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Key v. Floyd

Filed: January 19, 1982.

REECE KEY
v.
HOWARD W. FLOYD, JR., AND WIFE, RITA W. FLOYD



Appeal by plaintiff from Seay, Judge. Judgment entered 27 January 1981 in Superior Court, Forsyth County. Heard in the Court of Appeals 9 December 1981.

Arnold, Judge. Judges Martin (Harry C.) and Wells concur.

Arnold

Plaintiff grounds his appeal on the trial court's alleged error in granting summary judgment for defendants in that a genuine issue of material fact exists as to whether plaintiff was a general contractor. Plaintiff's pleadings and affidavit indicate that he told defendants he was not a general contractor and that he undertook to build defendants' home under their supervision and control. Plaintiff cites Helms v. Dawkins, 32 N.C. App. 453, 232 S.E.2d 710 (1977), for the rule that the degree of control to be exercised by the contractor over the construction determines whether he is, in fact, a general contractor subject to the requirements of G.S. 87-1.

Defendants' pleadings and affidavits indicate that plaintiff represented himself to be a general contractor, both to defendants and to their lending institution, and that the contract between the parties was for an estimated $45,000, well in excess of the amount needed to trigger application of G.S. 87-1. Defendants cite this Court's opinion in Revis v. King, 49 N.C. App. 168, 270 S.E.2d 580 (1980), wherein it was held that violation of G.S. 87-1 precluded recovery by an unlicensed contractor on either the contract itself or quantum meruit grounds.

We agree with plaintiff that the burden of sustaining a summary judgment is a heavy one. We note, however, that in the present case defendant's motion found support in plaintiff's own complaint which included assertions of fact amounting to an admission that he had performed as a general contractor, e.g. :

3. . . . in accordance with the terms of their oral contract the plaintiff was to furnish all labor and building materials used in the construction of said dwelling for cost plus 10%. . . .

4. . . . plaintiff has contracted for and furnished all of the building materials and fixtures and has furnished all the hired and sub-contract labor for the completion of the defendant's single family dwelling. . . .

In determining that there exists no material issue of triable fact, the court must accept as true all facts asserted by the party opposing the motion for summary judgment. Norfolk and Western Railway Co. v. Werner Industries, 286 N.C. 89, 209 S.E.2d 734 (1974). It is also the established rule that where a motion for summary judgment has been made and supported, the "adverse party may not rest upon the mere allegations or denials of his pleading, but his response . . . must set forth specific facts showing that there is a genuine issue for trial." N.C.R.C.P., Rule 56(e) (Emphasis added.)

While plaintiff made an assertion in his reply to defendant's counterclaim that he had not acted as a general contractor, he failed to set forth specific facts in support of that assertion. Those facts specified in plaintiff's affidavit, relating to selection of materials, fixtures, wall and floor coverings, etc. by defendants, do not support plaintiff's claim that defendants were in control of the construction. Property owners' preferences as to such incidentals are undoubtedly respected by most residential building contractors.

We find that plaintiff has failed to set forth specific facts showing the existence of a genuine issue for trial. We conclude, therefore, that summary judgment for defendants should be

Affirmed.

Disposit ...


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