Civil Practice – Summary Judgment – Motion to Continue – Tort/Negligence — Real Property – Contractor – Renovation

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McMillan v. Ryan Jackson Properties, LLC (Lawyers Weekly No. 12-16-0714, 13 pp.) (Ann Marie Calabria, J.) Appealed from Guilford County Superior Court. (Patrice A. Hinnant, J.) N.C. App. Unpub. Full-text opinion.

Holding: The hearing on the defendant-contractor’s summary judgment motion was conducted on July 7, 2011, five weeks after plaintiffs were notified that the contractor’s project file was available for pick-up. Plaintiffs offered no explanation for their three-week delay in picking up the project file. Five weeks was a reasonable time for plaintiffs and their expert to retrieve and examine the contractor’s file in order to discover any evidence which could be used to oppose the summary judgment motion. We find no abuse of discretion in the trial court’s denial of plaintiffs’ motion to continue.

We affirm summary judgment for the contractor.

Plaintiffs contend that the contractor was negligent in three respects while renovating the property at issue: (1) the addition of fill dirt resulting in a change in the elevation of a nearby parking lot; (2) the replacement of an outdoor retaining wall in the parking lot; and (3) a failure to waterproof the north wall of plaintiffs’ building.

According to affidavits from the contractor’s vice presidents, Tony Collins and James Galyon, the contractor worked on neither the retaining wall nor the parking lot.

George Coggin, a neighboring landowner, averred that the parking lot and the retaining wall were modified during the time the contractor was performing its work on the property. Coggin’s affidavit conflicts with Collins’s affidavit regarding the time in which the retaining wall was modified. However, the timing of this modification is not material because Coggin’s affidavit is silent on the issue of who performed the modification. Consequently, Coggin’s affidavit was insufficient to overcome the contractor’s affidavits denying any involvement with the modifications to either the parking lot or the retaining wall. Coggin’s affidavit does not create a genuine issue of material fact regarding the modification of the parking lot or the retaining wall.

Plaintiffs fail to cite any evidence that the contractor performed any work on either the retaining wall or the parking lot during the course of the renovations. Therefore, plaintiffs have failed to establish a genuine issue of material fact concerning their claims for damages suffered as a result of the modifications of the retaining wall and parking lot.

As to the alleged failure to waterproof the building’s north wall, Collins averred, “Except for the replacement windows and doors, and installation of electrical junction boxes, neither [the contractor] nor any of its agents or subcontractors penetrated the exterior walls of the buildings … and there is no possibility that any of these penetrations, performed correctly or incorrectly, could have resulted in water intrusion into the units identified in this civil action.”

Plaintiffs failed to present any evidence that the windows, doors, and electrical boxes mentioned in Collins’s affidavit as the only exterior work performed by the contractor were the cause of the leaks into plaintiffs’ condominiums. Thus, plaintiffs failed to establish that the contractor’s renovations were the proximate cause of the leaks.

Affirmed.