Baum v. John R. Poore Builder, Inc.

• Court: North Carolina Court of Appeals
• Writing for the Court: Stephens
• Citation: Baum v. John R. Poore Builder, Inc., 643 S.E.2d 607, 183 N.C.App. 75 (N.C. App. 2007)
• Decision Date: 01 May 2007
• Docket Number: No. COA06-636.,COA06-636.
• Parties: Edward S. BAUM and Ann F. Baum, Plaintiffs, v. JOHN R. POORE BUILDER, INC.; Peter J. Verna, P.E.; and C.S. Brown Tile & Marble, Inc., Defendants.

643 S.E.2d 607

Edward S. BAUM and Ann F. Baum, Plaintiffs, v. JOHN R. POORE BUILDER, INC.; Peter J. Verna, P.E.; and C.S. Brown Tile & Marble, Inc., Defendants.

No. COA06-636.

Court of Appeals of North Carolina.

May 1, 2007.

Appeal by Plaintiffs from judgments entered 12 December 2005 and 11 January 2006 by Judge Yvonne Mims-Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals 10 January 2007.

Nexsen Pruet Adams Kleemeier, PLLC, by David S. Pokela, Greensboro, and Richard W. Wilson, Charlotte, for Plaintiffs-Appellants.

Clawson & Staubes, PLLC, by Michael J. Kitson, and James McElroy & Diehl, by Gary Hemric, Charlotte, for Defendant-Appellee John R. Poore Builder, Inc.

Joe T. Millsaps for Defendant-Appellee Peter J. Verna.

DeVore, Acton & Stafford, P.A., by Fred W. DeVore, III, Charlotte, for Defendant-Appellee Brown Tile & Marble, Inc.

STEPHENS, Judge.

I. FACTUAL AND PROCEDURAL BACKGROUND

On 20 March 1995, Plaintiffs and John R. Poore Builder, Inc. ("Defendant Poore") entered into an agreement by which Defendant Poore "agreed to perform and furnish to [Plaintiffs] certain labor, materials, equipment, services, and supervision in connection with the design and construction of a house and other improvements" on Plaintiffs' property. Disagreements arose regarding the fulfillment of this contract and, through an agreement entered 29 June 1998, Plaintiffs and Defendant Poore resolved "certain claims, disputes, [and] disagreements between them[.]" By the 29 June 1998 contract, Defendant Poore agreed, inter alia, "to finish construction of the deck at the rear of [Plaintiffs'] house . . . in accordance with plans and specifications prepared by Pete Verna, P.E." ("Defendant Verna"). The deck was completed sometime in the fall of 1998. The design and construction of the deck, which borders a swimming pool on Plaintiffs' property, is the subject of this litigation.

By letter dated 17 December 1998, Defendant Verna communicated to Plaintiffs that he "prepared and [is] responsible for the plans and specifications for the deck at the rear of [Plaintiffs'] house," that "the plans and specifications which [he] prepared for the deck are sufficient for the intended purposes . . . [and] the pool walls are structurally sound[,]" and that he "monitored and inspected the progress of the construction of the deck . . . and certif[ied] that . . . the improvements . . . have been constructed in a manner consistent with the plans and specifications[.]"

In June 2000, Plaintiffs noticed that some tiles on the deck were beginning to crack. They subsequently contacted Defendant Poore, who instructed them to call the company that installed the tiles, C.S. Brown Tile & Marble, Inc. ("Defendant Brown Tile"), to replace the tiles. In an affidavit, Ms. Baum averred that Joe from "Brown Tile replaced the cracked tiles . . . [and] assured [her] that there were no structural problems that caused the cracked tiles. However, [Joe] did recommend purchas[ing] extra tiles since some tiles . . . would crack in the future as a result of ordinary wear and tear[.]"

In the summer of 2002, Plaintiffs again noticed that certain tiles on the deck were beginning to crack. During the same period, Plaintiffs engaged the services of a painter to provide an estimate for painting a section of the deck where the paint had begun to peel. The painter examined that section of the deck and told Ms. Baum he suspected that excessive moisture from the deck or pool was causing the damage to the paint. He recommended having the pool and deck inspected.

Plaintiffs again contacted Defendant Brown Tile to repair the cracked tiles and, based on the painter's recommendation, asked Defendant Brown Tile to investigate the suspected moisture problem. Joe from Defendant Brown Tile informed Plaintiffs that they would have to pay to replace the cracked tiles, but said that before the tile work was done, he wanted his brother Chris Brown from Brown Tile to inspect the pool and deck. Plaintiffs tried to contact Chris Brown to schedule an appointment to have the pool and deck inspected, but Chris Brown failed to return their calls. In September 2003, after failing in their efforts to obtain a full inspection of the deck and pool from Defendant Brown Tile, Plaintiffs contacted Rea Brothers, Inc. ("Rea Brothers"), a construction company based in Charlotte, to perform the inspection. Upon completing the inspection, Rea Brothers informed Plaintiffs "that the tile problems were the product of serious structural defects [in the design and construction of the deck]."

