2012, the Esteps filed a motion to reconsider an earlier denial of the plaintiffs’ request to amend their complaint to include a claim under the Consumer Sales Practices Act (CSPA), R.C. 1345.01 et. seq. The trial court granted the motion, and plaintiffs filed an amended complaint on August 15, 2012. Specifically, proof of violation of the CSPA would have entitled plaintiffs to treble damages, attorney fees and costs.
Ultimately, the parties settled the case. Terms of the settlement are confidential. Plaintiffs filed a notice of dismissal with prejudice on January 16, 2013. Case closed.
Student Contributor: Rebecca Campbell