Everts v. Parkinson
| Decision Date | 04 December 2001 |
| Docket Number | No. COA00-1148.,COA00-1148. |
| Citation | 555 S.E.2d 667,147 NC App. 315 |
| Parties | Ramon L. EVERTS and wife, Regine M. Everts, Plaintiffs, v. John PARKINSON and wife, Vicki T. Parkinson; A.T. Dombroski, Jr., Individually; A.T.D. Construction Company, Inc.; Ricks Construction, Inc.; and Prime South Construction, Inc., Defendants. |
| Court | North Carolina Court of Appeals |
Lewis & Roberts, P.L.L.C., by Daniel K. Bryson and F. Murphy Averitt, III, Raleigh, for plaintiff-appellants.
Marshall, Williams & Gorham, L.L.P., by John L. Coble, Wilmington, for defendant-appellees John Parkinson and Vicki T. Parkinson.
Dean & Gibson, L.L.P., by Christopher J. Culp, Charlotte; Frost Brown Todd, LLC, by Kathy Kendrick and Carl E. Grayson, for defendant-appellees A.T. Dombroski, Jr. and A.T.D. Construction Company, Inc.
Bennett & Guthrie, P.L.L.C., by Rodney A. Guthrie, Winston-Salem, for defendant-appellee Prime South Construction, Inc.
Ramon L. Everts and Regine M. Everts ("plaintiffs") appeal from three orders entered 18 May 2000 granting summary judgment in favor of five defendants. We affirm in part, and reverse in part and remand for further proceedings.
This case involves a house clad with Exterior Insulation and Finish System ("EIFS"), also known as synthetic stucco. By contract dated 26 June 1993, plaintiffs purchased the house, located in Wilmington, North Carolina, from defendants John Parkinson and Vicki T. Parkinson ("the Parkinsons"), the original owners. On 9 June 1997, plaintiffs filed this action against the Parkinsons, as well as the builders of the house, A.T.D. Construction Company and its president A.T. Dombroski, Jr. (together "ATD"), and a company that performed improvement work on the house, Prime South Construction, Inc. ("PSC"). The complaint alleges that plaintiffs have had to undertake extensive and costly repairs to the house as a result of water intrusion and wood rot problems. The complaint sets forth the following causes of action: (1) as to the Parkinsons, fraud, negligent misrepresentation, breach of contract, breach of express warranty, and breach of implied warranty; (2) as to ATD, willful and wanton negligence; and (3) as to PSC, negligence. The complaint also sets forth a claim against an additional defendant (Ricks Construction, Inc.) which is not at issue in this appeal. The trial court granted summary judgment in favor of the Parkinsons, ATD, and PSC on all claims against them. Plaintiffs appeal.
Rule 56 of the North Carolina Rules of Civil Procedure provides that summary judgment will be granted "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.R. Civ. P. 56(c). A defendant may show that it is entitled to summary judgment by:
(1) proving that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party (2) cannot produce evidence to support an essential element of his or her claim, or (3) cannot surmount an affirmative defense which would bar the claim.
Bernick v. Jurden, 306 N.C. 435, 440-41, 293 S.E.2d 405, 409 (1982) (citation omitted). Furthermore, "[t]he record is to be viewed in the light most favorable to the non-movant, giving it the benefit of all inferences reasonably arising therefrom." Ausley v. Bishop, 133 N.C.App. 210, 214, 515 S.E.2d 72, 75 (1999). Having carefully reviewed the record, we reverse in part the trial court's order granting summary judgment in favor of the Parkinsons and we remand for further proceedings on plaintiffs' claim of fraud as against Mr. Parkinson only. As to the claim of fraud against Mrs. Parkinson and all remaining claims against the Parkinsons, and as to the claims against ATD and PSC, we affirm the trial court's grant of summary judgment.
We first address plaintiffs' five claims against the Parkinsons: fraud, negligent misrepresentation, breach of contract, breach of express warranty, and breach of implied warranty.
