{ "id": 8468852, "name": "MARY HILL MITCHELL, Plaintiff v. MITCHELL'S FORMAL WEAR, INC., M. LEWIS CONSTRUCTION, INC., and CRABTREE VALLEY MALL & PLAZA ASSOCIATES, Defendants", "name_abbreviation": "Mitchell v. Mitchell's Formal Wear, Inc.", "decision_date": "2005-01-18", "docket_number": "No. COA03-1486", "first_page": "212", "last_page": "217", "citations": [ { "type": "official", "cite": "168 N.C. App. 212" } ], "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": "215 S.E.2d 583", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "588", "parenthetical": "quoting 17 Am. Jur. 2d Contracts \u00a7 297 (now 17A Am. Jur. 2d Contracts \u00a7 416)" } ], "opinion_index": 0 }, { "cite": "288 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564807 ], "year": 1975, "pin_cites": [ { "page": "70-71", "parenthetical": "quoting 17 Am. Jur. 2d Contracts \u00a7 297 (now 17A Am. Jur. 2d Contracts \u00a7 416)" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0062-01" ] }, { "cite": "556 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "600" }, { "parenthetical": "citations omitted" }, { "page": "601", "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 655", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9380977 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "657" }, { "page": "659" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0655-01" ] }, { "cite": "542 S.E.2d 214", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 359", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155777, 1155943, 1155820, 1155759, 1155710 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0359-01", "/nc/351/0359-04", "/nc/351/0359-02", "/nc/351/0359-03", "/nc/351/0359-05" ] }, { "cite": "518 S.E.2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "791" }, { "page": "793" }, { "page": "791" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 73", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239051 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "75" }, { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0073-01" ] } ], "analysis": { "cardinality": 557, "char_count": 12961, "ocr_confidence": 0.739, "pagerank": { "raw": 5.8591662004228935e-08, "percentile": 0.36592133363759816 }, "sha256": "9e16f2e7e3075b30ab70ab6754f6ce2b161fa96d4585fff672ec8c5f369ca595", "simhash": "1:8386c74a8c48a017", "word_count": 2072 }, "last_updated": "2023-07-14T17:36:09.557360+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and McCULLOUGH concur." ], "parties": [ "MARY HILL MITCHELL, Plaintiff v. MITCHELL\u2019S FORMAL WEAR, INC., M. LEWIS CONSTRUCTION, INC., and CRABTREE VALLEY MALL & PLAZA ASSOCIATES, Defendants" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nMary Hill Mitchell (\u201cplaintiff\u2019) appeals the trial court order granting summary judgment in favor of M. Lewis Construction, Inc. (\u201cLewis Construction\u201d). For the reasons discussed herein, we affirm the trial court order.\nThe facts and procedural history pertinent to the instant appeal are as follows: In November 1995, Mitchell\u2019s Formal Wear, Inc. (\u201cMitchell\u2019s Formal Wear\u201d) entered into a contract with Lewis Construction whereby Lewis Construction would make certain renovations to a Mitchell\u2019s Formal Wear store located at Crabtree Valley Mall in Raleigh. The renovation plans included the construction and installation of benches in the store\u2019s dressing rooms.\nAlthough the store opened for business on or about 15 January 1996, the City of Raleigh did not issue a permanent certificate of occupancy for the store until January 1999. Michael Lewis (\u201cLewis\u201d), President of Lewis Construction, stated in an affidavit that a temporary certificate of occupancy was issued to Mitchell\u2019s Formal Wear in January 1996. Lewis explained that the delay between the completion of the renovations and the issuance of the permanent certificate of occupancy was attributable to ongoing renovations at Crabtree Valley Mall that were unrelated to the Mitchell\u2019s Formal Wear store.\nOn 23 February 2000, plaintiff was injured in the dressing room of Mitchell\u2019s Formal Wear when a bench on which she was sitting collapsed and caused her to fall to the floor. After reviewing photographs of the dressing room and the bench, Michael J.E. Sanchez (\u201cSanchez\u201d), a professional engineer, determined that the bench had been attached to the wall by one strip of glu\u00e9 and one drywall screw. Sanchez further determined that the collapse of the bench was due to its faulty construction.\nOn 12 March 2002, plaintiff filed suit against Mitchell\u2019s Formal Wear, Lewis Construction, and Crabtree Valley Mall and Plaza Associates. On 9 May 2002, plaintiff filed an amended complaint, alleging inter alia that Mitchell\u2019s Formal Wear knew or should have known that the bench was in a dangerous condition, and that Lewis Construction constructed and installed the bench in a negligent manner. On 11 February 2003, Lewis Construction filed a motion for summary judgment, arguing that plaintiff\u2019s complaint against Lewis Construction was barred by the six-year statute of repose set forth in N.C. Gen. Stat. \u00a7 l-50(a)(5). In an order entered 2 July 2003 and amended 16 July 2003, the trial court granted summary judgment in favor of Lewis Construction. Plaintiff appeals.