1.
Appeal and Error_appealability_trial court not ruling on motion
The Court of Appeals was not able to review an issue involving the use of expert
affidavits in a summary judgment where the trial court never ruled on plaintiff's objection and
motion to strike.
2.
Construction Claims_roofing--subcontractor assisting prior stage work_no
assumption of duty
The trial court did not err by granting summary judgment to DHC where DHC was a
subcontractor on a roofing project, DHC's task was to install roofing trusses and plywood, DHC
assisted in the removal of the old roofs after it arrived on the scene solely to stay within the
allotted time for the trusses, and a rainstorm came during the work, damaging the buildings. The
evidence did not establish that DHC assumed a duty to weatherproof the buildings.
3.
Appeal and Error_appealability_no notice of appeal
The Court of Appeals was without jurisdiction to consider a partial summary judgment
involving costs where plaintiff did not file a notice of appeal from the order.
Alexander & Miller, L.L.P., by Phaedra A.O. Kelly, Sydenham B.
Alexander, Jr., and Jo Ann Ragazzo, for plaintiff-appellant.
Cranfill, Sumner & Hartzog, L.L.P., by Gregory W. Brown and
Katherine Hilkey-Boyatt, for DHC Construction, Inc.,
defendant-appellee.
McGEE, Judge.
Finley Forest Condominium Association, Inc. (plaintiff)
appeals from summary judgment entered in favor of DHC Construction,
Inc. (defendant). Pursuant to plaintiff's Declaration of Condominium, filed in
Orange and Durham counties, plaintiff is responsible for the
maintenance and repair of common property of the condominium.
Plaintiff contracted in the fall of 2000 with James Kramer
(Kramer), an engineer, to draft plans and specifications for the
replacement of roofs on five buildings, numbered 26, 27, 28, 47,
and 52. Each building contained several individual condominium
units. Plaintiff wished to replace the flat style roof of the
buildings with a pitched roof in order to prevent future water
damage. Once the plans were completed and approved by plaintiff's
board of directors, the specifications were submitted for bid to
general contractors licensed in North Carolina.
Plaintiff contracted on 20 August 2001 with Bill Perry and
Wayne Denton, doing business as Neuse River Construction (Neuse
River), to replace the roofs in accordance with the specifications
drawn up by Kramer. Unbeknownst to plaintiff, Neuse River hired
DHC Construction, Inc. (DHC) as a subcontractor to install pre-
manufactured trusses and to lay plywood over the trusses on the
roofs of buildings 47 and 52. Neuse River informed DHC that
another party would lay tarpaper over the plywood and install the
roof shingles. According to the agreement, DHC was to complete the
framing by 2 September 2001 and DHC would be penalized for any
delay thereafter. All construction materials were supplied by
Neuse River. The record on appeal does not include a copy of the
contract between Neuse River and DHC.
DHC arrived at the job site on 30 August 2001 to begin work on
buildings 47 and 52. At that time, several Neuse River employeeshad already begun to remove a significant portion of the rubber
membrane that served to weatherproof the flat roof of building 52.
In addition, some plywood had been cut away. DHC assisted Neuse
River in removing the remaining plywood on building 52 in order
that plaintiff could begin installation of the support system
necessary for the new trusses.
Meanwhile, on building 47, Neuse River employees had removed
two feet of the rubber membrane from around the roof's perimeter.
DHC employees assisted Neuse River employees in laying two-by-eight
lumber around the sides of the roof. In addition, DHC employees
were engaged in modifying the pre-manufactured trusses provided by
Neuse River because the trusses were not the correct size for the
project.
In the early afternoon, a heavy rain storm caused substantial
water damage to buildings 47 and 52, damaging the eight units in
each building. At the time of the storm, portions of buildings 47
and 52 were covered by tarps supplied by Neuse River. Bill Perry,
a foreman with Neuse River attempted to purchase additional tarps
at the time of the storm. At the request of Neuse River, DHC
employees assisted in laying the tarps.
Following the rain storm, DHC employees left the job site and
did not return until the next day, 31 August 2001. At that time,
DHC employees completed laying the plywood on building 52 and
agreed with Neuse River to lay the tarpaper over the plywood. Over
the course of the next two days, DHC agreed to Neuse River's
additional requests that DHC remove the remaining rubber membrane
and plywood on building 47, prepare the roof for the new trusses,and lay the tarpaper. DHC completed all the work initially covered
by the original contract and all the work negotiated thereafter by
Neuse River.
Neuse River eventually abandoned the project and plaintiff
hired another contractor to complete the work detailed in
plaintiff's contract with Neuse River. The contractor also
repaired the damage resulting from the water intrusion to the
common areas and individual units of buildings 47 and 52.