The Parkinsons contend, at the outset, that they are entitled to summary judgment on all five claims because each is barred by the three-year statute of limitations set forth in N.C. Gen.Stat. § 1-52 (1999). We disagree. It is well-established that:
Ordinarily, the question of whether a cause of action is barred by the statute of limitations is a mixed question of law and fact. However, when the bar is properly pleaded and the facts are admitted or are not in conflict, the question of whether the action is barred becomes one of law, and summary judgment is appropriate.
Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985) (citations omitted). When the evidence is sufficient to support an inference that the limitations period has not expired, the issue should be submitted to the jury. Little v. Rose, 285 N.C. 724, 727, 208 S.E.2d 666, 668 (1974).
We believe that the Parkinsons were not entitled to summary judgment on the basis of the statute of limitations because the facts here are in conflict as to when the statute of limitations period started to run. The parties do not dispute that all of plaintiffs' claims against the Parkinsons are subject to the three-year statute of limitations set forth in N.C. Gen.Stat. § 1-52. There is also no dispute that plaintiffs' causes of action did not accrue until the defect or damage to plaintiffs' property became apparent or ought reasonably to have become apparent to them. See N.C. Gen.Stat. § 1-50(a)(5)(f) (1999) (); Forsyth Memorial Hospital v. Armstrong World Industries, 336 N.C. 438, 444 S.E.2d 423 (1994) (). Thus, whether these claims are barred by the statute of limitations requires a determination of when the alleged defect or damage became apparent, or ought reasonably to have become apparent to plaintiffs.
The evidence produced during discovery indicates at least three possible points in time at which it might be determined that the alleged damage or defects became apparent or reasonably should have become apparent to plaintiffs. First, Mrs. Everts testified during her deposition that she discovered water intrusion in the garage and living room within three months after the purchase of the house from the Parkinsons in August of 1993. Second, Mrs. Everts testified that in approximately March of 1994, plaintiffs hired a painter who inspected the house and notified Mrs. Everts that he had worked on the exterior of the house about two years before when the Parkinsons were the owners, at which time he had painted the exterior of the house, cleaned the roof, and sealed the roof with a "special sealer." He told Mrs. Everts that he had found rot on certain windows and that he had pointed this out to Mr. Parkinson at that time. He also told her that he had noticed Mr. Parkinson doing "repair work on the windows quite often," and that, as a result, "he was under the impression that quite a number of windows had water problems." The Parkinsons point to these two points in time and contend that by at least March of 1994 the alleged damage was apparent or reasonably should have been apparent to plaintiffs, and that their claim filed on 9 June 1997 is therefore barred by the three-year statute of limitations.
Plaintiffs, on the other hand, point to a third point in time, February of 1996, and contend that they did not discover that their home suffered significant water intrusion damage and construction defects until this time. Mr. Everts testified that he attended a meeting about synthetic stucco in late 1995 or early 1996, after which he followed the suggestion of the New Hanover County Building Commission and hired an engineer who conducted a moisture test on the home and provided a detailed report as to its condition. Thus, plaintiffs contend, they did not realize the nature of the defects and the extent of the damage until February of 1996, and, therefore, their complaint filed on 9 June 1997 is not barred.
We believe that the evidence produced during discovery allows at least an inference that the alleged damage was not apparent, and should not reasonably have been apparent, to plaintiffs prior to June of 1994. Thus, the issue of whether plaintiffs' claims against the Parkinsons are barred by the statute of limitations is an issue for the jury, and the Parkinsons are not entitled to summary judgment on this basis.
The Parkinsons further argue that there are no genuine issues as to any material facts and that they are entitled to summary judgment as a matter of law on all five causes of action. See N.C.R. Civ. P. 56(c). We review each cause of action in turn.
The essential elements of fraud are: "(1) False representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party." Ragsdale v. Kennedy, 286 N.C. 130, 138, 209 S.E.2d 494, 500 (1974). This State has long recognized that "[w]here a material defect is known to the seller, and he knows that the buyer is unaware of the defect and that it is not discoverable in the exercise of the buyer's diligent attention or observation, the seller has a duty to disclose the existence of the defect to the buyer." Carver v. Roberts, 78 N.C.App. 511, 512-13, 337 S.E.2d 126, 128 (1985) (citing Brooks v....
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