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    "judges": [
      "Judges PHILLIPS and COZORT concur."
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    "parties": [
      "NEW BERN ASSOCIATES, Plaintiff v. THE CELOTEX CORPORATION, Defendant and Third-Party Plaintiff v. R. M. SAFFRAN, Individually and Trading as R. M. SAFFRAN ARCHITECT AND ASSOCIATES; FERDINAND A. HEPPERLE, Individually and Trading as FERDINAND A. HEPPERLE ARCHITECT AND PLANNER; and T. A. LOVING COMPANY, a Corporation, Third-Party Defendants"
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      {
        "text": "GREENE, Judge.\nPlaintiff New Bern Associates (\u201cNew Bern\u201d), filed a complaint against defendant Celotex Corporation (\u201cCelotex\u201d), alleging breach of warranties in regard to a building owned by New Bern and roofed with material manufactured by Celotex. New Bern alleged the roof on its building was not watertight and leaked a great deal. Celotex filed a third-party complaint against R. M. Saf-fran and Ferdinand A. Hepperle, the architects who designed plaintiffs building, alleging their negligence in designing the building, and against T. A. Loving Company, the general contractor for the building, alleging its negligence in constructing the building. Celotex alleged the third-parties\u2019 negligent acts as the primary causes of any injury to plaintiff and asked for indemnification from third-party defendants or, in the alternative, for contribution.\nBefore trial, third-party defendant T. A. Loving filed a motion to dismiss Celotex\u2019s third-party complaint for failure to state a claim upon which relief could be granted. N.C.G.S. Sec. 1A-1, Rule 12(b)(6) (1983). T. A. Loving based its motion on the allegation that Celotex had failed to bring its third-party complaint within six years from the date of completion of construction as required by the applicable statute of repose, N.C.G.S. Sec. 1-50(5). Celotex\u2019s written ten-year warranty issued to New Bern states the building\u2019s completion date was 18 March 1975. Celotex filed its third-party complaint against T. A. Loving on 28 April 1986. The court considered the pleadings, Celotex\u2019s written warranty, and correspondence between the parties, found there to be no genuine issue of material fact and granted summary judgment for T. A. Loving pursuant to N.C.G.S. Sec. 1A-1, Rules 12(b) and 56, on the basis that the statute of repose, Section 1-50(5), barred Celotex\u2019s third-party complaint. Celotex excepted and appealed.\nThe issues before us are: 1) whether the judgment is immediately appealable, 2) whether summary judgment was error because the statute of repose, N.C.G.S. Sec. 1-50(5), does not bar actions for contribution and indemnification, and 3) whether summary judgment was error because there existed genuine issues of material fact.\nI\nThe correct procedure for determining whether a given case is appealable was set out by this Court in Equitable Leasing Corp. v. Myers, 46 N.C. App. 162, 265 S.E. 2d 240, appeal dismissed, 301 N.C. 92 (1980). There is a three-step analysis: 1) A judgment which is final to all claims and parties is immediately appealable. 2) If a judgment is not final as to all parties and claims, it is appealable if it is final to a party or issue and has been certified for appeal by the trial court under N.C.G.S. Sec. 1A-1, Rule 54(b). 3) If it is neither final to all claims and parties, nor final to a party or issue and certified for appeal, a judgment is immediately appealable if it affects a substantial right of the parties. Equitable Leasing Corp., 46 N.C. App. at 168-69, 265 S.E. 2d at 245.\nThe judgment from which Celotex appeals is not final to all parties and claims. Although it is final to T. A. Loving and the question of its liability, the trial court did not certify it for appeal under Rule 54(b). It does, however, affect a substantial right and, on that basis, is appealable.\nA \u201csubstantial right\u201d is one \u201cwhich will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment.\u201d Blackwelder v. Dept. of Human Resources, 60 N.C. App. 331, 335, 299 S.E. 2d 777, 780 (1983). A judgment which creates the possibility of inconsistent verdicts on the same issue in different trials affects a substantial right. Bernick v. Jurden, 306 N.C. 435, 439, 293 S.E. 2d 405, 408 (1982); Green v. Duke Power Co., 305 N.C. 603, 606, 290 S.E. 2d 593, 595 (1982).