Little by Davis v. National Services Industries, Inc., 8530SC848
| Decision Date | 18 March 1986 |
| Docket Number | No. 8530SC848,8530SC848 |
| Citation | 340 S.E.2d 510,79 N.C.App. 688 |
| Court | North Carolina Court of Appeals |
| Parties | Tina D. LITTLE, a minor, by Ann Hines DAVIS, her guardian ad litem, Plaintiff v. NATIONAL SERVICES INDUSTRIES, INC., d/b/a Ghost Town In the Sky, Defendant v. GOFORTH INDUSTRIES, INC., a North Carolina Corporation, and Haywood Electric Membership Corporation, Third Party Defendants. |
Richard W. Riddle, Waynesville, for defendant-appellant.
Roberts, Cogburn, McClure & Williams by Landon Roberts, Isaac N. Northup, Jr., and Glenn S. Gentry, Asheville, for third-party defendants-appellees.
The sole issue raised by this appeal relates to the status of National's chairlift as an "improvement to real property." If the chairlift is considered a part of the real property, G.S. 1-50(5) bars National's third party claim, otherwise the statute has no application. For the reasons stated herein, we affirm the judgment of the trial court.
Goforth's motion to dismiss for failure to state a claim was converted to a Rule 56 motion for summary judgment by the trial court's consideration of the affidavits filed in support of, and in opposition to, the motion. Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979). Summary judgment is granted in favor of the moving party where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Gore v. Hill, 52 N.C.App. 620, 279 S.E.2d 102 (1981). A defending party is entitled to summary judgment if he can show that the claimant cannot prove the existence of an essential element of his claim or cannot surmount an affirmative defense which would bar the claim. Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981). "Once the movant demonstrates that no material issues of fact exist, the burden shifts to the nonmovant to set forth specific facts showing that genuine issues of fact remain for trial." Orient Point Assoc. v. Plemmons, 68 N.C.App. 472, 473, 315 S.E.2d 366, 367 (1984).
The pertinent portions of G.S. 1-50(5) provide:
G.S. 1-50. Six years.
....
(5) a. No action to recover damages based upon or arising out of the defective or unsafe condition of an improvement to the real property shall be brought more than six years from the later of the specific last act or omission of the defendant giving rise to the cause of action or substantial completion of the improvement.
b. For purposes of this subdivision, an action based upon or arising out of the defective or unsafe condition of an improvement to real property includes:
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3. Actions to recover damages for personal injury death or damage to property;
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6. Actions for contribution or indemnification for damages sustained on account of an action described in this subdivision;
....
G.S. 1-50(5) is a statute of repose which bars actions for personal injuries or property damages allegedly caused by defects in design, construction or repairs to real property unless the action is brought within six years from the completion of the work. Lamb v. Wedgewood South Corp., 308 N.C. 419, 302 S.E.2d 868 (1983). Both National and Goforth agree that Goforth's work was completed more than six years before the initiation of this action; for that matter, the record indicates that it was completed more than six years before the occurrence of the accident in which the minor plaintiff was injured. Therefore, the resolution of this case depends upon whether there is any genuine issue of material fact as to the status of National's chairlift apparatus as an "improvement to real property."
The materials submitted to the trial court at the hearing of Goforth's motion consisted of the pleadings and affidavits submitted by National and Goforth. From those materials appear the following undisputed facts: National is the owner and operator of the recreational park and is the owner of the chairlift. Goforth was employed by National in 1975 to perform certain work on the chairlift. The work consisted of redesigning and repairing the bull wheel, carriage tracks and wheels, and brake system which are component parts of the chairlift. The chairlift is affixed to the ground by means of poured concrete footings to which the steel tower supports are bolted and braced. The bull wheel is attached by bolts to a concrete form encased in steel. The brake system is housed above the bull wheel and is bolted to steel beams.
Additionally, National asserted by affidavit that the entire chairlift system was carried on its books as machinery and equipment so as to be "written off tax wise as personal property." National also asserted that it is a common practice in the recreation park industry to remove chairlifts and to sell them to other recreational parks.
To determine the status of the chairlift as real or personal property, we turn to the law of fixtures. "A fixture has been defined as that which, though originally a movable chattel, is, by reason of its annexation to land, or association in the use of land, regarded as a part of the land, partaking of its character ...." 1 Thompson on Real Property, 1980 Replacement, § 55, at 179 (1980). Generally controversies involving the question of fixtures arise out of disputes as to rights of possession of, or interests in, the chattel. In that context, several tests for resolving the question of whether a chattel attached to real property becomes real property or remains personalty have been referred to in the cases. They include (1) the manner in which the article is attached to the realty, Clark v. Hill, 117 N.C. 11, 23 S.E. 91 (1895); (2) the nature of the article and the purpose for which it is attached to the realty, Jenkins v. Floyd, 199 N.C. 470, 154 S.E. 733 (1930); and (3) the intention with which the annexation of the article to the realty is made. Foote v. Gooch, 96 N.C. 265, 1 S.E. 525 (1887). Under the modern view, the controlling test is the intention with which the annexation is made. Ingold v. Phoenix Assur. Co., 230 N.C. 142, 52 S.E.2d 366 (1949).
The intent with which a party annexes a chattel to real property is determined, in large measure, by the relationship of the parties to the land and to each other. For example, when additions are made to land by its owner, it is generally viewed that the purpose of the addition is to enhance the value of the land, and the chattel becomes a part of the land. Belvin v. Paper Co., 123 N.C. 138, 31 S.E. 655 (1898); Moore v. Valentine, 77 N.C. 188 (1877). On the other hand, where the improvement is made by one who does not own the fee, such as a tenant, the law is indulgent and, in order to encourage industry, the tenant is permitted "the greatest latitude" in removing equipment which he has installed upon the land. Overman v. Sasser, 107 N.C. 432, 12 S.E. 64 (1890). Where the controversy is between parties connected to the transaction in some manner, as in a controversy between the owner of the land and the one who annexed the chattel, the subjective intent of the parties as evidenced by their words, conduct, or agreements, express or implied, is the relevant intent. Thompson, supra, § 56. See Lee-Moore Oil Co. v. Cleary, 295 N.C. 417, 245 S.E.2d 720 (1978). However, where the rights of a third party, who is unconnected to the land or the original transaction by which the chattel was annexed, are concerned, the question is not so much the actual subjective intention of the party making the annexation, but his intention reasonably apparent to such third person as manifested by physical facts and outward appearances. Thompson, supra, § 59. In such a case, the annexor's intent is ascertained from such external indicia as the relationship of the annexor to the land (owner or tenant), the nature of the chattel attached and its relationship or necessity to the activity conducted on the land, and the manner in which the...
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