Appeal by plaintiff from order entered 16 July 2003 by Judge
Ripley E. Rand in Wake County Superior Court. Heard in the Court
of Appeals 31 August 2004.
BAILEY & DIXON, L.L.P., by Gary S. Parsons and Philip A.
Collins, for plaintiff-appellant.
POE, HOOF & ASSOCIATES, P.A., by J. Bruce Hoof, for defendant-
appellee M. Lewis Construction, Inc.
TIMMONS-GOODSON, Judge.
Mary Hill Mitchell (“plaintiff”) appeals the trial court order
granting summary judgment in favor of M. Lewis Construction, Inc.
(“Lewis Construction”). For the reasons discussed herein, we
affirm the trial court order.
The facts and procedural history pertinent to the instantappeal are as follows: In November 1995, Mitchell's Formal Wear,
Inc. (“Mitchell's Formal Wear”) entered into a contract with Lewis
Construction whereby Lewis Construction would make certain
renovations to a Mitchell's Formal Wear store located at Crabtree
Valley Mall in Raleigh. The renovation plans included the
construction and installation of benches in the store's dressing
rooms.
Although the store opened for business on or about 15 January
1996, the City of Raleigh did not issue a permanent certificate of
occupancy for the store until January 1999. Michael Lewis
(“Lewis”), President of Lewis Construction, stated in an affidavit
that a temporary certificate of occupancy was issued to Mitchell's
Formal Wear in January 1996. Lewis explained that the delay
between the completion of the renovations and the issuance of the
permanent certificate of occupancy was attributable to ongoing
renovations at Crabtree Valley Mall that were unrelated to the
Mitchell's Formal Wear store.
On 23 February 2000, plaintiff was injured in the dressing
room of Mitchell's Formal Wear when a bench on which she was
sitting collapsed and caused her to fall to the floor. After
reviewing photographs of the dressing room and the bench, Michael
J.E. Sanchez (“Sanchez”), a professional engineer, determined that
the bench had been attached to the wall by one strip of glue and
one drywall screw. Sanchez further determined that the collapse of
the bench was due to its faulty construction.
On 12 March 2002, plaintiff filed suit against Mitchell's
Formal Wear, Lewis Construction, and Crabtree Valley Mall and PlazaAssociates. On 9 May 2002, plaintiff filed an amended complaint,
alleging inter alia that Mitchell's Formal Wear knew or should have
known that the bench was in a dangerous condition, and that Lewis
Construction constructed and installed the bench in a negligent
manner. On 11 February 2003, Lewis Construction filed a motion for
summary judgment, arguing that plaintiff's complaint against Lewis
Construction was barred by the six-year statute of repose set forth
in N.C. Gen. Stat. § 1-50(a)(5). In an order entered 2 July 2003
and amended 16 July 2003, the trial court granted summary judgment
in favor of Lewis Construction. Plaintiff appeals.
The only issue on appeal is whether the trial court erred by
granting summary judgment in favor of Lewis Construction.
Plaintiff argues that she filed her complaint against Lewis
Construction within the time specified in the statute of repose,
and that therefore judgment as a matter of law in Lewis
Construction's favor was inappropriate. We disagree.
N.C. Gen. Stat. § 1-50(a)(5) (2003) provides as follows:
No action to recover damages based upon or
arising out of the defective or unsafe
condition of an improvement to real property
shall be brought more than six years from the
later of the specific last act or omission of
the defendant giving rise to the cause of
action or substantial completion of the
improvement.
The statute further provides that “an action based upon or arising
out of the defective or unsafe condition of an improvement to real
property includes . . . [a]ctions to recover damages for the
negligent construction or repair of an improvement to real
property[.]”
Id.
The statute defines “substantial completion” as“that degree of completion of a project, improvement or specified
area or portion thereof . . . upon attainment of which the owner
can use the same for the purpose for which it was intended[,]” and
the statute provides that “[t]he date of substantial completion may
be established by written agreement.”
Id.
Whether a statute of repose has run is a question of law.
Nolan v. Paramount Homes, Inc., 135 N.C. App. 73, 75, 518 S.E.2d
789, 791 (1999),
disc. review denied, 351 N.C. 359, 542 S.E.2d 214
(2000). “Summary judgment is proper if the pleadings or proof show
without contradiction that the statute of repose has expired.”
Bryant v. Don Galloway Homes,
Inc., 147 N.C. App. 655, 657, 556
S.E.2d 597, 600 (2001). “The moving party has the burden of
producing evidence sufficient to show that summary judgment is
justified. The burden then shifts to the non-moving party to '“set
forth specific facts showing that there is a genuine issue for
trial.”'”
Id. (citations omitted).
In the instant case, the pleadings, depositions, and other
documentary evidence suggest that the date of “substantial
completion” for the Mitchell's Formal Wear renovation was 6
December 1995. Attached to Lewis Construction's Supplemental
Responses to Plaintiff's Requests for Admissions was an invoice
addressed to Mitchell's Formal Wear and dated 6 December 1995. The
invoice indicates that “100%” of the “Framing” and “Woodwork” was
complete. In his affidavit, Lewis states that he believes the
bench was completed on or before 6 December 1995 “based upon the
Lewis Construction invoice dated December 6, 1995 . . . [which]
reflects that 100% of the framing and 100% of the woodwork for thejob had been completed as of December 6, 1995.” Lewis further
states that “[t]he construction of the dressing room benches would
have been part of the framing and woodwork for th[e] job.”
