IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-472
Filed 19 December 2023
Moore County, No. 21 CVS 982
CRANES CREEK, LLC, Plaintiff,
v.
NEAL SMITH ENGINEERING, INC., Defendant.
Appeal by Plaintiff from order entered 22 November 2022 by Judge James M.
Webb in Moore County Superior Court. Heard in the Court of Appeals 18 October
2023.
Van Camp, Meacham & Newman, PLLC, by Thomas M. Van Camp and Michael J. Newman, for Plaintiff-Appellant.
Ragsdale Liggett PLLC, by Melissa Dewey Brumback, Amie C. Sivon, and Michael Hutcherson, for Defendant-Appellee.
GRIFFIN, Judge.
Plaintiff, Cranes Creek, LLC, appeals from the trial court’s order granting
Defendant, Neal Smith Engineering, Inc.’s, motion for summary judgment. Plaintiff
argues the trial court erred in granting Defendant’s motion for summary judgment
asserting genuine issues of material fact exist concerning Plaintiff’s claims for
negligence and negligent misrepresentation. We hold the trial court did not err in
granting Defendant’s motion for summary judgment and affirm.
I. Factual and Procedural Background CRANES CREEK, LLC V. NEAL SMITH ENG’G, INC.
Opinion of the Court
In November 2015, Mid-State Development, LLC, purchased several acres
located in Southern Pines. Mid-State intended to subdivide and develop the land into
a residential subdivision (“Shaw Landing”). The Town of Aberdeen annexed the
proposed subdivision from Southern Pines. On 12 November 2015, Mid-State entered
into a contract with Defendant to provide civil engineering site services.
On 8 June 2019, Plaintiff signed an offer to purchase Shaw Landing from Mid-
State. During the due diligence period, Plaintiff reached out to C. Webster,
Defendant’s member-manager, to ask if waterflow tests had been conducted. Plaintiff
asked Webster to send the results and confirm whether flow was sufficient for fire
suppression. B. Welborn, an employee of Defendant, responded to Plaintiff’s email
on 2 July 2019 stating, in relevant part: “We will need to model the proposed water
mains for the NCDEQ-DWR permit, but the fire flow at the dead-end hydrant meets
the minimum fire flow requirements at 20 psi.”
On 2 October 2019, Plaintiff completed the purchase of Shaw Landing.
Sometime later, Plaintiff discovered additional water supply and pipes would have to
be installed and run to the subdivision to meet the minimum flow requirements for
fire suppression.
On 20 July 2021, Plaintiff filed a complaint against Defendant asserting claims
for negligent misrepresentation, negligence, breach of contract, and breach of implied
warranties. On 29 September 2021, Defendant filed an answer and counterclaims.
On 25 October 2021, Plaintiff filed an answer to Defendant’s counterclaims. On 11
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October 2022, Defendant filed a motion for summary judgment. On 25 October 2022,
Plaintiff filed a motion to amend their complaint and an amended complaint asserting
claims for negligent misrepresentation and negligence.
On 10 November 2022, Defendant’s motion for summary judgment came on for
hearing in Moore County Superior Court. On 22 November 2022, the trial court
entered an order granting Defendant’s motion for summary judgment and dismissing
Plaintiff’s complaint and amended complaint. Plaintiff timely filed notice of appeal
on 19 December 2022.
II. Analysis
Plaintiff contends the trial court erred in granting Defendant’s motion for
summary judgment as there were genuine issues of material fact concerning
Plaintiff’s claims for negligence and negligent misrepresentation. We disagree.
Summary judgment is appropriate where “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.” N.C. R. Civ. P. 56(c) (2023). In a summary
judgment proceeding, the movant “bears the burden of establishing the lack of any
triable issue.” Schmidt v. Breeden, 134 N.C. App. 248, 251, 517 S.E.2d 171, 174
(1999). We review the trial court’s allowance of a motion for summary judgment de
novo, considering the evidence in the light most favorable to the non-moving party.
Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007).
-3- CRANES CREEK, LLC V. NEAL SMITH ENG’G, INC.
