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McCoy v. Coker11/1/2005
Plaintiff's residence was damaged by fire on 29 April 1998. Plaintiff hired defendant Jerry Coker (Coker), an unlicensed contractor holding himself out as being licenced, to rebuild and repair her residence for $62,000.00. Coker applied for a building permit from the Wayne County Inspections Department, listing thecost of repair for the residence at $29,000.00, which was just under the $30,000.00 limit requiring licensure. N.C. Gen. Stat. ยง 87-1 et. seq (2004). As Coker proceeded with the repairs, defendant Wayne County (Wayne County) periodically inspected the work. The majority of these inspections were conducted by defendant Jimmy L. Wade (Wade, and together with Wayne County, defendants). On 29 June 1999, Wade conducted a final inspection of the residence and issued a Certificate of Occupancy.
Plaintiff's complaint alleges multiple claims against each of the defendants. As to Coker, it is alleged that he performed faulty work, resulting in "extensive toxic mold growth" at the residence. As to defendants, plaintiff alleges negligence and gross negligence for failure to properly inspect Coker's work, wilful or negligent misrepresentations, and unfair and deceptive trade practices. Wade was sued in both his individual and his official capacity as a building inspector. Plaintiff seeks monetary damages for property damage, personal injuries, exemplary damages, and attorney's fees.
Plaintiff filed this action on 16 March 2004. Defendants filed answer and motions to dismiss on 6 May 2004. These motions sought dismissal of the claims against Wade in both his individual and official capacity. On 20 June 2004, defendants filed a motion for summary judgment based in governmental immunity. On 18 August 2004, the trial court dismissed plaintiff's claims against Wayne County for unfair and deceptive trade practices and denied the defendant's other motions to dismiss and for summary judgment. Defendants appeal. We affirm in part and reverse in part the order of the trial court.
In defendants' second argument they contend that the trial court erred in denying defendant Wayne County's motion for summary judgment based upon governmental immunity. We discuss this argument first because it is partially determinative of another issue. We disagree.
"Summary judgment is properly granted only 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.'" Econo-Travel Motor Hotel Corp. v. Taylor, 301 N.C. 200, 202, 271 S.E.2d 54, 57 (1980)(citations omitted). "On appeal, our standard of review is (1) whether there is a genuine issue of material fact and (2) whether the movant is entitled to judgment as a matter of law." NationsBank v. Parker, 140 N.C. App. 106, 109, 535 S.E.2d 597, 599 (2000)(citation omitted). "The evidence presented is viewed in the light most favorable to the non-movant." Id.
"The court is not authorized by Rule 56 to decide an issue of fact. It is authorized to determine whether a genuine issue of fact exists." Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 470, 251 S.E.2d 419, 422 (1979)(citation omitted). "The purpose of summary judgment is to eliminate formal trials where only questions of law are involved by permitting penetration of an unfounded claim or defense in advance of trial and allowing summary disposition foreither party when a fatal weakness in the claim or defense is exposed." Id. "Under the doctrine of governmental immunity, a county is immune from suit for the negligence of its employees in the exercise of governmental functions absent waiver of
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