{ "id": 8955375, "name": "DAVID R. MOORE and CATHY MOORE, Plaintiffs v. F. DOUGLAS BIDDY CONSTRUCTION, INC., Defendant", "name_abbreviation": "Moore v. F. Douglas Biddy Construction, Inc.", "decision_date": "2003-11-04", "docket_number": "No. COA02-1529", "first_page": "87", "last_page": "95", "citations": [ { "type": "official", "cite": "161 N.C. App. 87" } ], "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": "299 S.E.2d 267", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "271", "parenthetical": "trial court applied the correct test in Rule 55(d) of \"good cause,\" so that the reference to \"Rule 60(b)\" in the order \"was surplusage and does not require reversal of the order denying defendants' motion to set aside entry of default.\"" } ], "opinion_index": 0 }, { "cite": "60 N.C. App. 459", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521806 ], "year": 1983, "pin_cites": [ { "page": "462", "parenthetical": "trial court applied the correct test in Rule 55(d) of \"good cause,\" so that the reference to \"Rule 60(b)\" in the order \"was surplusage and does not require reversal of the order denying defendants' motion to set aside entry of default.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/60/0459-01" ] }, { "cite": "127 S.E.2d 567", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "572" } ], "opinion_index": 0 }, { "cite": "257 N.C. 774", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571399 ], "year": 1962, "pin_cites": [ { "page": "780" } ], "opinion_index": 0, "case_paths": [ "/nc/257/0774-01" ] }, { "cite": "333 S.E.2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "745-46", "parenthetical": "holding that language in an indictment following the words \"committing a felony\" is \"mere harmless surplusage and may properly be disregarded in passing upon its validity.\"" } ], "opinion_index": 0 }, { "cite": "314 N.C. 432", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4693655 ], "year": 1985, "pin_cites": [ { "page": "435-36", "parenthetical": "holding that language in an indictment following the words \"committing a felony\" is \"mere harmless surplusage and may properly be disregarded in passing upon its validity.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0432-01" ] }, { "cite": "253 S.E.2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "356-57" }, { "page": "356-57" } ], "opinion_index": 0 }, { "cite": "40 N.C. App. 506", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551468 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "510" }, { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/nc-app/40/0506-01" ] }, { "cite": "420 S.E.2d 466", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "469" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 462", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527698 ], "year": 1992, "pin_cites": [ { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0462-01" ] }, { "cite": "376 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "324 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488503 ], "year": 1989, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0063-01" ] }, { "cite": "560 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "355 N.C. 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220104, 220114, 220155, 220004 ], "year": 2002, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0284-03", "/nc/355/0284-01", "/nc/355/0284-04", "/nc/355/0284-02" ] }, { "cite": "554 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "394" }, { "page": "395" }, { "page": "394" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 21", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9377698 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "30-31" }, { "page": "31" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0021-01" ] }, { "cite": "302 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "769", "parenthetical": "Justice Martin dissenting, joined by Justices Copeland and Exum" }, { "page": "769" } ], "opinion_index": 0 }, { "cite": "308 N.C. 