Moseley v. L & L Construction Inc., 123 NC App 79 (95-1117) 07/02/1996

NO. COA95-1117

NORTH CAROLINA COURT OF APPEALS

Filed: 2 July 1996

ROY J. MOSELEY, JR., and wife, CYNTHIA T. MOSELEY,

v.

L & L CONSTRUCTION, INC.; ROBERT A. WOLFE; EDWARD McDONALD OLLIS, and COUNTY OF BURKE,

    Appeal by plaintiffs from order entered 1 September 1993 by Judge Robert E. Gaines in Burke County Superior Court. Heard in the Court of Appeals 22 May 1996.

    Plaintiffs purchased a house in a subdivision known as High Timbers 31 May 1988. What appeared to be natural settling of the house occurred from 1988-89. In late 1990 evidence of extensive damage as a result of the settling of the house surfaced. The roof began to sag, walls began to crack and bow, and water and sewer lines began to leak and to pond in the crawl space under the house.

    In December 1990 the Burke County Health Department and Building Code Administrator separately notified plaintiffs that the residence was in violation of state laws for not meeting requirements with respect to the broken water and sewer pipes and with respect to the structural integrity of the residence. The County Building Code Administrator also included notice that the house would be condemned if necessary remedial action was not taken. A subsequent investigation by consultants disclosed that the house had been built on soft to firm fill, without adequate structural compaction, and that there was a volume of stumps, roots and other organic material in the fill. Under separate investigation, the consultants determined that the house was improperly wired, was never grounded and that the septic tank had been improperly installed. Plaintiffs ultimately had to move out of the house and rent another house in Valdese, North Carolina.

    Plaintiffs alleged that defendant Ollis was a building inspector employed by defendant Burke County, and that defendant Burke County's Building Inspection Section issued a permit for construction to L & L Construction, Inc. for the construction of the house which was purchased by plaintiffs. Also alleged was that defendant Ollis purported to perform inspections required by law during construction of the house, including without limitation inspection of the foundation, electrical systems and sanitation systems and that Ollis issued a certificate of final inspection and occupancy for the house. Thereafter, the property changed hands several times before the plaintiffs purchased it in 1988. Plaintiffs alleged that Ollis undertook to perform inspections and failed to use due, reasonable, or proper care and skill in performing the inspections. Furthermore, plaintiffs alleged that Burke County has insurance coverage and may be held liable to plaintiffs for damages sustained by them through the misrepresentations or conduct of Ollis.

    The Honorable Robert E. Gaines allowed defendants Ollis and Burke County's motion to dismiss for failure to state a claim upon which relief can be granted. Plaintiffs gave notice of appeal. On 28 December 1993, the defendants made a motion to dismiss appeal alleging that the order from which plaintiffs sought to appeal was interlocutory and not appealable at the time. The Court of Appeals allowed the motion. Plaintiffs filed a voluntary dismissal without prejudice as to defendants L & L Construction, Inc. and Robert A. Wolfe. Plaintiffs then gave notice of appeal to the Court of Appeals 17 July 1995.

    Mitchell, Blackwell & Mitchell, P.A., by Hugh A. Blackwell, for plaintiff appellant.