{
  "id": 8523946,
  "name": "TRI CITY BUILDING COMPONENTS, INC. v. PLYLER CONSTRUCTION COMPANY, INC.",
  "name_abbreviation": "Tri City Building Components, Inc. v. Plyler Construction Co.",
  "decision_date": "1984-10-02",
  "docket_number": "No. 8321SC1191",
  "first_page": "605",
  "last_page": "608",
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    "name_long": "North Carolina",
    "name": "N.C."
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      "category": "reporters:state_regional",
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      "year": 1978,
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      "cite": "182 S.E. 2d 21",
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      "category": "reporters:state",
      "reporter": "N.C. App.",
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      "cite": "313 S.E. 2d 252",
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      "reporter": "S.E.2d",
      "year": 1984,
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    {
      "cite": "67 N.C. App. 556",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8526888
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      "year": 1984,
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    {
      "cite": "186 S.E. 2d 400",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1972,
      "opinion_index": 0
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    {
      "cite": "280 N.C. 460",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
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      "year": 1972,
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  "last_updated": "2023-07-14T18:14:59.534868+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judge Webb concurs.",
      "Judge JOHNSON concurs in result."
    ],
    "parties": [
      "TRI CITY BUILDING COMPONENTS, INC. v. PLYLER CONSTRUCTION COMPANY, INC."
    ],
    "opinions": [
      {
        "text": "PHILLIPS, Judge.\nThe order of summary judgment was erroneously entered for two reasons. It is therefore vacated and the case is remanded to the Superior Court for trial.\nOne reason the summary judgment was erroneous is that an issue of fact as to whether plaintiffs trusses were defective \u2014 the dominant issue upon which defendant\u2019s affirmative defense and counterclaim both rest \u2014 was raised by the evidence that was before the court. Plaintiff took the deposition of Robert H. Plyler, who had helped operate the defendant construction company for five years and was there when the trusses fell. He testified that: The collapse started with one truss breaking in two, and when that truss fell it pulled the other trusses, the bracing and the walls down with it; he examined that truss, as well as the other trusses, and found that it had broken cleanly across a knot pattern, whereas the other trusses sustained splintering, shearing and other damage when they fell to the paved floor or on each other. When asked by plaintiffs counsel \u201cWhat caused that truss to break?\u201d the witness responded, in substance, substandard, too weak lumber which contained knots that lumber of that grade was not supposed to have. On several other occasions during the deposition the witness testified that the trusses were made of substandard lumber and that substandard lumber caused the failure. This evidence raised an issue for the jury and the court\u2019s holding to the contrary was error. That the witness also testified that other things could have caused or contributed to the collapse of the trusses \u2014such as damage done to some of the trusses in transit and improperly arranged concrete block walls that the trusses were affixed to \u2014 is beside the point for the purposes of this appeal. On a motion for summary judgment judges do not resolve inconsistencies and conflicts in evidence, nor do they assess the credibility or weight of the evidence; they only determine whether the evidence, under any view taken of it, raises a material issue of fact. Singleton v. Stewart, 280 N.C. 460, 186 S.E. 2d 400 (1972).\nThe court\u2019s other error was in hearing the motion when the ten days\u2019 notice required by Rule 56(c) had not been given and defendant had had no fair opportunity to prepare for the hearing. The court\u2019s finding that defendant was not prejudiced since the case had been calendared for trial is supported neither by the record nor the common experience of the profession. Being prepared to call witnesses and to try a case that has been calendared for a month is not the same thing as being prepared to oppose a summary judgment motion that has not been calendared at all. Zimmerman\u2019s Department Store, Inc. v. Shipper\u2019s Freight Lines, Inc., 67 N.C. App. 556, 313 S.E. 2d 252 (1984). Defense counsel\u2019s only reason for going to Winston-Salem from Asheville that day, so far as the record reveals, was to argue his change of venue motion; he had no reason to suppose that the motion for summary judgment would be heard and was not prepared for such a hearing. Defendant had no brief on the issue to hand up to the court\u2014 and could not have been expected to have one under the circumstances \u2014 but plaintiff did submit a brief, which the court considered. As was indicated in Ketner v. Rouzer, 11 N.C. App. 483, 182 S.E. 2d 21 (1971) and Zimmerman\u2019s Department Store, Inc. v. Shipper\u2019s Freight Lines, Inc., supra, with adequate time to prepare for the summary judgment hearing, the issues can often be made clearer and the court\u2019s task easier. The defendant either by affidavit or brief might have been able to point more directly to the crucial evidence that was available on the issue, if it had had an opportunity to do so, and that the court might have profited by such aid, is self-evident. Except for such analysis of the available evidence as may have been made in plaintiffs brief, which is not in the record, the record indicates that the court arrived at its decision from examining the considerable papers in the court file, whereas such decisions are usually made after comparing the analyses, references, and summaries of the opposing lawyers. This may account for the court ruling that the evidence failed to raise a material issue of fact on defendant\u2019s affirmative defense, but did raise such an issue on defendant\u2019s counterclaim, when both the defense and the counterclaim rest on the contention that the trusses were defective. In any event, dismissing a party\u2019s claim or defense by summary judgment is too grave a step to be taken on short notice; unless, of course, the right to notice that those opposing summary judgment have under Rule 56(c) is waived. Raintree Corporation v. Rowe, 38 N.C. App. 664, 248 S.E. 2d 904 (1978). But being in court to present another motion and objecting to the hearing being held is no waiver.\nVacated and remanded.\nJudge Webb concurs.\nJudge JOHNSON concurs in result.",
        "type": "majority",
        "author": "PHILLIPS, Judge."