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4706622 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "419", "parenthetical": "Justice Martin dissenting, joined by Justices Copeland and Exum" }, { "page": "419" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0393-01" ] }, { "cite": "456 S.E.2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790143 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0257-01" ] }, { "cite": "446 S.E.2d 603", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "605" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 115", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522492 ], "year": 1994, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0115-01" ] }, { "cite": "556 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 2001, "pin_cites": [ { "page": "601" }, { "page": "660" }, { "page": "602" }, { "page": "660" }, { "page": "601" }, { "page": "657" }, { "page": "600" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 655", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9380977 ], "year": 2001, "pin_cites": [ { "page": "659" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0655-01" ] }, { "cite": "275 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 351", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565589 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0351-01" ] }, { "cite": "269 S.E.2d 694", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "698" } ], "opinion_index": 0 }, { "cite": "48 N.C. App. 497", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551423 ], "year": 1980, "pin_cites": [ { "page": "504-05" } ], "opinion_index": 0, "case_paths": [ "/nc-app/48/0497-01" ] }, { "cite": "524 S.E.2d 587", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "589" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 379", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239675 ], "year": 2000, "pin_cites": [ { "page": "382" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0379-01" ] } ], "analysis": { "cardinality": 884, "char_count": 20167, "ocr_confidence": 0.768, "pagerank": { "raw": 6.356445689643612e-08, "percentile": 0.38979106503892696 }, "sha256": "f56ac7cd559b07dd5781bb118ac8d327c92820384fb3bc650b812767647641b7", "simhash": "1:0a335426f58f2e7a", "word_count": 3248 }, "last_updated": "2023-07-14T20:10:07.642184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and LEVINSON concur." ], "parties": [ "DAVID R. MOORE and CATHY MOORE, Plaintiffs v. F. DOUGLAS BIDDY CONSTRUCTION, INC., Defendant" ], "opinions": [ { "text": "TYSON, Judge.\nDavid R. Moore and Cathy Moore (\u201cplaintiffs\u201d) appeal from order granting F. Douglas Biddy Construction, Inc.\u2019s (\u201cdefendant\u201d) motion for summary judgment. We affirm.\nI. Background\nOn 4 June 1992, plaintiffs and defendant entered into a written contract for the construction of a house to be built in Elon, North Carolina (\u201cthe house\u201d). The Alamance County Building Inspections Department issued a Certificate of Occupancy in June 1993. Plaintiffs moved into the house in August 1993.\nDefendant used an exterior insulation and finish system (\u201cEIFS\u201d) commonly known as \u201csynthetic stucco.\u201d In 1997, plaintiffs noticed defects along the interior wall, which included buckling, bending, and rotting of wood. Water had leaked through the exterior wall around the window frame. Plaintiff reported this damage to defendant who made repairs to the wall and window. Damage from water intrusion continued and in September 2000 plaintiffs hired Sydes Construction Company to remove the EIFS siding and replace it with conventional stucco. While replacing the EIFS, plaintiffs became aware that none of the windows or doors in the house had been flashed. As a result, water had intruded causing the wooden structures around the doors, windows, and elsewhere in the house to rot resulting in structural damage and termite infestation.\nPlaintiffs originally filed an unverified complaint on 15 October 1999 and voluntarily dismissed without prejudice on 14 September 2000. Plaintiffs refiled this action 7 June 2001 pursuant to N.C.R. Civ. P. 41(a). Defendant had received plaintiffs\u2019 \u201cRequest for Admissions\u201d [sic] along with service of the refiled complaint on 13 June 2001. Among other things, plaintiffs\u2019 Request for Admission Number Six requested that defendant admit \u201c[t]hat this lawsuit has been brought within the applicable period of the relevant Statute of Limitations and Statute of Repose.\u201d Defendant moved for, and was granted, an extension of \u201can additional 30 days ... to respond to plaintiffs\u2019 discovery requests.\u201d Defendant filed responses to plaintiffs\u2019 Requests for Admission on 31 August 2001. Defendant failed to timely file an Answer.\nEntry of default was entered against defendant on 15 August 2001. The trial court granted defendant\u2019s motion to set aside the entry of default on 16 January 2002. Defendant moved for partial summary judgment on the grounds that plaintiffs\u2019 claims were barred by the statute of repose. On 6 May 2002, the trial court granted this motion and entered summary judgment in favor of defendant. Plaintiffs appealed.