Tingler v. Graystone Homes, Inc.

834 S.E.2d 244 (2019)

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Nature of the Case

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Facts

D entered into a construction contract with Ps to build a new home with a purchase price of $495,000. The contract does not mention P or expressly state that Ps were executing the contract in any agency capacity. At the time of construction, P was the title owner of the farm land on which the home was built. D knew that P would and did make all payments due under the contract. D further understood that 'P and Ps intended in the future to partition the real property on which the Home was located from the rest of the farm land . . . and transfer ownership of both the real property and the completed Home to the Ps.' 'At the time of the 30-day inspection of the Home' permitted under the contract, Ps discovered leaks at the patio French doors in the dining room and reported the leaks to D. D applied additional sealants and replaced damaged hardwood flooring. In early 2011, Ps discovered and reported another leak in the dining room. D installed additional flashing and replaced more hardwood flooring. D did not look for mold. After experiencing medical symptoms in early 2014, Ps hired an inspector who discovered mold in the basement underneath the dining room where the leaks had occurred, elevated levels of airborne mold spores throughout the home, and elevated levels of moisture in the dining and kitchen areas near the patio French doors. In October 2014, D responded but nothing. D did attempt to fix the problems. In November 2014, Ps had vacated the home, a remediation contractor concluded that D's containment sheeting had been improperly placed, and another inspector visited the home and found elevated levels of mold spores and moisture. Ps and P sued D alleging a breach of contract. They add various negligence claims as well, alleging theories of negligent construction, negligent repair, and negligence per se. In their personal injury complaints, Ps allege that D negligently constructed the home negligently attempted to repair it, and committed negligence per se by violating building codes. Ps alleged they suffered 'personal injury' by being 'exposed to the unhealthy conditions that developed in the Home.' The entire family remains under continuing medical care for their symptoms. Ps seek in excess of $5 million in damages for their personal injuries. The court sustained D's demurrers against Ps to all counts and dismissed each complaint with leave to amend. The court held that, under the source-of-duty rule, no negligence claim could prevail because 'D's alleged misdeeds consist of its failure to perform or fully perform its contractual duties.' The court dismissed P's contract claims, holding that P was not a party to the agreement and thus had no standing to bring the claims. The court dismissed Ps' contract claims because Ps had no standing given that the home had become a fixture of the land owned by P, not by Ps. This appeal resulted.