\nThe only issue on appeal is whether the trial court erred by granting summary judgment in favor of Lewis Construction. Plaintiff argues that she filed her complaint against Lewis Construction within the time specified in the statute of repose, and that therefore judgment as a matter of law in Lewis Construction\u2019s favor was inappropriate. We disagree.\nN.C. Gen. Stat. \u00a7 l-50(a)(5) (2003) provides as follows:\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.\nThe statute further provides that \u201can action based upon or arising out of the defective or unsafe condition of an improvement to real property includes . . . [a]ctions to recover damages for the negligent construction or repair of an improvement to real property[.]\u201d Id. The statute defines \u201csubstantial completion\u201d as \u201cthat degree of completion of a project, improvement or specified area or portion thereof. . . upon attainment of which the owner can use the same for the purpose for which it was intended[,]\u201d and the statute provides that \u201c[t]he date of substantial completion may be established by written agreement.\u201d Id.\nWhether a statute of repose has run is a question of law. Nolan v. Paramount Homes, Inc., 135 N.C. App. 73, 75, 518 S.E.2d 789, 791 (1999), disc. review denied, 351 N.C. 359, 542 S.E.2d 214 (2000). \u201cSummary judgment is proper if the pleadings or proof show without contradiction that the statute of repose has expired.\u201d Bryant v. Don Galloway Homes, Inc., 147 N.C. App. 655, 657, 556 S.E.2d 597, 600 (2001). \u201cThe moving party has the burden of producing evidence sufficient to show that summary judgment is justified. The burden then shifts to the non-moving party to \u2018 \u201cset forth specific facts showing that there is a genuine issue for trial.\u201d \u2019 \u201d Id. (citations omitted).\nIn the instant case, the pleadings, depositions, and other documentary evidence suggest that the date of \u201csubstantial completion\u201d for the Mitchell\u2019s Formal Wear renovation was 6 December 1995. Attached to Lewis Construction\u2019s Supplemental Responses to Plaintiff\u2019s Requests for Admissions was an invoice addressed to Mitchell\u2019s Formal Wear and dated 6 December 1995. The invoice indicates that \u201c100%\u201d of the \u201cFraming\u201d and \u201cWoodwork\u201d was complete. In his affidavit, Lewis states that he believes the bench was completed on or before 6 December 1995 \u201cbased upon the Lewis Construction invoice dated December 6, 1995 . . . [which] reflects that 100% of the framing and 100% of the woodwork for the job had been completed as of December 6, 1995.\u201d Lewis further states that \u201c[t]he construction of the dressing room benches would have been part of the framing and woodwork for th[e] job.\u201d Although there is indication in the record that, after 6 December 1995, Lewis Construction performed work on the \u201cpunch list\u201d items listed in its contract with Mitchell\u2019s Formal Wear, there is no indication that any of these items related to the dressing room bench that allegedly injured plaintiff. \u201cIn order to constitute a last act or omission, the act or omission must give rise to the cause of action. Here, the work on the punch list did not give rise to this action and therefore does not constitute defendant\u2019s last act or omission.\u201d Nolan, 135 N.C. App. at 79, 518 S.E.2d at 793. Thus, in light of the record in the instant case, we conclude that Lewis Construction substantially completed its renovations more than six years prior to plaintiff\u2019s injury and subsequent complaint.\nPlaintiff maintains that the project was not substantially complete until the City of Raleigh issued a permanent certificate of occupancy to Mitchell\u2019s Formal Wear in January 1999. In support of this contention, plaintiff cites our decision in Nolan, in which we held that, \u201c[s]ince it could be utilized for its intended purposes,\u201d the plaintiff\u2019s house was \u201csubstantially completed\u201d under N.C. Gen. Stat. \u00a7 l-50(a)(5) \u201cupon issuance of the certificate of compliance\u201d from the county inspections department. Id. at 76, 518 S.E.2d at 791. However, we are not convinced that Nolan requires that a certificate of compliance \u2014 or, in this case, a certificate of occupancy \u2014 be issued before a renovation project is deemed \u201csubstantially complete.\u201d In Bryant, we examined a similar argument and found the following two problems:\nFirst, plaintiffs have offered no evidence that they were prevented from using the house as a residence. In fact, the record indicates otherwise. Plaintiffs lived in the house for six years before bringing this complaint. Second, plaintiffs point to no specific language in Nolan in support of their argument that a rebuttable presumption arises.\n147 N.C. App. at 659, 556 S.E.2d at 601 (emphasis in original).