Jenco v. Signature Homes, Inc., COA95-496

• Decision Date: 19 March 1996
• Docket Number: No. COA95-496,COA95-496
• Court: North Carolina Court of Appeals
• Parties: John M. JENCO and Leslye M. Jenco, Plaintiffs, v. SIGNATURE HOMES, INC., a North Carolina corporation, and Craig R. Wieser, Individually, and Signature Home Corporation, Defendants, v. SECOR BANK F.S.B., Third Party Defendant.

Page 533

468 S.E.2d 533

122 N.C.App. 95

John M. JENCO and Leslye M. Jenco, Plaintiffs, v. SIGNATURE HOMES, INC., a North Carolina corporation, and Craig R. Wieser, Individually, and Signature Home

Corporation, Defendants, v. SECOR BANK F.S.B., Third Party Defendant.

No. COA95-496.

Court of Appeals of North Carolina.

March 19, 1996.

Greene and Dortch, by Robert J. Greene, Jr., Charlotte, for plaintiffs-appellees.

Knox, Knox, Freeman & Brotherton, by Lisa G. Caddell, Charlotte, for defendants-appellants.

JOHNSON, Judge.

In the fall of 1992, plaintiffs John and Leslye Jenco decided to purchase a lot and build a home in a residential subdivision of Charlotte, North Carolina known as Radbourne. The developer of Radbourne was Crosland Land Company. This developer had initiated a policy that it would not sell lots to individuals. Instead, Crosland Land Company would only sell lots to a list of preapproved general contractors. One of the pre-approved general contractors for the Radbourne subdivision was Signature Homes, Inc. (Signature, Inc.).

Plaintiffs and Craig Wieser signed a document entitled Purchase Agreement which was dated 20 November 1992. Plaintiffs contend that this was a contract for the sale of the lot and construction of a house by Signature, Inc. There are, in fact, two different versions of this document. One version is attached as Exhibit A to plaintiffs' complaint and the other is attached as Exhibit A to defendants' answer and counterclaim. Defendants' version of this document contains a separate page entitled "Agreement to Purchase--Addendum 1," which was drafted by plaintiff John Jenco and signed by all parties on or about 31 December 1992. This addendum to the purchase agreement designates the "Seller" as "Craig R. Wieser d/b/a Signature Homes, Inc., a North Carolina corporation."

In February of 1993, a closing took place in which Signature, Inc. sold to plaintiffs a lot in the Radbourne subdivision. This closing was coordinated with the acquisition of that same property by Signature, Inc. from the developer of the subdivision.

Construction on plaintiffs' residence started about 10 April 1993. Building permits were granted in the name of Craig R. Wieser as the general contractor. Since 1990, Mr. Wieser had been a licensed general contractor in the State of North Carolina. Signature, Inc. has never held a general contractor's license.

In May of 1993, Mr. Wieser formed a new corporation called Signature Homes Corporation (Signature Corporation). Mr. Wieser applied for an unlimited general contractor's license for that corporation. This license was granted 19 May 1993. Thereafter, all existing projects which had been commenced under Mr. Wieser's supervision were transferred to Signature Corporation. Construction on the Jencos' residence continued until 29 August 1993. At that time, due to various conflicts with Mr. Wieser, the Jencos requested that he leave the project. As of that date, the Jencos had paid construction progress payments of $113,111.71. This figure included $50,000.00 which was paid for the lot. At the time Mr. Wieser exited the job, the Jencos owed $76,905.21 for labor and materials provided in the construction of the project.

On 29 October 1993, a claim of lien was filed against the Jencos' property by Craig Wieser d/b/a Signature Homes, Inc. and Signature Home Corporation in the amount of $76,905.21.

This suit was filed 12 November 1993. In the complaint, plaintiffs alleged that their contract was with Signature, Inc., the corporation. They further alleged that this corporation was an unlicensed contractor. Thus, plaintiffs argue that defendants cannot recover on the lien. Plaintiffs further contend that Signature, Inc., as general contractor, caused damages by failing to continue the work in a workman-like manner.

Defendants' answer alleged that Craig R. Wieser was a party to the original contract by virtue of the addendum drafted by plaintiff John Jenco. In defendants' first cause of action it is alleged that Craig R. Wieser is entitled to a recovery against the plaintiffs for breach of contract. In the alternative, Craig R. Wieser and Signature Corporation contend that they are entitled to recover the amount of labor and materials expended in the construction of plaintiffs' residence under a theory of quantum meruit. Finally, defendants allege a third cause of action in which Craig R. Wieser and Signature Corporation contend that they should be permitted to foreclose on the claim of lien filed 29 October 1993.

Plaintiffs filed a motion for partial summary judgment on the grounds that the contract in this action was strictly with Signature, Inc. Moreover, they also argued that since Signature, Inc. was an unlicensed general contractor, there should be no recovery for labor and materials expended in the construction of plaintiffs' residence by either Signature, Inc., Craig R. Wieser, or Signature Corporation.

The trial court granted plaintiffs' motion for partial summary judgment and dismissed the first three causes of action in defendants' answer and counterclaim and cancelled the claim of lien filed in this action. From this order, defendants have appealed.

Although the parties failed to address the issue, we must first ascertain whether the order allowing plaintiffs' motion for partial summary judgment is immediately appealable. Plaintiffs' claims and defendants' fourth counterclaim remain viable; therefore, this action is not a final determination of the rights of the parties. N.C.R.Civ.P. 54(a). Thus, whether defendants would be deprived of a substantial right if they were not allowed an immediate appeal is the issue we first address. See Beam v. Morrow, Sec. of Human Resources, 77 N.C.App . 800, 336 S.E.2d 106 (1985), disc. review denied, 316 N.C. 192, 341 S.E.2d 575 (1986).

This Court has held that the right to avoid the possibility of two trials on the same issues involved a substantial right if the same issues are present in both trials. Green v. Duke Power Co., 305 N.C. 603, 608, 290 S.E.2d 593, 596 (1982); see also Lamb v. Lamb, 92 N.C.App. 680, 683, 375 S.E.2d 685, 686 (1989). The same factual issues are involved in plaintiffs' claims...