\nII. Issues\nPlaintiffs contend that the trial court erred by granting: (1) defendant\u2019s motion to set aside entry of default; (2) summary judgment for defendant when this action was timely filed under the statute of repose; and (3) summary judgment when defendant was barred from asserting the statute of repose as a defense.\nIII. Entry of Default\nRule 55(d) of the North Carolina Rules of Civil Procedure gives the trial court discretion to set aside an entry of default for \u201cgood cause.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 55(d) (2001). \u201cAtrial court\u2019s determination of \u2018good cause\u2019 to set aside an entry of default will not be disturbed on appeal absent an abuse of discretion.\u201d Brown v. Lifford, 136 N.C. App. 379, 382, 524 S.E.2d 587, 589 (2000).\nDefendant informed the court of confusion regarding the attorney who would represent defendant. On the day the entry of default was entered, defendant\u2019s attorney had informed plaintiffs\u2019 counsel that representation had been secured and defendant was prepared to file an answer. Defendant asserted that setting aside the entry of default would not prejudice plaintiffs since discovery had taken place during the dismissed 1999 action. Defendant also argued that plaintiffs knew that defendant would assert the statute of repose as a defense as it had previously done in 1999.\nThe court found that defendant showed \u201cgood cause\u201d to set aside the entry of default. Entry of default is generally disfavored and any doubts concerning such entry \u201cshould be resolved in f\u00e1vor of setting aside an entry of default so that the case may be decided on its merits.\u201d Peebles v. Moore, 48 N.C. App. 497, 504-05, 269 S.E.2d 694, 698 (1980), modified and aff\u2019d, 302 N.C. 351, 275 S.E.2d 833 (1981). Plaintiff failed to show the trial court abused its discretion in setting aside the entry of default. This assignment of error is overruled.\nIV. Statute of Repose\nA. Action Must Be Brought Within Six Years\nPlaintiffs argue that the statute of repose did not bar their claim. N.C. Gen. Stat. \u00a7 l-50(a)(5)(a) (2001) establishes the repose period for claims to recover damages to real property.\nNo action to recover damages based upon or arising out of the defective or unsafe condition of an improvement to real property shall be brought more than six years from the later of the specific last act or omission of the defendant giving rise to the cause of action or substantial completion of the improvement.\n\u201cSubstantial completion\u201d is defined as \u201cthat degree of completion of a project. . . upon attainment of which the owner can use the same for the purpose for which it was intended.\u201d N.C. Gen. Stat. \u00a7 l-50(a)(5)(c) (2001). A house is substantially completed when it can be used for its intended purposes as a residence. Bryant v. Don Galloway Homes, Inc., 147 N.C. App. 655, 659, 556 S.E.2d 597, 601 (2001).\nIn Bryant, our court considered an EIFS case with virtually identical facts to the case at bar. Id. We held that the trial court properly granted summary judgment for defendant when the plaintiff filed the action after residing in the house for six years, and more than six years after the certificate of compliance was issued, even though defendant had made subsequent repairs. Id. at 660, 556 S.E.2d at 602. This Court stated that \u201cto allow the statute of repose to toll or start running anew each time a repair is made would subject a defendant to potential open-ended liability for an indefinite period of time, defeating the very purpose of statutes of repose . ...\u201d Id. at 660, 556 S.E.2d at 601.\nStatutes of repose are conditions precedent which must be specifically pled. Id. at 657, 556 S.E.2d at 600. Our Rules of Civil Procedure require that \u201c[i]n pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 9(c) (2001). Plaintiffs have the burden of proving that their cause of action was brought within the period of the applicable statute of repose. Tipton & Young Construction Co. v. Blue Ridge Structure Co., 116 N.C. App. 115, 118, 446 S.E.2d 603, 605 (1994), aff\u2019d, 340 N.C. 257, 456 S.E.2d 308 (1995).