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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
MELANIE J.G. ZIZZO, Individually, NICKY JAMES ZIZZO, by and
through Guardian ad Litem MELANIE J.G. ZIZZO, and JOHN NICHOLAS
ZIZZO, Individually, on behalf of themselves and others similarly
situated, Plaintiffs, v. PENDER COUNTY BOARD OF EDUCATION,
Defendant and Third-Party Plaintiff, v. LITTLE DIVERSIFIED
ARCHITECTURAL CONSULTING, INC. (Formerly Little & Associates
Architects, Inc.), SOUTHERN PIPING COMPANY, R.L. CASEY, INC., and
R.J.W. CONSTRUCTION, INC., Third-Party Defendants
Filed: 3 January 2006
Appeal and Error_moot appeal_dismissal of third-party complaint_original claim
An appeal by a defendant and third-party plaintiff (Pender County) was dismissed as
moot after the original plaintiffs dismissed their claims against Pender County. Pender County's
claim was for derivative damages under N.C.G.S. § 1A-1, Rule 14(a), rather than for direct
damages under N.C.G.S. § 1A-1, Rule 18(a).
Appeal by defendant and third-party plaintiff from order
entered 28 July 2004 by Judge D. Jack Hooks, Jr., in Pender County
Superior Court. Heard in the Court of Appeals 30 November 2005.
No brief filed for plaintiffs-appellees.
Patterson, Dilthey, Clay, Bryson & Anderson, L.L.P., by Scott
Lewis and Ellen J. Persechini, for defendant and third-party
Hamilton, Fay, Moon, Stephens, Steele & Martin, PLLC, by David
B. Hamilton, David G. Redding, and Andrianne Huffman Colgate,
for third-party defendant-appellee Little Diversified
Architectural Consulting, Inc. (Formerly Little & Associates
No brief filed for third-party defendants-appellees Southern
Piping Company, Sigma Construction Co., Inc., M.B. Kahn
Construction Co., Inc., and SE&M Constructors, Inc.
Pender County Board of Education (Pender County) appeals
from order entered dismissing its claims against Little DiversifiedArchitectural Consulting, Inc. (Formerly Little & Associates
Architects, Inc.) (Little). We dismiss this appeal.
Melanie J.G. Zizzo, Nicky James Zizzo, and John Nicholas Zizzo
(collectively, plaintiffs) filed a complaint against Pender
County on 27 November 2002 alleging they were injured by exposure
to mold in North Topsail Elementary School. Pender County filed
third-party complaints against Little, the architectural firm that
designed and supervised the construction of the school, and others.
Pender County claimed breach of contract, negligence, breach of
express warranties, and negligence per se. Pender County prayed
the court as follows:
WHEREFORE, defendant and third party plaintiff
prays the Court that in the event the
defendant is found liable to the plaintiffs,
it have complete indemnity and/or contribution
from the third party defendants; that judgment
be entered against the third party defendants
for the costs incurred by third party
plaintiff in the remediation of South Topsail
Elementary School, which sum is in excess of
The trial court dismissed with prejudice all of Pender
County's claims against Little on 21 July 2004. Pender County
appeals. On 4 May 2005, plaintiffs dismissed without prejudice
their claims against Pender County. On 2 June 2005, Little moved
to dismiss Pender County's appeal.
Pender County argues: (1) the trial court erred in granting
Little's motion to dismiss; and (2) the trial court properlygranted Pender County's motion to continue Little's motion for
III. Motion to Dismiss
After plaintiffs dismissed their complaint against Pender
County, Little filed a motion in this Court to dismiss Pender
County's appeal on 2 June 2005. Little argues plaintiffs'
dismissal of all claims against Pender County renders any claim
Pender County may have against Little moot because Pender County
has no claim to derivative damages. We agree.
Pender County's complaint against Little is entitled, Third
Party Complaint. In the complaint, Pender County states,
Pursuant to Rule 14(a) of the North Carolina Rules of Civil
Procedure, defendant, by and through counsel, alleges and says . .
