holding that “[a]n action by a vendee against the builder-vendor of a 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 * * *”
How later courts described this case
- holding that “[a]n action by a vendee against the builder-vendor of a 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 * * *”
- stating that "[t]he obligation to perform in a workmanlike manner using ordinary care may arise from or out of a contract * * * but the cause of action is not based on contract; rather it is based on a duty imposed by law"
- holding that the action sounds in tort
- noting that a 12(B) dismissal is not proper where the complaint does not conclusively show that the claim is time barred
Written by the judges who cited it.
Distinguished
Distinguished by Cleveland Bd. of Education v. Lesko, 2 Ohio App. Unrep. 426 (1990)
Dela Motte-Larson correctly held that Velotta applied but incorrectly stated that discovery rules are inapplicable in negligence actions.
The opinion
Holmes, J.,
concurring in part and dissenting in part.
I am fully in accord with paragraph one of the syllabus and believe it follows, in essence, the law as expressed in Mitchem v. Johnson (1966), 7 Ohio St. 2d 66 . In the absence of a written or oral contract to construct or complete a residential structure, as was considered in Mitchem, in Tibbs v. National Homes Constr. Corp. (1977), 52 Ohio App. 2d 281 , and in Lloyd v. William Fannin Bldrs. (1973), 40 Ohio App. 2d 507 , and in the absence of express warranties or representations, or implied warranties, as to the quality of said structure, the liability of a builder-vendor of a completed structure to his vendee for poor workmanship and failure to exercise the ordinary care, a duty imposed by law, in the construction, is an action ex delicto sounding in tort. The applicable statute of limitations for such an action is R. C. 2305.09, providing a four-year period in which to bring the action from the date when the cause of action accrued.
I dissent from the law as expressed in paragraph two of *381 the syllabus in that, as stated, the statute of limitations runs from the date when the cause of action accrued, and in the instance of the sale of a house with defects which are not fraudulently concealed, or undisclosed, the cause of action accrues on the date of purchase. Where there is specific fraud averred by an owner in a complaint against a builder-vendor relevant to the construction process of a house, and where there is nothing within the case to remove the element of fraud from the case, the period of the statute of limitations pursuant to R. C. 2305.09, is abated until such time as the fraud is discovered.
Here, the trial court and the Court of Appeals quite reasonably found that the gist of the action was one in tort, and did not, other than peripherally, aver the actions of the builder-vendor to be fraudulent. There is nothing in the complaint that would specify with any degree of certainty what action on the part of the builder-vendor would constitute the fraud. The sole allegation is the use of the word “fraud” in the complaint, hardly sufficient, even under the more liberal pleading practice of the Civil Rules, to constitute an allegation invulnerable to the instant motion. Of greater significance in this regard is the fact that here the trial court considered the motion to dismiss not only on the content of the pleading, but upon the stipulations and oral arguments of the parties. The parties stipulated that there were no express warranties or representations made by the builder-seller and stipulated that the purchase agreement, attached to the complaint as “Exhibit A,” provided that the structure was being sold “as is” and that there were “no outside conditions, representations, warranties or agreements.” Here, there was not presented to the trial court an action based upon fraud.
I come now to that portion of the majority opinion with which I have the most difficulty, and that is which is contained within the legal philosophy of the second paragraph of the syllabus. This pronounced law would demand of the builder-vendor a responsibility and duty that Ohio law has never required. To place upon the home building industry of Ohio the burden of legal responsibility for unknown and unwarranted defects which may occur in the projected long range future utilization of a residence is not only unreasonable, but is not *382 within the acceptable concept of our negligence law. In a time when the industry of home building is experiencing an extremely difficult economic period, to place this unduly harsh legal principle upon their product is completely unacceptable either as a legislative or, more particularly, as a judicial pronouncement. Under the pronouncement of this court, an unknown and later developing defect found to exist many years after the purchase of a residence could occasion the filing of an action against the original builder-vendor who had long since passed such structure, and the records of its development, into past history. This would present an undue and unreasonable burden upon the Ohio home building industry.