Williams v. Runion

325 S.E.2d 441, 173 Ga. App. 54, 1984 Ga. App. LEXIS 2725
CourtCourt of Appeals of Georgia
DecidedNovember 29, 1984
Docket68575
StatusPublished
Cited by25 cases

This text of 325 S.E.2d 441 (Williams v. Runion) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Williams v. Runion, 325 S.E.2d 441, 173 Ga. App. 54, 1984 Ga. App. LEXIS 2725 (Ga. Ct. App. 1984).

Opinions

Birdsong, Presiding Judge.

Liability for Builder’s Negligence. Donald Williams is a builder of residential homes in and about Dalton. Together with another, Williams developed a residential subdivision, Williams being the builder of the various homes. One of these homes was sold by Williams to an unidentified couple. When this couple failed in their attempt at financing, Williams contacted Runion whom he knew was interested in buying a residence. While Runion apparently could afford the monthly payments, she experienced difficulty in gathering a down payment. Williams deposited the down payment in Runion’s behalf, and Runion moved into the house before closing.

After she had been there about a month but before closing, Runion noticed brown rust spots appearing in the sheetrock covering [55]*55and forming the walls and ceilings. Some of these spots (apparently caused by rusting nails) protruded through the sheetrock causing the plaster to fall, leaving a small hole. Eventually the nail would completely withdraw and fall to the floor. Runion called Williams to seek an explanation and possible remedy. Williams repeatedly told Runion he did not know what was causing the rust spots or the nails to fall from the sheetrock. The sheetrock had been installed by a subcontractor who had been utilized by Williams for that purpose for many years. Eventually the walls and ceilings were sprayed with a substance that covered all the spots, though nails continued to fall.

Three years after moving into the house Runion came home from work one evening and found that the entire ceiling in the living room had fallen, exposing the trusses and rafters of the roof. Ultimately the ceilings in the halls, bedrooms and in the garage all commenced to sag. Though they were braced from beneath, when the house was repaired the remaining ceilings were taken down and replaced. After the ceilings collapsed, several experts (architects and builders) were called to determine the cause of the collapse. While there was a dispute between the plaintiff and defense witnesses, by its verdict the jury apparently determined that the trusses used in the attic to which the sheetrock had been attached were made of green wood which had not been kiln dried, which was portrayed as a usual custom. The high content of moisture in the wood apparently caused the nails to rust, and as the wood dried, the wood warped and placed stress on the nails holding the sheetrock to the trusses. This apparently caused the nails to withdraw and fall to the floor. The trusses were made by Williams in his own truss manufacturing plant.

There also was evidence that three inspections were required during the progress of the building of the house, the first to inspect the foundation, the second at the time of the rough finish (when the framework of the house had been completed) to inspect the wiring, plumbing, and structural integrity of the house, and the third after the house was completed, i.e., after the walls and ceilings were in place. The county records pertaining to this house reflected that the second inspection (which might have exposed the green trusses) was not conducted. There was evidence that it was Williams’ responsibility either as builder or as owner to call for the second inspection. Lastly, it was shown that the attic had no access from the interior of the house. The county building inspector as well as a builder and an architect called by Runion all testified that the building code adopted by the county had been violated by the use of green lumber, improper spacing of nails affixing the sheetrock, and the failure to have an interior access to the attic.

Ms. Runion brought suit against Williams alleging fraud in the sale of the house, asserting that Williams knew that the trusses were [56]*56made of green lumber and that he had avoided a necessary inspection which might have disclosed the presence of the lumber as well as sealing the attic so that an unwary buyer would not be able to inspect to see the condition or degree of excellence of construction. Alternatively, Ms. Runion alleged negligence in that Williams knew or should have known that the workmanship and materials were inadequate and were not in accordance with the standards and specifications of those prevalent and required in the community (i.e., the county). The jury returned a verdict of $17,000 in favor of Ms. Runion declining in its verdict to find express fraud but resting it on the negligence in construction. Williams brings this appeal enumerating six alleged errors. Held:

1. In his first enumeration of error, Williams argues that the trial court erred in overruling a motion for a directed verdict as to the case founded in negligence and as to the fraud count.

As to the fraud count, the trial court was required to view the evidence when ruling on the motion for directed verdict most favorably toward Ms. Runion (Nationwide Mut. Ins. Co. v. Ware, 140 Ga. App. 660, 664 (231 SE2d 556)). Clearly there was a conflict of evidence as to fraud. Thus, the direction of a verdict was neither demanded (State Farm Mut. Auto. Ins. Co. v. Snyder, 125 Ga. App. 352 (187 SE2d 878)) nor appropriate. Johnson v. Mann, 132 Ga. App. 169 (207 SE2d 663). Moreover, the jury declined to find Williams guilty of express fraud, basing its verdict upon negligence, an election authorized by the court’s charge. Thus as the jury found in favor of Williams on the fraud count, even assuming error (which we do not find), the error would have been harmless as a matter of law. Pilkenton v. Eubanks, 139 Ga. App. 673, 675 (229 SE2d 146).

In relation to the negligence count, Williams bases his argument upon an entirely different foundation. It is his argument that the principles announced in Holmes v. Worthey, 159 Ga. App. 262 (282 SE2d 919) and Worthey v. Holmes, 249 Ga. 104 (287 SE2d 9) are not pertinent to the issues involved in this case and are in no wise controlling. In Holmes v. Worthey, supra, Holmes contracted with Worthey first to build a house and upon completion of the house to deed that home to Holmes. The issue was whether the warranties and promises contained in the contract to build merged with the warranty deed when Worthey deeded the house to Holmes. This court held that promises made as to serviceability and fitness for the use intended did not merge with the warranty deed provided the purchaser could establish negligence in the construction, and further provided the purchaser was not reasonably aware of the deficiencies about which the builder knew or should have known because of his supérior knowledge in the trade. Williams seeks to limit the Holmes rationale to similar factual situations. Thus, because in this case there was no [57]*57contract between Runion and Williams to build the house, Williams contends the Holmes rationale does not apply. He seeks us to return to the older authority preceding our decision in Holmes and once again hold that any express or implied warranties in the fitness of the house merged with the warranty deed and Ms. Runion’s acceptance of the house as owner subjected her to the rule of caveat emptor. See P.B.R. Enterprises v. Perren, 243 Ga. 280 (253 SE2d 765).

We find that argument unpersuasive. As we held in Holmes, the remedy sought is to correct a defect in construction where the defect is caused by actionable negligence.

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Bluebook (online)
325 S.E.2d 441, 173 Ga. App. 54, 1984 Ga. App. LEXIS 2725, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-runion-gactapp-1984.