Drucker v. Witt

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD
NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED
BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Herbert Drucker and Marilyn R. Drucker,       
Appellants,

v.

Ralph F. Witt and Deborah Witt; Gordon Plastering Company, Inc.; European
Stucco, Inc.; and Parex Inc.,        Defendants,

Of Whom, Ralph F. Witt and Deborah Witt are,       
Respondents.

Appeal From Richland County

J. Ernest Kinard, Jr., Circuit Court
Judge

Unpublished Opinion No. 2005-UP-131

Submitted January 1, 2005 – Filed February
18, 2005

AFFIRMED

Robert B. Phillips, of Columbia, for Appellants. 

Paul Collins, of Columbia, for Respondents. 

PER CURIAM:  Herbert and Marilyn Drucker
appeal the trial court’s dismissal of their negligence claims against the original
owners who built their house.  We affirm. [1]

FACTS AND PROCEDURAL HISTORY

In 1989, Ralph and Deborah Witt built
a house on property they owned in Richland County, South Carolina.  The Witts
hired Gordon Plastering Company to clad the new house with Exterior Insulation
Finishing System (EIFS), a synthetic stucco material manufactured by Parex. 
On November 20, 1997, the Witts sold their house to the Druckers.  Five
years later, the Druckers had the house inspected in preparation for putting
it up for sale.  The inspection revealed several problems with the application
of the EIFS cladding, resulting in damage to the house. 

The Druckers filed a complaint against
the Witts, Gordon Plastering, Continental Stucco Products, and Parex, alleging
five causes of action against the Witts, including negligence, breach of express
warranties, breach of the implied warranties of habitability and workmanlike
service, and unfair trade practices.  All causes of action were predicated on
the alleged defective application of the EIFS cladding to the house.
[2]

The Witts filed a 12(b)(6) motion as to all causes
of action, arguing the Druckers failed to allege sufficient facts to constitute
a cause of action.  In a brief form order, the trial court dismissed the Druckers’
claims for negligence, breach of express warranties, and unfair trade practices,
stating “motion to dismiss as to causes of action one, two, and eight is granted.”
[3]   The Druckers did not file a Rule (59)(e) motion requesting the trial
court provide specific grounds for its rulings.

DISCUSSION

The Druckers contend the trial court erred by dismissing
their negligence claims against the Witts, arguing the court improperly relied
on a factual predicate outside of the pleadings to reach its decision and committed
an error of law by determining an original builder and owner of a house, who
is not a house builder by trade, owes no duty to protect a subsequent purchaser
from negligent construction.  We disagree.

First, the Druckers allege the trial court improperly
based its dismissal of their negligence claims on the assumption the Witts were
not in the business of building houses.  Even though the complaint alleged,
“the Witts built the Property [and] were responsible for hiring the subcontractor
who clad the Property with EIFS,” there is no allegation in the complaint the
Witts were in the business of building houses.  The Druckers contend the improper
basis for the court’s ruling was revealed at the motion hearing when the trial
judge stated, “[the Witts] built it, you know, they lived in it, they sold it,
then this stucco problem occurred.  I mean, you got the wrong person to do that,
unless they build houses all the time.  If they built it, moved into it, the
homeowner, I’m sorry.” 

This issue is not preserved for our review. 
The court’s statement at the motion hearing is not conclusive proof the court
utilized an improper basis for its final ruling.  The court provided no specific
grounds for its ruling, and we are unable to determine what particular facts
the court relied upon in dismissing the Druckers’ negligence claims. The Druckers
could have requested the court provide more specific or complete grounds for
its ruling in a 59(e) motion.  Because they did not, the trial court was deprived
of the opportunity to explain its analysis of this issue, and we may not now
consider it on appeal.  See Wilder Corp. v. Wilke, 330 S.C. 71,
76, 497 S.E.2d 731, 733 (1998) (It is axiomatic that an issue must be raised
to and ruled upon by the trial court before the issue is preserved for appellate
review.). 

Next, the Druckers assert the trial court erred
as a matter of law by dismissing their negligence claims against the Witts,
arguing South Carolina recognizes a duty in an individual who builds a house,
lives there, and later sells it to protect a subsequent buyer from negligent
construction and may be liable to the buyer in tort for selling a defective
home.  We disagree.

The cases relied upon by the Druckers recognize a duty from
a commercial builder of a new house to a buyer, or from a seller to a buyer
on implied warranties of fitness and habitability but not on negligence claims. 
See Lane v. Trenholm Bldg. Co., 267 S.C. 497, 500, 229 S.E.2d
728, 729 (1976) (holding a real estate developer has a duty to a buyer of a
house because “when a new building is sold there is an implied warranty of fitness
for its intended use which springs from the sale itself.”); see also
Arvai v. Shaw, 289 S.C. 161, 164, 345 S.E.2d 715, 717 (1986) (holding
a subsequent owner of a house cannot claim the original commercial builder breached
the implied warranty of habitability where the house had been occupied by earlier
owners); Kennedy v. Columbia Lumber & Mfg. Co., 299 S.C. 335, 346,
384 S.E.2d 730, 737 (1989) (holding a builder of a new house has a duty to construct
the house in conformity with current building codes and industry standards if
“he knows or should know [the house] will later be sold by a party to an innocent
buyer.”).  We find no law creating a duty in tort on the part of a homeowner
who builds his own house running to a subsequent buyer.

Because in a negligence action there can be no recovery without
a breach of duty, the ruling of the trial court is

AFFIRMED.

ANDERSON, STILWELL, and SHORT, JJ., concur. 

[1]         We decide this case without oral argument pursuant to Rule
215, SCACR. 

[2]         The record
also includes the Druckers’ amended complaint correcting the name of one defendant. 
The Witts contend the amended pleadings were never served on them, but since
both complaints assert the same causes of action, that is inconsequential.

[3]         The Druckers’ causes of action against the Witts for breach
of the implied warranties of habitability, merchantability, workmanlike service
and fitness for a particular purpose survive the trial court’s grant of the
12(b)(6) motion.