According to the testimony of Kramer and others, the weather
forecast on 30 August 2001 had called for thunderstorms. A light
rain preceded the heavy storm that day. Kramer, who was unaware of
DHC's involvement, raised his concern to individuals on the job
site that the roofs were not adequately protected in the event of
rain.
The specifications for the project, as incorporated in the
contract between plaintiff and Neuse River, explicitly required
that all work be left weathertight each night. According to the
written agreement, the general contractor was responsible for all
weather damage when the building was left exposed to the elements.
The possibility of thunderstorms in the summer months was noted in
the contract.
Plaintiff filed a complaint on 22 October 2001 asserting
numerous claims against Neuse River and DHC. Neuse River failed to
file an answer and an entry of default was made against Neuse
River. Neuse River is not a party to this appeal. Both plaintiff
and DHC filed motions for summary judgment. The trial court
granted summary judgment in favor of DHC and taxed costs againstplaintiff. Plaintiff appeals.
[1] Plaintiff first assigns error to the trial court's alleged
admission and consideration of DHC's expert affidavits in
determining summary judgment. DHC submitted the affidavits at
issue in opposition to plaintiff's motion for partial summary
judgment and in support of DHC's own motion for summary judgment.
Plaintiff filed an objection and a motion to strike the
affidavits on the grounds that the affidavits failed to comply with
the requirements of Rule 56 of the North Carolina Rules of Civil
Procedure. According to the record, the trial court never ruled on
plaintiff's objection and motion to strike the affidavits. This
Court is unable to review the issue concerning the trial court's
admission and consideration of the affidavits since there is
nothing before this Court indicating the trial court's ruling on
the question. N.C.R. App. P. 10(b)(1) provides that in order to
preserve a question for appellate review, it is "necessary for the
complaining party to obtain a ruling upon the party's request,
objection or motion." Because plaintiff failed to obtain such a
ruling, plaintiff's assignment of error number one is overruled.
[2] Plaintiff next contends the trial court erred in denying
plaintiff's motion for partial summary judgment and in granting
DHC's motion for summary judgment as to the issue of liability.
N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003) proscribes that
summary judgment is appropriate only "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue of material fact and that any party is entitled to ajudgment as a matter of law." An issue is deemed genuine "if it
is supported by substantial evidence," DeWitt v. Eveready Battery
Co., 355 N.C. 672, 681, 565 S.E.2d 140, 146 (2002), and "a fact is
material if it would constitute or would irrevocably establish any
material element of a claim or a defense." Bone International,
Inc. v. Brooks, 304 N.C. 371, 375, 283 S.E.2d 518, 520 (1981).
In order to prevail on a motion for summary judgment, a moving
party meets its burden by "proving that an essential element of the
opposing party's claim is non-existent, or by showing through
discovery that the opposing party cannot produce evidence to
support an essential element of his claim or cannot surmount an
affirmative defense which would bar the claim." Collingwood v. G.
E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427
(1989). "'Once the moving party meets this burden, the burden is
then on the opposing party to show that a genuine issue of material
fact exists. . . . If the opponent fails to forecast such
evidence, then the trial court's entry of summary judgment is
proper.'" Mozingo v. Pitt County Memorial Hospital, 101 N.C. App.
578, 583, 400 S.E.2d 747, 750 (quoting White v. Hunsinger, 88 N.C.
App. 382, 383, 363 S.E.2d 203, 204 (1988)), cert. denied, 329 N.C.
498, 407 S.E.2d 537 (1991). The trial court is to consider all
evidence in the light most favorable to the opposing party.
DeWitt, 355 N.C. at 682, 565 S.E.2d at 142.
Summary judgment is "rarely appropriate in a negligence action
because ordinarily it is the duty of the jury to apply the standard
of care of a reasonably prudent person." Abner Corp. v. City
Roofing & Sheetmetal Co., 73 N.C. App. 470, 472, 326 S.E.2d 632,633 (1985). To survive a motion for summary judgment, plaintiff
must have established a prima facie case of negligence by showing:
"(1) defendant failed to exercise proper care in the performance of
a duty owed to plaintiff; (2) the negligent breach of that duty was
a proximate cause of plaintiff's injury; and (3) a person of
ordinary prudence should have foreseen that plaintiff's injury was
probable under the circumstances as they existed." Lavelle v.
Schultz, 120 N.C. App. 857, 859-60, 463 S.E.2d 567, 569 (1995),
disc. review, 342 N.C. 656, 467 S.E.2d 715 (1996). In the case
before us, plaintiff alleges that DHC was negligent in failing to
provide buildings 47 and 52 with adequate protection from water
intrusion.
