Currin & Currin Const., Inc. v. Lingerfelt

• Decision Date: 01 July 2003
• Docket Number: No. COA02-941.,COA02-941.
• Citation: 582 S.E.2d 321,158 NC App. 711
• Parties: CURRIN & CURRIN CONSTRUCTION, INC., Plaintiff, v. James Eric LINGERFELT and Jana Carole Lingerfelt, Defendants.
• Court: North Carolina Court of Appeals

582 S.E.2d 321

158 NC App. 711

CURRIN & CURRIN CONSTRUCTION, INC., Plaintiff, v. James Eric LINGERFELT and Jana Carole Lingerfelt, Defendants.

No. COA02-941.

Court of Appeals of North Carolina.

July 1, 2003.

Bain & McRae, by Edgar R. Bain and Alton D. Bain, Lillington, for plaintiff-appellant.

Akins, Hunt & Fearon, P.C., by Donald G. Hunt, Jr. and Belinda Keller Sukeena, Fuquay-Varina, for defendant-appellees. HUNTER, Judge.

Currin & Currin Construction, Inc. ("plaintiff") appeals from summary judgment entered in favor of James Eric Lingerfelt ("defendant James") and Jana Carole Lingerfelt (collectively "defendants"). We affirm since plaintiff is barred from recovering on the construction contract entered into by the parties because plaintiff did not have a valid general contractor's license at the time the contract was formed.

In May of 1999, Durane Currin ("Currin"), President of plaintiff, orally agreed that plaintiff would construct a house for defendants on a "cost plus" basis. In a letter dated 5 May 1999, Currin wrote to BB & T Mortgage Loan Department and acknowledged plaintiff's agreement to build a house, estimated to cost approximately $380,000.00, for defendants. Subsequently, when defendant James went to the Wake County Planning Office to secure a building permit, defendant James discovered that plaintiff's general contractor's license had not been renewed. Defendant James immediately informed Currin that plaintiff's license had not been renewed. Currin advised defendant James that there was a mistake and that the license was in the process of being renewed. According to Currin, "[t]he Defendants agreed that the Plaintiff would perform the work on the contract as soon as [plaintiff's] license was renewed and the construction permit was issued." Plaintiff's license became invalid on 1 March 1999 but was renewed and reactivated on 30 June 1999.

Plaintiff began construction on defendants' house on 1 August 1999, after obtaining a valid license. Plaintiff continued construction on the house until 20 July 2000, at which time defendants had no funds with which to pay plaintiff for construction and the financial institution providing construction loans refused to advance further monies. At the time plaintiff ceased construction on the house, defendants owed plaintiff $42,057.81. Thereafter, on 19 September 2000, plaintiff filed a claim of lien against defendants' property in the amount of $42,057.81. Plaintiff then brought suit on 21 December 2001 against defendants to collect the amount of the lien. Defendants filed an answer and counterclaims. Included in defendants' affirmative defenses was that plaintiff was not licensed pursuant to N.C. Gen.Stat. § 87-10 (2001) when the parties negotiated and formed their contract. Plaintiff replied to defendants' affirmative defenses and counterclaims on 12 March 2002. On 4 March 2002, defendants filed a motion for summary judgment which was granted by the trial court on 4 June 2002. Plaintiff appeals.

As a threshold matter, we note that the order from which plaintiff appeals is interlocutory since it does not dispose of the entire case. See Carriker v. Carriker, 350 N.C. 71, 511 S.E.2d 2 (1999). The trial court granted defendants' motion for summary judgment but left defendants' counterclaims intact. Generally, there is no right of immediate appeal from an interlocutory order. Myers v. Mutton, 155 N.C.App. 213, 214, 574 S.E.2d 73, 75 (2002), disc. review denied, 357 N.C. 63, 579 S.E.2d 390 (No. 84P03) (2003). However, an interlocutory order

is immediately appealable if (1) the order is final as to some claims or parties, and the trial court certifies pursuant to N.C.G.S. § 1A-1, Rule 54(b) that there is no just reason to delay the appeal, or (2) the order deprives the appellant of a substantial right that would be lost unless immediately reviewed.

Id. The interlocutory order at issue in the instant case is immediately appealable due to the following: (1) the order from which plaintiff appeals is final as to plaintiff's claims since the court entered summary judgment in favor of defendants and dismissed plaintiff's complaint with prejudice; and (2) the trial court certified that there is no reason to delay plaintiff's appeal. Accordingly, this case is properly before us to review.

Plaintiff initially contends the trial court erred in granting defendants' motion for summary judgment because plaintiff asserts there were genuine issues of material fact as to when the parties entered into an effective contractual relationship and whether plaintiff was a licensed contractor at the time the contract was formed. We disagree.

Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen.Stat. § 1A-1, Rule 56(c) (2001). When ruling on a summary judgment motion, the trial court is required to view the evidence in a light most favorable to the nonmoving party. Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 707 (2001). The moving party bears the burden of demonstrating that there is no triable issue. DeWitt v. Eveready Battery Co., 355 N.C. 672, 681, 565 S.E.2d 140, 146 (2002). This burden may be met "by proving an essential element of the opposing party's claim does not exist, cannot be proven at trial, or would be barred by an affirmative defense ...." Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000) (emphasis added). If the moving party satisfies this burden, then the burden shifts to the non-moving party "to produce a forecast of evidence demonstrating that the [nonmoving party] will be able to make out at least a prima facie case at trial." Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989).

Our General Assembly has enacted mandatory directives applicable to general contractors that are designed "to protect the public from incompetent builders." Builders Supply v. Midyette, 274 N.C. 264, 270, 162 S.E.2d 507, 511 (1968). A "general contractor" is statutorily defined, in pertinent part, as "any person or firm or corporation who for a fixed price, commission, fee, or wage, undertakes ... to construct ... any building... where the cost of the undertaking is thirty thousand dollars ($30,000) or more...." N.C. Gen.Stat. § 87-1 (2001). A general contractor's certificate of license expires on the thirty-first day of December following its issuance or renewal and becomes invalid sixty days from that date unless renewed. N.C. Gen.Stat. § 87-10(e).

In the case sub judice, the evidence submitted to the trial court showed that plaintiff's general contractor's license became invalid on 1 March 1999 but was renewed and reactivated on 30 June 1999. Plaintiff entered into a contract in May of 1999, whereby plaintiff agreed to construct a house for defendants on a cost plus basis. Currin testified in an affidavit that after learning that plaintiff's general contractor's license had not been renewed, "[t]he Defendants agreed that the Plaintiff would perform the work on the contract as soon as [plaintiff's] license was renewed and the construction permit was issued."

Brady v. Fulghum, 309 N.C. 580, 308 S.E.2d 327 (1983) controls ...