Champy v. Beazer Homes Corporation et al
Filing
29
ORDER AND OPINION granting 26 Motion to Dismiss Don Garner with prejudice. Signed by Honorable Margaret B Seymour on 3/18/2016.(mdea )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
JENNIFER L. CHAMPY,
Plaintiff,
vs.
BEAZER HOMES CORPORATION;
BEAZER HOMES USA, INC.; BEAZER
HOMES – COLUMBIA DIVISION;
BEAZER HOMES, INC., AND DON
GARNER,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 3:15-cv-04098-MBS
ORDER AND OPINION
BEAZER HOMES CORPORATION,
)
)
Third-Party Plaintiff,
)
)
vs.
)
)
THE SHERWIN-WILLIAMS COMPANY, )
)
Third-Party Defendant.
)
)
This matter came before the court on Defendant Don Garner’s Motion to Dismiss pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 26. After considering the
submissions of counsel, and for the reasons that follow, Defendant Don Garner’s motion is
GRANTED and Plaintiff’s claims against him are hereby DISMISSED with prejudice.
BACKGROUND
On April 18, 2007, Plaintiff Jennifer L. Champy (hereinafter, “Plaintiff”) contracted with
Beazer Homes Corporation (“BHC”) for the purchase of a home located in Chapin, South Carolina.
ECF No. 26-2, Agreement to Buy and Sell Real Property.
On July 1, 2015, Plaintiff filed this lawsuit in the Lexington County Court of Common
Pleas against Beazer Homes Corporation; Beazer Homes USA, Inc.; Beazer Homes – Columbia
Division; Beazer Homes, Inc.; and Don Garner (collectively, “Defendants”). ECF No. 1-1. Plaintiff
alleges that she “entered into discussions with, and ultimately contracted with” Defendants for the
purchase of a new home in Chapin. Id. ¶8. She alleges that “as part of those discussions and
negotiations, the Plaintiff repeatedly advised aforesaid Defendants that she has pre-existing
respiratory health concerns and therefore, her newly constructed house would need to be free from
excessive or inordinate amounts of dirt, dust, debris, and other contaminants which could
aggravate her respiratory issues.” Id. ¶9. According to Plaintiff, Defendants acknowledged and
agreed to her requirements. Id. ¶10. Plaintiff claims that after moving into the newly-constructed
house, she experienced “numerous and worsening health problems.” Id. ¶12. In November 2012,
she discovered “excessive amounts of dust, dirt, construction debris and the like” under the
carpeting in her house, which had been there since construction. Id. ¶14. Plaintiff asserts causes of
action against Defendants for negligence, breach of express and implied warranties, and breach of
contract due to the health issues she attributes to the material she found beneath her carpet.
According to Defendant Don Garner, he was employed by BHC from early 2005 until
January 2008. ECF No. 26-3, Garner Aff. ¶2. He never held a management position with BHC. Id.
¶5. He did participate in the construction of Plaintiff’s house in his capacity as an employee of
BHC. Id. ¶4. Garner did not have authority to enter into contracts for Beazer, or to handle special
requests or changes from prospective homeowners. Id. ¶¶8–10. Garner’s employment duties with
BHC were primarily to schedule subcontractors and handle their payment requests. Id. ¶4. He did
not have authority to select, contract with, hire or fire subcontractors, nor was he authorized to
direct subcontractors’ means and methods. Id. ¶¶4, 5. Specifically, Garner’s job duties included
2
communicating with subcontractors and suppliers to schedule their work, and processing
paperwork associated with those parties. Id. ¶4. He was not tasked with inspecting any
subcontractor’s performance or with personally performing any substantive construction tasks, and
did not, in fact, monitor subcontractor performance or perform any construction work. Id.