Rule 14(a) of the North Carolina Rules of Civil Procedure
At any time after commencement of the action a
defendant, as a third-party plaintiff, may
cause a summons and complaint to be served
upon a person not a party to the action who is
or may be liable to him for all or part of the
plaintiff's claim against him.
N.C. Gen. Stat. § 1A-1, Rule 14(a) (2003) (emphasis supplied).
Under this rule, an original defendant may implead a party for the
purposes of indemnification and contribution for all or part of
the plaintiff's claim against him. Id. If the original
defendant is not liable to the original plaintiff, the third-party
defendant is not liable to the original defendant. Jones v.
Collins, 58 N.C. App. 753, 756, 294 S.E.2d 384, 385 (1982). Aclaim which is independent of the defendant's possible liability to
the plaintiff cannot be the basis of impleader under Rule 14.
Alan D. Woodlief, Jr., Shuford North Carolina Civil Practice and
Procedure § 14:2 (6th ed. 2003) (citing Horn v. Daniel, 315 F.2d
471 (10th Cir. 1962)); see also Hunter v. Kennedy, 128 N.C. App.
84, 86, 493 S.E.2d 327, 328 (1997) (The issue was whether an
uninsured motorist carrier may file a third-party complaint seeking
contribution and/or indemnification in defending an uninsured
motorist. This Court dismissed the third-party complaint holding
that the third-party complaint was an affirmative claim and not an
action taken in an effort to defeat the original claim asserted by
In Lord v. Customized Consulting Specialty, Inc., the original
defendant filed a third-party complaint against the third-party
defendant. 164 N.C. App. 730, 732, 596 S.E.2d 891, 893 (2004).
The original plaintiff's claims against the original defendant were
subsequently dismissed. Id. This Court stated, When plaintiffs'
claims against defendant were voluntarily dismissed, defendant's
third party claims ceased to exist. All of the claims of
plaintiffs and defendant were part of the same action. Id. at
733, 596 S.E.2d at 894.
In In re Peoples, our Supreme Court stated:
Whenever, during the course of litigation it
develops that the relief sought has been
granted or that the questions originally in
controversy between the parties are no longer
at issue, the case should be dismissed, for
courts will not entertain or proceed with a
cause merely to determine abstract
propositions of law.
296 N.C. 109, 147, 250 S.E.2d 890, 912 (1978) (citations omitted).
If issues become moot at any time during the proceedings, the
action should be dismissed. Id. at 148, 250 S.E.2d at 912.
Here, plaintiffs dismissed all claims against Pender County.
Because Pender County has filed a third-party complaint under Rule
14 against Little, it asserted no viable claim against Little for
direct damages. N.C. Gen. Stat. § 1A-1, Rule 14(a).
Pender County could have joined its claims against Little
pursuant to N.C. Gen. Stat. § 1A-1, Rule 18 (a). Rule 18(a)
states, A party asserting a claim for relief as an original claim,
counterclaim, cross claim, or third-party claim, may join, either
as independent or as alternate claims, as many claims, legal or
equitable, as he has against an opposing party. N.C. Gen. Stat.
§ 1A-1, Rule 18 (a) (2003) (emphasis supplied). Pender County
solely asserted claims [p]ursuant to Rule 14(a), prayed for
complete indemnity and/or contribution, and did not assert any
claims against Little or the other third-party defendants under
Rule 18(a). Plaintiffs' dismissal of all claims against Pender
County renders this appeal moot. This appeal is dismissed.
In filing a third-party complaint against Little under Rule
14, Pender County pled derivative and not direct damages against
Little. Because plaintiffs have dismissed all claims against
Pender County, Pender County has not asserted any remaining claims
against Little. This appeal is moot. Little's motion to dismiss
Pender County's appeal is granted. This appeal is dismissed. Inlight of our decision, it is unnecessary to address Pender County's
assignments of error.
Judges BRYANT and CALABRIA concur.
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