Anthony v. South Carolina State Plastering Llc

• Decision Date: 20 January 2011
• Docket Number: No. 26882.,26882.
• Parties: Anthony and Barbara GRAZIA, individually and on behalf of all other similarly situated Plaintiffs, Appellants,v.SOUTH CAROLINA STATE PLASTERING, LLC, Respondent,andSouth Carolina State Plastering, LLC, Respondent,v.Del Webb Communities, Inc., Pulte Homes, Inc. and Kephart Architects, Inc., Third–Party Defendants,Of Whom Del Webb Communities, Inc. and Pulte Homes, Inc., are Respondents.
• Court: South Carolina Supreme Court

390 S.C. 562

703 S.E.2d 197

Anthony and Barbara GRAZIA, individually and on behalf of all other similarly situated Plaintiffs, Appellants,

v.SOUTH CAROLINA STATE PLASTERING, LLC, Respondent,andSouth Carolina State Plastering, LLC, Respondent,

v.Del Webb Communities, Inc., Pulte Homes, Inc. and Kephart Architects, Inc., Third–Party Defendants,Of Whom Del Webb Communities, Inc. and Pulte Homes, Inc., are Respondents.

No. 26882.

Supreme Court of South Carolina.

Heard June 23, 2010.Decided Oct. 4, 2010.Rehearing Denied Jan. 20, 2011.

John T. Chakeris, of Chakeris Law Firm, of Charleston, Phillip Ward Segui, of Segui Law Firm, of Mt. Pleasant, W. Jefferson Leath, Jr., and Michael S. Seekings, of Leath, Bouch & Crawford, LLP, both of Charleston, for Appellants.A. Victor Rawl, Jr., and Robert L. Widener, of McNair Law Firm, PA, Everett A. Kendall, II and Christy E. Mahon, both of Sweeny Wingate & Barrow, PA, all of Columbia, for Respondents.Justice HEARN.

Anthony and Barbara Grazia appeal the circuit court's grant of a motion to strike class allegations from their complaint. The Grazias contend the circuit court erred in finding the Notice and Opportunity to Cure Construction Dwelling Defect Act is in conflict with the State's class action lawsuit jurisprudence under Rule 23, SCRCP. We agree and reverse.

FACTUAL/PROCEDURAL BACKGROUND

This action involves the alleged negligent and defective construction of residential homes in a subdivision in Bluffton, South Carolina. The Grazias brought a class action on behalf of themselves and those similarly situated, asserting defective exterior stucco work by Respondent South Carolina State Plastering, LLC (State Plastering) in the construction of approximately 2,673 ¹ homes in a development called Sun City. The complaint maintains the stucco exteriors had common and typical problems inherent to their design and installation that would require identical remediation across the class, namely, stripping the homes of the existing stucco and recladding with a properly installed stucco system.

State Plaster answered, and brought a third-party complaint against Del Webb Communities, Inc. (Developer), Pulte Homes, Inc. (Builder), and Kephart Architects, Inc. (Architect), (collectively referred to as Respondents). In its answer, State Plaster argued the Grazias had failed to comply with the express provisions of the Notice and Opportunity to Cure Construction Dwelling Defect Act (Right to Cure Act),² which entitles a contractor or subcontractor to notice of any qualifying construction defect, and the opportunity to cure, before the action is commenced. At the time this action was filed, the Grazias had not complied with the notice requirements; therefore, the parties entered into a consent order staying the action pending subsequent compliance with the Right to Cure Act. The Grazias then personally complied with the Right to Cure provisions, and the consent order was lifted. Thereafter, Respondents moved to dismiss the class allegations contained in the Grazias' complaint, or, in the alternative, requested a stay of the proceedings until each of the similarly situated plaintiffs complied with the Right to Cure Act notice requirements.

A hearing on Respondents' motions was held, and additional memoranda in support of the parties' respective positions were submitted to the court following the hearing. Ultimately, the circuit court issued an order striking the Grazias' class allegations as incompatible with the Right to Cure Act. The Grazias filed a motion for reconsideration with the circuit court, but it was denied, and this appeal followed. The following issue is presented to the Court on appeal:

I. Did the circuit court commit reversible error in granting Respondents' motion to strike class allegations?

STANDARD OF REVIEW

A motion to strike under Rule 12(f), SCRCP, which challenges a theory of recovery in the complaint, is in the nature of a motion to dismiss under Rule 12(b)(6), SCRCP. McCormick v. England, 328 S.C. 627, 632, 494 S.E.2d 431, 433 (Ct.App.1997). In reviewing a ruling on a motion to dismiss a claim, this Court must base its decision solely on the allegations set forth on the face of the complaint. Id. at 632–33, 494 S.E.2d at 433. “The motion cannot be sustained if the facts alleged and the inferences reasonably deducible therefrom would entitle the plaintiff to any relief on any theory of the case.” Id. at 633, 494 S.E.2d at 433 (citing Dye v. Gainey, 320 S.C. 65, 463 S.E.2d 97 (Ct.App.1995)). “The question is whether in the light most favorable to the plaintiff, and with every reasonable doubt resolved in her behalf, the complaint states any valid claim for relief. The cause of action should not be struck merely because the court doubts the plaintiff will prevail in the action.” Id. at 633, 494 S.E.2d at 433–34.

