Contract – Privity – Assignee – Sufficiency of Complaint – Rule 12(b)(6)

Domingue v. Nehemiah II, Inc. (Lawyers Weekly No. 10-07-1152, 11 pp.) (Cheri Beasley, J.) Appealed from Pasquotank County Superior Court (Walter H. Godwin, J.) N.C. App. Click here for the full text of the opinion.

Holding: Even though plaintiff is the successor-in-interest to the property owners with whom the defendant-contractor entered into a contract to build a home, plaintiff’s allegations that the contractor was negligent in building the home are sufficient to survive a motion to dismiss under N.C. R. Civ. P. 12(b)(6).

We reverse the trial court’s grant of the contractor’s motion to dismiss.

Facts

The defendant-contractor completed construction of the Boyles’ home in 2003. Subsequently plaintiff allegedly became the Boyles’ successor-in-interest.

Plaintiff alleged that the contractor contracted with the Boyles to construct the home in a “good and workmanlike manner” and that it also subsequently contracted to “correct all problems” with the house.

Plaintiff sued the contractor, Garwood and 50 unnamed individuals who were agents or employees of the contractor, alleging negligence and breach of contract in the construction of the residence.

The defendants filed a Rule 12(b) (6) motion to dismiss for failure to state a claim for relief. The trial court granted the defendants’ motion, and plaintiff appealed.

Negligence

Plaintiff argues that the trial court erred in granting the defendants’ motion to dismiss his claim that defendants were negligent in the construction of his home.

Plaintiff contends that under Oates v. JAG, Inc., 314 N.C. 276 (1985), a subsequent owner of a home has standing to assert a claim of negligence against the builder for breaching his duty to use ordinary care in the construction of the home.

In that case, our Supreme Court held that “a subsequent purchaser can recover in negligence against the builder of the property if the subsequent purchaser can prove that he has been damaged as a proximate result of the builder’s negligence.”

Plaintiff’s complaint alleged that the defendants’ construction breached the duty of care to plaintiff, as the construction was not performed in a good and workmanlike manner and resulted in specific and numerous defects that would require costly repairs and potential loss of property value.

Plaintiff’s complaint sufficiently alleged a claim of negligence against the defendants, and it was error for the trial court to dismiss the claim.

Breach of Contract

Plaintiff argues that the trial court erred in dismissing his claim for breach of contract. To sustain a claim for breach of contract, a plaintiff must allege that a valid contract existed and a breach of the terms of that contract.

The record is unclear as to whether plaintiff is an assignee of any possible claims the Boyles may have had against the defendants.

In a Rule 12(b)(6) motion to dismiss, however, we must accept the allegations in the complaint as true and determine if the allegations are sufficient to state a claim for relief. Plaintiff has met his burden.

Plaintiff alleged that the Boyles entered into a contract with the defendants for the construction of the residence in a “good and workmanlike manner,” and a separate contract to correct all construction defects. He also alleged that he was the successor-in-interest to any claims under these contracts, and as such, has standing to enforce them. Finally, he alleged that the defendants breached these contracts by their negligent construction and failure to make necessary corrections.

He alleged the elements for a breach of contract claim and the trial court erred in dismissing the action.

Reversed.