Harbour Point v. Djf Enterprises

• Decision Date: 05 January 2010
• Docket Number: No. COA09-527.,COA09-527.
• Citation: 688 S.E.2d 47
• Parties: HARBOUR POINT HOMEOWNERS' ASSOCIATION, INC., by and through ITS BOARD OF DIRECTORS, individually and in its representative capacity on behalf of its members, Plaintiff, v. DJF ENTERPRISES, INC., Forrest Development Company, Inc., Davy Group Construction, Inc., Wrangell Homes, Inc., HPPI Investments, LLC, Coastal Roofing Company, Inc., Georgia-Pacific Corporation, and Craftmaster Manufacturing, Inc., Defendants.
• Court: North Carolina Court of Appeals

688 S.E.2d 47 HARBOUR POINT HOMEOWNERS' ASSOCIATION, INC., by and through ITS BOARD OF DIRECTORS, individually and in its representative capacity on behalf of its members, Plaintiff,
v.
DJF ENTERPRISES, INC., Forrest Development Company, Inc., Davy Group Construction, Inc., Wrangell Homes, Inc., HPPI Investments, LLC, Coastal Roofing Company, Inc., Georgia-Pacific Corporation, and Craftmaster Manufacturing, Inc., Defendants. No. COA09-527. Court of Appeals of North Carolina. January 5, 2010.

[688 S.E.2d 48]

Appeal by defendant, Georgia-Pacific Corporation, from judgment entered 20 November 2008 by Judge John W. Smith in New Hanover County Superior Court. Heard in the Court of Appeals 1 October 2009.

Block, Crouch, Keeter, Behm & Sayed, L.L.P., by Auley M. Crouch, III, and Christopher K. Behm, Wilmington, for plaintiff-appellees.

Ellis & Winters, L.L.P., by Richard W. Ellis, Matthew W. Sawchak, Stephen D. Feldman, Raleigh, and Andrew S. Chamberlin, Greensboro, for defendant-appellant.

HUNTER, JR., ROBERT N., Judge.

Defendant, Georgia-Pacific Corporation, appeals from the trial court's order denying its motion to compel arbitration and to stay proceedings. We affirm the trial court's order and dismiss defendant's appeal as interlocutory, not affecting a substantial right. See Boynton v. ESC Med. Sys., Inc., 152 N.C.App. 103, 566 S.E.2d 730 (2002).

I. Factual Background

Harbour Point is a subdivision consisting of ninety (90) townhome units located at Carolina Beach, New Hanover County, North Carolina. The subdivision was built between 10 January 2001 and 28 March 2005 by defendant contractors, DJF Enterprises, Inc., Forest Development Company, Inc., Davy Group Construction, Inc., Wrangell Homes, Inc., and HPPI Investments, LLC ("defendant contractors"). During the construction of forty-eight (48) of the Harbour Point Subdivision townhome units, PrimeTrim, an exterior wood trim product designed and manufactured by defendant Georgia-Pacific ("Georgia-Pacific"),¹ was installed around the windows and doors, and also used as band boards and corner boards.

On 22 February 2008, plaintiff, Harbour Point Homeowner's Association, Inc. ("plaintiff"),² filed a complaint against defendants, DJF Enterprises, Inc., Forrest Development Company, Inc., Davy Group Construction, Inc., Wrangell Homes, Inc., HPPI Investments, LLC, Coastal Roofing Company, Inc., Georgia-Pacific Corporation, and Craftmaster Manufacturing, Inc., asserting various causes of action relating to the allegedly defective construction of the Harbour Point Subdivision townhomes. Plaintiff specifically alleged in counts 10 through 13 that Georgia-Pacific's PrimeTrim product was defective and asserted causes of action and claims for relief for (1) breach of express warranties, (2) negligence, and (3) North Carolina Products' Liability pursuant to N.C. Gen.Stat. § 99B-1 (2009).

688 S.E.2d 49

On 30 October 2008, Georgia-Pacific, based on the language of a "PrimeTrim Thirty Year Limited Warranty," filed a motion to compel arbitration and stay litigation of plaintiff's claims against Georgia-Pacific. Georgia-Pacific's motion was predicated upon the contention that the following language of the "PrimeTrim Thirty Year Limited Warranty" created a binding, mandatory arbitration agreement with plaintiff:

If a claim under the foregoing warranty is not resolved to the owner's satisfaction, upon the written request of the owner or claimant, Georgia-Pacific agrees to submit any and all disputes relating to the scope, coverage or application of the foregoing warranties, or to the nature or amount of any compensation due hereunder, to binding arbitration under the terms and conditions then in effect of the American Arbitration Association or any successor thereto.

This warranty states the entire liability of Georgia-Pacific with respect to the product named above, and nothing herein shall extend the duration of any implied warranties — including implied warranties of merchantability or fitness for a particular person — beyond the duration of said warranties, if any, under applicable state law. Under no circumstances will Georgia-Pacific be liable for incidental or consequential damages arising out of negligence, tort, breach of warranty, contract, strict liability, or any other basis. All such damages are specifically excluded herein.

Plaintiff contends that it did not consent to arbitration via any "PrimeTrim Thirty Year Limited Warranty" or, in the alternative, even if an arbitration clause was contained in the warranty, the alleged arbitration clause was permissive and compellable only at the owner's request. Georgia-Pacific concedes that...