Appeal by plaintiffs from order entered 16 October 2001 by
Judge Henry W. Hight, Jr., in Wake County Superior Court. Heard in
the Court of Appeals 22 January 2003.
Lewis & Roberts, PLLC, by Daniel K. Bryson and Kurt F.
Hausler, for plaintiff-appellants.
Young Moore and Henderson, P.A., by Brian E. Clemmons and
Robert C. deRosset, for defendant-appellee Fogleman & Williams
Developments, Inc.
Bailey & Dixon, L.L.P., by David Coats, for defendant-appellee
John D. Reynolds, individually and d/b/a Reynolds Construction
of Chapel Hill, LLC.
McCULLOUGH, Judge.
Plaintiffs appeal from an order of summary judgment entered by
the trial court dismissing with prejudice their claims against
defendants Fogleman & Williams Developments, Inc. (“Fogleman”) and
John D. Reynolds, individually and d/b/a Reynolds Construction of
Chapel Hill, L.L.C. (“Reynolds”).
On 31 March 1999, plaintiffs purchased a townhouse in Cary,
N.C., from its original owner, Marshall Lyle Gurley, Sr. (“Mr.
Gurley”). The townhouse, built in 1994, had been finished
externally with Exterior Insulation and Finish System (“EIFS”), asynthetic stucco product. Plaintiffs lived in New York City prior
to moving to Cary. A few months after moving into the townhouse,
plaintiffs learned from television advertisements that there had
been litigation in North Carolina regarding homes finished with
synthetic stucco due to moisture intrusion through the product and
resulting structural damage. On 2 June 2000, plaintiffs filed this
suit against defendant Preston Falls East, L.L.C., (“Preston
Falls”), the developer from which Mr. Gurley had originally
purchased the home; defendant Fogleman, the general contractor;
defendant Reynolds, the subcontractor that applied the EIFS; and
defendant Sto Corp., the manufacturer of EIFS.
In their depositions, both plaintiffs claimed that, prior to
purchasing their townhouse, they were not aware of the problems
experienced with EIFS and, had they known, they would not have
purchased their townhouse. Mr. Swain stated that both their real
estate agent, Jim Jones, prior to closing, and Mr. Gurley, at
closing, had told them that the EIFS would not be problematic as
long as it was properly maintained. Several of the documents
plaintiffs received prior to either contracting to purchase the
townhouse or closing on the sale referred to the EIFS used on their
townhouse. In particular, at the signing of the offer to purchase
the townhouse on 12 February 1999, plaintiffs signed a Residential
Property Disclosure Statement that encouraged purchasers to obtain
their own inspection of the property. As an addendum to the
purchase contract, they also signed a Synthetic Stucco System
Disclosure stating that: [t]his home has been constructed with a
synthetic stucco system. Other homes
featuring the same or similar stucco system
have experienced structural problems due to
moisture absorption and rotting wood beneath
the stucco facade. Any questions regarding
the stucco on this home or warranty coverage
for stucco-related problems should be directed
to the builder and/or seller.
Prior to closing, plaintiffs received a copy of an inspection
report and memorandum from 1998 that disclosed at least one area of
high moisture intrusion and two areas of medium moisture intrusion
on the townhouse. This report, issued by defendant Reynolds, had
been commissioned by the property manager of the townhouse complex
and the memorandum from the property manager stated that the EIFS
was the homeowner's responsibility, that high moisture readings
should be addressed quickly, and that owners might consider
replacing their EIFS completely. Mr. Swain stated in his
deposition that Jim Jones advised him the problems discovered in
their unit had been corrected. Plaintiffs did have the house
inspected prior to closing, but the inspector expressly stated in
the inspection report that he was not qualified to evaluate the
EIFS and thus did not inspect it.
After filing suit against defendants, plaintiffs had the EIFS
on their townhouse inspected on 1 March 2001. The inspection
revealed numerous installation defects and areas of moisture
intrusion, and the inspection firm recommended that plaintiffs have
the EIFS removed and replaced. The inspection firm also stated in
its report that EIFS was defectively designed and manufactured and
that poor installation could aggravate the problems and damage thatwould naturally result from the defective product. Plaintiffs'
expert witness, engineer Ronald Wright, stated in his deposition
that Sto Corp.'s specifications for installation of EIFS required
a level of perfection beyond that of standard construction
workmanship and that, in his opinion, even homes with near perfect
application of EIFS would eventually require removal and
replacement with a different exterior cladding system. Mr. Wright
also noted that although EIFS-related problems and damage were
detected as early as 1989 to 1993, they were not widely understood
by the construction industry until late 1995. According to Mr.
