Link to original WordPerfect file
Link to PDF file
How to access the above link?
Return to nccourts.org
Return to the Opinions Page
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.
EDWARD S. BAUM and ANN F. BAUM, Plaintiffs, v. JOHN R. POORE
BUILDER, INC.; PETER J. VERNA, P.E.; and C.S. BROWN TILE &
MARBLE, INC., Defendants
Filed: 1 May 2007
1. Statutes of Limitation and Repose--breach of contract--negligence
The trial court erred in a breach of contract and negligence case by granting summary
judgment in favor of defendants based on the expiration of the pertinent three-year statutes of
limitations because, based on plaintiffs' allegations as to when they gained their knowledge and
viewing the evidence submitted to the trial court in the light most favorable to plaintiffs'
position, an inference can be drawn that the limitations period had not expired before plaintiffs
filed their lawsuit, and that consequently, the issue is for the jury to determine.
2. Appeal and Error--preservation of issues--failure to argue
The Court of Appeals declined to address the applicability of the statute of repose as a
basis for summary judgment in a breach of contract and negligence case even though each
defendant properly pled the statute of repose as an affirmative defense in their respective answers
to plaintiffs' complaint, because: (1) in none of defendants' individual motions for summary
judgment was the statute of repose raised; and (2) it is unclear from the record on appeal, or the
portion of the summary judgment hearing transcript included as part of the record, whether the
statute of repose was argued before the trial court.
3. Estoppel--equitable estoppel--failure to argue at trial
The Court of Appeals declined to address the applicability of the doctrine of equitable
estoppel as a basis for summary judgment in a breach of contract and negligence case because
neither in the documents submitted as part of the settled record on appeal, nor in the portions of
the transcript made available for the Court of Appeals to review, was it clear that equitable
estoppel was argued before the trial court.
4. Appeal and Error--preservation of issues--failure to assign error-_failure to argue
Although defendant Brown Tile contends the trial court erred by failing to grant summary
judgment in its favor based on the additional grounds that it was not responsible for the structure
of the alleged defective deck, this assignment of error is dismissed because: (1) defendant's
motion was based solely on the statute of limitations; and (2) the record does not reflect whether
defendant made this particular argument at the summary judgment hearing before the trial court.
Appeal by Plaintiffs from judgments entered 12 December 2005
and 11 January 2006 by Judge Yvonne Mims-Evans in Mecklenburg
County Superior Court. Heard in the Court of Appeals 10 January
Nexsen Pruet Adams Kleemeier, PLLC, by David S. Pokela and
Richard W. Wilson, for Plaintiffs-Appellants.
Clawson & Staubes, PLLC, by Michael J. Kitson, and James
McElroy & Diehl, by Gary Hemric, for Defendant-Appellee John
R. Poore Builder, Inc.
Joe T. Millsaps for Defendant-Appellee Peter J. Verna.
DeVore, Acton & Stafford, P.A., by Fred W. DeVore, III, for
Defendant-Appellee Brown Tile & Marble, Inc.
I. FACTUAL AND PROCEDURAL BACKGROUND
On 20 March 1995, Plaintiffs and John R. Poore Builder, Inc.
(Defendant Poore) entered into an agreement by which Defendant
Poore agreed to perform and furnish to [Plaintiffs] certain labor,
materials, equipment, services, and supervision in connection with
the design and construction of a house and other improvements on
Plaintiffs' property. Disagreements arose regarding the
fulfillment of this contract and, through an agreement entered 29
June 1998, Plaintiffs and Defendant Poore resolved certain claims,
disputes, [and] disagreements between them[.] By the 29 June 1998
contract, Defendant Poore agreed, inter alia
, to finish
construction of the deck at the rear of [Plaintiffs'] house . . .
in accordance with plans and specifications prepared by Pete Verna,
P.E. (Defendant Verna). The deck was completed sometime in the
fall of 1998. The design and construction of the deck, which
borders a swimming pool on Plaintiffs' property, is the subject of
this litigation. By letter dated 17 December 1998, Defendant Verna communicated
to Plaintiffs that he prepared and [is] responsible for the plans
and specifications for the deck at the rear of [Plaintiffs']
house, that the plans and specifications which [he] prepared for
the deck are sufficient for the intended purposes . . . [and] the
pool walls are structurally sound[,] and that he monitored and
inspected the progress of the construction of the deck . . . and
certif[ied] that . . . the improvements . . . have been constructed
in a manner consistent with the plans and specifications[.]
In June 2000, Plaintiffs noticed that some tiles on the deck
were beginning to crack. They subsequently contacted Defendant
Poore, who instructed them to call the company that installed the
tiles, C.S. Brown Tile & Marble, Inc. (Defendant Brown Tile), to
replace the tiles. In an affidavit, Ms. Baum averred that Joe from
Brown Tile replaced the cracked tiles . . . [and] assured [her]
that there were no structural problems that caused the cracked
tiles. However, [Joe] did recommend purchas[ing] extra tiles since
some tiles . . . would crack in the future as a result of ordinary
wear and tear[.]
