{ "id": 9380372, "name": "RAMON KENT HENDERSON, and wife, KYMBERLEY ANNE HENDERSON v. PARK HOMES INCORPORATED; SOUTHERN SYNTHETIC & PLASTIC, INC.; and DRYVIT SYSTEMS, INC.", "name_abbreviation": "Henderson v. Park Homes Inc.", "decision_date": "2001-12-04", "docket_number": "No. COA00-1114", "first_page": "500", "last_page": "505", "citations": [ { "type": "official", "cite": "147 N.C. App. 500" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "332 S.E.2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "purchase for resale is not purchase for use" } ], "opinion_index": 0 }, { "cite": "314 N.C. 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4690757 ], "year": 1985, "pin_cites": [ { "parenthetical": "purchase for resale is not purchase for use" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0044-01" ] }, { "cite": "395 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "purchase for assembly is not purchase for use" } ], "opinion_index": 0 }, { "cite": "327 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2495140, 2494919, 2493403, 2493532, 2495199 ], "year": 1990, "pin_cites": [ { "parenthetical": "purchase for assembly is not purchase for use" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0426-03", "/nc/327/0426-01", "/nc/327/0426-04", "/nc/327/0426-05", "/nc/327/0426-02" ] }, { "cite": "391 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "214", "parenthetical": "purchase for assembly is not purchase for use" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 423", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524928 ], "year": 1990, "pin_cites": [ { "page": "428", "parenthetical": "purchase for assembly is not purchase for use" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0423-01" ] }, { "cite": "554 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 2001, "pin_cites": [ { "page": "390" }, { "page": "393-4" }, { "page": "392-3" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 21", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9377698 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/147/0021-01" ] }, { "cite": "444 S.E.2d 423", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "427", "parenthetical": "products liability statute of repose, as opposed to real property statute of repose, N.C. Gen. Stat. \u00a7 l-50(a)(5)(b)(9" } ], "opinion_index": 0 }, { "cite": "336 N.C. 438", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535573 ], "year": 1994, "pin_cites": [ { "page": "445", "parenthetical": "products liability statute of repose, as opposed to real property statute of repose, N.C. Gen. Stat. \u00a7 l-50(a)(5)(b)(9" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0438-01" ] }, { "cite": "321 S.E.2d 136", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "order dismissing claims against one defendant is interlocutory where other defendants remain in the suit" } ], "opinion_index": 0 }, { "cite": "311 N.C. 758", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4681026, 4679843, 4682027, 4681877, 4685885 ], "year": 1984, "pin_cites": [ { "parenthetical": "order dismissing claims against one defendant is interlocutory where other defendants remain in the suit" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0758-04", "/nc/311/0758-03", "/nc/311/0758-01", "/nc/311/0758-05", "/nc/311/0758-02" ] }, { "cite": "316 S.E.2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "356", "parenthetical": "order dismissing claims against one defendant is interlocutory where other defendants remain in the suit" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 140", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525839 ], "year": 1984, "pin_cites": [ { "page": "142", "parenthetical": "order dismissing claims against one defendant is interlocutory where other defendants remain in the suit" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0140-01" ] } ], "analysis": { "cardinality": 518, "char_count": 10722, "ocr_confidence": 0.764, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2170555117306067 }, "sha256": "a672b5e425a5137a00535d758b31520b0b9cb6979206f7d72677fb23f5ad1fd4", "simhash": "1:6a1957c03b4d7cbe", "word_count": 1738 }, "last_updated": "2023-07-14T20:07:10.251034+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge TIMMONS-GOODSON concur." ], "parties": [ "RAMON KENT HENDERSON, and wife, KYMBERLEY ANNE HENDERSON v. PARK HOMES INCORPORATED; SOUTHERN SYNTHETIC & PLASTIC, INC.; and DRYVIT SYSTEMS, INC." ], "opinions": [ { "text": "THOMAS, Judge.\nThis case concerns alleged defects in synthetic stucco applied to the home of plaintiffs, Ramon Kent Henderson and wife, Kymberley Anne Henderson. The trial court granted summary judgment for defendant, Dryvit Systems, Inc., based on the products liability statute of repose and the statute of limitations.\nPlaintiffs appeal, arguing four assignments of error. For the reasoning herein, we affirm the decision of the trial court.\nPlaintiffs entered into a purchase agreement with defendant, Park Homes Incorporated (Park Homes), on or about 23 June 1992 for construction of a house. Park Homes, in turn, subcontracted with defendant, Southern Synthetic & Plastic, Inc. (Southern), for the task of cladding the exterior of the house with a manufactured exterior insulation finish system (EIFS), commonly known as synthetic stucco. Southern purchased the EIFS from defendant, Dryvit Systems, Inc., (Dryvit), a manufacturer and distributor of the EIFS.