\nHere, plaintiffs\u2019 unverified complaint alleged that their action was timely filed within the limits prescribed by the statute of repose. Plaintiffs have not met their burden of proving this allegation. Alamance County issued a Certificate of Occupancy for the house in June 1993. Plaintiffs moved into the house in August 1993. Plaintiffs did not bring the first action against defendant until 15 October 1999, more than six years after the house was substantially completed and occupied as a residence. Plaintiffs\u2019 action was barred by the statute of repose. This assignment of error is overruled.\nB. Equitable Estoppel Bars the Defense\nIn the alternative, plaintiffs contend that defendant was equitably estopped from asserting the statute of repose as a defense. When considering matters of equity, \u201cthe trial judge is in the best position to exercise this discretion. He hears the evidence, observes the witnesses, considers the arguments of counsel, and weighs and balances the equities.\u201d A.E.P. Industries, Inc. v. McClure, 308 N.C. 393, 419, 302 S.E.2d 754, 769 (1983) (Justice Martin dissenting, joined by Justices Copeland and Exum).\nN.C. Gen. Stat. \u00a7 l-50(a)(5)(e) provides an exception to the statute of repose and forbids a party from asserting this defense when that party engaged in fraudulent or willful or wanton conduct. \u201cWilful and wanton negligence encompasses conduct which lies somewhere between ordinary negligence and intentional conduct. Negligence . . . connotes inadvertence. Wantonness, on the other hand, connotes intentional wrongdoing. . . . Conduct is wanton when [done] in conscious and intentional disregard of and indifference to the rights and safety of others.\u201d Cacha v. Montaco, Inc., 147 N.C. App. 21, 30-31, 554 S.E.2d 388, 394 (2001), disc. rev. denied, 355 N.C. 284, 560 S.E.2d 797 (2002) (citations omitted).\nIn their unverified complaint, plaintiffs\u2019 ninth claim for relief alleges willful and wanton conduct by defendant. Plaintiffs\u2019 complaint did not allege or plead fraud. Defendant argues that the trial court properly granted summary judgment because plaintiffs failed to produce any evidence to satisfy their burden regarding their allegation of willful and wanton conduct. Rule 56 of the North Carolina Rules of Civil Procedure states that summary judgment will be granted: \u201c[i]f 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.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2001). Summary judgment is appropriate when the moving party establishes that the opposing party cannot-produce evidence to support an essential element of the claim, cannot survive an affirmative defense, or that an essential element of the opposing party\u2019s claim does not exist. Collingwood v. G.E. Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). By moving for summary judgment, a defendant may force a plaintiff to produce evidence which shows plaintiff\u2019s ability to establish a prima facie case. Id. All inferences of fact are construed in favor of the nonmov-ing party. Id.\nPlaintiffs\u2019 complaint alleges that defendant\u2019s furnishing of materials and failure to follow manufacturer\u2019s specifications or Building Code requirements constitute more than ordinary negligence. We have held that \u201cviolation of the Code, standing alone, has been held by this Court to be insufficient \u2018to reach the somewhat elevated level of gross negligence.\u2019 \u201d Cacha, 147 N.C. App. at 33, 554 S.E.2d at 395 (quoting Bashford v. N.C. Licensing Bd. for General Contractors, 107 N.C. App. 462, 467, 420 S.E.2d 466, 469 (1992)).\nPlaintiffs offered an affidavit as evidence indicating that defendant made false representations of material facts. In David Moore\u2019s affidavit (\u201cMoore\u201d), he stated that in 1997 defendant promised that all windows and doors were inspected and properly flashed. Defendant assured plaintiffs that they should not experience any further problems. Moore stated in his affidavit that plaintiffs subsequently discovered that none of the windows or doors in the entire house had been flashed. Plaintiffs also offered Walter Strand\u2019s affidavit. Mr. Strand, a licensed professional engineer, performed an EIFS evaluation. His inspection showed that probing of the joints around doors and windows did not reveal the presence of any sealant, as required by the manufacturer. Instead, the EIFS was terminated around doors and windows by butting the EIFS laminate to the wood window and door frames. The report also noted the omission of or inadequate flashing throughout the house. Plaintiffs did not offer evidence regarding defendant\u2019s knowledge or experience with EIFS.