Appeal by plaintiffs from judgment entered 4 February 1997 by Judge Wiley F. Bowen in Harnett County Superior Court. Heard in the Court of Appeals 15 January 1998.
The opinion of the court was delivered by: Lewis, Judge.
In their complaint filed 19 May 1995, plaintiffs alleged that defendant Devaul Langdon constructed a house in 1989, that defendant lived in that house from November 1989 to June 1991, that defendant sold the house to Randall and Tamsen McLean, that the McLeans lived in the house from June 1991 to August 1994, and that the McLeans sold the house to plaintiffs. Plaintiffs alleged that defendant had breached his duty to "construct the [house] in accordance with generally accepted standards" and sought damages. In his verified answer, defendant denied that he had constructed plaintiffs' house. Defendant moved for summary judgment and his motion was granted. On appeal, plaintiffs argue that summary judgment was inappropriate because there is a genuine issue of material fact as to whether defendant built the house. We agree and reverse.
The evidence adduced by defendant was the following: Defendant stated under oath that he originally owned the land where plaintiffs' residence is located; that he conveyed this property to "a Langdon partnership"; that this partnership, in turn, conveyed the property to Dee Langdon and his wife; that Dee Langdon was defendant's son; that these conveyances occurred before the house was constructed; and that Dee Langdon, not defendant, constructed plaintiffs' house. Defendant conceded that "a building permit or some other permit could have been purchased in the name of [defendant]," but he denied any involvement with the construction of plaintiffs' house.
Defendant's answers to plaintiffs' interrogatories, signed 11 April 1996, indicate that defendant had, within the last ten years, been employed with four businesses, including "New Southern Homes, Inc." and "D.G. Langdon & Sons, a partnership." When asked to describe "the nature and type of business that each conducted and the dates that such business operated," defendant answered that D.G. Langdon & Sons "dealt in the construction of homes," but he did not describe the business of New Southern Homes. Defendant also failed to provide any information about the dates that these entities were in business even though such information was requested.
Defendant answered that "in almost every" one of the four businesses, he was one of the managing partners. He did not, however, describe "the regular duties he was responsible for in each" business, even though this information was requested. The interrogatories also asked defendant to state whether any of the businesses in which he was involved were engaged in residential construction, and if so, to identify which businesses engaged in this activity and whether any employee of each such business held a valid North Carolina General Contractor's License. Defendant's reply to this question, in full, was, "Yes. I have never had any contractor's license."
Plaintiffs' Interrogatory Number 8 reads, Did you ever own the [property on which plaintiffs' house is located]? If so, please state in detail how you acquired the Property, state the date that you acquired said Property, and identify each and every document evidencing your acquisition of said Property. Your response should include, but not be limited to, any survey maps in your possession and deed(s) describing any conveyance of the Property to you.
Defendant responded by stating that he and his wife had once owned the property and that he conveyed it to "a partnership" at some unmentioned date. Defendant did not, however, state how or when he acquired the property, even though he was plainly asked to do so. Defendant offered no explanation of why he could not answer these questions. Nor did defendant identify any documents evidencing his acquisition of the property. Instead, he produced a deed for the conveyance of the property from D.G. Langdon & Sons, A Partnership to Dee Carson Langdon and wife, Teresa M. Langdon. Defendant stated that he had visited the Register of Deeds but could not find the deed whereby he conveyed the property to the partnership, but he provided no explanation of why he could not produce the deed whereby defendant and his wife had originally acquired the property. Throughout his sworn answers to plaintiffs' interrogatories, defendant maintained that he did not build the house but rather that his son, Dee Langdon, built it.
In response to defendant's motion for summary judgment, plaintiffs introduced documents authenticated by Lynwood McDonald, custodian of records for the Harnett County Building and Inspections Department. These documents include:
(1) A zoning permit issued on 4 April 1989 by the Harnett County Department of Planning and Development. The zoning permit lists "Devaul G. Langdon" as the owner of the subject property, and it lists the "Use Classification" of the subject property as "Single Family Residence - 2 BR." The zoning permit further states,
NOTICE: This structure is not to be occupied until a CERTIFICATE OF OCCUPANCY is issued by the Building Official.
PERMIT EXPIRES SIX MONTHS FROM ISSUANCE.
This CARD MUST BE DISPLAYED on the PREMISES until WORK IS COMPLETED.
(2) An improvement permit issued by the Harnett County Health Department on 12 April 1989. This permit allows the property owner to install a septic tank and nitrification line. The permit states,
Be it ordained by the Harnett County Board of Health as follows: Section III, item B. "No person shall begin construction of any building at which a septic tank system is to be used . . . without first obtaining a ...