Generally, where the facts are undisputed, "[t]he issue of
whether a duty exists is a question of law for the court."
Mozingo, 101 N.C. App. at 588, 400 S.E.2d at 453; see 57A Am. Jur.
2D Negligence § 86 (court is to determine as a matter of law, the
existence, scope or range of the duty). Because no contract
existed between plaintiff and DHC, plaintiff does not present a
contract claim, but instead correctly argues that it need not prove
privity of contract in order to prove the existence of a duty. See
Olympic Products Co. v. Roof Systems, Inc., 88 N.C. App. 315, 363
S.E.2d 367, disc. review denied, 321 N.C. 744, 366 S.E.2d 862
(1988).
In tort, no liability exists unless the law imposes a duty.
"It is well settled law in North Carolina that privity of contract
is not required in order to recover against a person who
negligently performs services for another and thus injures a thirdparty." Ingle v. Allen, 71 N.C. App. 20, 26, 321 S.E.2d 588, 594
(1984), disc. review denied, 313 N.C. 508, 329 S.E.2d 391 (1985),
overruled in part on other grounds, 351 N.C. 172, 521 S.E.2d 707
(1999).
This Court has recognized six factors to be balanced in
determining
[w]hether a party has placed himself in a
position where his affirmative conduct may be
expected to affect the interest of another
person, so that tort law will impose upon him
an obligation to act in such a way that the
other person will not be injured. . . .
(1) the extent to which the
transaction was intended to affect
the other person; (2) the
foreseeability of harm to him; (3)
the degree of certainty that he
suffered injury; (4) the closeness
of the connection between the
defendant's conduct and the injury;
(5) the moral blame attached to such
conduct; and (6) the policy of
preventing future harm.
Ingle, 71 N.C. App. at 27, 321 S.E.2d at 594 (citations omitted).
Neuse River originally contracted with DHC solely to install
the pre-manufactured trusses and to lay plywood over those trusses.
All supplies were to be provided by Neuse River. At no time was
plaintiff aware of DHC's presence nor did plaintiff and DHC ever
converse. The evidence indicates that it was only upon DHC's
arrival on the job site on the day following the damaging
rainstorm, that DHC assumed additional duties which extended to the
installation of the tarpaper.
Plaintiff emphasizes that in order to install the trusses, the
old roofs had to be removed, leaving the buildings unprotected.
Thus, plaintiff argues the exposure of the roofs were part of theprocess undertaken by DHC as per DHC's original agreement with
Neuse River. Although on the day of the storm, DHC assisted Neuse
River to a limited extent in the removal of the old roofs and in
the preparation for the installation of the new roofs, DHC's sole
motivation for assisting in the removal was a desire to stay within
the time allotted by contract for the installation of the trusses.
These actions do not establish that DHC assumed a duty to
weatherproof the buildings. It was Neuse River that left the
buildings exposed to the weather when it removed the rubber
membrane without providing adequate protection in violation of its
expressed contractual obligation. DHC did not assume any
responsibility for laying the tarpaper, hence weatherproofing,
until after the damage had occurred. Plaintiff's evidence is
insufficient to create a genuine issue that DHC owed a duty to
plaintiff to waterproof the buildings. Therefore, an essential
element of plaintiff's claim is non-existent and subsequently
plaintiff has failed to present a prima facie case of negligence.
The trial court did not err in granting summary judgment to DHC.
Plaintiff's assignments of error numbers two and three are
overruled.
[3] Plaintiff argues the trial court's order erred in granting
DHC's motion to tax plaintiff with the costs of the action pursuant
to N.C. Gen. Stat. § 1A-1, Rule 41(d)(2003). Rule 3(d) of the
North Carolina Rules of Procedure provides that the notice of
appeal filed by the appellant "designate[s] the judgment or order
from which appeal is taken[.]" "Without proper notice of appeal,
the appellate court acquires no jurisdiction and neither the courtnor the parties may waive the jurisdictional requirements even for
good cause shown under Rule 2." Bromhal v. Stott, 116 N.C. App.
250, 253, 447 S.E.2d 481, 483 (1994), disc. review denied, 339 N.C.
609, 454 S.E.2d 246, aff'd, 341 N.C. 702, 462 S.E.2d 219 (1995).
In the case before us, plaintiff failed to file notice of appeal
from the trial court's order permitting costs to be taxed against
plaintiff; therefore, this Court is without jurisdiction to
consider this issue.
Having considered DHC's cross-assignments of error, this Court
finds DHC's arguments to be without merit. DHC's cross-assignments
of error numbers one and two are overruled.
Affirmed.
Judges HUDSON and CALABRIA concur.
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