\nIn granting summary judgment, the trial court considered these affidavits, along with other evidence. According to A.E.P. Industries, the trial court is in the best position to determine whether defendant should be equitably estopped from asserting the statute of repose as a defense. 308 N.C. at 419, 302 S.E.2d at 769. Plaintiffs\u2019 affidavits allege that defendant should be equitably estopped from asserting the statute of repose as a defense, but failed to show that defendant\u2019s actions constituted a \u201cconscious and intentional disregard of. . . the rights and safety of others.\u201d Cacha, 147 N.C. App. at 31, 554 S.E.2d at 394. Plaintiffs failed to produce evidence to raise a genuine issue of material fact to survive summary judgment. The trial court did not abuse its discretion in granting summary judgment. Defendant was not barred from asserting the statute of repose as a defense. This assignment of error is overruled.\nC. Requests for Admission\nPlaintiffs argue that defendant\u2019s untimely response to their Requests for Admission constituted an admission of all matters set forth in the requests and conclusively established that plaintiffs\u2019 claims were brought prior to the expiration of the statute of repose. The North Carolina Rules of Civil Procedure state that once a party has been served with written requests for admission:\n[t]he matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter ... a defendant shall not be required to serve answers or objections before the expiration of 60 days after service of the summons and complaint upon him.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 36(a) (2001) (\u201cRule 36(a)\u201d). Our Rules also allow parties to make a motion for extension of time. \u201c[T]he court for cause shown may at any time in its discretion with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed . . . .\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 6(b) (2001).\nHere, defendant was served the complaint together with the Requests for Admission on 13 June 2001. Rule 36(a) provided defendant sixty days from this date to respond or until 13 August 2001. On 13 July 2001, the court granted defendant\u2019s timely motion for extension of time giving him \u201can additional 30 days\u201d to respond. Defendant prepared the order which stated defendant \u201cis given an additional 30 days, or to August 27, 2001 within which to respond to plaintiffs\u2019 discovery requests.\u201d The clerk crossed out \u201c27\u201d and wrote in \u201c13\u201d making the order read \u201cor to August 13, 2001.\u201d\nBy changing this date, the clerk created an inconsistency on the face of the order. Under Rule 36(a) and prior to filing the motion for extension of time, defendant was allowed sixty days, or until 13 August 2001 to respond to plaintiffs\u2019 requests for admission. The order reflects the court\u2019s intent to grant defendant\u2019s motion for extension of time and to allow defendant \u201can additional 30 days\u201d to respond.\n\u201cA judgment must be construed in light of the situation of the court, what was before it, and the accompanying circumstances. Judgments should be liberally construed so as to make them serviceable instead of useless.\u201d Watkins v. Smith, 40 N.C. App. 506, 510, 253 S.E.2d 354, 356-57 (1979). In accordance with N.C.R. Civ. P. 6(b), Defendant had filed a motion for extension of time to answer plaintiffs\u2019 complaint on 6 July 2001. The trial court granted this motion on 9 July 2001, giving defendant until 13 August 2001 to answer. On 13 July 2001, four days after receiving an extension of time to answer plaintiffs\u2019 complaint, defendant filed a separate and distinct motion for extension of time to respond to plaintiffs\u2019 requests for admission. By filing a separate motion, defendant sought and was granted an additional thirty days beyond 13 August 2001, the date on which responses were originally due under Rule 36(a).\nThe change of date to \u201cAugust 13, 2001\u201d was mere surplusage. Giving that date precedence over the \u201cadditional 30 days\u201d ordered by the court would create a nullity, rendering the order \u201cuseless.\u201d Watkins, 40 N.C. App. at 510, 253 S.E.2d at 356-57; see also State v. Freeman, 314 N.C. 432, 435-36, 333 S.E.2d 743, 745-46 (1985) (holding that language in an indictment following the words \u201ccommitting a felony\u201d is \u201cmere harmless surplusage and may properly be disregarded in passing upon its validity.