{ "id": 9249232, "name": "GEORGE MICHAEL SHROYER and GAIL LITAKER SHROYER, Plaintiffs v. COUNTY OF MECKLENBURG, MECKLENBURG COUNTY HEALTH DEPARTMENT, PHILO WALKER, WILLIAM R. MARLIN, GEORGE HOUSTON, CONNELL MILLS PARTNERSHIP, W.T. NORWOOD, INC., HELMSMAN CONSTRUCTION, INC., and ROBERT F. HELMS, Defendants", "name_abbreviation": "Shroyer v. County of Mecklenburg", "decision_date": "2002-11-19", "docket_number": "No. COA02-15", "first_page": "163", "last_page": "170", "citations": [ { "type": "official", "cite": "154 N.C. App. 163" } ], "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": "312 S.E.2d 691", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "694" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 104", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525726 ], "year": 1984, "pin_cites": [ { "page": "108" } ], "opinion_index": 0, "case_paths": [ "/nc-app/67/0104-01" ] }, { "cite": "363 S.E.2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "88 N.C. App. 315", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358177 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/88/0315-01" ] }, { "cite": "541 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "141 N.C. App. 262", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440806 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/141/0262-01" ] }, { "cite": "177 S.E.2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1970, "pin_cites": [ { "page": "277" } ], "opinion_index": 0 }, { "cite": "277 N.C. 119", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563328 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0119-01" ] }, { "cite": "504 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "577" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 729", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11470258 ], "year": 1998, "pin_cites": [ { "page": "733" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0729-01" ] }, { "cite": "513 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "574" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 807", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240754 ], "year": 1999, "pin_cites": [ { "page": "809" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0807-01" ] } ], "analysis": { "cardinality": 619, "char_count": 16659, "ocr_confidence": 0.734, "pagerank": { "raw": 2.2478362865739308e-07, "percentile": 0.7808715874940971 }, "sha256": "6f4358d40b22b95d786fc7e8c37bd95473432d93fe4475126948627d74a15b4b", "simhash": "1:16ea7e2aae883578", "word_count": 2614 }, "last_updated": "2023-07-14T14:30:59.212861+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and McGEE concur." ], "parties": [ "GEORGE MICHAEL SHROYER and GAIL LITAKER SHROYER, Plaintiffs v. COUNTY OF MECKLENBURG, MECKLENBURG COUNTY HEALTH DEPARTMENT, PHILO WALKER, WILLIAM R. MARLIN, GEORGE HOUSTON, CONNELL MILLS PARTNERSHIP, W.T. NORWOOD, INC., HELMSMAN CONSTRUCTION, INC., and ROBERT F. HELMS, Defendants" ], "opinions": [ { "text": "HUNTER, Judge.\nGeorge and Gail Shroyer (\u201cplaintiffs\u201d) appeal an order granting summary judgment of their claim asserting breach of contract against defendants George Houston (\u201cHouston\u201d) and Connell Mills Partnership (\u201cCMP\u201d). Plaintiffs also appeal an order granting summary judgment on their claims asserting a third-party beneficiary breach of contract and negligence against defendant W.T. Norwood, Inc. (\u201cNorwood\u201d). We affirm the trial court\u2019s orders.\nCMP is a real estate developer managed by Houston. In 1990, CMP began development of a subdivision in which plaintiffs eventually built a home. In 1991, CMP requested that the Mecklenburg County Health Department (\u201cthe Department\u201d) perform a soil investigation on lots of the subdivision to determine the property\u2019s suitability for installation of a ground absorption sewage disposal system. The results of the investigation revealed that portions of the subdivision property were unsuitable for installation of such a system. Nevertheless, the Department (1) recommended a reduction in the number of lots in the subdivision, resulting in CMP reducing the number of lots from fifty to forty-two, and (2) concluded that the lots would be suitable for homes if an innovative septic tank water treatment system (\u201cseptic system\u201d) was designed and installed.\nIn April of 1996, plaintiffs entered into a contract with CMP to purchase Lot 26 in the subdivision. The contract was \u201c[sjubject to land passing a percolation test in relation to [plaintiffs\u2019] desired house location on lot\u201d to determine whether it was suitable for operation of a residential septic system. The Department performed the test, and Lot 26 passed. Plaintiffs closed on the property on 9 May 1996.