Bost Constr. Co. v. Blondy
| Decision Date | 03 September 2013 |
| Docket Number | No. COA12–1454.,COA12–1454. |
| Citation | 750 S.E.2d 917 |
| Court | North Carolina Court of Appeals |
| Parties | BOST CONSTRUCTION COMPANY, Plaintiff v. Mary Lynn Baumunk BLONDY, Defendant Willis Coating & Finishes, Inc., Plaintiff v. Bost Construction Company d/b/a Bost Custom Homes f/k/a Bost Builders, Inc [sic] f/k/a Bost, Inc., Mary Lynn Baumunk Blondy and Steven M. Blondy, Defendants. Bost Construction Company, Third–Party Plaintiff, v. Summerhour and Associates Architects Inc., Flue Sentinel, LLC, Flue Sentinel, Inc., et al., Third–Party Defendants. |
OPINION TEXT STARTS HERE
Appeal by Third–Party Plaintiff from orders entered 15 April 2010 and 14 May 2010 by Judge R. Allen Baddour, Jr., in Chatham County Superior Court. Heard in the Court of Appeals 25 April 2013.
Anderson, Johnson, Lawrence & Butler, L.L.P., by Stacey E. Tally and Steven C. Lawrence, for Third–Party Plaintiff Bost Construction Company.
Law Offices of Hayes Hofler, P.A., by R. Hayes Hofler, for Third–Party Defendants Flue Sentinel, LLC and Flue Sentinel, Inc.
Bost Construction Company (Bost) appeals from the trial court's 15 April 2010 order granting summary judgment in favor of Flue Sentinel, LLC and Flue Sentinel, Inc. (together, Flue), and from the trial court's 14 May 2010 order awarding Flue attorneys' fees. This is Bost's second appeal to this Court from these orders. We dismissed Bost's first appeal as interlocutory in an unpublished decision filed 19 July 2011. See Bost Const. Co. v. Blondy, 213 N.C.App. 422, 714 S.E.2d 274 (2011) (unpublished). For the following reasons, we reverse the summary judgment order, vacate the attorneys' fees order, and remand for further proceedings consistent with this opinion.1
In August 2004, Mary Lynn Baumunk Blondy contracted with Bost to construct a single-family residence. Bost subcontracted with various entities, including Flue, which supplied a gas fireplace in the residence.
On 15 March 2006, Ms. Blondy and her family moved into the residence. Sometime thereafter, Ms. Blondy contacted Bost, complaining about a number of issues pertaining to the construction of her residence, including issues with the fireplace. Bost contacted Flue regarding the fireplace, and, in response, Flue sent representatives to the residence to perform repairs and/or make adjustments to the fireplace.
On 30 January 2009, Bost filed suit against Ms. Blondy for breach of contract, contending that she had failed to pay the entire amount due under their agreement. On 11 March 2009, Ms. Blondy filed counterclaims against Bost alleging, inter alia, that there were defects concerning the fireplace. On 11 May 2009, Bost filed a third-party complaint pursuant to Rule 14 of the North Carolina Rules of Civil Procedure, impleading many of its subcontractors, including Flue, and alleging that they were liable to Bost to the extent that Bost was found liable to Ms. Blondy for work that they had each performed.
Though Flue and Ms. Blondy never asserted any direct claims against each other in this action, Flue did serve Ms. Blondy with Requests for Admissions and Interrogatories. On 28 December 2009, Ms. Blondy responded to Flue's discovery requests, stating that she did not contend that her damages were attributable—one way or another—to “any act or omission, contract breach, [or] negligence [or] faulty workmanship” by Flue or that Flue was otherwise responsible for any of the damages alleged in her counterclaims against Bost.
Citing Ms. Blondy's discovery responses, Flue contacted Bost and requested that Bost voluntarily dismiss its third-party claims against Flue with prejudice. However, Bost neither responded to Flue's request nor dismissed its claims against Flue. Consequently, on 1 April 2010, Flue filed a motion for summary judgment seeking dismissal of Bost's third-party claims. Flue also filed a motion seeking attorneys' fees pursuant to N.C. Gen.Stat. § 6–21.5, contending that Bost had improperly pursued its claims against Flue after receiving notice of Ms. Blondy's admissions. Bost filed an affidavit from Rex Bost, the company's President, in opposition to Flue's motion for summary judgment, wherein Mr. Bost averred that Flue bore responsibility for some of the alleged damages that served as the basis for Ms. Blondy's counterclaims against Bost.