\u201d); Hodges v. Hodges, 257 N.C. 774, 780, 127 S.E.2d 567, 572 (1962) (trial court made a \u201cfinding of fact\u201d that \u201cplaintiff failed to show by clear, cogent and convincing evidence . . . .\u201d The Supreme Court held that \u201cclear, cogent and convincing evidence\u201d was mere surplusage because it is unnecessary and \u201cno other conclusion was logically possible . . . .\u201d); Bailey v. Gooding, 60 N.C. App. 459, 462, 299 S.E.2d 267, 271 (1983) (trial court applied the correct test in Rule 55(d) of \u201cgood cause,\u201d so that the reference to \u201cRule 60(b)\u201d in the order \u201cwas surplusage and does not require reversal of the order denying defendants\u2019 motion to set aside entry of default.\u201d).\nThe court\u2019s order granted defendant an extension of \u201can additional 30 days\u201d from the original sixty days he had under Rule 36(a) and allowed defendant to file his responses by 13 September 2001. Defendant timely filed his responses on 31 August 2001. Defendant\u2019s response denied plaintiffs\u2019 Request for Admission Number Six: \u201c[t]hat this lawsuit has been brought within the applicable period of the relevant Statute of Limitations and Statute of Repose.\u201d Defendant timely filed his response and was not barred from asserting the statute of repose as a defense. This assignment of error is overruled.\nV. Conclusion\nPlaintiffs did not file their action until more than six years after the house was substantially completed and are. barred by the statute of repose. Defendant was not estopped from asserting this defense. The trial court did not abuse its discretion in setting aside the entry of default. Summary judgment for defendant is affirmed.\nAffirmed.\nJudges TIMMONS-GOODSON and LEVINSON concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "J. Reed Johnston, Jr., Robert C. Cone, L. Charles Grimes, and Amanda L. Fields, for plaintiffs-appellants.", "Dean & Gibson, LLP, by Christopher J. Culp, for defendant-appellee." ], "corrections": "", "head_matter": "DAVID R. MOORE and CATHY MOORE, Plaintiffs v. F. DOUGLAS BIDDY CONSTRUCTION, INC., Defendant\nNo. COA02-1529\n(Filed 4 November 2003)\n1. Judgments\u2014 entry of default \u2014 set aside \u2014 no abuse of discretion\nPlaintiff failed to show that the trial court abused its discretion in setting aside an entry of default in a synthetic stucco action. There was good cause in confusion about the attorney who would represent defendant, and no prejudice to plaintiff because a dismissed prior action had included discovery and the assertion of defenses.\n2. Statutes of Limitation and Repose\u2014 substantial completion of house \u2014 occupation by owner\nPlaintiffs\u2019 synthetic stucco action was barred by the statute of repose where plaintiffs did not bring the first action until more than six years after the house was occupied. The six-year statute of repose of N.C.G.S. \u00a7 l-50(a)(5)(a) begins to run upon \u201csubstantial completion\u201d; a house is substantially completed when it can be used for its intended purpose as a residence.\n3. Statutes of Limitation and Repose\u2014 statute of repose\u2014 equitable estoppel exception\nDefendant was not equitably estopped from asserting the statute of repose as a defense in a synthetic stucco action through furnishing materials and failing to follow the manufacturer\u2019s specifications or Building Code requirements. Plaintiff\u2019s affidavits failed to show that defendant\u2019s actions constituted fraudulent or willful or wanton conduct, which would prevent the assertion of the defense under N.C.G.S. \u00a7 l-50(a)(5)(e).\n4. Discovery\u2014 extension of time \u2014 conflicting time statements\nDefendant\u2019s response to a request for admissions was timely where the court granted an extension of time for filing the answer, the court separately granted \u201can additional thirty days\u201d for answering the request for admissions, and the clerk entered the date for the answer on the order concerning admissions. The date was mere surplusage because granting it precedence over the \u201cadditional thirty days\u201d would render that order useless.\nAppeal by plaintiffs from judgment entered 6 May 2002 by Judge Orlando F. Hudson, Jr. in Alamance County Superior Court. Heard in the Court of Appeals 9 September 2003.\nJ. Reed Johnston, Jr., Robert C. Cone, L. Charles Grimes, and Amanda L. Fields, for plaintiffs-appellants.\nDean & Gibson, LLP, by Christopher J. Culp, for defendant-appellee." }, "file_name": "0087-01", "first_page_order": 117, "last_page_order": 125 }