In the summer of 2002, Plaintiffs again noticed that certain
tiles on the deck were beginning to crack. During the same period,
Plaintiffs engaged the services of a painter to provide an estimate
for painting a section of the deck where the paint had begun to
peel. The painter examined that section of the deck and told Ms.
Baum he suspected that excessive moisture from the deck or pool wascausing the damage to the paint. He recommended having the pool
and deck inspected.
Plaintiffs again contacted Defendant Brown Tile to repair the
cracked tiles and, based on the painter's recommendation, asked
Defendant Brown Tile to investigate the suspected moisture problem.
Joe from Defendant Brown Tile informed Plaintiffs that they would
have to pay to replace the cracked tiles, but said that before the
tile work was done, he wanted his brother Chris Brown from Brown
Tile to inspect the pool and deck. Plaintiffs tried to contact
Chris Brown to schedule an appointment to have the pool and deck
inspected, but Chris Brown failed to return their calls. In
September 2003, after failing in their efforts to obtain a full
inspection of the deck and pool from Defendant Brown Tile,
Plaintiffs contacted Rea Brothers, Inc. (Rea Brothers), a
construction company based in Charlotte, to perform the inspection.
Upon completing the inspection, Rea Brothers informed Plaintiffs
that the tile problems were the product of serious structural
defects [in the design and construction of the deck].
On 8 September 2004, Plaintiffs filed a complaint against
Defendant Poore, alleging causes of action for breach of contract
and negligence, and against Defendants Verna and Brown Tile,
alleging negligence. On 26 August 2005, Defendant Brown Tile moved
for summary judgment, claiming that Plaintiffs' claims were barred
by the statute of limitations. Similarly, on 6 September 2005,
Defendant Verna moved for summary judgment on the same ground.
Following a hearing, the Honorable Yvonne Mims-Evans denied eachDefendant's motion.
(See footnote 1)
Plaintiffs then discovered and tendered to
all Defendants additional documents regarding the construction of
the deck. After receiving this new information, on 24 October
2005, Defendant Poore moved for summary judgment relying on the
statute of limitations.
On or about 22 November 2005, Judge Mims-Evans heard the
matter on motion of all Defendants for reconsideration of her
previous denial of summary judgment. By judgment entered 12
December 2005 and [a]fter consideration of . . . newly discovered
evidence, and a supplemental affidavit of Ann F. Baum dated
November 10, 2005 tendered by the plaintiff, Judge Mims-Evans
ruled that the motions for summary judgment of the defendants
should be granted.
(See footnote 2)
The newly discovered evidence included a
report from building inspector, R.D. McClure, dated July 3, 1997
and three handwritten documents[.]
On 22 December 2005, Plaintiffs moved to amend the trial
court's judgment. In support of this motion, Plaintiffs filed a
supplementary affidavit of Ms. Baum providing an explanation of the
content of the three handwritten documents introduced at the
summary judgment hearing. By order entered 11 January 2006, the
trial court received . . . and accepted [the supplementaryaffidavit] as a part of the record in this action as explanation of
the record or record on appeal or clarification of the record;
however, said Affidavit was not substantively considered by the
Court in making its decision on Defendants' Motion at the Hearing
on November 22, 2005.
(See footnote 3)
Plaintiffs appeal from the 12 December
2005 judgment granting summary judgment in favor of all Defendants
and from the 11 January 2006 Order Clarifying Judgment. For the
reasons stated herein, we reverse.
II. STATUTE OF LIMITATIONS
Summary judgment is proper if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that any party is entitled to judgment as a
matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c) (2005).
A defendant who moves for summary judgment
bears the burden of establishing that there is
no genuine issue as to any material fact and
that defendant is entitled to judgment as a
matter of law. A defendant may meet this
burden by (1) proving that an essential
element of plaintiff's claim is nonexistent,
or (2) showing through discovery that
plaintiff cannot produce evidence to support
an essential element of his or her claim, or
(3) showing that plaintiff cannot surmount an
affirmative defense which would bar the
Crawford v. Boyette
, 121 N.C. App. 67, 69-70, 464 S.E.2d 301, 303
(1995) (quoting Watts v. Cumberland County Hosp. System, Inc.
N.C. App. 1, 6, 330 S.E.2d 242, 247 (1985) (citation omitted),rev'd on other grounds
, 317 N.C. 321, 345 S.E.2d 201 (1986)), cert.
