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C&S NAT'L. BANK v. CONST. ENTERPRISES11/9/1992
Heard Oct. 6, 1992.
Decided Nov. 9, 1992.
Reh. Den. Nov. 30, 1992.
This action arises out of multiparty litigation in which Construction Enterprises, Inc. of TN is a third-party plaintiff and Froehling & Robertson, Inc., is a third-party defendant. Construction Enterprises sued Froeling & Robertson for breach of contract and for negligence. In its answer, Froeling & Robertson affirmatively asserted time-limitation defenses based on Virginia law and on contract. Relying on these affirmative defenses, the trial court granted Froehling & Robertson judgment on the pleadings. Construction Enterprises appeals. The issue on appeal is whether the failure of Construction Enterprises to reply to Froehling & Robertson's time-limitation defenses constitutes a denial of those defenses so that the trial judge erred in granting judgment on the pleadings based thereon. We reverse.
On September, 26 1989, Citizens and Southern National Bank of South Carolina, as trustee, and Schwiener & Finley, Inc., as receiver, brought an action against Construction Enterprises, alleging several causes of action arising out of a construction project that had been completed by early October 1984. Nine months later, Construction Enterprises filed a third-party complaint in which it adopted the original complaint and in which it alleged that Froehling & Robertson had breached its contract with Construction Enterprises by improperly testing the compaction of the earthfill on the project and by failing to detect certain defects in the soil. Construction Enterprises also alleged Froehling & Robertson was negligent
In its answer, Froehling & Robertson asserted "FOR A THIRD DEFENSE" that the work allegedly performed by it "was completed by the end of November, 1983" and that a Virginia statute of repose barred the third-party complaint. The statute, Va. Code Ann. ยง 8.01-250 (1973), prescribes a five-year limitation on the bringing of certain actions arising from, among other things, the design or construction of improvements to real property.
Froehling & Robertson's answer also asserted a "FOURTH DEFENSE." This defense "incorporate the relevant terms and conditions of the contract between the parties" and it incorporated an attached, two-page document called "Agreement for Materials Testing and/or Inspection Services" and dated June 24, 1983. One provision of the attached agreement states that " o action, regardless of form, arising out of the services under greement may be brought by either party more than two (2) years after the act or omission giving rise to a cause of action has occurred. . . ." Another of its provisions states that "[the agreement] shall be construed and enforced in accordance with the laws of the Commonwealth of Virginia. . . ."
Froehling & Robertson moved for judgment on the pleadings. It did so simultaneously with the service of its answer. Froehling & Robertson claimed the five-year statute of repose and the two-year limitation in the contract barred Construction enterprises from recovery.
Construction Enterprises, of course, did not serve a reply before Froehling & Robertson served its motion for judgment on the pleadings. In fact, Construction Enterprises never served a reply and the trial court never ordered it to do so.
At the hearing on Froehling & Robertson's motion for judgment on the pleadings, Construction Enterprises maintained that, because the time-limitation defenses were to be considered denied under Rule 8(d), SCRCP, quoted below, material issues of fact existed regarding the time-limitation defenses and, therefore, judgment on the pleadings based on
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