Opinion
No. COA11–1318.
2012-07-3
Thomas G. McMILLAN, Jr., et al., Plaintiffs v. RYAN JACKSON PROPERTIES, LLC, et al., Defendants.
Brooks, Pierce, McLendon, Humphrey, & Leonard, L.L.P., by Darrell A. Fruth and Joseph A. Ponzi, for plaintiff-appellants. Hicks McDonald Noecker LLP, by David W. McDonald, for defendant-appellee Collins & Galyon General Contractors, Inc.
Appeal by plaintiffs from order entered 11 July 2011 by Judge Patrice A. Hinnant in Guilford County Superior Court. Heard in the Court of Appeals 22 February 2012. Brooks, Pierce, McLendon, Humphrey, & Leonard, L.L.P., by Darrell A. Fruth and Joseph A. Ponzi, for plaintiff-appellants. Hicks McDonald Noecker LLP, by David W. McDonald, for defendant-appellee Collins & Galyon General Contractors, Inc.
CALABRIA, Judge.
Thomas G. McMillan, Jr. and Shawn De'Lace Hendrix (collectively “plaintiffs”) appeal the trial court's order granting Collins & Galyon General Contractors, Inc.'s (“C & G”) motion for summary judgment. We affirm.
I. Background
In September 2005, defendant Ryan Jackson Properties, LLC (“Ryan Jackson”) acquired property located at 220 West Market Street in Greensboro, North Carolina (“the Ryan Jackson property”). At that time, the property was used as a law office. Ryan Jackson intended to convert the property from a law office into a condominium complex.
On 1 March 2006, Ryan Jackson entered into a construction contract with C & G. C & G was to supply services, labor, and materials for a portion of Ryan Jackson's planned renovations. Specifically, C & G agreed to perform general interior upfitting, which included replacing windows and exterior doors. C & G applied for and obtained two building permits for this project. These permits indicated that C & G's work was “Int/Ext Alterations” and “Demolition–Renovation.” C & G performed its required duties under the contract.
In the summer of 2007, plaintiffs each purchased a condominium unit located on the Ryan Jackson property. After purchasing their respective condominiums, plaintiffs each experienced significant exterior water leakage which resulted in damage to their condominiums.
On 14 July 2010, plaintiffs initiated an action against Ryan Jackson, its owner and manager Scott J. Bayer (“Bayer”), and C & G. On 29 April 2011, C & G filed a motion for summary judgment. On 1 July 2011, plaintiffs' counsel filed an affidavit pursuant to N.C. Gen.Stat. § 1A–1, Rule 56(f), seeking to continue the hearing on C & G's summary judgment motion because plaintiffs could not yet present facts essential to justify their opposition to the motion.
On 7 July 2011, the trial court denied plaintiffs' motion to continue and conducted a hearing on C & G's summary judgment motion. On 11 July 2011, the trial court entered an order granting C & G's motion. Plaintiffs appeal.
II. Motion to Dismiss
As an initial matter, we address C & G's motion to dismiss this appeal as interlocutory. “An order is interlocutory if it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the rights of all the parties involved in the controversy.” Flitt v. Flitt, 149 N.C.App. 475, 477, 561 S.E.2d 511, 513 (2002). Our Courts do not generally allow appeals from interlocutory orders “to prevent fragmentary, premature and unnecessary appeals ....“ Fraser v. Di Santi, 75 N.C.App. 654, 655, 331 S.E.2d 217, 218 (1985).
In the instant case, the trial court's order granting summary judgment to C & G was interlocutory at the time it was entered, as it did not dispose of plaintiffs' claims against Ryan Jackson. However, the record on appeal reflects that the trial court entered a default judgment against Ryan Jackson on 12 September 2011. Since there are no further proceedings to resolve before the trial court, “the rationale behind dismissing interlocutory appeals, the prevention of fragmentary and unnecessary appeals, does not apply” and “any delay ... would impede, rather than expedite, the efficient resolution” of the case. Tarrant v. Freeway Foods of Greensboro, Inc., 163 N.C.App. 504, 508, 593 S.E.2d 808, 811 (2004). Consequently, we deny C & G's motion to dismiss the appeal as interlocutory.
On 27 January 2011, the trial court entered an order making Bayer an inactive party as a result of Bayer filing for bankruptcy.
