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2005-UP-131 - Drucker v. Witt


In The Court of Appeals

Herbert Drucker and Marilyn R. Drucker,        Appellants,


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Unpublished Opinion No. 2005-UP-131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


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]


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.


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



[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.