Present: Lacy, Hassell, Keenan, Koontz, Kinser, and Lemons,
JJ., and Stephenson, S.J.
VAUGHN, INC.
v. Record No. 003042 OPINION BY JUSTICE BARBARA MILANO KEENAN
November 2, 2001
HOWARD J. BECK, JR., ET AL.
FROM THE CIRCUIT COURT OF ROANOKE COUNTY
J. Howe Brown, Jr., Judge Designate
In this appeal, we consider the issue whether under Code
§ 55-70.1, a purchaser of a new home is required to notify the
builder of a defect in construction within the statutory
warranty period before bringing an action against the builder
for breach of that warranty.
Howard J. Beck, Jr., and his wife, Lauren S. Beck
(collectively, the Becks), entered into a contract with Vaughn,
Inc. (Vaughn) to purchase certain real estate, including a house
and a well, in a residential development in Roanoke County. The
Becks obtained title and took possession of the property on
December 9, 1996.
Within one year of that date, the Becks began to experience
problems with an inadequate flow of water from their well. As a
result of the inadequate water flow, the Becks did not have
sufficient water to perform routine household functions, such as
washing dishes, washing clothes, and bathing. In addition, the
Becks were not able to provide water for their lawn and
shrubbery. Because of the inadequate water flow, the Becks were
required to dig and install a second well.
The Becks did not notify Vaughn of their difficulties with
the original well because they thought that the problem was
caused by a faulty water pump, which Vaughn would not have been
obligated to correct. At a later date, however, the Becks
concluded that Vaughn was responsible for correcting the defect
in the well, but they took no action to notify Vaughn of the
defect.
On December 7, 1998, within two years of the date that the
Becks obtained title and took possession of the property, they
filed a motion for judgment in the trial court against Vaughn.
The Becks alleged that the defect in the well installed by
Vaughn was caused by Vaughn's failure to drill, construct, and
prepare the well in a workmanlike manner, free from structural
defects. The Becks asserted, among other things, that based on
Vaughn's actions and omissions regarding the well, Vaughn
breached the statutory warranty for new dwellings provided by
Code § 55-70.1.
Vaughn filed an answer in which he admitted that "[t]he
warranties given are the statutory warranties" under Code § 55-
70.1. However, Vaughn denied any breach of those warranties and
asserted as an affirmative defense the Becks' failure to provide
Vaughn notice of the defect within the one-year statutory
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warranty period. In response, the Becks conceded that they had
not given Vaughn notice of the defect within one year from the
date on which they obtained title to the property and took
possession of the dwelling.
In a preliminary ruling, the trial court addressed Vaughn's
affirmative defense and held that
[i]n accordance with rules of statutory construction,
the Court looks to the plain meaning of the language
of the statute. The statute does not require notice
to the builder or vendor. In other statutes the
legislature has required notice. . . . If notice of
breach by the buyer is required in every case, there
would be no reason for the legislature or the
contractor to specify a notice provision in certain
cases.
The case proceeded to a jury trial. The jury returned a
verdict in favor of the Becks in the amount of $20,000, and the
trial court entered judgment in accordance with the verdict.
Vaughn appeals from this judgment.
Vaughn argues that Code § 55-70.1 required the Becks to
give Vaughn notice of the defect in the well within the one-year
statutory warranty period as a condition precedent to
maintaining an action against Vaughn for breach of the statutory
warranty. Vaughn asserts that a notice requirement is implied
from the statutory language, and that a contrary result would be
unreasonable because it would deprive a builder of the
opportunity to determine whether a homeowner’s claim for damages
has any merit. Vaughn also contends that in Davis v. Tazewell
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Place Associates, 254 Va. 257, 492 S.E.2d 162 (1997), this Court
recognized a builder’s right under Code § 55-70.1 to receive
such notice of a defect that forms the basis of an action for
breach of the statutory warranty. We disagree with Vaughn’s
arguments.
Under basic rules of statutory construction, we examine the
language of Code § 55-70.1 in its entirety and determine the
intent of the General Assembly from the words contained in the
statute, unless a literal construction of the statute would
yield an absurd result. Cummings v. Fulghum, 261 Va. 73, 77, 540
S.E.2d 494, 496 (2001); Earley v. Landsidle, 257 Va. 365, 369,
514 S.E.2d 153, 155 (1999). When the language of a statute is
plain and unambiguous, we are bound by the plain meaning of that
language. Cummings, 261 Va. at 77, 540 S.E.2d at 496; Earley,
257 Va. at 370, 514 S.E.2d at 155; Ragan v. Woodcroft Vill.
Apartments, 255 Va. 322, 326, 497 S.E.2d 740, 742 (1998). Thus,
when the General Assembly has used words of a plain and definite
import, courts cannot place on them a construction that amounts
to holding that the General Assembly meant something other than
that which it actually expressed. See Advanced Marine Enters.,
Inc. v. PRC Inc., 256 Va. 106, 125, 501 S.E.2d 148, 159 (1998);
Abbott v. Willey, 253 Va. 88, 91, 479 S.E.2d 528, 530 (1997).
We also consider the fact that Code § 55-70.1 is a statute
in derogation of the common law. At common law, a purchaser of
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a dwelling did not acquire an implied warranty in conjunction
with the sale of that dwelling. Davis., 254 Va. at 261, 492
S.E.2d at 164; see Bruce Farms, Inc. v. Coupe, 219 Va. 287, 289,
247 S.E.2d 400, 402 (1978). Because Code § 55-70.1 changed the
common law by creating certain statutory warranties, those
warranties are limited to the provisions expressly stated in the
statute or necessarily implied by its language. See Mitchem v.
