SCOTT HAWKS and JAMIE HAWKS,
Plaintiffs,
v
.
Cabarrus County
No. 06 CVS 0010
ARSTARK & COMPANY, INC., and/or
ARSTARK AND COMPANY REALTORS
and/or CONNIE ARSTARK and A PLUS
ENTERPRISE INC. d/b/a HOUSEMASTER,
Defendants.
Christy E. Wilhelm, for plaintiffs-appellants.
Ferguson, Scarborough & Hayes P.A., by James E. Scarborough,
for defendants-appellees Arstark & Company, Inc., Arstark and
Company Realtors, and Connie Arstark.
Womble Carlyle Sandridge & Rice, PLLC, by Allan R. Gitter and
Craig D. Cannon, for defendant-appellee A Plus Enterprise Inc.
d/b/a Housemaster.
TYSON, Judge.
Scott and Jamie Hawks (collectively, plaintiffs) appeal from
orders, which granted: (1) Arstark & Company, Inc., and/or Arstark
& Company Realtors, and/or Connie Arstark's (collectively,
Arstark) motion for summary judgment and (2) A Plus Enterprises,
Inc. d/b/a Housemaster Home Inpectors LLC's (Housemaster) motion
for judgment on the pleadings and attorney fees. We affirm.
Prior to closing, plaintiffs hired Housemaster to inspect the
residence. During the inspection, Housemaster identified water
damage caused by a roof leak. Thompson agreed to make repairs to
the outside roof. Plaintiffs alleged Arstark spoke with them and
stated the house was in excellent condition, there was only minor
water damage, and she would obtain receipts for the repairs to the
roof. Plaintiffs alleged they relied on Arstark to ensure the
repairs had been made. Plaintiffs further alleged Thompson stated
the roof had been repaired. Plaintiffs made no further effort to
ascertain whether repairs to the roof had actually occurred.
After the closing, in approximately March or April 2003,
plaintiffs' roof leaked. As a result, plaintiffs incurred
substantial moisture damage and expended over $20,000.00 in repair
costs. Plaintiffs originally brought suit solely against the
seller. This action was voluntarily dismissed after a Settlement
and Mutual Release (the release) was signed by counsel for both
parties in November 2004. Both parties were designated in the
agreement as Releasors. The release stated:
In consideration of the mutual promises herein
and notice of dismissal, with prejudice, ofthe above captioned civil suit filed in
Cabarrus County, North Carolina bearing file
number set out above, and for other good and
valuable consideration, Releasors forever
release, satisfy and discharge each other and
their successors, assigns, and agents of and
from all and any manner of action and actions,
causes and causes of action, suits, debts,
dues, sums of money, accounts, covenants,
contracts, controversies, insurance payments,
agreements, promises, damages, judgments and
executions, claims and demands whatsoever, in
law or in equity, which they ever had, now
have, or which their successors, heirs,
executors or administrators, hereinafter can,
shall or may have, for, upon, or by reason of
this captioned civil action and any matter,
cause, or thing whatever related to this civil
action.
(Emphasis supplied).
On 3 January 2006, plaintiffs filed a verified complaint
against Arstark alleging fraudulent misrepresentation, negligent
misrepresentation, and breach of duty. Plaintiffs also alleged
breach of duty against Housemaster. On 9 October 2006, Arstark
moved for summary judgment and submitted an affidavit executed by
Brenda Farmer (Farmer), the listing agent of the property.
Farmer testified plaintiffs were aware of water stains on the
inside of the residence, were present when the interior was
painted, copies of the invoices for repair work were sent to
plaintiffs' closing attorney, and repairs requested by plaintiffs
were done and paid for by seller.
Plaintiffs submitted an affidavit in opposition to Arstark's
motion for summary judgment and asserted the release does not
release the agents of the Plaintiffs from being sued by the
Plaintiffs and [t]hat a one year Statute of Limitation isunreasonable and against public policy . . . . (Emphasis in
original). On 11 December 2007, the trial court granted Arstark's
motion and held there is no genuine issue as to any material
fact. On 14 December 2006, the trial court entered an order
granting Housemaster's motion for judgment on the pleadings and for
attorneys' fees. Plaintiffs appeal.
Plaintiffs argue the trial court erred by: (1) granting
Arstark's motion for summary judgment and (2) granting
Housemaster's motion for judgment on the pleadings and for
attorneys' fees.
Plaintiffs argue the trial court erred by granting Arstark's
motion for summary judgment. We disagree.
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 a judgment as a
matter of law. The party moving for summary
judgment ultimately has the burden of
establishing the lack of any triable issue of
fact.
A defendant may show entitlement to summary
judgment by (1) proving that an essential
element of the plaintiff's case is
non-existent, or (2) showing through discovery
that the plaintiff cannot produce evidence to
support an essential element of his or her
claim, or (3) showing that the plaintiff
cannot surmount an affirmative defense.
