TORTS – Developer liability for defects in home, genuine issues existed on summary judgment motion: George Miller, et al. v. Donna Hutson (d/b/a Scott Partin Builders) (SC 4/23/2009)

George Miller, et al. v. Donna Hutson (d/b/a Scott Partin Builders)
2007-SC-000317-DG April 23, 2009
Opinion by Justice Schroder; all sitting.

Miller, buyer of a new residence, brought an action against Hutson, a subdivision developer, and her builder over defects with the house. The trial court granted Hutson’s motion for partial summary judgment dismissing the claims against her since she was not the builder of the house. The Court of Appeals affirmed, declining to extend the builder’s exception to the rule of caveat emptor found in Crawley to developers of residential subdivisions.

The Supreme Court held that summary judgment in Hutson’s favor was inappropriate since there were issues of fact as to whether Hutson was the builder as well as the developer. The Court cited a V.A. loan form where Hutson identified herself as the builder of the residence. Furthermore, the Court held that Hutson’s possible status as builder was irrelevant since she signed a one-year home warranty in a personal capacity as warrantor. Thus the Court held that the trial court should have entered a partial summary judgment against Hutson on the issue of liability. The Court remanded for further proceedings on the issue of damages. Justice Venters (joined by Justice Scott) concurred by separate opinion, writing that the Court should have expanded Crawley to hold developer-sellers of residential subdivisions to the same implied warranties as the builder—an issue the majority declined to consider.

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