Plaintiff’s claims for negligence and negligent misrepresentation are both
claims of professional negligence, as Plaintiff alleges Defendant was negligent in its
professional capacity as an engineer. See Frankenmuth Ins. v. City of Hickory, 235
N.C. App. 31, 34, 760 S.E.2d 98, 101 (2014) (citation omitted) (stating a claim for
“negligence” is actually a claim for “professional negligence” where the plaintiff
alleges negligent performance by the defendant in its professional capacity). “In a
professional negligence action, the plaintiff bears the burden of showing: ‘(1) the
nature of the defendant’s profession; (2) the defendant’s duty to conform to a certain
standard of conduct; and (3) a breach of the duty proximately caused injury to the
plaintiffs.’” Id. at 35, 760 S.E.2d at 101 (quoting Michael v. Huffman Oil Co., 190
N.C. App. 256, 271, 661 S.E.2d 1, 11 (2008)).
Further, the plaintiff must establish the standard of conduct or care through
expert testimony. Id. Through this requirement, the expert is able to “assist the jury
in discerning whether [the] defendant’s professional performance or conduct did not
conform [with the standard of care], and thus was in breach of that duty and the
proximate cause of [the] plaintiff’s injury.” Handex of the Carolinas, Inc. v. County of
Haywood, 168 N.C. App. 1, 11, 607 S.E.2d 25, 31 (2005).
Expert testimony is not required to establish the standard of care where “the
common knowledge and experience of the jury is sufficient to evaluate [the
defendant’s] compliance with [the] standard[.]” Id. (internal marks and citation
omitted). This exception “is implicated where the conduct is gross, or of such a nature
-4- CRANES CREEK, LLC V. NEAL SMITH ENG’G, INC.
that the common knowledge of lay persons is sufficient to find the standard of care
required, a departure therefrom, or proximate causation.” Id. (internal marks and
citations omitted). Where the common knowledge exception does not apply and the
plaintiff fails to establish the professional standard of care through expert testimony,
“summary judgement for the defendant is proper.” Frankenmuth, 235 N.C. App. at
35, 760 S.E.2d at 101 (citation omitted); see also Huffman Oil Co., 190 N.C. App. at
271, 661 S.E.2d at 11 (holding the plaintiffs failed to establish a prima facie showing
of professional negligence where expert testimony regarding the standard of care was
lacking).
Thus, this Court will affirm the trial court’s grant of summary judgment where
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IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-472
Filed 19 December 2023
Moore County, No. 21 CVS 982
CRANES CREEK, LLC, Plaintiff,
v.
NEAL SMITH ENGINEERING, INC., Defendant.
Appeal by Plaintiff from order entered 22 November 2022 by Judge James M.
Webb in Moore County Superior Court. Heard in the Court of Appeals 18 October
2023.
Van Camp, Meacham & Newman, PLLC, by Thomas M. Van Camp and Michael J. Newman, for Plaintiff-Appellant.
Ragsdale Liggett PLLC, by Melissa Dewey Brumback, Amie C. Sivon, and Michael Hutcherson, for Defendant-Appellee.
GRIFFIN, Judge.
Plaintiff, Cranes Creek, LLC, appeals from the trial court’s order granting
Defendant, Neal Smith Engineering, Inc.’s, motion for summary judgment. Plaintiff
argues the trial court erred in granting Defendant’s motion for summary judgment
asserting genuine issues of material fact exist concerning Plaintiff’s claims for
negligence and negligent misrepresentation. We hold the trial court did not err in
granting Defendant’s motion for summary judgment and affirm.
I. Factual and Procedural Background CRANES CREEK, LLC V. NEAL SMITH ENG’G, INC.
Opinion of the Court
In November 2015, Mid-State Development, LLC, purchased several acres
located in Southern Pines. Mid-State intended to subdivide and develop the land into
a residential subdivision (“Shaw Landing”). The Town of Aberdeen annexed the
proposed subdivision from Southern Pines. On 12 November 2015, Mid-State entered
into a contract with Defendant to provide civil engineering site services.
On 8 June 2019, Plaintiff signed an offer to purchase Shaw Landing from Mid-
State. During the due diligence period, Plaintiff reached out to C. Webster,
Defendant’s member-manager, to ask if waterflow tests had been conducted. Plaintiff
asked Webster to send the results and confirm whether flow was sufficient for fire
suppression. B. Welborn, an employee of Defendant, responded to Plaintiff’s email
on 2 July 2019 stating, in relevant part: “We will need to model the proposed water
mains for the NCDEQ-DWR permit, but the fire flow at the dead-end hydrant meets
the minimum fire flow requirements at 20 psi.”
