dissenting.
The trial court did not err in granting summary judgment in favor of the appel-lees, and, therefore I dissent.
Appellants filed suit against appellees alleging that their house had significant foundation problems and that the brick was cracking. They alleged that appellees’ contract included an implied warranty of habitability and an implied warranty that the home would be built in a workmanlike manner and that these warranties were breached. Appellants specifically alleged that the home was built in a defective manner.
Appellees filed a motion for summary judgment claiming that the statute of limitations barred appellants’ suit and that appellants’ deposition testimony could point to no specific facts establishing liability on appellees’ part. The trial court granted summary judgment in favor of appellees. The majority holds that the mere fact that there were problems with appellants’ house is sufficient to send this case to the jury. They base this on a straight contract theory, which is not applicable in this case based upon the pleadings. That appellants |Rallege that the house was built in an unworkmanlike manner necessarily requires some evidence of a standard of care that was breached, requiring an answer to the question: “What exactly is an unworkmanlike manner?”
In the case of Wawak v. Stewart, 247 Ark. 1093, 449 S.W.2d 922 (1970), the Arkansas Supreme Court first established an implied warranty of habitability. In that opinion Justice George Rose Smith described cases from other state courts recognizing what was then a relatively new theory of law. Our supreme court held that [the court] had “no hesitancy in adopting the modern rule by which an implied warranty may be recognized in the sale of a new house by a seller who is also a builder.” Id. at 1100, 449 S.W.2d at 926. This warranty has been recognized in subsequent cases. See Coney v. Stewart, 263 Ark. 148, 562 S.W.2d 619 (1978); Daniel v. Quick, 270 Ark. 528, 606 S.W.2d 81 (1980); Pickler v. Fisher, 7 Ark.App. 125, 644 S.W.2d 644 (1983).
In O’Mara v. Dykema, 328 Ark. 310, 942 S.W.2d 854 (1997), our supreme court came close to setting out a standard for an implied warranty of habitability. The court stated:
In Wawak v. Stewart, 247 Ark. 1093, 449 S.W.2d 922 (1970), we adopted the view that by operation of law a builder-vendor gives implied warranties of habitability, sound workmanship and proper construction. The implied warranty does not rest upon an agreement, but arises by operation of law and is intended to hold the builder-vendor to a standard of fairness. Wingfield v. Page, 278 Ark. 276, 644 S.W.2d 940 (1983).
Id. at 318-19, 942 S.W.2d at 859.
The supreme court has noted that an action for breach of warranty has “been termed a |7hybrid of tort and contract.” Bankston v. Pulaski County Sch. Dist., 281 Ark. 476, 479, 665 S.W.2d 859, 861 (1984) (citing William L. Prosser, Handbook of the Law of Torts § 95 (4th ed.1971)). The Bankston court further pointed out that, in order to determine whether an action sounds in contract or tort, the trial court may look to the nature of the damages prayed for. Where, on the facts, the action may sound in either contract or tort or in both, the court itself will often seek to determine the real character of the action. L.L. Cole & Son, Inc. v. Hickman, 282 Ark. 6, 665 S.W.2d 278 (1984).
The standards of sound workmanship and proper construction necessarily require some proof that the builder-vendor did not follow the industry standard. The present case is completely void of any such evidence.
In Wingfield v. Page, 278 Ark. 276, 644 S.W.2d 940 (1983), our supreme court stated the following:
The potential remedies of a purchaser of residential property against a builder-vendor have undergone changes in recent years. The remedies come within the common law doctrines of tort and contract and the statutory doctrine of strict liability. As a matter of public policy the rule of caveat emptor has been significantly diminished.
Within the purview of contract law the purchaser may seek damages for breach of express or implied warranties. The implied warranty does not rest upon an agreement in fact, as does the express warranty, but arises by operation of law and is intended to hold the builder-vendor to a path of fairness. Under certain conditions the purchaser may assert mistake, misrepresentation or fraud and deceit, repudiate the contract and seek rescission.
Under the law of torts the purchaser may state a cause of action for negligence or if the builder-vendor acts with actual knowledge and an intent to deceive, may file a tort suit | ¡¡for fraud and deceit. Misrepresentation may also be the basis of a tort action.
Finally a purchaser may seek relief under the statutory remedy of strict liability which imposes liability, as a matter of public policy, on the party best able to shoulder it. See Defective Housing: Remedies Available to the First and Subsequent Purchasers, 25 So. Dakota L.Rev. 333 (1980); Breach of Warranty in the Sale of Real Property: Johnson v. Healy, 41 Ohio St. L.J. 727 (1980).
Id. at 279, 644 S.W.2d at 942.
The majority cites Graham Construction Company, Inc. v. Earl, 362 Ark. 220, 208 S.W.3d 106 (2005), for the proposition that a plaintiff in a breach-of-warranty case was not obligated to prove how a defendant’s workmanship or materials had caused the damages. The majority oversimplifies the Graham Construction case, which is easily distinguished from the present appeal. In Graham Construction, the court found that the builder gave both an express warranty and an implied warranty when he assured the owner of the house that his roof would not leak. Id. Further, the court held that the contractor should have known about the unsuitability of the owner’s plans and that the builder’s warranties took precedence over the owner’s implied warranties of his materials, plans and specific actions. Id. Finally, Graham Construction dealt with the addition of a roof over a pool, not the construction and sale of a new home by the builder-vendor, which raises the implied warranty of habitability. Id.
The majority has established a strict-liability standard without appellants pleading strict liability. By allowing appellants to simply plead that the house was built in an unworkmanlike manner, without requiring any proof, the majority makes all builder-vendors insurers for any | ¡¡alleged defect in a newly constructed home, whether the defect was a result of the builder-vendor workmanship or another cause such as faulty materials or geological movements.
The pleadings in this case sound in tort rather than contract. Although I fully agree with the principle expressed in Wa-wak, that the builder-vendor impliedly warrants new construction, I simply believe that appellants must present evidence beyond the fact that the house was built and there is a defect. If residential contractors are to be held to a strict liability standard it should be established by the legislature, not by this court.
GRUBER, J., joins.