Crescent University City Venture, LLC v. AP Atlantic, Inc.
| Decision Date | 08 August 2019 |
| Docket Number | 15 CVS 14745,18 CVS 1642,16 CVS 14844 |
| Court | Superior Court of North Carolina |
| Parties | CRESCENT UNIVERSITY CITY VENTURE, LLC, Plaintiff, v. AP ATLANTIC, INC. d/b/a ADOLFSON & PETERSON CONSTRUCTION, Defendant, v. MADISON CONSTRUCTION GROUP, INC.; TRUSSWAY MANUFACTURING, INC.; T. A. KAISER HEATING & AIR, INC.; SEARS CONTRACT, INC.; MACEDO CONTRACTING CO.; WHALEYS DRYWALL, LLC; STALLINGS DRYWALL, LLC; MAYNOR PI, INC.; MATUTE DRYWALL, INC.; INTERIOR DISTRIBUTORS, A DIVISION OF ALLIED BUILDING PRODUCTS, CORP.; MANUEL BUILDING CONTRACTORS, LLC; EAGLES FRAMING COMPANY, INC.; DIAZ CARPENTRY, INC.; SOCORRO CASTILLE MONTLE; and GUERRERO CONSTRUCTION PRO, INC. Third-Party Defendants. MADISON CONSTRUCTION GROUP, INC., Third-Party Plaintiff, v. MANUEL BUILDING CONTRACTORS, LLC, Fourth-Party Defendant. CRESCENT UNIVERSITY CITY VENTURE, LLC, Plaintiff, v. ADOLFSON & PETERSON, INC., Defendant. CRESCENT UNIVERSITY CITY VENTURE, LLC, Plaintiff, v. TRUSSWAY MANUFACTURING, INC.; and TRUSSWAY MANUFACTURING, LLC, Defendants. |
Troutman Sanders LLP, by Kiran H. Mehta, Samuel T. Reaves and Kristen L. Schneider, Bradley Arant Boult Cummings LLP by Avery A. Simmons and Douglas Patin, and the Law Firm of John D. Bond, III, by John D. Bond, for Plaintiff Crescent University City Venture, LLC.
Robinson Elliot & Smith, by William C. Robinson and Dorothy M. Gooding, Johnston, Allison & Hord, P.A., by Greg C. Ahlum, Robert L. Burchette, and Parker Evans Moore, Hall Booth Smith, P.C., by Robert McCune and Alan R. Belcher, and Ragsdale Liggett PLLC, by William W. Pollock and Edward E. Coleman, III, for Defendant AP Atlantic, Inc. d/b/a Adolfson & Peterson Construction.
Johnston, Allison & Hord, P.A., by Greg C. Ahlum, Robert L. Burchette, and Parker Evans Moore, for Defendant Adolfson & Peterson, Inc.
Baucom, Claytor, Benton, Morgan & Wood, P.A., by Brian E. Wolfe, Robert C. Gunst, Jr., and Clay A. Campbell, for Third-Party Defendant Madison Construction Group, Inc.
Goodman McGuffey LLP, by W. James Flynn, for Third-Party Defendant T.A. Kaiser Heating & Air, Inc.
Smith Moore Leatherwood LLP, by Timothy P. Lendino and Robert R. Marcus, and Pagel, Davis & Hill, P.C., by Martyn B. Hill and Kent J. Pagel, for Third-Party Defendant Trussway Manufacturing, LLC f/k/a Trussway Manufacturing, Inc.
Hedrick Gardner Kincheloe & Garofalo LLP, by David L. Levy and Adam R. DeNobriga, for Third-Party Defendant Sears Contract, Inc.
Cranfill Sumner & Hartzog LLP, by John W. Ong, for Third-Party Defendant Interior Distributors, a Division of Allied Building Products, Corp.
1. THIS MATTER is before the Court upon (i) Defendant AP Atlantic, Inc. d/b/a/ Adolfson & Peterson Construction ("AP Atlantic") and Adolfson & Peterson, Inc.'s ("A&P," and together with AP Atlantic, the "AP Parties") Motion for Summary Judgment ("AP Parties' Motion"); (ii) Third-Party Defendant Madison Construction Group, Inc.'s ("Madison") Motion for Summary Judgment ("Madison's Motion"); (iii) Third-Party Defendant T.A. Kaiser Heating & Air, Inc.'s ("T.A. Kaiser") Motion for Summary Judgment ("T.A. Kaiser's Motion"); (iv) Third-Party Defendant Trussway Manufacturing, LLC's ("Trussway") Motion for Summary Judgment Against AP Atlantic, Inc., Adolfson & Peterson Inc., Madison Construction Group, Inc., and T.A. Kaiser Heating & Air, Inc. ("Trussway's Motion"); (v) Third-Party Defendant Sears Contract, Inc.'s ("Sears") Motion for Summary Judgment ("Sears' Motion"); and (vi) Third-Party Defendant Interior Distributors, a Division of Allied Building Products, Corp.'s ("Interior Distributors") Motion for Summary Judgment ("Interior Distributors' Motion") (collectively, with each other summary judgment motion, the "Motions for Summary Judgment") in the above-captioned case.