On 8 September 2004, Plaintiffs filed a complaint against Defendant Poore, alleging causes of action for breach of contract and negligence, and against Defendants Verna and Brown Tile, alleging negligence. On 26 August 2005, Defendant Brown Tile moved for summary judgment, claiming that Plaintiffs' claims were barred by the statute of limitations. Similarly, on 6 September 2005, Defendant Verna moved for summary judgment on the same ground. Following a hearing, the Honorable Yvonne Mims-Evans denied each Defendant's motion.¹ Plaintiffs then discovered and tendered to all Defendants additional documents regarding the construction of the deck. After receiving this new information, on 24 October 2005, Defendant Poore moved for summary judgment relying on the statute of limitations.

On or about 22 November 2005, Judge Mims-Evans heard the matter on motion of all Defendants for reconsideration of her previous denial of summary judgment. By judgment entered 12 December 2005 and "[a]fter consideration of . . . newly discovered evidence, and a supplemental affidavit of Ann F. Baum dated November 10, 2005 tendered by the plaintiff," Judge Mims-Evans ruled "that the motions for summary judgment of the defendants should be granted."² The "newly discovered evidence" included "a report from building inspector, R.D. McClure, dated July 3, 1997 and three handwritten documents[.]"

On 22 December 2005, Plaintiffs moved to amend the trial court's judgment. In support of this motion, Plaintiffs filed a supplementary affidavit of Ms. Baum providing an explanation of the content of the three handwritten documents introduced at the summary judgment hearing. By order entered 11 January 2006, the trial court "received . . . and accepted [the supplementary affidavit] as a part of the record in this action as explanation of the record or record on appeal or clarification of the record; however, said Affidavit was not substantively considered by the Court in making its decision on Defendants' Motion at the Hearing on November 22, 2005."³ Plaintiffs appeal from the 12 December 2005 judgment granting summary judgment in favor of all Defendants and from the 11 January 2006 "Order Clarifying Judgment." For the reasons stated herein, we reverse.

II. STATUTE OF LIMITATIONS

Summary judgment is proper "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 judgment as a matter of law." N.C. Gen.Stat. § 1A-1, Rule 56(c) (2005).

A defendant who moves for summary judgment bears the burden of establishing that there is no genuine issue as to any material fact and that defendant is entitled to judgment as a matter of law. A defendant may meet this burden by "(1) proving that an essential element of plaintiff's claim is nonexistent, or (2) showing through discovery that plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that plaintiff cannot surmount an affirmative defense which would bar the claim."

Crawford v. Boyette, 121 N.C.App. 67, 69-70, 464 S.E.2d 301, 303 (1995) (quoting Watts v. Cumberland County Hosp. System, Inc., 75 N.C.App. 1, 6, 330 S.E.2d 242, 247 (1985) (citation omitted), rev'd on other grounds, 317 N.C. 321, 345 S.E.2d 201 (1986)), cert. denied, 342 N.C. 894, 467 S.E.2d 902 (1996). When the affirmative defense of the statute of limitations has been pled, "the burden is on the plaintiff to show that his cause of action accrued within the limitations period." Crawford, 121 N.C.App. at 70, 464 S.E.2d at 303 (citing Hooper v. Carr Lumber Co., 215 N.C. 308, 1 S.E.2d 818 (1939)). On appeal from an order granting summary judgment, our standard of review is de novo, and we view the evidence in the light most favorable to the non-movant. Broughton v. McClatchy Newspapers, Inc., 161 N.C.App. 20, 588 S.E.2d 20 (2003).

In the case at bar, Plaintiffs' cause of action for breach of contract against Defendant Poore is governed by a three-year statute of limitations. N.C. Gen.Stat. § 1-52(1) (2003). Likewise, Plaintiffs' cause of action alleging negligence against Defendants Poore, Verna, and Brown Tile is subject to a three-year statute of limitations. N.C. Gen. Stat. § 1-52(5) (2003). Under North Carolina law, for "physical damage to claimant's property, the cause of action . . . shall not accrue until . . . physical damage to his property becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs." N.C. Gen. Stat. § 1-52(16) (2003). Therefore, in this case, Plaintiffs had three years from the time the damage to their deck became apparent or reasonably should have become apparent in which to bring their causes of action against Defendants. See The Asheville School v. D.V. Ward Constr., Inc., 78 N.C.App. 594, 337 S.E.2d 659 (1985) (addressing the statute of limitations in actions alleging breach of contract), disc. review denied, 316 N.C. 385, 342 S.E.2d 890 (1986); see also Howell v. City of Lumberton, 144 N.C.App. 695, 548 S.E.2d 835 (2001) (addressing the statute of limitations in actions alleging negligence).

In Everts v. Parkinson, 147 N.C.App. 315, 319, 555 S.E.2d 667, 670 (2001) (quoting Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d...