This case arises out of a contract for the construction of a new home entered into by George Laycock, Inc. and Richard and Linda Stimson. The trial court granted summary judgment to Laycock, concluding that the Stimsons’ action was barred by the four-year statute of limitation expressed in OCGA § 9-3-30, that the Stimsons did not comply with the terms of a warranty provided by Laycock, and that the Stimsons were not entitled to bad faith attorney fees. We agree with the trial court that the record does not support an award of attorney fees. But we do not agree that the four-year statute of limitation for damage to realty expressed in OCGA § 9-3-30 is applicable here. This issue is controlled by our recent decision in Mitchell v. Jones, __Ga. App.__ __SE2d__ A00A1422, decided October 24, 2000. In Mitchell, under facts similar to those here, we concluded that certain claims made by homeowners against their builder were subject to the six-year statute of limitation for actions on simple written contracts expressed in OCGA § 9-3-24. We also conclude that genuine issues of fact exist as to whether the parties complied with the terms of the contract. We therefore affirm in part and reverse in part.
In May, 1991, the Stimsons entered into a contract under which Laycock was to construct and sell a residence to the Stimsons. The residence was constructed with a synthetic stucco, or an Exterior Insulation and Finish System EIFS.1 Linda Stimson testified that before completion, she knew the exterior of the house was synthetic stucco. Before closing on the purchase on November 22, 1991, the Stimsons provided to Laycock the report prepared by one of two companies that inspected the house. A portion of this report recited as follows: “Flooring in dining room wet—ater leak under floor” and “water stain in dining room @ front wall outlet.” George Laycock, the president of George Laycock, Inc., later assured the Stimsons “that everything in this report that had been checked as needing attention had been corrected.” Richard Stimson testified that “there was a stain in the dining room before we moved and they had repainted over it and told us it was fixed, that that problem was fixed.”
