Plantation Bldg. of Wilmington, Inc. v. Town of Leland

• Court: Supreme Court of North Carolina
• Decided: October 29, 2021
• Docket: 515A20
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

2021-NCSC-122

No. 515A20

Filed 29 October 2021

PLANTATION BUILDING OF WILMINGTON, INC.

v. TOWN OF LELAND

Appeal pursuant to N.C.G.S. § 7A-27(a) from orders entered on 19 August 2020

by Judge Jason C. Disbrow in Superior Court, Brunswick County. Heard in the

Supreme Court on 30 August 2021.

Mark R. Sigmon, Daniel K. Bryson, Martha A. Geer, Scott C. Harris, J. Hunter Bryson, and Christopher M. Theriault for plaintiff-appellee.

Stephen V. Carey, Charles C. Meeker, Corri A. Hopkins, Dan M. Hartzog Jr., Katherine Barber-Jones, and Brian E. Edes for defendant-appellant.

Ellis & Winters LLP, by Thomas H. Segars, Joseph D. Hammond, and Scottie Forbes Lee, for North Carolina Association of Defense Attorneys, amicus curiae.

BARRINGER, Justice.

¶1 In this matter, we must address whether the trial court erred when it granted

a motion for class certification filed after a summary judgment motion had been

granted in plaintiff Plantation Building of Wilmington, Inc.’s favor. On the record

before us, we conclude no reversible error occurred as defendant, Town of Leland,

waived any objection that it may have had to the purported error.

¶2 In this matter and as relevant to the issue before us, defendant consented to PLANTATION BLDG. OF WILMINGTON, INC. V. TOWN OF LELAND

Opinion of the Court

and joined in a motion for continuance filed by plaintiff, which indicated that the

parties had agreed to file cross-motions for summary judgment and address class

certification if the matter was not resolved during the summary judgment stage. The

trial court granted the motion for continuance. Thereafter, plaintiff and defendant

filed motions for summary judgment on 27 February 2020 and 4 March 2020

respectively. The trial court heard arguments from both parties on their respective

motions for summary judgment at a hearing on 9 March 2020. On 12 March 2020,

the trial court granted plaintiff’s motion for summary judgment, resolving the issue

of liability but not the issue of damages and effectively denying defendant’s motion

for summary judgment. Thereafter, plaintiff filed a motion for class certification.

Defendant then filed a motion to dismiss pursuant to Rule 12(b)(1) of the North

Carolina Rules of Civil Procedure, objecting for the first time to the trial court

addressing a motion for class certification after resolving the motions for summary

judgment, as well as two other motions. On 19 August 2020, after a hearing on the

motions, the trial court granted plaintiff’s motion for class certification and denied

defendant’s motion to dismiss pursuant to Rule 12(b)(1) of the North Carolina Rules

of Civil Procedure and the two other motions filed by defendant. Defendant then

appealed to this Court.

¶3 Since the motion for continuance identifies that the issue of class certification

would be resolved after addressing the cross-motions for summary judgment and PLANTATION BLDG. OF WILMINGTON, INC. V. TOWN OF LELAND

expressly states that “[b]oth parties to this action join in and consent to this Motion”

and since the parties did follow this sequence, we conclude that defendant waived

any objection that it may have had to the trial court granting plaintiff’s motion for

class certification after granting plaintiff’s summary judgment motion. See Whitacre

P’ship v. Biosignia, Inc., 358 N.C. 1, 26 (2004) (“[A] party to a suit should not be

allowed to change his position with respect to a material matter in the course of

litigation.” (quoting Roberts v. Grogan, 222 N.C. 30, 33 (1942))); Frugard v. Pritchard,

338 N.C. 508, 512 (1994) (“A party may not complain of action which he induced.”);

Klein v. Avemco Ins. Co., 289 N.C. 63, 68 (1975) (“Waiver sometimes has the

characteristics of estoppel and sometimes of contract, but it is always based upon an

express or implied agreement. There must always be an intention to relinquish a

right, advantage, or benefit. The intention to waive may be expressed or implied from

acts or conduct that naturally lead the other party to believe that the right has been

intentionally given up.”); Clement v. Clement, 230 N.C. 636, 639 (1949) (“A person sui

juris may waive practically any right he has unless forbidden by law or public policy.

The term, therefore, covers every conceivable right—those relating to procedure and

remedy as well as those connected with the substantial subject of contracts.”).

Accordingly, no reversible error occurred, and we need not address defendant’s

remaining arguments.

AFFIRMED.