On 2 October 2019, Plaintiff completed the purchase of Shaw Landing.
Sometime later, Plaintiff discovered additional water supply and pipes would have to
be installed and run to the subdivision to meet the minimum flow requirements for
fire suppression.
On 20 July 2021, Plaintiff filed a complaint against Defendant asserting claims
for negligent misrepresentation, negligence, breach of contract, and breach of implied
warranties. On 29 September 2021, Defendant filed an answer and counterclaims.
On 25 October 2021, Plaintiff filed an answer to Defendant’s counterclaims. On 11
-2- CRANES CREEK, LLC V. NEAL SMITH ENG’G, INC.
October 2022, Defendant filed a motion for summary judgment. On 25 October 2022,
Plaintiff filed a motion to amend their complaint and an amended complaint asserting
claims for negligent misrepresentation and negligence.
On 10 November 2022, Defendant’s motion for summary judgment came on for
hearing in Moore County Superior Court. On 22 November 2022, the trial court
entered an order granting Defendant’s motion for summary judgment and dismissing
Plaintiff’s complaint and amended complaint. Plaintiff timely filed notice of appeal
on 19 December 2022.
II. Analysis
Plaintiff contends the trial court erred in granting Defendant’s motion for
summary judgment as there were genuine issues of material fact concerning
Plaintiff’s claims for negligence and negligent misrepresentation. We disagree.
Summary judgment is appropriate where “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.” N.C. R. Civ. P. 56(c) (2023). In a summary
judgment proceeding, the movant “bears the burden of establishing the lack of any
triable issue.” Schmidt v. Breeden, 134 N.C. App. 248, 251, 517 S.E.2d 171, 174
(1999). We review the trial court’s allowance of a motion for summary judgment de
novo, considering the evidence in the light most favorable to the non-moving party.
Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007).
-3- CRANES CREEK, LLC V. NEAL SMITH ENG’G, INC.
Plaintiff’s claims for negligence and negligent misrepresentation are both
claims of professional negligence, as Plaintiff alleges Defendant was negligent in its
professional capacity as an engineer. See Frankenmuth Ins. v. City of Hickory, 235
N.C. App. 31, 34, 760 S.E.2d 98, 101 (2014) (citation omitted) (stating a claim for
“negligence” is actually a claim for “professional negligence” where the plaintiff
alleges negligent performance by the defendant in its professional capacity). “In a
professional negligence action, the plaintiff bears the burden of showing: ‘(1) the
nature of the defendant’s profession; (2) the defendant’s duty to conform to a certain
standard of conduct; and (3) a breach of the duty proximately caused injury to the
plaintiffs.’” Id. at 35, 760 S.E.2d at 101 (quoting Michael v. Huffman Oil Co., 190
N.C. App. 256, 271, 661 S.E.2d 1, 11 (2008)).
Further, the plaintiff must establish the standard of conduct or care through
expert testimony. Id. Through this requirement, the expert is able to “assist the jury
in discerning whether [the] defendant’s professional performance or conduct did not
conform [with the standard of care], and thus was in breach of that duty and the
proximate cause of [the] plaintiff’s injury.” Handex of the Carolinas, Inc. v. County of
Haywood, 168 N.C. App. 1, 11, 607 S.E.2d 25, 31 (2005).
Expert testimony is not required to establish the standard of care where “the
common knowledge and experience of the jury is sufficient to evaluate [the
defendant’s] compliance with [the] standard[.]” Id. (internal marks and citation
omitted). This exception “is implicated where the conduct is gross, or of such a nature
-4- CRANES CREEK, LLC V. NEAL SMITH ENG’G, INC.
that the common knowledge of lay persons is sufficient to find the standard of care
required, a departure therefrom, or proximate causation.” Id. (internal marks and
citations omitted). Where the common knowledge exception does not apply and the
plaintiff fails to establish the professional standard of care through expert testimony,
“summary judgement for the defendant is proper.” Frankenmuth, 235 N.C. App. at
35, 760 S.E.2d at 101 (citation omitted); see also Huffman Oil Co., 190 N.C. App. at
271, 661 S.E.2d at 11 (holding the plaintiffs failed to establish a prima facie showing
of professional negligence where expert testimony regarding the standard of care was
lacking).
