Williams v. Houses of Distinction Inc.

• Decision Date: 21 June 2011
• Docket Number: No. COA10–30.,COA10–30.
• Citation: 714 S.E.2d 438
• Parties: Johnny WILLIAMS and wife, Sarah Williams, Plaintiff,v.HOUSES OF DISTINCTION, INC., Defendant.
• Court: North Carolina Court of Appeals

714 S.E.2d 438

Johnny WILLIAMS and wife, Sarah Williams, Plaintiff,

v.HOUSES OF DISTINCTION, INC., Defendant.

No. COA10–30.

Court of Appeals of North Carolina.

June 21, 2011.

Appeal by plaintiffs from order entered 14 October 2009 by Judge Ola Lewis in Brunswick County Superior Court. Heard in the Court of Appeals 26 May 2010.

Block, Crouch, Keeter, Behm & Sayed, L.L.P., Wilmington, by Auley M. Crouch, III and Emily A. McNamara, for plaintiffs-appellants.

The Del Ré Law Firm, PLLC, Holden Beach, by Benedict J. Del Ré Jr., for defendants-appellees.

ERVIN, Judge.

Plaintiffs Johnny and Sarah Williams appeal from a trial court order granting summary judgment in favor of Defendant Houses of Distinction, Inc. After careful consideration of Plaintiffs' challenges to the trial court's decision in light of the record and applicable law, we conclude that the trial court's order should be affirmed in part and reversed in part and that this case should be remanded to the Superior Court of Brunswick County for further proceedings not inconsistent with this opinion.

I. Procedural History

On 30 October 2008, Plaintiffs filed a complaint against Defendant in which Plaintiffs alleged that Defendant acted negligently and committed breaches of contract and warranty in connection with the construction of a house located on an ocean front lot owned by Plaintiffs at Ocean Isle Beach. According to Plaintiffs' complaint, Defendant:

b. selected windows and doors that were not suitable for the location of the residence;

c. failed to adequately flash or improperly flashed the residence;

d. installed the decking membrane improperly;

e. installed improperly all decking boards in violation of the manufacturers's installation instructions;

f. installed the vinyl siding and trim improperly;

g. installed stucco located on the lower level of the residence improperly;

h. constructed and installed stairs and other structural components improperly; and

i. used metal fasteners that were not suitable for the environmental conditions existing at the residence's location.

In its answer, Defendant moved to dismiss Plaintiffs' complaint for failure to state a claim for which relief could be granted pursuant to N.C. Gen.Stat. § 1A–1, Rule 12(b)(6); denied the material allegations of Plaintiffs' complaint; and asserted several affirmative defenses, including a contention that Plaintiffs' claims were barred by the applicable statute of limitations. On 23 September 2009, Defendant filed a motion for summary judgment that was accompanied by supporting affidavits and other materials predicated on its contention that Plaintiffs' claims were time-barred. On 6 October 2009, Plaintiffs filed a response to Defendant's summary judgment motion that was also accompanied by supporting affidavits and related materials. On 14 October 2009, the trial court entered an order granting Defendant's summary judgment motion and dismissing all of Plaintiffs' claims with prejudice. [R 94] Thereafter, Plaintiffs noted an appeal to this Court from the trial court's order.¹

II. Legal Analysis

A. Standard of Review

On appeal, Plaintiffs contend that the trial court erred by granting Defendant's motion for summary judgment. A trial court appropriately grants a motion for summary judgment when the information contained in any depositions, answers to interrogatories, admissions, and affidavits presented for the trial court's consideration, viewed in the light most favorable to the non-movant, demonstrates that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Whisnant v. Carolina Farm Credit, ––– N.C.App. ––––, ––––, 693 S.E.2d 149, 152 (2010). “ ‘It has been said that an issue is material if the facts alleged are such as to constitute a legal defense or are of such nature as to affect the result of the action, or if the resolution of the issue is so essential that the party against whom it is resolved may not prevail.’ ” Kessing v. National Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971) (quoting 3 Barron and Holtzoff, Federal Practice and Procedure § 1234 (Wright ed.1958)). “[I]n ruling on a motion for summary judgment[,] the court does not resolve issues of fact and must deny the motion if there is any issue of genuine material fact.” Singleton v. Stewart, 280 N.C. 460, 464, 186 S.E.2d 400, 403 (1972) (citations omitted). “A party moving for summary judgment under [N.C. Gen.Stat. § 1A–1,] Rule 56 has the burden of ‘clearly establishing the lack of any triable issue of fact by the record properly before the court,’ ” so that “ ‘[h]is papers are carefully scrutinized; and those of the opposing party are on the whole indulgently regarded.’ ” Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975) (quoting 6 J. Moore, Moore's Federal Practice § 56.15[8] (2d ed.1971), and citing Singleton, 280 N.C. at 465, 186 S.E.2d at 403). According to well-established North Carolina law, summary judgment is appropriate when “a claim or defense is utterly baseless in fact” or “where only a question of law on the indisputable facts is in controversy.” Kessing, 278 N.C. at 533, 180 S.E.2d at 829 (citing 2 McIntosh, N.C. Practice and Procedure § 1660.5 (2d ed., Phillips' Supp.1970) and 3 Barron and Holtzoff § 1234). As a general proposition, “an order [granting summary judgment] ‘based on the statute of limitations is proper when, and only when, all the facts necessary to establish the limitation are alleged or admitted, construing the non-movant's pleadings liberally in his favor and giving him the benefit of all relevant inferences of fact to be drawn therefrom.’ ” Spears v. Moore, 145 N.C.App. 706, 708, 551 S.E.2d 483, 485 (2001) (quoting Huss v. Huss, 31 N.C.App. 463, 468, 230 S.E.2d 159, 163 (1976)). An order granting summary judgment is, in turn, reviewed de novo by this Court. Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007).