III. Motion to Continue
Plaintiffs argue that the trial court erred by denying their motion to continue the summary judgment hearing. Plaintiffs contend that if the trial court had provided them with additional time, they would have been able to establish a genuine issue of material fact for trial. We disagree.
N.C. Gen.Stat. § 1A–1, Rule 56(f) “gives the trial court the discretion to refuse the motion for judgment or order a continuance, if the opposing party states by affidavit the reasons why he is unable to present the necessary opposing material.” Gillis v. Whitley's Discount Auto Sales, Inc., 70 N.C.App. 270, 274, 319 S.E.2d 661, 664 (1984). This Court reviews a denial of a motion to continue a summary judgment hearing for an abuse of discretion. Morin v. Sharp, 144 N.C.App. 369, 373, 549 S.E.2d 871, 873 (2001). A trial court's decision regarding a continuance will not be overturned absent a “manifest abuse of discretion.” Peace River Elec. Coop. v. Ward Transformer Co., 116 N.C.App. 493, 511, 449 S.E.2d 202, 215 (1994).
In the instant case, plaintiffs contend that they were entitled to a continuance because C & G did not provide them with its project file for the renovations until 22 June 2011, almost one year after plaintiffs requested that information. Plaintiffs argue that their expert witness had insufficient time to review C & G's material prior to the summary judgment hearing. However, the affidavit filed by plaintiffs' counsel supporting plaintiffs' motion to continue indicated that C & G notified plaintiffs of the availability of the case file on 30 May 2011. The affidavit further stated that “Counsel for Plaintiffs arranged for a vendor to pick up and copy the file, and Plaintiffs first received a copy of the file on June 22, 2011[.]” The affidavit did not offer any explanation for the three week delay between the time plaintiffs were notified of the project file and the time a vendor retrieved it for them.
The summary judgment hearing was conducted on 7 July 2011, five weeks after plaintiffs were notified about the availability of the project file. Five weeks was a reasonable amount of time for plaintiffs and their expert to retrieve C & G's file and conduct a cursory examination of it to discover any evidence which could be used to oppose the summary judgment motion. Consequently, we find no abuse of discretion in the trial court's denial of plaintiffs' motion to continue. This argument is overruled.
IV. Summary Judgment
Plaintiffs argue that the trial court erred by granting summary judgment in favor of C & G. Specifically, plaintiffs contend that there were genuine issues of material fact regarding whether C & G negligently performed the renovations on the Ryan Jackson property, and whether C & G's alleged negligence proximately caused water to intrude into plaintiffs' condominiums. We disagree.
Summary judgment shall be rendered 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. § 1A1, Rule 56(c) (2011). We review a trial court's order granting summary judgment de novo. Builders Mut. Ins. Co. v. N. Main Constr., Ltd., 361 N .C. 85, 88, 637 S.E.2d 528, 530 (2006).
In order to prevail on a negligence claim, a plaintiff must prove “(1) that defendant failed to exercise proper care in the performance of a duty owed 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.” Lavelle v. Schultz, 120 N.C.App. 857, 859–60, 463 S.E.2d 567, 569 (1995). In the instant case, plaintiffs contend that C & G was negligent in three respects while renovating the property: (1) the addition of fill dirt resulting in a change in the elevation of a nearby parking lot (“the parking lot”); (2) the replacement of an outdoor retaining wall in the parking lot (“the retaining wall”); and (3) a failure to waterproof the north wall of plaintiffs' building. A. Parking Lot and Retaining Wall
In their brief, plaintiffs argue that “[b]uilding the Retaining Wall and adding fill behind it changed the topography of the area, trapping water in the area and contributing to water seeping through [plaintiffs'] walls.” However, in support of its summary judgment motion, C & G provided the trial court with affidavits from C & G vice presidents Tony Collins (“Collins”) and James D. Galyon, Jr. (“Galyon”). Collins averred that C & G had neither erected nor modified the retaining wall, which he believed was already in existence at the time C & G performed its work. Collins also stated that C & G did not work on the parking lot, which he believed was owned by a third party. Galyon averred that the parking lot was located on an adjoining property and that C & G was not authorized to either change the topography of the parking lot or to erect a retaining wall on the lot.
“When a motion for summary judgment is made and supported ... an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided ... must set forth specific facts showing that there is a genuine issue for trial.” N.C. Gen.Stat. § 1A–1, Rule 56(e) (2011). Since C & G's motion for summary judgment was supported by affidavits denying its involvement with the parking lot and retaining wall, plaintiffs were required to set forth specific facts demonstrating that there was a genuine issue for trial.