Thus, this Court will affirm the trial court’s grant of summary judgment where
the plaintiff’s expert testimony “does not show, as is required to sustain the claim [for
professional negligence], what an engineer practicing under the relevant standard of
care actually does, nor any specific instances of breach of that relevant standard.”
Handex, 168 N.C. App. at 12, 607 S.E.2d at 32 (emphasis omitted).
Here, Plaintiff made professional negligence claims against Defendant for
negligent misrepresentation and negligence. Specifically, as to its negligent
misrepresentation claim, Plaintiff asserted:
Plaintiff justifiably relied, to his detriment, on information prepared and conveyed by Defendant without reasonable care, and Defendant owed to Plaintiff a duty of care to make a full and fair disclosure of all relevant facts concerning the sufficiency of waterflow for fire suppression for the project.
-5- CRANES CREEK, LLC V. NEAL SMITH ENG’G, INC.
Moreover, in its negligence claim, Plaintiff claimed:
[Defendant] owed a duty to Plaintiff to exercise the ability, skill and care ordinarily used by engineers on similar projects.
[Defendant] did not perform its duties as owed to Plaintiff. [Defendant] failed to exercise the ability, skill and care customarily used by engineers on similar projects. [Defendant] thereby breached its duties to Plaintiff. In doing so, [Defendant] was negligent.
Specifically, [Defendant’s] negligence includes but is not limited to, failing to know that the SW Broad Street Hydrant Flow at 20 psi did not meet the applicable Fire Code standards for the project, or negligently misreading the Hydrant Flow Test Report as somehow providing sufficient flow for fire suppression purposes for the project.
Each of these claims required Plaintiff to establish, through expert witness
testimony, Defendant’s professional standard of care as an engineer. See
Frankenmuth, 235 N.C. App. at 34, 760 S.E.2d at 101. Plaintiff offered deposition
testimony from several experts, M. Zaccardo, T. Cross, and R. Briggs. None of these
experts was able to testify as to whether Defendant had breached the standard of
care as was required to support Plaintiff’s claims. In his deposition, Zaccardo’s stated:
Q: Did they ask you if you thought [Defendant] violated the standard of care for engineers?
A: In a sense, I think they asked me that question.
Q: And what was your answer?
A: My answer was I couldn’t really say, because the plans weren’t approved.
Q: And that’s true sitting here today, as well, right?
-6- CRANES CREEK, LLC V. NEAL SMITH ENG’G, INC.
A: Yes.
Q: So because the plans were not approved, you can’t say that [Defendant] violated the standard of care?
A: Because they weren’t complete. Yes.
Cross testified similarly stating:
Q: Do you have an opinion that [Defendant] violated the standard of care in any capacity?
A: Based on information provided to me, I do not.
Moreover, Briggs, when asked if Defendant violated the professional standard of care
for engineers noted:
A: [ ] [Defendant] conducted the fire flow test totally correctly. Some of the wording with respect to the dead-end hydrant you could take issue with, but that is really minor in this case. [Defendant] also correctly identified the fire flow at the dead-end hydrant of five hundred gallons per minute does meet the minimum fire flow requirement at twenty psi. The issue with this is does the five hundred gallons per minute satisfy the proposed development requirement with the municipality of Aberdeen. Everything that I have reviewed indicates that it did not.
Further, Briggs stated, in his opinion, Defendant should have communicated more
clearly “some of the quirks” on the project. Nonetheless, Briggs was never able to
definitively testify to the standard or whether Defendant breached the standard, only
that he would have included more information in the email.
Because none of Plaintiff’s experts were able to testify to the professional
standard of care for engineers, Plaintiff failed to present a genuine issue of material
-7- CRANES CREEK, LLC V. NEAL SMITH ENG’G, INC.
fact in support of its professional negligence claims against Defendant. Thus, the
trial court did not err in granting Defendant’s motion for summary judgment.
III. Conclusion
For the aforementioned reasons, we hold the trial court did not err in granting
Defendant’s motion for summary judgment.
AFFIRMED.
Judge DILLON and TYSON concur.
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