Counts, 259 Va. 179, 186, 523 S.E.2d 246, 250 (2000); Boyd v.
Commonwealth, 236 Va. 346, 349, 374 S.E.2d 301, 302 (1988).
Code § 55-70.1 provides, in relevant part:
B. In addition, in every contract for the sale of a
new dwelling, the vendor, if he is in the business of
building or selling such dwellings, shall be held to
warrant to the vendee that, at the time of transfer of
record title or the vendee's taking possession,
whichever occurs first, the dwelling together with all
its fixtures is sufficiently (i) free from structural
defects, so as to pass without objection in the trade,
(ii) constructed in a workmanlike manner, so as to
pass without objection in the trade, and (iii) fit for
habitation.
. . . .
D. If there is a breach of warranty under this
section, the vendee, or his heirs or personal
representatives in case of his death, shall have a
cause of action against his vendor for damages.
E. The warranty shall extend for a period of one year
from the date of transfer of record title or the
vendee's taking possession, whichever occurs first,
except that the warranty pursuant to subdivision (i)
of subsection B for the foundation of new dwellings
shall extend for a period of five years from the date
of transfer of record title or the vendee's taking
possession, whichever occurs first. Any action for
its breach shall be brought within two years after the
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breach thereof. As used in this section, the term
"new dwelling" shall mean a dwelling or house which
has not previously been occupied for a period of more
than sixty days by anyone other than the vendor or the
vendee or which has not been occupied by the original
vendor or subsequent vendor for a cumulative period of
more than twelve months excluding dwellings
constructed solely for lease. The term "new dwelling"
shall not include a condominium or condominium units
created pursuant to Chapter 4.2 (§ 55-79.39 et seq.)
of this title.
We conclude that the language of Code § 55-70.1 plainly
does not require the purchaser of a new dwelling to give notice
of a defect in construction to the builder within the one-year
statutory warranty period as a prerequisite for bringing a
breach of warranty action under the statute based on that
defect. Subsection (D) of Code § 55-70.1 provides the purchaser
of a new dwelling a cause of action against the builder for a
breach of the warranty created by the statute. Subsection (E)
of the statute provides that the warranty shall extend for a
period of one year from the date that record title is
transferred to the purchaser, or the date that the purchaser
takes possession of the property, whichever occurs first. Any
action for such breach of warranty must be brought within two
years after the breach occurs. Id. Thus, a breach by the
builder, not a tendering of notice, is the only condition that
the statute imposes for bringing an action against that builder
within two years of the date of the breach.
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The contrary statutory interpretation advanced by Vaughn
would require us to add new language to the statute. We reject
that interpretation because, in the absence of a specific notice
requirement, we may not construe the statute’s plain language in
a manner that amounts to holding that the General Assembly meant
to add a requirement to the statute that it did not actually
express. See Advanced Marine Enters., Inc., 256 Va. at 125, 501
S.E.2d at 159; Haislip v. Southern Heritage Ins. Co., 254 Va.
265, 268, 492 S.E.2d 135, 137 (1997).
We also disagree with Vaughn's assertion that our decision
in Davis implicitly recognized a notice requirement under Code
§ 55-70.1. The issue presented and decided in Davis was whether
the defendant builder had met its burden of proving that the
plaintiffs' cause of action was barred by the two-year statute
of limitations in Code § 55-70.1. 254 Va. at 260-61, 492 S.E.2d
at 164. We did not consider the question whether notice by a
purchaser is an element of a cause of action under Code § 55-
70.1.
The facts in Davis involved purchasers who, after buying a
new house, observed various defects in the dwelling. Although
not required by Code § 55-70.1 to do so, the purchasers provided
the builder notice of those defects. Id. at 259, 492 S.E.2d at
163. We stated that when a purchaser notifies the builder of
any defect covered by the statutory warranty within the one-year
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warranty period, and the builder does not remedy that defect,
the purchaser may file an action against the builder within two
years from the date that the notice was given. Id. at 261, 492
S.E.2d at 164.
We held that the defendants failed to prove that the
statute of limitations had expired before the plaintiffs filed
their action. Id. Incorporated in this holding was the fact
that the purchasers gave notice to the builder within the
statutory warranty period. See id. Thus, our decision in Davis
is limited to this factual context and does not impose a notice
requirement under Code § 55-70.1.
Nevertheless, as Vaughn observes, our interpretation of
Code § 55-70.1 in Davis may have the effect of permitting an
extension of the statute of limitations in cases when a
purchaser has provided timely notice of a construction defect to
the builder. This potential result, however, cannot be remedied
through judicial construction by imposing a notice requirement
that effectively would add new language to the statute. Any
such change to the statute must be a legislative, rather than a
judicial, undertaking. See Advanced Marine Enters., Inc., 256
Va. at 125, 501 S.E.2d at 159; Abbott, 253 Va. at 91, 479 S.E.2d
at 530. Accordingly, we conclude that the trial court correctly
held that Code § 55-70.1 does not impose a notice requirement as
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a prerequisite for maintaining an action for breach of the
statutory warranty.
For these reasons, we will affirm the trial court's
judgment.
Affirmed.
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