\nAfter plaintiffs purchased Lot 26, the general contractor for the home, Helmsman Construction, Inc., subcontracted with Norwood to design and install their septic system. However, in September of 1996, less than a month after moving into their new home, plaintiffs\u2019 septic system failed. Plaintiffs continued to encounter problems despite having numerous repairs made to the septic system. Ultimately, the Department conducted a new soil test and found that unsuitable soil caused the septic tank\u2019s constant failure. Plaintiffs were issued two wastewater violation notices by the Department (on 20 June 1997 and 3 July 1998) for having an inoperable septic system that was in violation of state law.\nPlaintiffs filed a complaint against defendants on 3 September 1998. In their complaint, plaintiffs asserted a negligence claim and a third-party beneficiary breach of contract claim against Norwood for faulty design and installation of the septic system. Plaintiffs also asserted a breach of contract claim against CMP and Houston for breaching express and implied warranties regarding the suitability of Lot 26 for operation of a septic system. Plaintiffs asserted claims against other defendants, but those claims are not at issue in this appeal.\nCMP and Houston moved for summary judgment in their answer filed on 17 November 1998. Prior to this motion being heard, the affidavit of plaintiff Gail Shroyer was filed in which she stated that plaintiffs would have never purchased Lot 26 had they been informed prior to the purchase about the 1991 soil investigation performed by the Department. On 5 January 1999, the summary judgment motion was heard and granted in favor of CMP and Houston in an order filed 26 May 1999.\nWith respect to Norwood, it also filed an answer in November of 1998. The case against it and the other defendants proceeded into the discovery phase with the action being calendared for trial during the last week of February 2000. Norwood filed a summary judgment motion on 11 February 2000 requesting the dismissal of all plaintiffs\u2019 claims against it. Plaintiffs\u2019 counsel prepared and filed a pre-trial memorandum for the court. The memorandum stated that plaintiffs were going forward with their third-party beneficiary breach of contract claim against Norwood, but not proceeding to trial on their negligence claim against it. The court subsequently heard and granted Norwood\u2019s motion for summary judgment in an order filed 23 May 2000. Plaintiffs then filed a motion to alter or amend the judgment in favor of Norwood arguing it was overbroad and should not have resulted in the dismissal of their negligence claim. Plaintiffs\u2019 motion was denied in an order entered 14 August 2000.\nAs the case continued towards trial, plaintiffs settled their claims against the other defendants. A voluntary dismissal without prejudice was entered regarding the claims against those defendants on 27 September 2001. Thereafter, plaintiffs timely filed notice of appeal with respect to the court\u2019s summary judgment orders in favor of Norwood, CMP, and Houston.\nI. Standard of Review\nThe assignments of error plaintiffs bring forth against Norwood, CMP, and Houston all involve whether the court erred in granting summary judgment in defendants\u2019 favor. On an appeal from a grant of summary judgment, this Court reviews the trial court\u2019s decision de novo. Falk Integrated Tech., Inc. v. Stack, 132 N.C. App. 807, 809, 513 S.E.2d 572, 574 (1999). Thus, when viewing the evidence in the light most favorable to the non-movant, we must determine whether the trial court properly concluded that the moving party showed, through pleadings and affidavits, that there was no genuine issue of material fact and that the moving party was entitled to judgment as a matter of law. Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998).\nII. Norwood\nBy their first assignment of error plaintiffs argue, in part, that they should be allowed to bring a third-party beneficiary breach of contract claim against Norwood, a subcontractor, for failing to properly design and install their septic system. We disagree.\nNorth Carolina case law clearly holds that a landowner is not a third-party beneficiary to a subcontract between the builder and one of the builder\u2019s subcontractors. See Vogel v. Supply Co. and Supply Co. v. Developers, Inc., 277 N.C. 119, 177 S.E.2d 273 (1970). Specifically, our Supreme Court has held that the landowner is a mere incidental beneficiary of the construction contract between the builder and subcontractor and cannot maintain an action against the subcontractor for its breach. Id. at 126, 177 S.E.2d at 277. Here, plaintiffs admit that no contract or direct privity existed between them and Norwood. Plaintiffs only support the validity of their claim by citing to several North Carolina cases where the courts held that privity of contract is not required for a tenant/landowner to maintain a negligence claim against a subcontractor. See Prince v. Wright, 141 N.C. App. 262, 541 S.E.2d 191 (2000); Olympic Products Co. v. Roof Systems, Inc., 88 N.C. App. 315, 363 S.E.2d 367 (1988). Since this is not a negligence claim, precedent requires the dismissal of plaintiffs\u2019 third party beneficiary claim.