{ "id": 8352208, "name": "MELANIE J.G. ZIZZO, Individually, NICKY JAMES ZIZZO, by and through Guardian ad Litem MELANIE J.G. ZIZZO, and JOHN NICHOLAS ZIZZO, Individually, on behalf of themselves and others similarly situated, Plaintiffs v. PENDER COUNTY BOARD OF EDUCATION, Defendant and Third-Party Plaintiff v. LITTLE DIVERSIFIED ARCHITECTURAL CONSULTING, INC. (Formerly Little & Associates Architects, Inc.), SOUTHERN PIPING COMPANY, R.L. CASEY, INC., and R.J.W. CONSTRUCTION, INC., Third-Party Defendants", "name_abbreviation": "Zizzo v. Pender County Board of Education", "decision_date": "2006-01-03", "docket_number": "No. COA04-1652", "first_page": "402", "last_page": "405", "citations": [ { "type": "official", "cite": "175 N.C. App. 402" } ], "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": "250 S.E.2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "912", "parenthetical": "citations omitted" }, { "page": "912" } ], "opinion_index": 0 }, { "cite": "296 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565310 ], "year": 1978, "pin_cites": [ { "page": "147", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0109-01" ] }, { "cite": "596 S.E.2d 891", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "893" }, { "page": "894" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 730", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8901300 ], "year": 2004, "pin_cites": [ { "page": "732" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0730-01" ] }, { "cite": "493 S.E.2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "328" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 84", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11652298 ], "year": 1997, "pin_cites": [ { "page": "86" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0084-01" ] }, { "cite": "315 F.2d 471", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 172715 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/f2d/315/0471-01" ] }, { "cite": "294 S.E.2d 384", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "385" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 753", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526203 ], "year": 1982, "pin_cites": [ { "page": "756" } ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0753-01" ] } ], "analysis": { "cardinality": 418, "char_count": 8222, "ocr_confidence": 0.726, "pagerank": { "raw": 4.5330875625009783e-08, "percentile": 0.28419050685966635 }, "sha256": "e6b700937370816e405e3e86e666490e3c54062ed3b40a31e7153d06560e912d", "simhash": "1:7ea35206b42e29d5", "word_count": 1255 }, "last_updated": "2023-07-14T22:29:36.119960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and CALABRIA concur." ], "parties": [ "MELANIE J.G. ZIZZO, Individually, NICKY JAMES ZIZZO, by and through Guardian ad Litem MELANIE J.G. ZIZZO, and JOHN NICHOLAS ZIZZO, Individually, on behalf of themselves and others similarly situated, Plaintiffs v. PENDER COUNTY BOARD OF EDUCATION, Defendant and Third-Party Plaintiff v. LITTLE DIVERSIFIED ARCHITECTURAL CONSULTING, INC. (Formerly Little & Associates Architects, Inc.), SOUTHERN PIPING COMPANY, R.L. CASEY, INC., and R.J.W. CONSTRUCTION, INC., Third-Party Defendants" ], "opinions": [ { "text": "TYSON, Judge.\nPender County Board of Education (\u201cPender County\u201d) appeals from order entered dismissing its claims against Little Diversified Architectural Consulting, Inc. (Formerly Little & Associates Architects, Inc.) (\u201cLittle\u201d). We dismiss this appeal.\nI.Background\nMelanie J.G. Zizzo, Nicky James Zizzo, and John Nicholas Zizzo (collectively, \u201cplaintiffs\u201d) filed a complaint against Pender County on 27 November 2002 alleging they were injured by exposure to mold in North Topsail Elementary School. Pender County filed third-party complaints against Little, the architectural firm that designed and supervised the construction of the school, and others. Pender County claimed breach of contract, negligence, breach of express warranties, and negligence per se. Pender County prayed the court as follows:\nWHEREFORE, defendant and third party plaintiff prays the Court that in the event the defendant is found liable to the plaintiffs, it have complete indemnity and/or contribution from the third party defendants-, that judgment be entered against the third party defendants for the costs incurred by third party plaintiff in the remediation of South Topsail Elementary School, which sum is in excess of $10,000.00[.]