\nHere, the trial court\u2019s order granting summary judgment for T. A. Loving creates the possibility of inconsistent verdicts on the issue of T. A. Loving\u2019s negligence if it is not immediately appealed. Celotex\u2019s written warranty warrants against the roofing contractor\u2019s errors or mistakes in workmanship. In this suit, Celotex, as third-party plaintiff, may be held liable under its warranty for negligent work done by T. A. Loving; in a second trial against T. A. Loving, the jury may find T. A. Loving was not negligent. Thus, Celotex\u2019s right to have one jury decide the alleged negligence of T. A. Loving is a substantial right. The trial court\u2019s order granting T. A. Loving summary judgment is immediately appealable.\nII\nCelotex first argues the statute of repose does not bar an action for contribution or indemnification. This argument is without merit.\nN.C.G.S. Sec. 1-50(5) governs actions to recover damages for any injury arising out of defective or unsafe improvements to real property. At the time the roof began to leak, this statute (hereinafter \u201cthe 1963 statute\u201d) provided that it also governed \u201cany action for contribution or indemnity for damages sustained on account of such injury . . . .\u201d N.C.G.S. Sec. 1-50(5) (1969). This statute was amended in 1981 and currently provides:\nb. For purposes of this subdivision, an action based upon or arising out of the defective or unsafe condition of an improvement to real property includes:\n* * *\n6. Actions for contribution or indemnification for damages sustained on account of an action described in this subdivision;\nN.C.G.S. Sec. l-50(5)(b)(6) (1983) (hereinafter, \u201cthe 1981 statute\u201d).\nNew Bern\u2019s action against Celotex rises out of a defective improvement to real property. Thus, since New Bern\u2019s action against Celotex would normally be governed by Section 1-50(5), Celotex\u2019s claim for contribution or indemnification based on T. A. Loving\u2019s negligence, is governed by Section 1-50(5).\nIII\nSummary judgment is appropriate if there is no genuine issue of material fact and any party is entitled to judgment as a matter of law. Johnson v. Insurance Co., 300 N.C. 247, 252, 266 S.E. 2d 610, 615 (1980). Celotex next argues summary judgment was inappropriate for two reasons.\nA\nCelotex first argues that its cause of action is not barred by the statute of repose because its action is based on wanton and willful negligence and the 1981 statute does not bar such claims. N.C.G.S. Sec. l-50(5)(e) (1983). The 1981 amendments to Section 1-50(5) became effective 1 October 1981. New Bern\u2019s building was built before 1981, in 1974 and 1975. Evidence at the hearing for summary judgment was that the roof began to leak sometime in 1975. New Bern brought suit after 1981 on 15 March 1985. Celotex filed its third-party complaint on 28 April 1986. T. A. Loving contends that the 1963 statute, which, unlike the 1983 statute, bars actions on wanton and willful negligence, governs the actions in Celotex\u2019s third-party complaint. We hold that the determination of which statute governs Celotex\u2019s third-party complaint depends upon when plaintiff New Bern\u2019s cause of action accrued.\nFor actions between original plaintiffs and defendants, we have held the applicable version of Section 1-50(5) to be that statute in effect when plaintiffs cause of action accrued. Olympic Products Co. v. Roof Systems, Inc., 79 N.C. App. 436, 339 S.E. 2d 432, disc. rev. denied, 316 N.C. 553, 344 S.E. 2d 8 (1986); Starkey v. Cimarron Apartments, Inc., 70 N.C. App. 772, 321 S.E. 2d 229 (1984), disc. rev. denied, 312 N.C. 798, 325 S.E. 2d 633 (1985).\nAs explained in II above, the statute applies equally to actions for contribution or indemnification in addition to the original action from which they arise. Celotex contends its cause of action for contribution or indemnification accrued on the date New Bern filed its complaint, 18 March 1985, and the 1981 version governs its cause of action.\nThe function of a statute of repose is to give a defendant a vested right not to be sued if the plaintiff fails to file within the prescribed period. Colony Hill Condominium I Assoc. v. Colony Co., 70 N.C. App. 390, 394, 320 S.E. 2d 273, 276 (1984), disc. rev. denied, 312 N.C. 796, 325 S.E. 2d 485 (1985). Section 1-50(5), on its face, gives that right to third-party defendants as well as defendants to an original action. We think it would undermine the function of the statute of repose if a defendant who had a vested right not to be sued by the original plaintiff lost that right in an action for indemnification or contribution by operation of different accrual dates and, thus, different versions of the statute. Therefore, we hold that the accrual date of the original plaintiffs claim determines which version of the statute of repose is applicable to the defendant\u2019s claim for indemnification or contribution against a third party. Thus, if New Bern\u2019s cause of action accrued before 1 October 1981, the effective date of the 1981 version, Celotex\u2019s third-party complaint is governed by the 1963 version of Section 1-50(5).