Wright, the N.C. State Building Code first prohibited the use of
EIFS (without a 20-year express warranty) in new construction in
June 1996.
Plaintiffs apparently agreed to a voluntary dismissal of
claims against Preston Falls. In addition, due to settlement of a
1996 EIFS class action suit against it, Sto Corp. moved for and was
granted summary judgment based on the doctrine of res judicata.
See Ruff v. Parex, Inc., 131 N.C. App. 534, 508 S.E.2d 524 (1998),
writs dismissed, 352 N.C. 149, 543 S.E.2d 894 (2000) (manufacturers
subsequently settled). Plaintiffs have not appealed from the order
of summary judgment for Sto Corp., nor have they filed suit against
Jim Jones or Mr. Gurley.
Plaintiffs' complaint alleged claims against defendants
Fogleman and Reynolds for (1) negligence, (2) breach of implied
warranty of merchantability, (3) negligent misrepresentation, (4)
gross negligence, (5) unfair and deceptive practices, and (6)negligence per se. Plaintiffs made an additional claim of breach
of implied warranty of fitness for a particular purpose against
defendant Fogleman. Briefly summarized, these claims are based on
the negligent selection of EIFS for use in constructing plaintiffs'
home, the negligent application or supervision of application of
EIFS to plaintiffs' home, and the sale of the home without
remedying or disclosing the defects associated with the EIFS and
its negligent application. Both Fogleman and Reynolds filed
motions for summary judgment in August 2001. The trial court
granted the motions, holding that there were no genuine issues of
material fact to be decided.
________________________________
On appeal, plaintiffs argue that the trial court erred in
granting summary judgment for defendants Fogleman and Reynolds
because there are genuine issues of material fact (1) as to whether
plaintiffs were contributorily negligent and (2) as to whether
Fogleman and Reynolds were negligent in constructing and applying
the EIFS to plaintiffs' townhouse. Although plaintiffs assigned
error to other aspects of the trial court's order of summary
judgment, they did not address them in their brief. Those
assignments of error not addressed in plaintiffs' brief are deemed
abandoned. N.C.R. App. P. 28 (a), (b)(6) (2002).
Pursuant to Rule 56 of the North Carolina Rules of Civil
Procedure, the entry of summary judgment is appropriate where “the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there isno genuine issue as to any material fact and that any party is
entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-
1, Rule 56(c) (2002).
The party moving for summary judgment has the
burden of showing that there is no triable
issue of material fact. On a motion for
summary judgment, “the forecast of evidence
and all reasonable inferences must be taken in
the light most favorable to the non-moving
party.”
Issues of contributory negligence, like
those of ordinary negligence, are ordinarily
questions for the jury and are rarely
appropriate for summary judgment. Only where
the evidence establishes the plaintiff's own
negligence so clearly that no other reasonable
conclusion may be reached is summary judgment
to be granted.
Nicholson v. American Safety Util. Corp., 346 N.C. 767, 774, 488
S.E.2d 240, 244 (1997) (citations omitted).
“Actionable negligence occurs when a defendant owing a duty
fails to exercise the degree of care that a reasonable and prudent
person would exercise under similar conditions, or where such a
defendant of ordinary prudence would have foreseen that the
plaintiff's injury was probable under the circumstances.”
Martishius v. Carolco Studios, Inc., 355 N.C. 465, 473, 562 S.E.2d
887, 892 (2002) (citations omitted). Where a “person having the
capacity to exercise ordinary care . . . fails to exercise such
care, and such failure, concurring and cooperating with the
actionable negligence of defendant contributes to the injury
complained of, he is guilty of contributory negligence. Ordinary
care is such care as an ordinarily prudent person would exercise
under . . . similar circumstances to avoid injury.”
Clark v.Roberts, 263 N.C. 336, 343, 139 S.E.2d 593, 597 (1965). In North
Carolina, a finding of contributory negligence poses a complete bar
to a plaintiff's negligence claim.