, 342 N.C. 894, 467 S.E.2d 902 (1996). When the affirmative
defense of the statute of limitations has been pled, the burden is
on the plaintiff to show that his cause of action accrued within
the limitations period. Crawford
, 121 N.C. App. at 70, 464 S.E.2d
at 303 (citing Hooper v. Carr Lumber Co.
, 215 N.C. 308, 1 S.E.2d
818 (1939)). On appeal from an order granting summary judgment,
our standard of review is de novo
, and we view the evidence in the
light most favorable to the non-movant. Broughton v. McClatchy
, 161 N.C. App. 20, 588 S.E.2d 20 (2003).
 In the case at bar, Plaintiffs' cause of action for breach
of contract against Defendant Poore is governed by a three-year
statute of limitations.
N.C. Gen. Stat. § 1-52(1) (2003).
Likewise, Plaintiffs' cause of action alleging negligence against
Defendants Poore, Verna, and Brown Tile is subject to a three-year
statute of limitations. N.C. Gen. Stat. § 1-52(5) (2003). Under
North Carolina law, for physical damage to claimant's property,
the cause of action . . . shall not accrue until . . . physical
damage to his property becomes apparent or ought reasonably to have
become apparent to the claimant, whichever event first occurs.
N.C. Gen. Stat. § 1-52(16) (2003). Therefore, in this case,
Plaintiffs had three years from the time the damage to their deck
became apparent or reasonably should have become apparent in which
to bring their causes of action against Defendants. See The
Asheville School v. D.V. Ward Constr., Inc.
, 78 N.C. App. 594, 337
S.E.2d 659 (1985) (addressing the statute of limitations in actionsalleging breach of contract), disc. review denied
, 316 N.C. 385,
342 S.E.2d 890 (1986); see also Howell v. City of Lumberton
N.C. App. 695, 548 S.E.2d 835 (2001) (addressing the statute of
limitations in actions alleging negligence).
In Everts v. Parkinson
47 N.C. App. 315, 319, 555 S.E.2d
667, 670 (2001) (quoting Pembee Mfg. Corp. v. Cape Fear Constr.
, 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985) (citations
, this Court recognized that
the question of whether a cause of action is
barred by the statute of limitations is a
mixed question of law and fact. However, when
the bar is properly pleaded and the facts are
admitted or are not in conflict, the question
of whether the action is barred becomes one of
law, and summary judgment is appropriate.
When, however, the evidence is sufficient to support an inference
that the limitations period has not expired, the issue should be
submitted to the jury. Hatem v. Bryan
, 117 N.C. App. 722, 724,
453 S.E.2d 199, 201 (1995) (citations omitted).
The parties before us do not contest that Plaintiffs had three
years in which to bring their claims for breach of contract and
negligence against Defendants, or that the three-year period did
not begin to run until Plaintiffs became aware or reasonably should
have become aware of the damage to their property. At issue is
whether there are genuine issues of material fact as to when
Plaintiffs knew or reasonably should have known about the damage to
their deck, such that the evidence was sufficient on the question
of when the three-year statute of limitations began to run to
submit the issue to a jury for determination. Plaintiffs argue that the damage did not become apparent nor
should it reasonably
have become apparent until September 2003 when
they received a report from Rea Brothers documenting serious
structural defects in the completed deck. To support this
contention, Plaintiffs submitted to the trial court an affidavit of
Ms. Baum, filed 3 October 2005, stating:
I contacted Rea Brothers, Inc., . . . in
September 2003 to inspect the deck and pool.
After inspections were performed, Rea Brothers
notified me that the tile problems were the
product of serious structural defects. This
was the first time my husband or I had any
notice that the deck may have the design
defects and/or construction defects for which
this lawsuit has been brought.
Plaintiffs also argue, supported by the same affidavit, that they
became aware of or reasonably should have been aware of the damage
to their deck at the earliest in the summer of 2002, when a painter
suggested that excessive moisture coming from the deck or pool was
causing the damage at issue. If either of these two contentions is
accepted as the truth regarding Plaintiffs' knowledge or discovery
of the damage to their property, Plaintiffs' complaint, filed 8
September 2004, is timely under the applicable statutes of
Defendants, on the other hand, contend that Plaintiffs were
aware or reasonably should have become aware of the damage on 3
July 1997 when they received a report from R.D. McClure documenting
design and structural flaws in the deck,
(See footnote 4)
or no later than June2000 when they first noticed cracked ceramic tiles on the deck.
Plaintiffs, however, contend that the 3 July 1997 report from
McClure was delivered to them before the completion of the deck,
and the concerns raised in the report were resolved by the 29 June
1998 agreement they reached with Defendant Poore. Additionally,
with regard to the cracking of tiles in June of 2000, Plaintiffs
argue that when they contacted Defendant Poore to have the tiles
repaired or replaced, Defendant Poore directed them to Defendant
Brown Tile, and Chris Brown's brother, Joe, assured Plaintiffs that
there were no structural problems that caused the cracked tiles.
