Paving Equipment of the Carolinas Inc. v. M & N Development Co.

182 B.R. 425, 1995 U.S. Dist. LEXIS 7385, 1995 WL 321183
CourtDistrict Court, W.D. North Carolina
DecidedMay 19, 1995
DocketNo. 3:94CV199-P
StatusPublished
Cited by1 cases

This text of 182 B.R. 425 (Paving Equipment of the Carolinas Inc. v. M & N Development Co.) is published on Counsel Stack Legal Research, covering District Court, W.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Paving Equipment of the Carolinas Inc. v. M & N Development Co., 182 B.R. 425, 1995 U.S. Dist. LEXIS 7385, 1995 WL 321183 (W.D.N.C. 1995).

Opinion

ORDER

ROBERT D. POTTER, Senior District Judge.

THIS MATTER is before the Court on Paving Equipment of the Carolinas, Inc.’s (PECI), appeal from the Bankruptcy Court’s decision granting summary judgment in favor of M & N Development Company (“M & N”).

PROCEDURAL BACKGROUND

This action was originally brought by M & N in the Court of Common Pleas for York County, South Carolina to remove a hen on real property held by PECI. PECI then filed a counterclaim alleging breach of contract against M & N. This action was subsequently removed to the Bankruptcy Court for the District of South Carolina and venue was transferred to the United States Bankruptcy Court for the Western District of North Carolina with the consent of both parties. M & N’s Motion for Summary Judgment was heard in the Bankruptcy Court on February 3, 1994. The Bankruptcy Court granted Summary Judgment in favor of M & N on February 15, 1995. The Bankruptcy Court denied PECI’s Motion to Alter or Amend Judgment on May 17, 1994.

On September 15, 1994 this Court dismissed PECI’s appeal for failure to prosecute. On reconsideration, this Court, by Order filed October 26, 1994, allowed PECI to designate the record and move forward with the appeal. M & N filed a response brief on December 5, 1994. PECI filed a Reply on December 12,1994 and an amended Reply on December 15, 1994.

STANDARD OF REVIEW

Appellant raises on appeal the issue of whether the bankruptcy court erred by finding from the forecast of the evidence presented that no genuine issues existed as to any material facts regarding PECI’s role as a general contractor on the Carolina Point project and the statute of limitations bar.

Summary judgment is appropriate when the pleadings, responses to discovery, and the record reveal that no genuine issue of any material fact exists and that the moving party is entitled to judgment as a matter of law. (See Fed.R.Civ.P. 56(c) and Bankruptcy Rule 7056, applying Fed.R.Civ.P. 56 to adversary proceedings.) Accordingly, the judge’s role in ruling on a motion for summary judgment is to determine, based on the parties’ pleadings and affidavits, whether any material issues of fact exist that require a trial. If the only issues to be decided are issues of law, then summary judgment is proper. When considering motions for summary judgment, courts must view facts and inferences in the light most favorable to the party opposing the motion for summary judgment. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). When, however, the evidence from the entire record could not lead a rational fact-finder to find for the non-moving party, no genuine issue for trial exists and summary judgment is appropriate. Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356.

[428]*428On an appeal the district court may affirm, modify, or reverse a bankruptcy judge’s judgment, order, or decree or remand with instructions for further proceedings. Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous. (Bankruptcy Rule 8013). The Court has reviewed the briefs, the record on appeal and the relevant legal authorities. Based upon its review of this case, the Court finds that summary judgment was appropriately granted against PECI by the Bankruptcy Court.

FACTS

The pertinent facts are as follows. PECI did grading and paving work for M & N at an industrial real estate park in York County, South Carolina, known as Carolina Point and also on other projects, including the Lake Wylie project, also in York County, South Carolina, and the Pineville Towne Center project, in North Carolina. PECI is not licensed as a general contractor in South Carolina or North Carolina. There was no written contract between the parties and PECI admits that “all paving on or in the development known as ‘Carolina Point’ was a part of a single continuous contract on the whole of that development.” The last work done by PECI in Carolinas Point was the parking lot for the building located on Lot 38 on November 23, 1993.

LEGAL DISCUSSION

The sum and substance of PE Cl’s appeal is premised on their arguments that the South Carolina contractor licensing statute is not applicable to the work which they performed on the Carolina Point project. As grounds for that argument PECI asserts that (1) when strictly construed as required, their activities are not included in the definition of general contractor and not the type of work listed in the statute, and (2) that there are genuine issues of material fact concerning whether PECI performed multiple undertakings or a single undertaking on the Carolina Point project.

1. Applicable Statutes

The relevant South Carolina statutes read as follows

It shall be unlawful for any person coming within the definition contained in Sec. 40-11-10 to engage in or offer to engage in general ... contracting in this State without having first obtained a license as required by this chapter ...

S.C.Code § 40-11-100 (1976 as amended).

For purposes of this chapter:

A “general contractor” shall be one who for a fixed price, commission, fee, or wage undertakes or offers to undertake the construction or supervision of any building, highway, sewer, grading, improvement, reimprovement, structure, or part thereof, when the cost of the undertaking is thirty thousand dollars or more. Anyone who engages in such undertaking in this State shall be deemed to have engaged in the business of general contracting in this State.

S.C.Code § 40-11-10(1) (1976 as amended).

Also of some use to a proper interpretation and application of the statutes is the South Carolina Licensing Regulation § 29-5 which provides:

Under no circumstances shall a permit to bid, construct, or superintend the construction of any building, highway, public utility, improvement or reimprovement of any kind costing $30,000 or more be given pri- or to obtaining the required General Contractor’s License....

The South Carolina Licensing Board for Contractors regulates licensing of general contracting under four major classifications, including, Building, Highway, Public Utility and Specialty. Under the Building classification the regulation provides that

This classification covers commercial, industrial, institutional and all types of residential building construction; covers all site work, grading & paving of parking lots, driveways, sidewalks, curbs and gutters which are ancillary to the aforementioned types of construction.

Under the Highway classification the regulation states that

[429]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Opinion No.
Arkansas Attorney General Reports, 2006

Cite This Page — Counsel Stack

Bluebook (online)
182 B.R. 425, 1995 U.S. Dist. LEXIS 7385, 1995 WL 321183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paving-equipment-of-the-carolinas-inc-v-m-n-development-co-ncwd-1995.