2. For the reasons stated herein, the Court GRANTS Interior Distributors' Motion and GRANTS in part and DENIES in part each of the other Motions for Summary Judgment.
3. The Court does not make findings of fact when ruling on motions for summary judgment, but "it is helpful to the parties and the courts for the trial judge to articulate a summary of the material facts which he considers are not at issue[.]" Hyde Ins. Agency, Inc. v. Dixie Leasing Corp., 26 N.C.App. 138, 142, 215 S.E.2d 162, 165 (1975).
4. This case arises from the construction of a multi-building apartment complex (the "Project") near the University of North Carolina at Charlotte ("UNC Charlotte") and a dispute over alleged floor truss defects that developed shortly after the Project's completion. Crescent was the owner of the Project; AP Atlantic was the general contractor.
5. AP Atlantic is a North Carolina corporation that maintains its principal place of business in Charlotte, North Carolina. (Am. Compl. ¶ 1, ECF No. 6.) Crescent University City Venture, LLC ("Crescent") is a limited liability company organized under the laws of Delaware that also maintains its principal place of business in Charlotte, North Carolina. (Def. Crescent Univ. City Venture, LLC's Am. Answer & Second Am. Countercl. Am. Compl. ¶ 8, ECF No. 212.)
6. In December 2012, Crescent and AP Atlantic entered into a contract (the "General Contract")[1] by which AP Atlantic agreed to construct an apartment complex on land owned by Crescent located at 9026 University City Boulevard, Charlotte, North Carolina. (See generally Crescent Univ. City Venture, LLC's Resp. Opp'n AP Atlantic, Inc. and Adolfson & Peterson Constr., Inc.'s Mot. Summ. J. Ex. A [hereinafter "General Contract"], ECF No. 414.2.) A&P, AP Atlantic's parent company, signed a performance guaranty (the "Performance Guaranty") relating to AP Atlantic's obligations under the General Contract.
7. Acting as the general contractor, AP Atlantic entered into agreements with several subcontractors to facilitate the construction of the Project. The Court mentions here those relevant to this decision.
8. AP Atlantic enlisted Madison to provide and install wood framing, including floor trusses, for the Project and to provide the labor necessary to complete such work. (See generally Crescent Univ. City Venture, LLC's Resp. Opp'n AP Atlantic, Inc. and Adolfson & Peterson Constr., Inc.'s Mot. Summ. J. Ex. B [hereinafter "Madison Subcontract"], ECF No. 414.3.) Madison, in turn, contracted with Trussway, which agreed to manufacture and deliver the trusses Madison needed. (Madison Constr. Grp., Inc.'s Br. Supp. Mot. Summ. J. Ex. G, at 1 [hereinafter "Purchase Order"], ECF No. 313.) Crescent's experts now contend that the Project's truss defects were attributable, in part, to Madison's handling of the trusses and flaws in Trussway's design and manufacturing process.
9. AP Atlantic hired Sears as its drywall subcontractor. (See generally Sears Contract, Inc.'s Mot. Summ. J. Ex. B [hereinafter "Sears Subcontract"], ECF No. 301.2.) Sears' responsibilities included delivering drywall to the Project site, stacking the drywall when it arrived, and installing the drywall. (Sears Subcontract Ex. D, at 1-3.) According to Sears, it ordered its drywall from Interior Distributors, who agreed to deliver and stack the drywall at the Project. (Interior Distribs., Div. Allied Bldg. Prods., Corp.'s Mem. Supp. Mot. Summ. J. Ex. 2, at 52:20-23, ECF No. 327.2.) Crescent's experts believe the manner in which Sears, or Interior Distributors under Sears' direction, stacked the drywall on the Project's upper floors was a possible contributor to the Project's truss defects. (SGH Expert Report 14.)
10. Finally, AP Atlantic recruited T.A. Kaiser Heating & Air, Inc. ("T.A. Kaiser") to furnish all materials, labor, supervision, tools, equipment, and supplies necessary for the installation of the Project's HVAC systems. (See generally Br. AP Atl., Inc. and Adolfson & Peterson, Inc. Opp'n T.A. Kaiser Heating & Air, Inc.'s Mot. Summ. J. Ex. A [hereinafter "T.A. Kaiser Subcontract"], ECF No. 373.) T.A. Kaiser is alleged to have damaged the Project's trusses while performing its work. (SGH Expert Report 15.)
11. The Project's buildings were completed between August 20, 2014 and January 22, 2015. By January 2015, residents had moved in. (AP Atl. Br. Supp. Summ. J. 7.) The alleged truss defects at the heart of this litigation were discovered soon thereafter.
12. Located directly next to UNC Charlotte, the Project was intended to serve as residential student housing. (AP Atl Br. Supp. Summ. J. 3.) On January 30, 2015, a large group of individuals, presumably students, congregated within Unit C-402 for what has been described as a "dance party." (AP Atl. Br. Supp. Summ. J. 3.) Sometime shortly thereafter, Crescent and its property manager were alerted that the ceiling in the unit directly below Unit C-402 was sagging and cracking. As a result, Crescent's insurance carrier notified AP Atlantic, the first-tier subcontractors, and others, including Trussway, of the damage to the ceiling, warned litigation might result from the damage, and invited the parties to a February 17, 2015 inspection of the affected apartments. (A...
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