Bost Construction Co. v. Blondy (Lawyers Weekly No. 13-07-0865, 16 pp.) (Chris Dillon, J.) Appealed from Chatham County Superior Court (R. Allen Baddour Jr., J.) N.C. App.
Holding: Even though the plaintiff-homeowner did not contend that the third-party defendant-subcontractor was responsible for the problems with her fireplace, the defendant-contractor forecasted evidence that the problems were, in fact, caused by the subcontractor. The homeowner’s admissions in discovery did not justify summary judgment for the subcontractor.
We reverse summary judgment for the subcontractor. We vacate the trial court’s award of attorney’s fees to the subcontractor.
Given our ruling on the summary judgment issue, we hold that the trial court erred both in concluding that there was a “complete absence of a justiciable issue” and in concluding that the subcontractor was the prevailing party. Accordingly, we vacate the award of attorney’s fees.
Since the homeowner dismissed her claims with prejudice as a result of a settlement with the contractor, the contractor’s third-party claim against the subcontractor is not moot. The contractor is entitled to its day in court to prove what portion, if any, of its settlement with the homeowner stemmed from the damages allegedly incurred in connection with the fireplace or any other work performed by the subcontractor.
Reversed and remanded in part; vacated in part.