\nIn the fall of 1992, workers for Southern applied the EIFS manufactured by Dryvit to the house plaintiffs agreed to purchase. The certificate of occupancy was issued on 5 April 1993. Shortly thereafter, plaintiffs closed on the purchase and moved into their home. Through media reports, plaintiffs learned in the spring of 1996 that there may be defects associated with the EIFS. A moisture intrusion inspection report, dated 31 May 1996, confirmed that plaintiffs\u2019 home did indeed have moisture intrusion problems due to defective EIFS cladding. Plaintiffs filed suit against defendants on 5 March 1999. On 16 July 1999, plaintiffs opted out of Ruff v. Parex, 96-CVS-0059, a class action lawsuit against Dryvit and other EIFS manufacturers asserting claims essentially identical to those alleged by plaintiffs.\nThe trial court granted Dryvit\u2019s motion for summary judgment on two grounds. First, the trial court found that the appropriate statute of repose was N.C. Gen. Stat. \u00a7 l-50(a)(6), the products liability statute of repose, and that it barred plaintiffs\u2019 claims against defendant. Second, the trial court found that the applicable statute of limitations had run because more than three years had passed since plaintiffs first noticed bulging and wrinkling on the surface of the EIFS. Plaintiffs advance four arguments in maintaining that the trial court erred.\nInitially, we note that the summary judgment order from which defendant appeals is not interlocutory. Rather, it is a final judgment that is immediately appealable because Park Homes settled with plaintiffs and Southern made no appearance. See Jenkins v. Wheeler, 69 N.C. App. 140, 142, 316 S.E.2d 354, 356, disc. review denied, 311 N.C. 758, 321 S.E.2d 136 (1984) (order dismissing claims against one defendant is interlocutory where other defendants remain in the suit). Summary judgment is appropriate when \u201cthe 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.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2000).\nPlaintiffs first argue that their action is governed by the real property statute of repose, and that their claims were filed within six years of \u201cthe later of the specific last act or omission of the defendant... or substantial completion of the improvement.\u201d N.C. Gen. Stat. \u00a7 l-50(a)(5) (1999). Second, plaintiffs maintain that if the products liability statute of repose applies, their claims against Dryvit were filed within six years of the \u201cinitial purchase for use or consumption\u201d of the residence, and thus complied with the statute. N.C. Gen. Stat. \u00a7 l-50(a)(6) (1999). Third, plaintiffs contend that the statute of repose was tolled with respect to their claims against Dryvit by the filing of Ruff v. Parex in 1996. Finally, plaintiffs argue that this action is not barred by the applicable three-year statute of limitations, N.C. Gen. Stat. \u00a7 l-50(a)(5)(f), which provides that the cause of action \u201cshall not accrue until the injury, loss, defect or damage becomes apparent or ought reasonably to have become apparent to the claimant.\u201d N.C. Gen. Stat. \u00a7 l-50(a)(5)(f) (1999). We consider plaintiffs\u2019 arguments in the above order.\nDryvit, which uses a wholesale distribution network, is a remote manufacturer. The EIFS made its way to plaintiffs\u2019 home through the commerce stream, thus implicating the products liability statute of repose, N.C. Gen. Stat. \u00a7 l-50(a)(6). See Forsyth Memorial Hospital v. Armstrong World Industries, 336 N.C. 438, 445, 444 S.E.2d 423, 427 (1994) (products liability statute of repose, as opposed to real property statute of repose, N.C. Gen. Stat. \u00a7 l-50(a)(5)(b)(9), applies to remote manufacturer whose materials find their way to a job site indirectly through the commerce stream; such manufacturer would not be a materialman who furnished materials to the job site under N.C. Gen. Stat. \u00a7 l-50(a)(5)(b)(9)).\nWe therefore apply the products liability statute of repose, section l-50(a)(6), which provides:\nNo action for recovery of damages . . . based upon or arising out of any alleged defect or any failure in relation to a product shall be brought more than six years after the date of initial purchase for use or consumption.\nN.C. Gen. Stat. \u00a7 l-50(a)(6).\nPlaintiffs claim the running of the time period did not begin until the date of the purchase of their home in April of 1993. This Court, however, recently held that the statute of repose was triggered upon the purchase by the subcontractor of the EIFS for installation on the plaintiffs\u2019 house. See Cacha v. Montaco, 147 N.C. App. 21, 554 S.E.2d 388 (2001). The holding in Cacha turned on the interpretation of \u201cinitial purchase for use or consumption.\u201d After the \u201cinitial purchase for use or consumption,\u201d the plaintiffs had six years to file suit against the EIFS manufacturer before their claims would be barred; the statute, however, does not define the phrase, nor does it have a clear, independent meaning of its own. See N.C. Gen. Stat. \u00a7 l-50(a)(6). This Court, therefore, examined the definitions of \u201cuse\u201d and \u201cconsume.