Although there is indication in the record that, after 6 December
1995, Lewis Construction performed work on the “punch list” items
listed in its contract with Mitchell's Formal Wear, there is no
indication that any of these items related to the dressing room
bench that allegedly injured plaintiff. “In order to constitute a
last act or omission, the act or omission must give rise to the
cause of action. Here, the work on the punch list did not give
rise to this action and therefore does not constitute defendant's
last act or omission.”
Nolan, 135 N.C. App. at 79, 518 S.E.2d at
793. Thus, in light of the record in the instant case, we conclude
that Lewis Construction substantially completed its renovations
more than six years prior to plaintiff's injury and subsequent
complaint.
Plaintiff maintains that the project was not substantially
complete until the City of Raleigh issued a permanent certificate
of occupancy to Mitchell's Formal Wear in January 1999. In support
of this contention, plaintiff cites our decision in
Nolan, in which
we held that, “[s]ince it could be utilized for its intended
purposes,” the plaintiff's house was “substantially completed”
under N.C. Gen. Stat. § 1-50(a)(5) “upon issuance of the
certificate of compliance” from the county inspections department.
Id. at 76, 518 S.E.2d at 791. However, we are not convinced that
Nolan requires that a certificate of compliance -- or, in this
case, a certificate of occupancy -- be issued before a renovationproject is deemed “substantially complete.” In
Bryant, we examined
a similar argument and found the following two problems:
First, plaintiffs have offered no evidence
that they were prevented from using the house
as a residence. In fact, the record indicates
otherwise. Plaintiffs lived in the house for
six years before bringing this complaint.
Second, plaintiffs point to no specific
language in
Nolan in support of their argument
that a
rebuttable presumption arises.
147 N.C. App. at 659, 556 S.E.2d at 601 (emphasis in original).
In the instant case, the record indicates that Mitchell's
Formal Wear operated the store for more than three years prior to
receiving a final certificate of occupancy from the City of
Raleigh. The contract between Mitchell's Formal Wear and Lewis
Construction provides that “[t]he Contractor shall achieve
Substantial Completion of the entire Work not later than January 1,
1996[,]” and in his affidavit, Lewis states the following:
It is my best recollection that the Crabtree
Valley Mall Mitchell's store opened for
business on about January 15, 1996. I recall
that it received a Temporary Certificate of
Occupancy from the City of Raleigh Inspections
Department allowing it to open at that time.
The final Certificate of Occupancy for that
store . . . was, as I recall, not issued at
that time because of certain work that the
City of Raleigh Inspections Department
required to be done to the area of the
Crabtree Valley Mall in which this Mitchell's
store was located. This work was not part of
the renovation work contracted to Lewis
Construction for the Mitchell's store located
in Crabtree Valley Mall. . . . It was not
until Crabtree Valley Mall completed this
work, which was unrelated to the Mitchell's
store, that the stores in that section of the
mall (including Mitchell's) were able to
obtain permanent Certificates of Occupancy.
Although Mitchell's Formal Wear offered evidence tending to show
that the City of Raleigh does not have a record of the temporarycertificate referred to in Lewis' affidavit, neither plaintiff nor
Mitchell's Formal Wear offered any evidence tending to show that
the Crabtree Valley Mall store was not operating in January 1996.
Furthermore, neither plaintiff nor Mitchell's Formal Wear offered
any evidence tending to show that, in January 1996, the bench was
incapable of being used for its intended purpose. Thus, no genuine
issue remains as to whether the renovations were substantially
complete by January 1996, more than six years prior to plaintiff's
filing suit against Lewis Construction.
Plaintiff argues in the alternative that the date of
substantial completion was defined by the contract between
Mitchell's Formal Wear and Lewis Construction. Contained within
the contract between Mitchell's Formal Wear and Lewis Construction
is a provision stating that “[w]hen the Architect agrees that the
Work is substantially complete, the Architect will issue a
Certificate of Substantial Completion.” Plaintiff contends that
because the architectural firm failed to issue a Certificate of
Substantial Completion, the statute of repose is tolled. We
disagree.
“[T]he obligations arising out of a contract
are due only to those with whom it is made; a
contract cannot be enforced by a person who is
not a party to it or in privity with it,
except under a real party in interest statute,
or under certain circumstances, by a
third-party beneficiary.”
Meyer v. McCarley and Co., 288 N.C. 62, 70-71, 215 S.E.2d 583, 588
(1975) (quoting
17 Am. Jur. 2d Contracts § 297 (now 17A Am. Jur. 2d
Contracts § 416)). In the instant case, plaintiff does not invoke
a real party in interest statute, nor is she named as a third-partybeneficiary of the contract between Mitchell's Formal Wear and
Lewis Construction. Thus, plaintiff cannot enforce the contract.
Accordingly, we conclude that the trial court did not err by ruling
as a matter of law that plaintiff's complaint, filed more than six
years after substantial completion of the renovations, was barred
by the statute of repose. The trial court's judgment as to Lewis
Construction is therefore affirmed.
Affirmed.
Judges HUNTER and McCULLOUGH concur.
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