\n(Emphasis supplied).\nThe trial court dismissed with prejudice all of Pender County\u2019s claims against Little on 21 July 2004. Pender County appeals. On 4 May 2005, plaintiffs dismissed without prejudice their claims against Pender County. On 2 June 2005, Little moved to dismiss Pender County\u2019s appeal.\nII.Issues\nPender County argues: (1) the trial court erred in granting Little\u2019s motion to dismiss; and (2) the trial court properly granted Pender County\u2019s motion to continue Little\u2019s motion for summary judgment.\nIII.Motion to Dismiss\nAfter plaintiffs dismissed their complaint against Pender County, Little filed a motion in this Court to dismiss Pender County\u2019s appeal on 2 June 2005. Little argues plaintiffs\u2019 dismissal of all claims against Pender County renders any claim Pender County may have against Little moot because Pender County has no claim to derivative damages. We agree.\nPender County\u2019s complaint against Little is entitled, \u201cThird Party Complaint.\u201d In the complaint, Pender County states, \u201cPursuant to Rule 14(a) of the North Carolina Rules of Civil Procedure, defendant, by and through counsel, alleges and says\nRule 14(a) of the North Carolina Rules of Civil Procedure provides:\nAt any time after commencement of the action a defendant, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff\u2019s claim against him.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 14(a) (2003) (emphasis supplied). Under this rule, an original defendant may implead a party for the purposes of indemnification and contribution \u201cfor all or part of the plaintiffs claim against him.\u201d Id. \u201cIf the original defendant is not liable to the original plaintiff, the third-party defendant is not liable to the original defendant.\u201d Jones v. Collins, 58 N.C. App. 753, 756, 294 S.E.2d 384, 385 (1982). \u201cA claim which is independent of the defendant\u2019s possible liability to the plaintiff cannot be the basis of impleader under Rule 14.\u201d Alan D. Woodlief, Jr., Shuford North Carolina Civil Practice and Procedure \u00a7 14:2 (6th ed. 2003) (citing Horn v. Daniel, 315 F.2d 471 (10th Cir. 1962)); see also Hunter v. Kennedy, 128 N.C. App. 84, 86, 493 S.E.2d 327, 328 (1997) (The issue was whether an uninsured motorist carrier may file a third-party complaint seeking contribution and/or indemnification in defending an uninsured motorist. This Court dismissed the third-party complaint holding that the third-party complaint was \u201can affirmative claim and not an action taken in an effort to defeat the original claim asserted by [the plaintiff]\u201d).\nIn Lord v. Customized Consulting Specialty, Inc., the original defendant filed a third-party complaint against the third-party defendant. 164 N.C. App. 730, 732, 596 S.E.2d 891, 893 (2004). The original plaintiff\u2019s claims against the original defendant were subsequently dismissed. Id. This Court stated, \u201cWhen plaintiffs\u2019 claims against defendant were voluntarily dismissed, defendant\u2019s third party claims ceased to exist. All of the claims of plaintiffs and defendant were part of the same action.\u201d Id. at 733, 596 S.E.2d at 894.\nIn In re Peoples, our Supreme Court stated:\nWhenever, during the course of litigation it develops that the relief sought has been granted or that the questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain or proceed with a cause merely to determine abstract propositions of law.\n296 N.C. 109, 147, 250 S.E.2d 890, 912 (1978) (citations omitted). If issues become moot at any time during the proceedings, the action should be dismissed. Id. at 148, 250 S.E.2d at 912.