\u201d Gacha at 23-4, 554 S.E.2d at 390. In addition, the Court relied on the holding in Chicopee, Inc. v. Sims Metal Works, that the date of initial purchase for use under section 1-50(a)(6) is the date of purchase for the \u201cultimate and intended use of the product.\u201d Chicopee, 98 N.C. App. 423, 428, 391 S.E.2d 211, 214, disc. review denied 327 N.C. 426, 395 S.E.2d 674 (1990) (purchase for assembly is not purchase for use). See also Tetterton v. Long Manufacturing Co., 314 N.C. 44, 332 S.E.2d 67 (1985) (purchase for resale is not purchase for use). The ultimate and intended use of the EIFS is to provide a weather-resistant barrier to protect the house interior from exposure to the weather. See Cacha at 30, 554 S.E.2d at 393-4. The EIFS begins to perform this function at the moment of application. Id. The EIFS, therefore, was first \u201cpurchased for use or consumption,\u201d by the subcontractor who applied the EIFS to the plaintiffs\u2019 residence. Id. Once the applicator applied the EIFS,\nit was \u201cconsumed,\u201d that is, \u201cutilized in the construction process,\u201d which use resulted in its transformation . . . and the destruction of its original form ....\nId.\nAccordingly, the EIFS was first purchased for use or consumption by Southern for installation on plaintiffs\u2019 residence. Southern installed the EIFS on plaintiffs\u2019 home in late fall of 1992. The statute of repose, therefore, began to run before 5 March 1993, and plaintiffs\u2019 suit, filed more than six years after Southern\u2019s purchase of the EIFS, is barred. See N.C. Gen. Stat. \u00a7 l-50(a)(6).\nBy their third assignment of error, plaintiffs argue that even if the products liability statute of repose is the appropriate one to apply, and even if it began running prior to 5 March 1999, the statute of repose regarding their claims against defendant was equitably tolled by the filing of Ruff v. Parex in 1996. This same contention was rejected in Gacha, which held that a statute of repose creates substantive rights that may not be tolled by equitable considerations. See Cacha at 27-9, 554 S.E.2d at 392-3.\nBased on the foregoing, we need not address plaintiffs\u2019 final assignment of error regarding the statute of limitations, N.C. Gen. Stat. \u00a7 l-50(a)(5)(f).\nAccordingly, we affirm the order of the trial court granting the summary judgment motion of defendant.\nAFFIRMED.\nChief Judge EAGLES and Judge TIMMONS-GOODSON concur.", "type": "majority", "author": "THOMAS, Judge." } ], "attorneys": [ "Lewis & Roberts, P.L.L.G., by Daniel K. Bryson and F. Murphy AverittJII, for plaintiffs-appellants.", "Womble Carlyle Sandridge & Rice, P.L.L.C., by Hada Haulsee, Scott Mebane and Charles L. Becker, for defendant-appellee." ], "corrections": "", "head_matter": "RAMON KENT HENDERSON, and wife, KYMBERLEY ANNE HENDERSON v. PARK HOMES INCORPORATED; SOUTHERN SYNTHETIC & PLASTIC, INC.; and DRYVIT SYSTEMS, INC.\nNo. COA00-1114\n(Filed 4 December 2001)\n1. Appeal and Error\u2014 appealability \u2014 summary judgment as to only remaining defendant \u2014 appeal not interlocutory\nA summary judgment was final and not interlocutory as to one of three defendants where one of the other defendants had made no appearance and the other settled.\n2. Statutes of Limitations and Repose\u2014 synthetic stucco\u2014 statute of repose \u2014 products liability rather than real property statute controls\nThe products liability rather than real property statute of repose applied to a synthetic stucco action where defendant was a remote manufacturer and the product made its way to plaintiffs through the commerce stream. Defendant was not a materialman who furnished materials to the job sites under N.C.G.S. \u00a7 l-50(a)(5)(b)(9).\n3. Statutes of Limitations and Repose\u2014 synthetic stucco\u2014 statute of repose \u2014 began to run at contractor\u2019s purchase of product\nThe statute of repose barred a synthetic stucco action where the statute began to run when the synthetic stucco was first purchased by the subcontractor for installation on plaintiffs\u2019 residence rather than when plaintiffs purchased their house. Plaintiffs had 6 years to file suit after the \u201cinitial purchase or consumption,\u2019\u2019which occurred at the subcontractor\u2019s purchase because the ultimate and intended use of providing a weatherproof barrier began at the moment of application.\n4. Statutes of Limitations and Repose\u2014 not tolled by class action\nThe statute of repose in a synthetic stucco claim was not tolled by the filing of a class action suit. A statute of repose creates substantive rights that may not be tolled by equitable considerations.\nAppeal by plaintiffs from judgment entered 18 April 2000 by Judge Orlando Hudson in Wake County Superior Court. Heard in the Court of Appeals 20 August 2001.\nLewis & Roberts, P.L.L.G., by Daniel K. Bryson and F. Murphy AverittJII, for plaintiffs-appellants.\nWomble Carlyle Sandridge & Rice, P.L.L.C., by Hada Haulsee, Scott Mebane and Charles L. Becker, for defendant-appellee." }, "file_name": "0500-01", "first_page_order": 530, "last_page_order": 535 }