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
2021-NCSC-122
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
2021-NCSC-122
Opinion of the Court 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.