See Love v. Singleton, 145 N.C.
App. 488, 550 S.E.2d 549 (2001).
Plaintiffs first argue that the trial court erred in granting
summary judgment for Fogleman and Reynolds because there were
material issues of fact with regard to plaintiffs' alleged
contributory negligence. Plaintiffs rely primarily on their
asserted ignorance of the widespread problems with synthetic stucco
construction in North Carolina and of the defects in the EIFS in
their townhouse, as well as the assurances they received from their
real estate agent and the seller of the home. They assert that
Jim Jones had a duty to disclose to them all material information
concerning the townhouse property and, therefore, their reliance on
his assurances regarding the EIFS was reasonable. They also
contend that their failure to make further inspections after
receiving a copy of the 1998 stucco inspection report and
memorandum did not constitute contributory negligence as a matter
of law. Specifically, they argue that they did not own the house
in 1998 and thus the report and memorandum were not directed to
them. Because they received assurances from Jim Jones that any
defects mentioned in the report had been addressed, their failure
to follow up independently should not bar recovery from defendants.
We disagree.
In
Robertson v. Boyd, 88 N.C. App. 437, 363 S.E.2d 672 (1988),
this Court held that the plaintiffs' claim of negligence against atermite inspection company was barred due to contributory
negligence. The plaintiffs in
Robertson discovered substantial
termite damage under their house after purchasing it. As a
condition to purchasing the house, they had requested a termite
inspection report from the sellers. This report noted some obvious
damage, but also expressly stated that large portions of the house
were not inspected due to inaccessibility and recommended further
inspection. The
Robertson Court held that the “plaintiffs' failure
to make further inspections when such inspections were actually
recommended by defendant constituted contributory negligence as a
matter of law.”
Id. at 444, 363 S.E.2d at 677.
Plaintiffs
argue that
Robertson differs from the present case
because plaintiffs never noticed any obvious damage to the stucco
as the plaintiffs did in
Robertson. More importantly, they argue
that they “were never advised by anyone to obtain an inspection of
their synthetic stucco.” To the contrary, at the same time they
signed the Synthetic Stucco System Disclosure, plaintiffs signed
the Residential Property Disclosure Statement which stated
(directly above their signatures) “[p]urchaser(s) are encouraged to
obtain their own inspection.” They then received the 1998
memorandum and report indicating known areas of moisture intrusion
on the townhouse they were about to purchase. Plaintiffs did
obtain an inspection of the home, but the inspector expressly
stated in his report to plaintiffs that the stucco siding was
beyond his expertise and thus it was not inspected for moisture
intrusion. That the inspector did not go on to recommend furtherinspections is immaterial where the inspection report made clear
that a complete inspection of the townhouse had not been performed.
Considering the indications plaintiffs received that synthetic
stucco, and the EIFS on Mr. Gurley's townhouse in particular, was
problematic, their failure to engage the services of a qualified
inspector to inspect the EIFS system before they purchased the
townhouse constitutes contributory negligence as a matter of law.
Furthermore, neither the assurances plaintiffs received from
their realtor and the seller, nor plaintiffs' claimed reliance on
those assurances, change this analysis. The record on appeal
indicates that plaintiffs received adequate notice of problems with
EIFS generally and on their townhouse to give rise to a duty to
obtain an inspection of the EIFS to protect themselves from an
unwise real property purchase. Assuming,
arguendo, that plaintiffs
were entitled to rely on the statements made by Jim Jones or Mr.
Gurley, plaintiffs' testimony that they would not have bought the
townhouse but for the reassuring statements shows, if anything,
that the statements, and not any acts by Fogleman or Reynolds, were
the proximate cause of plaintiffs' injury.
See Tise v. Yates
Constr. Co., 345 N.C. 456, 480 S.E.2d 677 (1997) (intervening or
superseding acts by criminal or negligent third party may preclude
liability of initial negligent actor where intervening act was not
reasonably foreseeable to initial negligent actor). Because we
hold that the trial court did not err in entering summary judgment
for defendants Fogleman and Reynolds based on the evidence of
plaintiffs' contributory negligence, we need not addressplaintiffs' second argument.
Affirmed.
Judges HUDSON and STEELMAN concur.
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