Summary judgment is not appropriate where
matters of credibility and determining the
weight of the evidence exist.
Once the party seeking summary judgment makes
the required showing, the burden shifts to the
nonmoving party to produce a forecast of
evidence demonstrating specific facts, as
opposed to allegations, showing that he can at
least establish a prima facie case at trial.
We review an order allowing summary judgment
de novo. If the granting of summary judgment
can be sustained on any grounds, it should be
affirmed on appeal.
Wilkins v. Safran, ___ N.C. App. ___, ___, 649 S.E.2d 658, 661
(2007) (internal citations and quotations omitted).
Plaintiffs argue their affidavit opposing summary judgment
created a genuine issue of material fact regarding the meaning of
the phrase their . . . agents in the release, so that summary
judgment for Arstark was improper. We disagree.
This Court has repeatedly stated, [w]hen the language of the
contract is clear and unambiguous, construction of the agreement is
a matter of law for the court and the court cannot look beyond the
terms of the contract to determine the intentions of the parties.
Piedmont Bank & Trust Co. v. Stevenson, 79 N.C. App. 236, 240, 339
S.E.2d 49, 52 (internal citations omitted), aff'd, 317 N.C. 330,
344 S.E.2d 788 (1986). It must be presumed the parties intended
what the language used clearly expresses, and the contract must be
construed to mean what on its face it purports to mean. Hartford
Accident & Indemnity Co. v. Hood, 226 N.C. 706, 710, 40 S.E.2d 198,
201 (1946) (internal citations omitted).
Arstark's motion for summary judgment, together with the
supporting materials made the requisite showing necessary torequire plaintiffs to establish a prima facie case with respect to
each of their claims. Once Arstark moved for summary judgment,
plaintiffs had the burden to produce a forecast of evidence
demonstrating specific facts, as opposed to allegations, showing
that he can at least establish a prima facie case at trial.
Wilkins, ___ N.C. App. at ___, 649 S.E.2d at 661 (emphasis
supplied).
Plaintiffs' affidavit in opposition to Arstark's motion for
summary judgment does not challenge or refute Farmer's testimony or
the exhibits attached to her affidavit. Plaintiff's affidavit
merely challenges the applicability of the provisions of the
release. This issue is a question of law for the court and
properly resolved on a motion for summary judgment. Piedmont Bank
& Trust Co., 79 N.C. App. at 240, 339 S.E.2d at 52.
Plaintiffs failed to proffer specific facts to establish a
prima facie case for fraudulent misrepresentation, negligent
misrepresentation, or breach of duty. Id. A mere statement in
plaintiffs' affidavit that they did not intend to release Arstark,
standing alone, is insufficient to raise a genuine issue of
material fact. The trial court properly granted Arstark's motion
for summary judgment. This assignment of error is overruled.
Plaintiffs argue the trial court erred by granting
Housemaster's motion for judgment on the pleadings and for
attorneys' fees. We disagree.
Housemaster's Inspection Order Agreement (agreement)
contained the following condition:
4. . . . No legal action, including those
alleging negligence, may be commenced against
the Company after one year from the date of
the inspection.
Plaintiffs signed this agreement on 3 January 2003 acknowledging
they had read and understood the entire contract. Plaintiffs now
argue the one-year limitation period contained in the home
inspection agreement is not enforceable and violates public policy.
We disagree.
Parties are free to contract as they deem appropriate in the
absence of statutory proscription or a public policy violation.
Hlasnick v. Federated Mut. Ins. Co., 353 N.C. 240, 244, 539 S.E.2d
274, 277 (2000). It is a well-settled principle that parties
may agree to a limitations period shorter than
that provided by state law. The general rule
has been stated, in the absence of a
controlling statute to the contrary, a
provision in a contract may validly limit,
between the parties, the time for bringing an
action on such contract to a period less than
that prescribed in the general statute of
limitations, provided that the shorter period
itself shall be a reasonable period.
Badgett v. Federal Express Corp., 378 F.Supp.2d 613, 622 (M.D.N.C.
2005) (internal citations and quotations omitted). Plaintiffs
argue a one-year time period is an insufficient time to discover
hidden defects. Plaintiffs cite no case law supporting this
assertion. We decline to find the one-year limitation is per se
unreasonable. Plaintiffs filed the present action against
Housemasters three years after the date of inspection. Plaintiffs'
claim is barred by the terms of the agreement. The trial court
properly granted Housemaster's motion for judgment on the pleadings
and attorney fees. This assignment of error is overruled.
The trial court properly granted Arstark's motion for summary
judgment. The trial court properly granted Housemaster's motion
for judgment on the pleadings and attorney fees. The trial court's
orders are affirmed.
Affirmed.
Judges JACKSON and ARROWOOD concur.
Report per Rule 30(e).
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