\nA cause of action for physical damage to property accrues when the physical damage becomes \u201capparent or ought reasonably to have become apparent to the claimant, whichever event first occurs.\u201d N.C.G.S. Sec. 1-52(16). New Bern\u2019s cause of action comes under this statute. See N.C.G.S. Sec. 1-50(5)(f); Condominium Assoc. v. Donald J. Scholz Co., 47 N.C. App. 518, 527, 268 S.E. 2d 12, 18, disc. rev. denied, 301 N.C. 527, 273 S.E. 2d 454 (1980). Therefore, the date the damage to its building was apparent or ought to have been reasonably apparent is the date New Bern\u2019s cause of action accrued.\nEvidence that New Bern\u2019s roof began leaking in 1975 was un-contradicted at the hearing for summary judgment. Thus, its cause of action for injuries arising from the alleged defects accrued in 1975. That being the case, the version of Section 1-50(5) applicable to Celotex\u2019s third-party complaint against T. A. Loving is the 1963 version. Since the 1963 version did not exclude willful and wanton negligence, we do not need to determine whether Cel-otex alleged willful and wanton negligence.\nB\nCelotex next contends that the trial court erred by granting T. A. Loving\u2019s motion for summary judgment because a genuine issue existed as to when the statute of repose began to run against its claim. N.C.G.S. Sec. 1-50(5) runs not from the date the cause of action accrued but, in the 1963 statute, from the first day \u201cafter the performance or furnishing of . . . services or construction.\u201d This language, which clearly refers to a defendant\u2019s last act or omission, has also been interpreted to mean the date construction was completed. Condominium Assoc. v. Donald J. Scholz Co., 47 N.C. App. 518, 527, 268 S.E. 2d 12, 18, disc. rev. denied, 301 N.C. 527, 273 S.E. 2d 454 (1980). We think it means nothing different from the language of the 1981 version in which the statute runs \u201cfrom 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.\u201d N.C.G.S. Sec. l-50(5)(a) (1983).\nT. A. Loving contends that Celotex\u2019s written warranty verifies the building was completed on 18 March 1975 and that it committed no act or omission after that date which gave rise to New Bern\u2019s injuries, or if it did, its last act or omission was more than six years before 28 April 1986, the date Celotex filed its third-party complaint. Celotex contends T. A. Loving\u2019s last act or omission giving rise to New Bern\u2019s injuries was within six years before 28 April 1986, in other words, after 28 April 1980.\nBoth parties argue from evidence submitted to the trial court at the hearing for summary judgment to support their contentions. The evidence tends to show that .T. A. Loving was actively involved in the attempts to repair New Bern\u2019s roof through an employee or agent, Cecil Baker, until at least 18 May 1979. The evidence further tends to show that Cecil Baker continued to be actively involved in some manner with the repairs beyond 28 April 1980. However, it does not conclusively show an employee/ employer relationship between Baker and T. A. Loving after 18 May 1979. Baker\u2019s correspondence concerning the roof is written, up to 18 May 1979, on stationery under the letterhead \u201cT. A. Loving Company.\u201d His correspondence after that date is solely on stationery which carries the letterhead \u201cBaker Enterprises.\u201d While Celotex did not produce evidence that would conclusively prove Baker was T. A. Loving\u2019s agent after 1 April 1980, the burden of proof to show no genuine issue of material fact rests on the mov-ant, T. A. Loving, Foster v. Winston-Salem Joint Venture, 303 N.C. 636, 641, 281 S.E. 2d 36, 40 (1981), and it has not carried that burden. There is a genuine dispute as to whether Baker was acting as T. A. Loving\u2019s agent after 28 April 1980.\nSince there is a genuine issue of fact as to whether T. A. Loving\u2019s last act or omission alleged to give rise to plaintiffs injury occurred within six years of the date Celotex filed its third-party complaint, we cannot determine whether it is barred by the statute of repose. Therefore, summary judgment was inappropriate.\nReversed and remanded.\nJudges PHILLIPS and COZORT concur.",
        "type": "majority",
        "author": "GREENE, Judge."