B. Substantive Legal Analysis

1. Negligence Claims

On appeal, Plaintiffs contend that the trial court erred by granting summary judgment in favor of Defendant with respect to their negligence claims. We disagree.

As this Court has stated, “no negligence claim [exists] where all rights and remedies have been set forth in the contractual relationship.” Kaleel Builders, Inc. v. Ashby, 161 N.C.App. 34, 42, 587 S.E.2d 470, 476 (2003), disc. review denied, 358 N.C. 235, 595 S.E.2d 152 (2004); see also Ports Authority v. Roofing Co., 294 N.C. 73, 81, 240 S.E.2d 345, 350 (1978) (stating that, “[o]rdinarily, a breach of contract does not give rise to a tort action by the promisee against the promisor”) (citations omitted), rejected in part on other grounds, Trustees of Rowan Tech. v. J. Hyatt Hammond Assocs., Inc., 313 N.C. 230, 242, 328 S.E.2d 274, 281 (1985); Spillman v. American Homes, 108 N.C.App. 63, 65, 422 S.E.2d 740, 741–42 (1992) (citing Ports Authority, 294 N.C. at 83, 240 S.E.2d at 351); Warfield v. Hicks, 91 N.C.App. 1, 9–10, 370 S.E.2d 689, 694, disc. review denied, 323 N.C. 629, 374 S.E.2d 602 (1988). In Ports Authority, the Supreme Court enumerated four exceptions to this general rule, explaining that a negligence claim will lie, despite the existence of a contract between the parties, when:

(1) The injury, proximately caused by the promisor's negligent act or omission in the performance of his contract, was an injury to the person or property of someone other than the promisee.

(2) The injury, proximately caused by the promisor's negligent, or wilful, act or omission in the performance of his contract, was to property of the promisee other than the property which was the subject of the contract, or was a personal injury to the promisee.

(3) The injury, proximately caused by the promisor's negligent, or wilful, act or omission in the performance of his contract, was loss of or damage to the promisee's property, which was the subject of the contract, the promisor being charged by law, as a matter of public policy, with the duty to use care in the safeguarding of the property from harm, as in the case of a common carrier, an innkeeper or other bailee.

(4) The injury so caused was a wilful injury to or a conversion of the property of the promisee, which was the subject of the contract, by the promisor.

Ports Authority, 294 N.C. at 82, 240 S.E.2d at 350–51 (internal citations omitted).

In their complaint, Plaintiffs alleged that Defendant agreed “to provide all materials” and “to construct [the home] in a good and workmanlike manner” in the contract providing for the construction of Plaintiffs' residence. In an attempt to establish that they were entitled to a negligence-based recovery from Defendant, Plaintiffs further alleged that:

17. Defendant owed a duty to Plaintiffs to build the residence with the care and skill necessary to meet the standard of good and workmanlike quality as promised by Defendant.

18. Defendant breached its duty and was negligent in the construction of the residence in that it:

a. Failed to select and install appropriate windows and doors for use in the residence;

b. Failed to comply with all manufacturers' installation specifications and instructions;

c. Failed to correct all defective conditions; and

d. Failed to make proper repairs leading Plaintiffs to believe that Defendant had repaired various defects when Defendant had failed to do so.

19. As a direct and proximate result of Defendant's negligence, Plaintiffs have been damaged in an amount exceeding $10,000.00 and include those categories of damages enumerated in paragraph 15.

Each of the contentions of negligence recited in Plaintiffs' complaint relate back to, and ultimately hinge on, Defendant's alleged failure to adequately honor its contractual obligation “to furnish all materials and equipment and to perform or furnish all labor to construct in a good and workmanlike manner.” As a result, Plaintiffs' negligence claims stem from Defendant's alleged failure “to properly...