PROCEDURAL HISTORY
Plaintiff filed her Complaint in the Lexington County Court of Common Pleas on July 1,
2015. ECF No. 1-1. BHC filed its Notice of Removal to this court on October 1, 2015. ECF No.
1. In its Notice of Removal, BHC asserts that Defendant Don Garner is a sham defendant. Plaintiff
has not objected or otherwise responded to the Notice of Removal. Defendant Don Garner filed
his Motion to Dismiss on January 15, 2016. ECF No. 26. Plaintiff did not file a response.
STANDARD OF REVIEW
A claim survives a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) if it
“contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a
‘probability requirement,’ but asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. A complaint that is not plausible must be dismissed. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007) (“Because the plaintiffs here have not nudged their claims
across the line from conceivable to plausible, their complaint must be dismissed.”). “While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations,
a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Id. at 555. While the court must consider the complaint in the light most favorable to the Plaintiff,
the court “need not accept ‘legal conclusions drawn from the facts [or] unwarranted inferences,
3
unreasonable conclusions, or arguments.” Hughes v. Wells Fargo Bank, N.A., 617 F. App'x 261,
263 (4th Cir. 2015). A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should
be granted if “it appears beyond all doubt that the plaintiff can prove no set of facts in support of
his claim that would entitle him to relief.” Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d
292, 317 (4th Cir. 2006).
DISCUSSION
1.
Negligence
A negligence claim requires that the defendant owe a duty of care to the plaintiff; the
existence of any duty is determined by the court. E.g., Doe v. Marion, 645 S.E.2d 245, 250 (S.C.
2007). Claims “predicated on the alleged breach, or even negligent breach, of a contract between
the parties,” cannot succeed in a tort action. Meddin v. Southern Ry.-Carolina Div., 62 S.E.2d 109,
112 (S.C. 1950). If the alleged tort arises out of a contract, then an independent relationship must
exist (outside of that contract) that would give rise to the duty alleged, in order for a negligence
claim to be viable. Id. The District Court of South Carolina described the test for determining
whether an action sounds in contract or tort:
If the cause of the complaint be for an act of omission or nonfeasance which,
without proof of a contract to do what has been left undone, would not give rise
to any cause of action (because no duty apart from the contract to do what is
complained of exists) then the action is founded upon contract and not upon tort.
Felder v. Great Am. Ins. Co., 260 F. Supp. 575, 578 (D.S.C. 1966).
Even if a claim sounded in contract could lead to liability for negligence, Defendant Don
Garner could not be liable based solely on his capacity as an employee for BHC. In South Carolina,
a contractor or contractor’s superintendent owes no individual duty to the owner of a construction
project by virtue of his position. 16 Jade Street, LLC v. R. Design Const. Co., LLC, 747 S.E.2d
770, 773 (S.C. 2013). An employee’s “professional responsibility for the project” is not
4
“tantamount to civil liability”, and he will not owe a personal duty as a matter of law. Id. The
obligations and liabilities of a business cannot be imputed to employees based merely upon
employment. Benjamin v. Wal-Mart Stores, Inc., 413 F. Supp. 2d 652, 657 (D.S.C. 2006).
The duty Don Garner allegedly owed to Plaintiff arises entirely out of Plaintiff’s alleged
negotiations and contract with the Defendants to construct a house free from excessive or
inordinate amounts of dirt, dust, debris, and other contaminants which could aggravate Plaintiff’s
respiratory issues. Plaintiff does not allege in the pleadings that Don Garner’s duty arose from any
other independent relationship. The alleged duty is derived in contract, not tort. Therefore, Don
Garner cannot be liable to Plaintiff based on a negligence cause of action for his alleged contractual
obligation.
Further, the court finds that Don Garner acted only in his capacity as an employee of BHC
during his involvement with the construction of Plaintiff’s house. He had little, if any, decision
making authority in the process of negotiating and constructing homes for BHC. He apparently
was an on-site coordinator for subcontractors. Additionally, there is no indication, nor does
Plaintiff allege in the pleadings, that Don Garner acted beyond his scope of employment or exerted
any unusual level of control over the construction of her house. The court finds that Don Garner
did not exercise an owner-like or otherwise unusual level of control. Any duty potentially owed by
BHC to keep Plaintiff’s construction site “free from excessive or inordinate amounts of dirt”
(Compl. at ¶8) cannot be imputed to Don Garner, its employee, by virtue of his employment. As a
result, Don Garner owed no duty of care to Plaintiff.