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    "attorneys": [
      "Stith and Stith, P.A., by F. Blackwell Stith and Susan H. McIntyre, for Defendant and Third-Party Plaintiff, The Celotex Corporation.",
      "Warren, Kerr, Walston & Hollowell, by John H. Kerr, III, for Third-Party Defendant, T. A. Loving Company."
    ],
    "corrections": "",
    "head_matter": "NEW BERN ASSOCIATES, Plaintiff v. THE CELOTEX CORPORATION, Defendant and Third-Party Plaintiff v. R. M. SAFFRAN, Individually and Trading as R. M. SAFFRAN ARCHITECT AND ASSOCIATES; FERDINAND A. HEPPERLE, Individually and Trading as FERDINAND A. HEPPERLE ARCHITECT AND PLANNER; and T. A. LOVING COMPANY, a Corporation, Third-Party Defendants\nNo. 868SC1322\n(Filed 1 September 1987)\n1. Appeal and Error 8 6.2\u2014 summary judgment for third party defendant \u2014 not final to all parties \u2014 appealable\nAlthough a summary judgment for a third party defendant was not final to all parties and claims and the trial court did not certify it for appeal, it was appealable because it affected a substantial right in that summary judgment for this defendant created the possibility of inconsistent verdicts.\n2. Limitation of Actions \u00a7 4\u2014 leaking roof \u2014 third party complaint for negligence \u2014governed by G.S. 8 1-50(5)\nIn an action to recover damages for a leaking roof where the original plaintiffs action arose from a defective improvement to real property and was governed by N.C.G.S. \u00a7 1-50(5), defendant\u2019s claim for contribution and indemnification based on a third party defendant\u2019s negligence was also governed by N.C.G.S. \u00a7 1-50(5).\n3. Limitation of Actions 8 4.2\u2014 construction dispute \u2014 determination of whether willful and wanton negligence alleged unnecessary\nIt was not necessary to determine whether a third party plaintiff in an action arising from a leaking roof alleged willful and wanton negligence where the accrual date of the original plaintiffs claim determined which version of the statute of repose was applicable to the third party claim; the evidence was uncontested that the roof began leaking in 1975; and the 1963 version of the statute which was thus applicable did not exclude willful and wanton negligence. N.C.G.S. \u00a7 1-50(5).\n4. Limitation of Actions 8 4\u2014 leaking roof \u2014 third party complaint \u2014 genuine issue of fact as to date of defendant\u2019s last act or omission \u2014 summary judgment inappropriate\nSummary judgment was inappropriately granted for a third party defendant in an action arising from a leaking roof where N.C.G.S. \u00a7 1-50(5), in the applicable 1963 version, runs from the last act or omission of the defendant and there was a genuine issue of fact as to whether the third party defendant\u2019s last act or omission occurred within six years of the date the third party complaint was filed.\nAppeal by third-party plaintiff, The Celotex Corporation, from Winberry, Judge. Judgment entered 27 October 1986 in Superior Court, Wayne County. Heard in the Court of Appeals 12 May 1987.\nStith and Stith, P.A., by F. Blackwell Stith and Susan H. McIntyre, for Defendant and Third-Party Plaintiff, The Celotex Corporation.\nWarren, Kerr, Walston & Hollowell, by John H. Kerr, III, for Third-Party Defendant, T. A. Loving Company."
  },
  "file_name": "0065-01",
  "first_page_order": 93,
  "last_page_order": 99
}
