Stines v. Satterwhite

• Decision Date: 17 August 1982
• Docket Number: No. 8110SC1029,8110SC1029
• Citation: 58 N.C.App. 608,294 S.E.2d 324
• Parties: Paul V. STINES and wife, Peggy P. Stines v. Jesse W. SATTERWHITE. Jesse W. SATTERWHITE v. Paul V. STINES and wife, Peggy P. Stines. GODWIN BUILDING SUPPLY COMPANY, INC. v. Jesse W. SATTERWHITE, Paul V. Stines and wife, Peggy P. Stines.
• Court: North Carolina Court of Appeals

Page 324

294 S.E.2d 324

58 N.C.App. 608

Paul V. STINES and wife, Peggy P. Stines v. Jesse W. SATTERWHITE.

Jesse W. SATTERWHITE v. Paul V. STINES and wife, Peggy P. Stines.

GODWIN BUILDING SUPPLY COMPANY, INC. v. Jesse W. SATTERWHITE, Paul V. Stines and wife, Peggy P. Stines.

No. 8110SC1029.

Court of Appeals of North Carolina.

Aug. 17, 1982.

Satisky & Silverstein by John M. Silverstein, Raleigh, for plaintiffs-appellants.

Johnson, Gamble & Shearon by David R. Shearon and Richard J. Vinegar, Raleigh, for defendant-appellee-appellant Jesse W. Satterwhite.

HILL, Judge.

A calendar of events involving the building of the Stines' house reveals the following facts:

Godwin Building Supply Company, Inc. [hereinafter referred to as Godwin] furnished materials for the construction of the house, but did so only with the understanding that the materials were charged to both Satterwhite and the Stines. The bills for materials furnished were not paid. On 11 April 1979, Satterwhite brought an action, case No. 79CVS2219, against the Stines for materials and labor totaling $22,267.80. The Stines answered with a general denial, but admitted the contract between themselves and Satterwhite.

Thereafter, on 24 May 1979, Godwin brought an action, case No. 79CVS3172, against both the Stines and Satterwhite for $15,726.19 in building materials furnished for the construction of the house, filed a materialman's lien, and sought foreclosure. The Stines filed an answer which denied the debt. Satterwhite's answer alleged that he was agent for the Stines in purchasing the materials and denied personal liability. In the same action, Satterwhite filed a cross-claim against the Stines for a $4,500 supervision fee due him under the construction contract. The Stines denied liability to Satterwhite.

On 21 May 1980, the Stines brought an action, case No. 80CVS3121, against Satterwhite alleging breach of contract and negligence in the construction of the house, seeking $25,000 in damages. In his answer, Satterwhite denied the Stines' allegations and moved to dismiss the action on two grounds: (1) that the complaint failed to state a claim upon which relief can be granted, pursuant to G.S. 1A-1, Rule 12(b)(6), and (2) for failure to bring the action as a compulsory counterclaim in either case No. 79CVS2219 or case No. 79CVS3172.

Satterwhite moved to consolidate case No. 79CVS2219 and case No. 79CVS3172 on 5 March 1980. Judge Farmer allowed the motion on 26 November 1980. Thereafter, on 5 December 1980, the Stines moved to amend their answer in case No. 79CVS2219 to add a counterclaim seeking damages. The Stines then alleged major defects in the house which were not known to them, and which could not have been known to them, at the time they filed their original answer in case No. 79CVS2219. The motion to amend was supported by the Stines' affidavit.

Judge Godwin denied Satterwhite's motion to dismiss the Stines' complaint in case No. 80CVS3121 on 27 January 1981, and on the same day, consolidated case No. 79CVS2219 with case No. 80CVS3121. Also, on 28 January, the Stines withdrew their motion in case No. 79CVS2219 to amend and add a counterclaim, which would allege substantially the same facts as did their action against Satterwhite, case No. 80CVS3121. Thereafter, on 3 June 1981, Satterwhite moved for summary judgment against the Stines in case No. 80CVS3121.

On 23 February 1981, Satterwhite moved for summary judgment in case No. 79CVS3172, supporting his motion with an affidavit to establish that he acted as the Stines' agent in the purchasing of building materials from Godwin. An affidavit in opposition to the motion was filed by Godwin which established that Satterwhite advised Godwin to charge materials he purchased to both the Stines and him. Judge Hobgood denied Satterwhite's motion for summary judgment on 26 May 1981.