\nHere, plaintiffs dismissed all claims against Pender County. Because Pender County has filed a third-party complaint under Rule 14 against Little, it asserted no viable claim against Little for direct damages. N.C. Gen. Stat. \u00a7 1A-1, Rule 14(a).\nPender County could have joined its claims against Little pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 18 (a). Rule 18(a) states, \u201cA party asserting a claim for relief as an original claim, counterclaim, cross claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal or equitable, as he has against an opposing party.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 18 (a) (2003) (emphasis supplied). Pender County solely asserted claims \u201c[p]ursuant to Rule 14(a),\u201d prayed for \u201ccomplete indemnity and/or contribution,\u201d and did not assert any claims against Little or the other third-party defendants under Rule 18(a). Plaintiffs\u2019 dismissal of all claims against Pender County renders this appeal moot. This appeal is dismissed.\nIV. Conclusion\nIn filing a third-party complaint against Little under Rule 14, Pender County pled derivative and not direct damages against Little. Because plaintiffs have dismissed all claims against Pender County, Pender County has not asserted any remaining claims against Little. This appeal is moot. Little\u2019s motion to dismiss Pender County\u2019s appeal is granted. This appeal is dismissed. In light of our decision, it is unnecessary to address Pender County\u2019s assignments of error.\nDismissed.\nJudges BRYANT and CALABRIA concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "No brief filed for plaintiff s-appellees.", "Patterson, Dilthey, Clay, Bryson & Anderson, L.L.P., by Scott Lewis and Ellen J. Persechini, for defendant and third-party plaintiff-appellant. '", "Hamilton, Fay, Moon, Stephens, Steele & Martin, PLLC, by David B. Hamilton, David G. Redding, and Andrianne Huffman Colgate, for third-party defendant-appellee Little Diversified Architectural Consulting, Inc. (Formerly Little & Associates Architects, Inc.).", "No brief filed for third-party defendants-appellees Southern Piping Company, Sigma Construction Co., Inc., M.B. Kahn Construction Co., Inc., and SE&M Constructors, Inc." ], "corrections": "", "head_matter": "MELANIE J.G. ZIZZO, Individually, NICKY JAMES ZIZZO, by and through Guardian ad Litem MELANIE J.G. ZIZZO, and JOHN NICHOLAS ZIZZO, Individually, on behalf of themselves and others similarly situated, Plaintiffs v. PENDER COUNTY BOARD OF EDUCATION, Defendant and Third-Party Plaintiff v. LITTLE DIVERSIFIED ARCHITECTURAL CONSULTING, INC. (Formerly Little & Associates Architects, Inc.), SOUTHERN PIPING COMPANY, R.L. CASEY, INC., and R.J.W. CONSTRUCTION, INC., Third-Party Defendants\nNo. COA04-1652\n(Filed 3 January 2006)\nAppeal and Error\u2014 moot appeal \u2014 dismissal of third-party complaint \u2014 original claim voluntarily dismissed\nAn appeal by a defendant and third-party plaintiff (Pender County) was dismissed as moot after the original plaintiffs dismissed their claims against Pender County. Pender County\u2019s claim was for derivative damages under N.C.G.S. \u00a7 1A-1, Rule 14(a), rather than for direct damages under N.C.G.S. \u00a7 1A-1, Rule 18(a).\nAppeal by defendant and third-party plaintiff from order entered 28 July 2004 by Judge D. Jack Hooks, Jr., in Pender County Superior Court. Heard in the Court of Appeals 30 November 2005.\nNo brief filed for plaintiff s-appellees.\nPatterson, Dilthey, Clay, Bryson & Anderson, L.L.P., by Scott Lewis and Ellen J. Persechini, for defendant and third-party plaintiff-appellant. '\nHamilton, Fay, Moon, Stephens, Steele & Martin, PLLC, by David B. Hamilton, David G. Redding, and Andrianne Huffman Colgate, for third-party defendant-appellee Little Diversified Architectural Consulting, Inc. (Formerly Little & Associates Architects, Inc.).\nNo brief filed for third-party defendants-appellees Southern Piping Company, Sigma Construction Co., Inc., M.B. Kahn Construction Co., Inc., and SE&M Constructors, Inc." }, "file_name": "0402-01", "first_page_order": 436, "last_page_order": 439 }