      }
    ],
    "attorneys": [
      "Petree, Stockton, Robinson, Vaughn, Glaze & Maready, by W. Thompson Comerford, Jr., Leon E. Porter, Jr., and Jane C. Jackson, and Horton, Hendrick & Hummer, by Hamilton C. Horton, Jr., and Edward V. Zotian, for plaintiff appellee.",
      "Gray, Kimel & Connolly, by Joseph A. Connolly, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "TRI CITY BUILDING COMPONENTS, INC. v. PLYLER CONSTRUCTION COMPANY, INC.\nNo. 8321SC1191\n(Filed 2 October 1984)\n1. Sales \u00a7 22.1\u2014 defective roof trusses \u2014 sufficiency of the evidence\nIn an action in which defendant had denied liability for the purchase of roof trusses and counterclaimed for damages from the collapse of the trusses on the ground that the trusses were defective, summary judgment on the counterclaim was erroneous where there was evidence that substandard lumber in a truss had caused the collapse.\n2. Rules of Civil Procedure \u00a7 56.1\u2014 summary judgment \u2014 ten days\u2019 notice of hearing-required\nA motion for summary judgment should not have been heard without the ten days\u2019 notice required by Rule 56(c), even though the case had been calendared for trial on the date the motion was heard, but was taken off the calendar before that date, and even though the parties were present to argue a motion for a change of venue.\nAppeal by defendant from Albright, Judge. Order entered 17 June 1983 in Superior Court, Forsyth County. Heard in the Court of Appeals 30 August 1984.\nPlaintiff sold defendant construction company some roof trusses, which were needed in extending the roof of a building it was enlarging. When nearly all the trusses, which were 68 feet long and made of wood, had been installed into newly constructed cement block walls, but before any of the metal roofing was placed on the trusses, the entire roof structure collapsed, damaging the trusses, the building walls, and certain of defendant\u2019s equipment. Defendant refused to pay for the trusses and plaintiff sued for the agreed price of $5,416.78. In the answer defendant admitted the purchase but denied liability on the grounds that the trusses were defective, and counterclaimed for the damage allegedly sustained as a consequence thereof.\nThe case was calendared for trial for the 13 June 1983 term of Forsyth County Superior Court, but was taken off the calendar before then because of an illness in the family of one of defendant\u2019s witnesses. Defendant\u2019s motion for a change of venue to Buncombe County where it is located was added to that calendar, however. On Tuesday, 7 June 1983, plaintiff moved for summary judgment on both its claim and defendant\u2019s counterclaim and mailed a copy to defense counsel in Asheville, but no notice of hearing was attached. When defendant\u2019s motion for a venue change came on for hearing on 13 June 1983, the trial judge also heard plaintiffs motion for summary judgment, though defendant objected thereto. The court\u2019s position was that plaintiffs failure to give the ten days\u2019 notice that Rule 56(c) of the N.C. Rules of Civil Procedure requires for summary judgment motions would not prejudice defendant, since the case had been calendared for trial and defendant was required to be ready therefor. After considering the court file and plaintiffs brief, an order was entered in plaintiffs favor on its claim for $5,416.78, but plaintiffs motion for summary judgment on defendant\u2019s counterclaim was denied.\nPetree, Stockton, Robinson, Vaughn, Glaze & Maready, by W. Thompson Comerford, Jr., Leon E. Porter, Jr., and Jane C. Jackson, and Horton, Hendrick & Hummer, by Hamilton C. Horton, Jr., and Edward V. Zotian, for plaintiff appellee.\nGray, Kimel & Connolly, by Joseph A. Connolly, for defendant appellant."
  },
  "file_name": "0605-01",
  "first_page_order": 637,
  "last_page_order": 640
}