Based on Plaintiffs' allegations as to when they gained their
knowledge and viewing the evidence submitted to the trial court in
the light most favorable to their position, it is clear that at
least an inference can be drawn that the limitations period had not
expired before Plaintiffs filed their lawsuit, and that,
consequently, the issue is for the jury to determine. See Hatem,
. Accordingly, we conclude that the trial court erred in
granting summary judgment based on the expiration of the statutesof limitations. The judgment granting summary judgment for
and order clarifying judgment are therefore reversed.
III. STATUTE OF REPOSE, E QUITABLE ESTOPPEL,
AND DEFENDANT BROWN TILE'S CROSS-ASSIGNMENT OF ERROR
 In their briefs to this Court, all parties address the
statute of repose and its applicability to the facts of this case.
In their respective answers to Plaintiffs' complaint, each
Defendant properly pled the statute of repose as an affirmative
defense. However, in none of Defendants' individual motions for
summary judgment was the statute of repose raised. Additionally,
it is unclear from the settled record on appeal, or the portion of
the summary judgment hearing transcript included as part of the
(See footnote 5)
whether the statute of repose was argued before the trial
court. Accordingly, we decline to address the applicability of the
statute of repose to this case. See Griggs v. Shamrock Bldg.
, 179 N.C. App. 543, 551, 634 S.E.2d 635, 640 (2006)
(holding that this Court does not address arguments in favor of
granting summary judgment that were not presented to the trial
) (citing McDonald v. Skeen
, 152 N.C. App. 228, 567 S.E.2d
209, disc. review denied
, 356 N.C. 437, 571 S.E.2d 222 (2002)).  Similarly, in their brief to this Court, Plaintiffs argue
that summary judgment was improper because all Defendants should be
equitably estopped from relying on the statute of limitations or
the statute of repose. Again, neither in the documents submitted
as part of the settled record on appeal, nor in the portions of the
transcript made available for this Court to review, is it clear
that equitable estoppel was argued before the trial court.
Consequently, we will not address the application of this legal
principle to this case. See id.
 Finally, Defendant Brown Tile individually cross-assigns
as error the trial court's failure to grant summary judgment in its
favor based on the additional grounds that it was not responsible
for the structure of the alleged defective deck. As discussed
above, Defendant Brown Tile's motion for summary judgment was based
solely on the statute of limitations. Additionally, the record
before this Court does not reflect whether Defendant Brown Tile
made this particular argument at the summary judgment hearing
before the trial court. Accordingly, we will not address this
argument on appeal. See id.
IV. SUPPLEMENTAL AFFIDAVIT SUBMITTED BY PLAINTIFF
Finally, Plaintiffs contend that the trial court committed
reversible error by failing to substantively consider Ms. Baum's
supplementary affidavit filed 22 December 2005 in connection with
Plaintiffs' motion to amend the summary judgment order. Because we
reverse the trial court's grant of summary judgment in favor of allDefendants, it is unnecessary to address the merits of this
For the reasons stated, the judgment and order clarifying
judgment of the trial court are
Judges TYSON and STROUD concur.
The initial order denying summary judgment was not included
in the record on appeal. Therefore, we are unable to determine if
Judge Mims-Evans based her decision on anything other than the
statute of limitations.
The order granting summary judgment did not identify the
ground upon which Judge Mims-Evans relied in reaching her decision.
Once again, this order clarifying the order granting
summary judgment did not explain the basis upon which summary
judgment was granted.
The exterior walls of Plaintiffs' home were constructed with
synthetic stucco systems (EIFS). When Plaintiffs became
concerned about the EIFS used on the exterior of their house, theycontacted R.D. McClure to inspect their home. In addition to an
EIFS evaluation, in his report McClure expressed to Plaintiffs that
the design and structure of their deck (which had not been
completed at that time) concerned him. According to Ms. Baum's
affidavit filed 22 November 2005, when Plaintiffs approached
Defendant Poore regarding the deck issues that the McClure report
brought to their attention, Defendant Poore attempted to discredit
McClure, telling Plaintiffs that Mr. McClure was not even licensed
as a general contractor in North Carolina[.] Defendant Poore also
calmed Plaintiffs' fears by telling them that the plans for the
deck had been or would be prepared by an engineer, that the plans
were sound, and that the plans would work.
Although the summary judgment hearing held 22 November 2005,
which formed the basis of the order from which Plaintiffs appeal,
was recorded and transcribed, the parties could not reach an
agreement regarding the portions of the hearing transcript to be
included in the record on appeal. Therefore, by order entered 26
April 2006, Judge Mims-Evans settled the record on appeal and
limited the portions of the summary judgment hearing transcript
that is available for our review.
*** Converted from WordPerfect ***