\nIn the instant case, the record indicates that Mitchell\u2019s Formal Wear operated the store for more than three years prior to receiving a final certificate of occupancy from the City of Raleigh. The contract between Mitchell\u2019s Formal Wear and Lewis Construction provides that \u201c[t]he Contractor shall achieve Substantial Completion of the entire Work not later than January 1, 1996[,]\u201d and in his affidavit, Lewis states the following:\nIt is my best recollection that the Crabtree Valley Mall Mitchell\u2019s store opened for business on about January 15, 1996.1 recall that it received a Temporary Certificate of Occupancy from the City of Raleigh Inspections Department allowing it to open at that time. The final Certificate of Occupancy for that store . . . was, as I recall, not issued at that time because of certain work that the City of Raleigh Inspections Department required to be done to the area of the Crabtree Valley Mall in which this Mitchell\u2019s store was located. This work was not part of the renovation work contracted to Lewis Construction for the Mitchell\u2019s store located in Crabtree Valley Mall. ... It was not until Crabtree Valley Mall completed this work, which was unrelated to the Mitchell\u2019s store, that the stores in that section of the mall (including Mitchell\u2019s) were able to obtain permanent Certificates of Occupancy.\nAlthough Mitchell\u2019s Formal Wear offered evidence tending to show that the City of Raleigh does not have a record of the temporary certificate referred to in Lewis\u2019 affidavit, neither plaintiff nor Mitchell\u2019s Formal Wear offered any evidence tending to show that the Crabtree Valley Mall store was not operating in January 1996. Furthermore, neither plaintiff nor Mitchell\u2019s Formal Wear offered any evidence tending to show that, in January 1996, the bench was incapable of being used for its intended purpose. Thus, no genuine issue remains as to whether the renovations were substantially complete by January 1996, more than six years prior to plaintiffs filing suit against Lewis Construction.\nPlaintiff argues in the alternative that the date of substantial completion was defin\u00e9d by the contract between Mitchell\u2019s Formal Wear and Lewis Construction. Contained within the contract between Mitchell\u2019s Formal Wear and Lewis Construction is a provision stating that \u201c[w]hen the Architect agrees that the Work is substantially complete, the Architect will issue a Certificate of Substantial Completion.\u201d Plaintiff contends that because the architectural firm failed to issue a Certificate of Substantial Completion, the statute of repose is tolled. We disagree.\n\u201c[T]he obligations arising out of a contract are due only to those with whom it is made; a contract cannot be enforced by a person who is not a party to it or in privity with it, except under a real party in interest statute, or under certain circumstances, by a third-party beneficiary.\u201d\nMeyer v. McCarley and Co., 288 N.C. 62, 70-71, 215 S.E.2d 583, 588 (1975) (quoting 17 Am. Jur. 2d Contracts \u00a7 297 (now 17A Am. Jur. 2d Contracts \u00a7 416)). In the instant case, plaintiff does not invoke a real party in interest statute, nor is she named as a third-party beneficiary of the contract between Mitchell\u2019s Formal Wear and Lewis Construction. Thus, plaintiff cannot enforce the contract. Accordingly, we conclude that the trial court did not err by ruling as a matter of law that plaintiff\u2019s complaint, filed more than six years after substantial completion of the renovations, was barred by the statute of repose. The trial court\u2019s judgment as to Lewis Construction is therefore affirmed.\nAffirmed.\nJudges HUNTER and McCULLOUGH concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Bailey & Dixon, L.L.P., by Gary S. Parsons and Philip A. Collins, for plaintiff-appellant.", "Poe, Hoof & Associates, P.A., by J. Bruce Hoof, for defendant-appellee M. Lewis Construction, Inc." ], "corrections": "", "head_matter": "MARY HILL MITCHELL, Plaintiff v. MITCHELL\u2019S FORMAL WEAR, INC., M. LEWIS CONSTRUCTION, INC., and CRABTREE VALLEY MALL & PLAZA ASSOCIATES, Defendants\nNo. COA03-1486\n(Filed 18 January 2005)\nStatutes of Limitation and Repose\u2014 statute of repose \u2014 defective or unsafe condition of improvement to real property\nThe trial court did not err by granting summary judgment in favor of defendant construction company in an action arising out of plaintiff\u2019s injury in the dressing room of defendant formal wear store when a bench on which she was sitting collapsed and caused her to fall to the floor, because: (1) plaintiff\u2019s complaint was barred by the six-year statute of repose set forth in N.C.G.S. \u00a7 l-50(a)(5) when the record indicated that defendant construction company substantially completed its renovations more than six years prior to plaintiff\u2019s injury and subsequent complaint; (2) although defendant store operated for more than three years prior to receiving a final certificate of occupancy from the pertinent city, a certificate of compliance or a certificate of occupancy is not required to be issued before a renovation project is deemed substantially complete; and (3) although plaintiff argues in the alternative that the date of substantial completion was defined by the contract between defendant store and defendant construction company, plaintiff does not invoke a real party in interest statute nor is she named as a third-party beneficiary of the contract between defendants.\nAppeal by plaintiff from order entered 16 July 2003 by Judge Ripley E. Rand in Wake County Superior Court. Heard in the Court of Appeals 31 August 2004.\nBailey & Dixon, L.L.P., by Gary S. Parsons and Philip A. Collins, for plaintiff-appellant.\nPoe, Hoof & Associates, P.A., by J. Bruce Hoof, for defendant-appellee M. Lewis Construction, Inc." }, "file_name": "0212-01", "first_page_order": 242, "last_page_order": 247 }