David Simpkins et al. v. John Maher Builders, Inc. et al.

In this action concerning a newly-constructed home, the plaintiffs asserted,inter alia, claims of breach of contract, breach of warranty, fraud, intentional misrepresentation, fraudulent concealment, negligence, and unfair and deceptive business practices by the defendant construction company and its owners.  The trial court granted a motion to dismiss filed by the defendants based upon expiration of the three-year statute of limitations applicable to claims of injury to real property.  We determine that although the trial court properly applied the three-year statute of limitations to the plaintiffs’ claims of injury to their real property, the trial court improperly determined that the doctrine of fraudulent concealment would not apply to toll the accrual of such limitations period concerning the plaintiffs’ claims for damages caused by the defendants’ failure to seal the utility penetrations beneath the home, a fact which allegedly was concealed by the defendants.  We also determine that the plaintiffs stated claims of breach of contract, including breach of any express or implied warranties provided by the contract, and that the trial court improperly dismissed these claims based on the incorrect statute of limitations.  We therefore vacate the trial court’s dismissal of the breach of contract and contractual warranty claims, as well as the claims based on the defendants’ failure to seal the utility penetrations, and we remand those claims to the trial court for further proceedings consistent with this opinion.  We affirm the remaining portion of the trial court’s judgment in its entirety.