2.
Breach of Contract
“[S]ome privity of contract must limit the range of a plaintiff in seeking those who are
liable to him.” Gray v. Ottolengui, 46 S.C.L. 101, 108-09 (S.C. App. L. 1859). A plaintiff cannot
5
maintain a breach of contract claim against a person with whom she did not contract. Bob
Hammond Const. Co. v. Banks Const. Co., 440 S.E.2d 890, 891 (S.C. Ct. App. 1994). Nor can a
plaintiff recover damages resulting from a breach of contract from a person who was not a party
to the contact. Id.; Shaw v. Great Atl. & Pac. Tea Co., 1 S.E.2d 499, 501 (S.C. 1939).
Plaintiff’s breach of contract claim must be limited to those who were parties to the
contract. Plaintiff contracted only with BHC for the purchase of her home. ECF No. 26-2. Don
Garner was not a party to the contract for the construction or sale of Plaintiff’s house; he did not
even sign the contract in a representative capacity. ECF No. 26-3 ¶¶8-9. Plaintiff’s breach of
contract claim against Don Garner fails, and is therefore dismissed.
3.
Breach of Implied and Express Warranties
When a house is sold, “the vendor impliedly warrants the house is free from latent defects
which would render it unfit for its intended use as a dwelling.” Holder v. Haskett, 321 S.E.2d 192,
192 (S.C. Ct. App., 1984) (emphasis added) (citing Lane v. Trenholm Bldg. Co., 229 S.E.2d 728,
729 (S.C. 1976)). Only parties to the home sales contract may be held liable under this theory.
Courts will “decline to extend liability on an implied warranty of habitability to those who were
not parties to the contract of sale.” Id. Likewise, liability for the implied warranty of workmanship
is limited to the “builder who contracts to construct a dwelling.” Kennedy v. Columbia Lumber &
Mfg. Co., 384 S.E.2d 730, 736 (S.C. 1989). Kennedy and its progeny allow a remote purchaser to
sue the builder of a home without regard to privity, but liability for workmanship is nonetheless
limited to the builder who contracted to construct the allegedly defective home. Id.
Don Garner was not the seller or builder of Plaintiff’s home, so he cannot be held liable in
warranty. ECF No. 26-3 ¶¶8, 9, 11. Plaintiff sued Don Garner, as well as the other named
defendants, for breach of express warranty and breach of the implied warranties of habitability and
6
workmanship. Because these warranties all spring from the sale or contract for construction of a
residence, Don Garner cannot be liable under these theories as a matter of law. Only a seller of
residential property is liable under a theory of breach of the warranty of habitability. Don Garner
was not a party to the contract for the construction or sale of Plaintiff’s house, nor was he the
vendor/seller of the house. Id. Liability for express and implied warranties cannot extend to Don
Garner because he was a mere employee of BHC. Plaintiff’s breach of warranty claims against
Don Garner are hereby dismissed.
CONCLUSION
Plaintiff fails to allege a duty sounding in tort against Don Garner, and South Carolina law
does not recognize a tort duty running from the employee of a builder to an ultimate homebuyer.
Don Garner was not a party to the contract and cannot be liable under a breach of contract theory.
Furthermore, Don Garner did not sell or contract to construct the residence at issue; as such, he
cannot be subject to claims for breach of the implied warranties of habitability or workmanship.
For the foregoing reasons, defendant Don Garner is hereby dismissed from this action, with
prejudice.
IT IS SO ORDERED.
/s/ Margaret B. Seymour
Margaret B. Seymour
Senior United States District Judge
Columbia, South Carolina
Dated: March 18, 2016
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?