Flue's motions for summary judgment and attorneys' fees came on for hearing in Chatham County Superior Court on 13 April 2010 and 10 May 2010, respectively. The trial court granted both Flue's motion for summary judgment and Flue's motion for attorneys' fees, concluding, with respect to attorneys' fees, that Bost had “persisted in litigating the case after the point where Bost reasonably should have become aware that the claims it filed against Flue Sentinel no longer contained a justiciable issue.” Bost filed notices of appeal from both orders; however, as previously stated, this Court dismissed Bost's initial appeal from these orders as interlocutory.
Subsequently, Bost and Ms. Blondy reached a settlement agreement in resolution of their claims and counterclaims against one another. Ms. Blondy filed a stipulation of dismissal with prejudice as to all of her claims against Bost on 4 May 2012, and Bost, in turn, voluntarily dismissed with prejudice its claims against Ms. Blondy on 20 August 2012. On 19 September 2012, Bost filed a second notice of appeal from the 2010 orders granting Flue's motions for summary judgment and attorneys' fees.
Preliminarily, we address Flue's contention that this Court lacks jurisdiction over the instant appeal. Specifically, Flue contends that Bost has not appealed from a final judgment, as Bost's 19 September 2012 notice of appeal references only the orders for summary judgment and attorneys' fees, both of which were interlocutory at the time they were entered. We disagree.
Appeal from a “final judgment” of the superior court lies as a matter of right pursuant to N.C. Gen.Stat. § 7A–27(b) (2011). This Court has previously held that where a trial court enters an interlocutory order granting partial summary judgment, a “voluntary dismissal of the ‘remaining claim[s] ... ha [d] the effect of making the trial court's grant of partial summary judgment a final order.’ ” Stein v. Asheville City Bd. of Educ., 168 N.C.App. 243, 247, 608 S.E.2d 80, 83 (2005), rev'd on other grounds,360 N.C. 321, 626 S.E.2d 263 (2006) (quoting Combs & Assocs., Inc. v. Kennedy, 147 N.C.App. 362, 367, 555 S.E.2d 634, 638 (2001) (alterations in original)). Further, in Stein, we held that “with the filing of the voluntary dismissal, [the aggrieved party] would have [ ] 30 days in which to appeal the trial court's [prior interlocutory] order.” Id.
Here, Bost filed its notice of appeal on 19 September 2012, within 30 days of Bost's 20 August 2012 voluntary dismissal of the remaining claims in this action. Thus, we conclude that Bost has appealed from a final judgment of the superior court and, accordingly, that jurisdiction lies with this Court pursuant to N.C. Gen.Stat. § 7A–27(b). We now proceed to address the merits of Bost's appeal.
Bost contends that the trial court erred in granting Flue's motion for summary judgment. More specifically, Bost contends that the trial court erred in concluding that no genuine issue of material fact existed concerning Flue's liability in light of Ms. Blondy's judicial admissions. We agree.
A motion for summary judgment is appropriately granted where “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) (2011). In the instant case, Flue submitted Ms. Blondy's responses to its request for admissions and interrogatories in support of its motion for summary judgment, and Bost presented Rex Bost's affidavit in opposition to the motion. The trial court found Ms. Blondy's discovery responses dispositive with respect to Bost's claims against Flue, stating that the admissions “precluded any possibility of liability for any work on, or materials supplied to, the Blondy residence by Flue Sentinel.” We conclude that the trial court's reliance on Ms. Blondy's discovery responses was misplaced.
Rule 36(b) of the North Carolina Rules of Civil Procedure governs the effect of admissions and provides that “[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.” N.C. Gen.Stat. § 1A–1, Rule 36(b) (2011) (emphasis added). Our Supreme Court has described a judicial admission as “a formal concession which is made by a party in the course of litigation for the purpose of withdrawing a particular fact from the realm of dispute.” Outer Banks Contractors, Inc. v. Forbes, 302 N.C. 599, 604, 276 S.E.2d 375, 379 (1981). While such “[s]tipulations are viewed favorably by the courts because their usage tends to simplify, shorten, or settle litigation, as well as save costs to litigants[,] ... the effect or operation of a stipulation will not be extended by the courts beyond the limits set by the parties or by the law.” Id. (citations omitted). “In determining the extent of the stipulation, it is appropriate to look to the circumstances under which it was entered[.]” Id. at 604, 276 S.E.2d at 380.
Here, in her discovery responses, Ms. Blondy did not state that she was no longer seeking damages for the fireplace; nor is there any indication in the record that she dismissed her counterclaim for damages relating to the fireplace prior to the summary judgment hearing. Rather, Ms. Blondy merely “[a]dmitted” that she did “not contend” that any of her counterclaims against Bost—which would include her counterclaim regarding the fireplace—were the result of “any act or omission, contract breach, negligence or faulty...
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