At the 15 June 1981 term of the superior court, a consent judgment was entered by Judge Preston in case No. 79CVS3172, which involved a claim by Godwin in the sum of $15,726.19, plus interest, for building supplies furnished for the job. In that case, Satterwhite had filed an answer and crossclaim setting out the contract between the Stines and Satterwhite, alleging agency for the Stines by him in the purchase of building supplies, and claiming $4,500 for services rendered by him in supervising the construction of the house. Judge Preston made findings of fact that all matters in controversy among Godwin, Satterwhite, and the Stines "raised by the complaint" in case No. 79CVS3172 have been compromised and settled by the parties. (Emphasis added.) Thereafter, the judge awarded judgment to Godwin against Satterwhite and the Stines jointly and severally in the sum of $15,726.19, and decreed the sum to be a lien upon the real estate in question. No disposition was made of the $4,500 claim by Satterwhite against the Stines.

Also during the 15 June 1981 term of superior court, the Stines made an oral motion to amend their answer in case No. 79CVS2219 and to allege a counterclaim. However, after reviewing the pleadings and hearing argument of counsel, Judge Preston, in his discretion, denied the Stines' motion.

In the judgment entered on 18 June 1981, Judge Preston found (1) that all matters in controversy among Godwin, Satterwhite, and the Stines in case No. 79CVS3172 were settled in the consent judgment filed on 15 June 1981, (2) that no genuine issue of material fact existed with respect to the liability of Satterwhite to the Stines in case No. 80CVS3121, and with respect to the liability of the Stines to indemnify Satterwhite in case No. 79CVS3172 and case No. 79CVS2219, (3) that Satterwhite is thereby entitled to summary judgment in those cases, and (4) that "no just reason" exists for delaying entry of final judgment in each of the three cases. Thus, Judge Preston disposed of the three cases as follows: in case No. 80CVS3121, summary judgment was granted in favor of Satterwhite and against the Stines; in case No. 79CVS2219 and case No. 79CVS3172, summary judgment was granted in favor of Satterwhite against the Stines on the issue of indemnification and contribution among the parties for payment as provided in the consent judgment, and that Satterwhite recover of the Stines any sums which may be recovered against them by Godwin.

In summary, then, the three cases and other matters before us were disposed of as follows:

(1) A portion of case No. 79CVS3172 was settled by consent with both the Stines and Satterwhite jointly liable on any claim by Godwin, but leaving to be litigated the $4,500 claim by Satterwhite against the Stines for his supervision fee.

(2) In case No. 79CVS2219, such sums, if any, as may be recovered by Godwin against Satterwhite shall be recovered by Satterwhite from the Stines. That portion of the action dealing with labor performed and materials furnished by Satterwhite yet must be litigated, this being only a partial summary judgment.

(3) In case No. 80CVS3121, summary judgment was granted in favor of Satterwhite against the Stines dismissing the Stines' claim for negligent construction and supervision by Satterwhite.

(4) All of the Stines' motions to amend their answer in case No. 79CVS2219 to allege a counterclaim containing substantially the same facts as did their action against Satterwhite, case No. 80CVS3121, have been denied.

Both the Stines and Satterwhite appeal.

We first address Satterwhite's contention that Judge Godwin erred in denying his motion to dismiss the Stines' action in case No. 80CVS3121 for failure to assert the claim as a compulsory counterclaim.

Rule 13(a) of the North Carolina Rules of Civil Procedure states, in pertinent part, as follows:

A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim ....

G.S. 1A-1, Rule 13(a) (emphasis added). In Gardner v. Gardner, 294 N.C. 172, 176-77, 240 S.E.2d 399, 403 (1978), our Supreme Court stated that

[t]he purpose of Rule 13(a), making certain counterclaims compulsory, is to enable one court to resolve "all related claims in one action thereby avoiding a wasteful multiplicity of litigation ...." [Citations omitted.]

... [I]n order to give effect to the purpose of Rule 13(a) once its applicability to a second independent action has been determined, this second action must on motion be either (1) dismissed with leave to file it in the former case or (2) stayed until the former case has been finally determined.

Case No. 80CVS3121 was filed by the Stines on 21 May 1980. The basis of that action is the Stines' discovery of "numerous defects" in the construction of their house "many of which were hidden from a reasonable inspection by the methods of construction, which problems developed and been [sic] discovered subsequent to the alleged completion of construction of the residence." The Stines further alleged that they "have now been forced to have substantial additional work done upon their residence to correct faulty, defective and [negligent] work ...." As noted above, Satterwhite moved to dismiss the complaint for failure to state a claim and for failure by the Stines to assert the action as a compulsory counterclaim in either case No. 79CVS2219 or case No. 79CVS3172. The Stines supported their verified complaint with an affidavit showing that they were not aware of the defects which had come to light since the filing of the "original lawsuit." The affidavit was served on opposing counsel on the date of trial. G.S. 1A-1, Rule 56(c) states that "[t]he adverse party prior to the day of hearing may serve opposing affidavits." We note that the Stines' affidavit supported the verified complaint and in no way surprised Satterwhite. Hence, we find no prejudice.

The record does not reveal whether Judge Godwin treated Satterwhite's...