\nPlaintiffs also argue the court erred in dismissing their negligence claim against Norwood based on statements in their pre-trial memorandum that were never memorialized in a formal pre-trial order. They contend the court should not have relied on the statements to dismiss that claim because (1) plaintiffs never filed a motion to voluntarily dismiss their negligence claim, (2) the memorandum was not signed by Norwood\u2019s attorney or the presiding judge, and (3) a pretrial order reciting plaintiffs\u2019 statements was never entered as controlling in this case. See N.C. Gen. Stat. \u00a7 1A-1, Rules 16 and 41 (2001). We conclude plaintiffs\u2019 arguments are irrelevant because they expressly abandoned their negligence claim against Norwood.\nIn their memorandum, plaintiffs stated as follows: \u201cAlthough Plaintiffs[\u2019] Complaint alleges causes of action against [Norwood] sounding in negligence and breach of contract, only the breach of contract claim[] will be tried in this case. Plaintiffs have elected not to pursue the negligence claimf] against [Norwood].\u201d (Emphasis added.) This memorandum was signed by plaintiffs\u2019 attorney, served on defendants\u2019 attorneys, and filed with the court on 16 February 2000. By their actions, plaintiffs expressly abandoned their negligence claim and their right to do so did not require the signature of Norwood\u2019s attorney or the presiding judge to give it effect. See generally 1 C.J.S. Abandonment \u00a7 2 (2002). Moreover, as a document properly served and filed in this case, the trial court was entitled to consider the memorandum as a \u201cmatter outside the pleading\u201d when it ruled on defendant Norwood\u2019s motion for summary judgment. See N.C. Gen. Stat. \u00a7 1A-1, Rules 12(b) and 56 (2001). Plaintiffs made no attempt to withdraw the memorandum from the court\u2019s consideration prior to or during the hearing on the motion. Plaintiffs made no attempt to \u201crevive\u201d their negligence claim against Norwood until after the court dismissed their breach of contract claim against him. Thus, the court did not err in granting summary judgment in favor of Norwood.\nIII. CMP and Houston\nBy their final assignment of error, plaintiffs argue the trial court erred in granting summary judgment on their breach of contract claim against CMP and Houston (1) prior to the completion of pretrial discovery and (2) when there were genuine issues of material fact in dispute. We conclude the court did not err in either instance.\nWith respect to plaintiffs\u2019 first argument, it is ordinarily error when a court \u201chears and rules upon a motion for summary judgment while discovery is pending and the party seeking discovery has not been dilatory [or lazy] in doing so.\u201d Gebb v. Gebb, 67 N.C. App. 104, 108, 312 S.E.2d 691, 694 (1984). The trial court\u2019s action in the present case did not constitute error because there was no evidence that plaintiffs sought any discovery prior to defendants\u2019 motion for summary judgment. There was also no record of any objections by plaintiffs to the court proceeding with a hearing on defendants\u2019 motion. Finally, plaintiffs did not move for a continuance of the summary judgment hearing to allow additional time for pre-trial discovery to take place. See N.C. Gen. Stat. \u00a7 1A-1, Rule 56(f). Therefore, the court did not err in proceeding with the summary judgment hearing.\nWith respect to plaintiffs\u2019 second argument regarding genuine issues of facts being in dispute, their complaint alleged that defendants are liable for breach of contract:\na. By failing to provide the Plaintiffs with a Lot which was of merchantable quality and reasonably fit and suitable for the purpose for which it was intended; and\nb. By failing to provide the Plaintiffs with a Lot which would meet the necessary standards for installation of a septic tank system.\nHowever, the evidence established that following the Department\u2019s 1991 investigation of the property, it concluded that Lot 26 was suitable for a residence if an innovative septic system was built. Additionally, prior to plaintiffs\u2019 purchase of the property, they entered into a contract with CMP that was contingent upon plaintiffs obtaining an adequate percolation test on Lot 26. Plaintiffs purchased the property after it passed this test. Plaintiffs did not allege that CMP or Houston tried to prevent or participated in their test of the property. Since plaintiffs conducted their own test and were satisfied with the results, defendants had no duty to disclose the 1991 investigation, especially considering (1) both the test and investigation were performed by the Department, and (2) neither concluded the property was completely unsuitable for a home. Thus, there was no evidence that a house could not be built on Lot 26; at most, the evidence indicated that the house plaintiffs built had septic demands greater than those for which their septic system could accommodate. Accordingly, there were no genuine issues of material fact in dispute as to whether defendants CMP and Houston breached warranties regarding the suitability of Lot 26.\nFor the aforementioned reasons, we affirm the trial court\u2019s orders dismissing plaintiffs\u2019 claims against Norwood, Houston, and CMP.