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Jaworsky v. Frolich11/24/1992
Rehearing Denied May 11, 1993.
STEPHEN R. JAWORSKY AND JUDITH A. JAWORSKY, HUSBAND AND WIFE, APPELLANTS,
v.
PAUL FROLICH, AN INDIVIDUAL, d/b/a PAUL FROLICH HOMES, APPELLEE, AND CITY OF OKLAHOMA CITY, A MUNICIPAL CORPORATION, AND BREWER CONSTRUCTION COMPANY, INC., DEFENDANTS.
On Certiorari to the Court of Appeals Division No. 1.
Patrick D. Medina, Foshee and Yaffe, Oklahoma City, for appellants.
Raymond L. Vaughn, Jr., Sherman A. Reed, Edmond, for appellee.
The opinion of the court was delivered by: WATT, Justice.
Appellee, Frolich, built the house at issue here in 1976. The Sexsions, the first owners, lived in the house until 1981, when Appellants, the Jaworskys bought the house.
In July 1986 the new Owners allegedly noticed separations and cracks at the top of the house's garage door and in other areas. Owners also alleged that the patio was sinking.
PROCEDURAL HISTORY
Claiming breach of the implied warranties of habitability and workmanlike construction, and negligence, Owners sued Builder in October 1987, more than ten years after Builder finished building the house. Owners also joined the City of Oklahoma City, and Brewer Construction Company. The trial court granted summary judgment for Builder on all issues, and Owners appealed.
The Court of Appeals, Division 1, reversed the trial court and remanded the case for further proceedings. The Court of Appeals held that Owners' causes of action for breach of the implied warranties of habitability and workmanlike construction did not arise until discovery of the defective construction in July 1986. Because Owners filed suit less than five years after discovery of the defects, said the Court of Appeals, their cause of action was timely filed.
Builder contended that 12 O.S. 1981 § 109 barred Owners' tort cause of action because Owner did not file suit until more than ten years after Builder completed the house. The Court of Appeals disagreed, and held that Owners' had two years from the date they discovered the defect within which to bring suit. This was so, the Court of Appeals held, though Owners had failed to meet the requirements of § 109 that suit be brought within "ten years after substantial completion of" the house.
ISSUES
I. Did the trial court err in holding that Owners' theories of liability concerning implied warranties were time barred?
II. Did the trial court err in holding that Owner's tort causes of action did not survive the tenth anniversary of the completion of the house under § 109?
We answer no to both questions.
I.
Owners urge us not to review the Court of Appeals ruling on their implied warranty theories. According to Owners, Builder did not address the implied warranty theories in its Petition for Rehearing and Petition for Writ of Certiorari. We hold that Builder sufficiently dealt with the issue to preserve it for review.
The application of § 109 is expressly limited to tort causes of action. Consequently, Builder may not rely on § 109's ten year limitation on Owners' implied warranty causes of action. Owners' warranty causes of action were based on contract, not tort, Elden v. Simmons, 631 P.2d 739, 742 (Okla. 1981); Noble Foundation Inc. v. Vick d/b/a Southern Oklahoma Testing and Engineering, 840 P.2d 619 (Okla. 1992). Owners are covered by Builder's warranties although Owners were subsequent purchasers of the house. Thus, the five year statute of limitations appl
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