LAW/ANALYSIS

I. Right to Cure Act Incompatible with Rule 23, SCRCP

The Grazias contend the circuit court committed reversible error in striking the class allegations from its complaint based on its conclusion that class action lawsuits under Rule 23, SCRCP, are incompatible with the Right to Cure Act. We agree.

The Right to Cure Act is set forth in sections 40–59–810 to 860 of the South Carolina Code. The pertinent provisions of the legislation are as follows:

§ 40–59–830. Stay of action upon non-compliance with article.

If the claimant files an action in court before first complying with the requirements of this article, on motion of a party to the action, the court shall stay the action until the claimant has complied with the requirements of this article.

§ 40–59–840. Notice of claim; timing; contents; request for clarification.

(A) In an action brought against a contractor or subcontractor arising out of the construction of a dwelling, the claimant must, no later than ninety days before filing the action, serve a written notice of claim on the contractor. The notice of claim must contain the following:

(1) a statement that the claimant asserts a construction defect;

(2) a description of the claim or claims in reasonable detail sufficient to determine the general nature of the construction defect; and

(3) a description of any results of the defect, if known.

The contractor or subcontractor shall advise the claimant within fifteen days of receipt of the claim if the construction defect is not sufficiently stated and shall request clarification.

§ 40–59–850. Contractor's election to inspect, remedy, settle, or deny claim; inspection of construction defect; response to contractor's offer; admissibility.

(A) The contractor or subcontractor has thirty days from service of the notice to inspect, offer to remedy, offer to settle with the claimant, or deny the claim regarding the defects. The claimant shall receive written notice of the contractor's or subcontractor's, as applicable, election under this section. The claimant shall allow inspection of the construction defect at an agreeable time to both parties, if requested under this section. The claimant shall give the contractor and any subcontractors reasonable access to the dwelling for inspection and if repairs have been agreed to by the parties, reasonable access to affect repairs. Failure to respond within thirty days is deemed a denial of the claim.

(B) The claimant shall serve a response to the contractor's offer, if any, within ten days of receipt of the offer.

(C) If the parties cannot settle the dispute pursuant to this article, the claimant may proceed with a civil action or other remedy provided by contract or by law.

(D) Any offers of settlement, repair, or remedy pursuant to this section, are not admissible in an action.

a. Section 40–59–830 Stay Provision

It is first necessary to address the circuit court's holding with respect to the stay provision contained in the Right to Cure Act, as it formed the basis for the court's determination that the Act and Rule 23 are incompatible. The circuit court found section 40–59–830, which allows for the staying of an action, upon motion by any party to the action, applied only to those persons who mistakenly file the action prior to complying with the Right to Cure Act, and could not be used to sanction a knowing violation of the statute. We disagree.

“This Court should give words their plain and ordinary meaning, without resort to subtle or forced construction to limit or expand the statute's operation.” Ward v. West Oil Co., Inc., 387 S.C. 268, 273–74, 692 S.E.2d 516, 519 (2010) (citation omitted). Simply stated, there is no statutory or case law basis for the circuit court's holding that section 40–59–830 should only apply in accidental situations. The plain language of section 40–59–830 does not restrict its application beyond “[a] claimant [who] files an action in court before first complying with the requirements of this article....” There is nothing in the wording of section 40–59–830 which supports the circuit court's limitation of this provision to mistaken filing situations; rather, the plain language of the statute dictates a different result. Consequently, the circuit court erred in construing section 40–59–830 in a manner contrary to the plain language of the statute.

b. Harmonization of the Right to Cure Act's Stay Provision and Notice Requirements

The circuit court also found that section 40–59–840 imposes an absolute condition precedent to the filing of lawsuits that qualify under the Right to Cure Act. Subsection 840, as provided above, encompasses civil lawsuits filed against a contractor or subcontractor, and requires the claimant to serve written notice no later than ninety days before filing the action. We find no error in the circuit court's analysis regarding the Right to Cure Act's notice provisions; however, in light of this Court's holding with respect to the stay provision, it is necessary to harmonize these seemingly inapposite provisions within the Right to Cure Act.

It is clear to this Court that these...