Cranes Creek, LLC v. Neal Smith Eng'g

               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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                   CRANES CREEK, LLC V. NEAL SMITH ENG’G, INC.

                                  Opinion of the Court



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, 

, 

(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, 

, 

 (2007).

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                   CRANES CREEK, LLC V. NEAL SMITH ENG’G, INC.

                                   Opinion of the Court



      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, 

, 

 (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.’” 

, 

 (quoting Michael v. Huffman Oil Co., 

, 

 (2008)).

      Further, the plaintiff must establish the standard of conduct or care through

expert testimony. 

 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, 

, 

 (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[.]” 

 (internal marks and citation

omitted). This exception “is implicated where the conduct is gross, or of such a nature

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                   CRANES CREEK, LLC V. NEAL SMITH ENG’G, INC.

                                   Opinion of the Court



that the common knowledge of lay persons is sufficient to find the standard of care

required, a departure therefrom, or proximate causation.” 

 (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, 

, 

 (citation omitted); see also Huffman Oil Co., 

, 

 (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, 

, 

 (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.


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                   CRANES CREEK, LLC V. NEAL SMITH ENG’G, INC.

                                   Opinion of the Court



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, 

, 

. 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?

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                   CRANES CREEK, LLC V. NEAL SMITH ENG’G, INC.

                                     Opinion of the Court



             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

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                  CRANES CREEK, LLC V. NEAL SMITH ENG’G, INC.

                                 Opinion of the Court



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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