Plaintiffs cite two pieces of evidence which they contend contradict the affidavits of Collins and Galyon. First, plaintiffs cite the affidavit of George Coggin (“Coggin”), who owns property adjacent to the Ryan Jackson property. In his affidavit, Coggin averred that the parking lot and the retaining wall were modified during the time C & G was performing its work on the Ryan Jackson property. Coggin's affidavit conflicts with Collins's affidavit regarding the time in which the retaining wall was modified. However, the timing of this modification is not material because Coggin's affidavit is silent on the issue of who performed the modification. Consequently, Coggin's affidavit was insufficient to overcome C & G's affidavits denying any involvement with the modifications to either the parking lot or the retaining wall. Coggin's affidavit does not create a genuine issue of material fact regarding the modification of the parking lot and the retaining wall.
Second, plaintiffs cite portions of C & G's construction contract with Ryan Jackson. In particular, plaintiffs highlight two portions of the construction contract. The first portion, under an article entitled “The Work,” states that “The Contractor [C & G] shall be responsible for causing all the Work to be performed as required by the Contract Documents for the Construction of ALTERATIONS TO 220 WEST MARKET STREET.” The second portion, under an article entitled “Subcontracts,” states that “The Contractor [C & G] being fully responsible for the general management of the construction operation shall have full authority over the execution of the subcontracts.” While these contractual provisions set out C & G's responsibilities for all work performed within the scope of the contract, they neither address the actual scope of the work agreed to by the parties nor demonstrate that C & G was responsible for any work on either the retaining wall or the parking lot. As previously noted, Galyon specifically averred that neither the parking lot nor the retaining wall were located at 220 West Market Street, the Ryan Jackson property, and thus, they do not fall within the cited contractual provisions. Ultimately, plaintiffs fail to cite any evidence which indicated that C & G performed any work on either the retaining wall or the parking lot during the course of the renovations. Therefore, plaintiffs have failed to establish a genuine issue of material fact concerning their claims for damages suffered as a result of the modifications of the retaining wall and parking lot. B. North Wall
Plaintiffs also argue that C & G was negligent by failing to adequately waterproof the north wall of the building. In his affidavit, Collins averred that
[e]xcept for the replacement windows and doors, and installation of electrical junction boxes, neither [C & G] nor any of its agents or subcontractors penetrated the exterior walls of the buildings, ... and there is no possibility that any of these penetrations, performed correctly or incorrectly, could have resulted in water intrusion into the units identified in this civil action.
Since C & G provided Collins's affidavit in support of its summary judgment motion, plaintiffs were again required to “set forth specific facts showing that there is a genuine issue for trial.” N .C. Gen.Stat. § 1A–1, Rule 56(e) (2011).
In their brief, plaintiffs cite a portion of the North Carolina State Building Code (“the Building Code”), which plaintiffs contend required C & G to undertake certain waterproofing measures when it performed work on the north wall. Initially, we note that is not clear from the record that plaintiffs ever presented the North Carolina State Building Code to the trial court. However, even assuming, arguendo, that the Building Code was before the trial court, plaintiffs did not forecast sufficient evidence to establish the validity of their claim. Plaintiffs failed to present any evidence that the windows, doors, and electrical boxes mentioned in Collins's affidavit as the only exterior work performed by C & G were the cause of the leaks into plaintiffs' condominiums. Thus, plaintiffs failed to establish that C & G's renovations were the proximate cause of the leaks. Accordingly, the trial court properly granted summary judgment in favor of C & G. This argument is overruled.
The record on appeal does not contain a transcript of the summary judgment hearing.
V. Conclusion
Although the trial court's order was interlocutory when it was entered, all remaining proceedings before the trial court have been resolved and thus, plaintiffs' appeal is properly before this Court. The trial court did not abuse its discretion by denying plaintiffs' motion to continue the summary judgment hearing. Plaintiffs failed to forecast specific facts showing that there was a genuine issue of material fact regarding their claims for negligence against C & G. Accordingly, the trial court properly granted C & G's motion for summary judgment. The trial court's order is affirmed.
Affirmed. Judges ERVIN and THIGPEN concur.
Report per Rule 30(e).