\nAffirmed.\nJudges WALKER and McGEE concur.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Cozen O\u2019Connor, by Michael L. Minsker, for plaintiff - appellants.", "DeVore, Acton & Stafford, P.A., by Fred W. DeVore, III, for defendant-appellee Connell Mills Partnership.", "Crews & Klein, P.G., by Andrew W. Lax, for defendant-appellee W. T. Norwood, Inc." ], "corrections": "", "head_matter": "GEORGE MICHAEL SHROYER and GAIL LITAKER SHROYER, Plaintiffs v. COUNTY OF MECKLENBURG, MECKLENBURG COUNTY HEALTH DEPARTMENT, PHILO WALKER, WILLIAM R. MARLIN, GEORGE HOUSTON, CONNELL MILLS PARTNERSHIP, W.T. NORWOOD, INC., HELMSMAN CONSTRUCTION, INC., and ROBERT F. HELMS, Defendants\nNo. COA02-15\n(Filed 19 November 2002)\n1. Construction Claims\u2014 third-party beneficiary breach of contract \u2014 design and installation of septic system\nA de novo review revealed that the trial court did not err by granting summary judgment in favor of defendant subcontractor on plaintiffs\u2019 third-party beneficiary breach of contract claim against the subcontractor for failing to properly design and install plaintiffs\u2019 residential septic system, because a landowner is not a third-party beneficiary to a subcontract between the builder and one of the builder\u2019s subcontractors.\n2. Construction Claims\u2014 negligence \u2014 design and installation of septic system\nA de novo review revealed that the trial court did not err by granting summary judgment in favor of defendant subcontractor on plaintiffs\u2019 negligence claim against the subcontractor for failing to properly design and install plaintiffs\u2019 residential septic system based on statements in plaintiffs\u2019 pretrial memorandum that were never memorialized in a formal pretrial order, because: (1) plaintiffs\u2019 arguments are irrelevant when they expressly abandoned their negligence claim and their right to do so did not require the signature of defendant\u2019s attorney or the presiding judge to give it effect; (2) as a document properly served and filed in this case, the trial court was entitled to consider the memorandum as a matter outside the pleading when it ruled on defendant\u2019s motion for summary judgment; (3) plaintiffs made no attempt to withdraw the memorandum from the court\u2019s consideration prior to or during the hearing on the motion; and (4) plaintiffs made no attempt to revive their negligence claim against defendant until after the court dismissed plaintiffs\u2019 breach of contract claim against defendant.\n3. Civil Procedure\u2014 breach of contract \u2014 warranty of suitability of lot to build home \u2014 summary judgment \u2014 pretrial discovery\nA de novo review revealed that the trial court did not err by granting summary judgment in favor of defendant real estate developer and the developer\u2019s manager on plaintiffs\u2019 breach of contract claim, regarding the warranties of the suitability of plaintiffs\u2019 lot to build a home, prior to the completion of pretrial discovery because: (1) there was no evidence that plaintiffs sought any discovery prior to defendants\u2019 motion for summary judgment; (2) there was no record of any objections by plaintiffs to the court proceeding with a hearing on defendants\u2019 motion; and (3) plaintiffs did not move for a continuance of the summary judgment hearing to allow additional time for pretrial discovery to take place.\n4. Construction Claims\u2014 breach of contract \u2014 warranty of suitability of lot to build home \u2014 genuine issues of material fact\nA de novo review revealed that the trial court did not err by granting summary judgment in favor of defendant real estate developer and the developer\u2019s manager on plaintiffs\u2019 breach of contract claim regarding the warranties of the suitability of plaintiffs\u2019 lot to build a home even though plaintiffs allege there were genuine issues of material fact in dispute because: (1) plaintiffs did not allege that defendants tried to prevent or that they participated in plaintiffs\u2019 percolation test of the property; (2) defendants had no duty to disclose the 1991 investigation considering that both the test and investigation were performed by the Mecklenburg County Health Department and neither concluded the property was completely unsuitable for a home; and (3) there was no evidence that a house could not be built on the lot, and at most the evidence indicated that the house plaintiffs built had septic demands greater than those for which their septic system could accommodate.\nAppeal by plaintiffs from orders entered 26 May 1999 and 23 May 2000 by Judge Ronald Payne and Judge Timothy L. Patti, respectively, in Mecklenburg County Superior Court. Heard in the Court of Appeals 18 September 2002.\nCozen O\u2019Connor, by Michael L. Minsker, for plaintiff - appellants.\nDeVore, Acton & Stafford, P.A., by Fred W. DeVore, III, for defendant-appellee Connell Mills Partnership.\nCrews & Klein, P.G., by Andrew W. Lax, for defendant-appellee W. T. Norwood, Inc." }, "file_name": "0163-01", "first_page_order": 191, "last_page_order": 198 }