Starkey v. Cimarron Apartments, Inc.

ARNOLD, Judge. Our determination of the plaintiffs’ appeal of the summary judgment granted to defendants Cimarron Apartments, Inc., and Holland Construction Company is controlled by our decision in Colony Hill Condominium I Association v. Colony Company (No. 8314SC1071), filed 18 September 1984. Plaintiffs argue that Cimarron Apartments, as developer of the Lake Johnson Mews complex, was not covered by the 1963 statute of repose. The statute applied to “any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property. . . .” G.S. 1-50(5) (emphasis added). As developer of the Lake Johnson Mews projects, Cimarron Apartments was involved in the “planning” of the project, if not also in the ultimate supervision of construction. We find that the 1963 statute of repose was intended to cover developers such as Cimarron Apartments. Plaintiffs argue further that we should revert to an interpretation of the word “person” in the second sentence of the 1963 version of the statute of repose G.S. 1-50(5), espoused in two cases, Sellers v. Friedrich Refrigerators, Inc., 283 N.C. 79, 194 S.E. 2d 817 (1973) and Feibus & Co., Inc. v. Godley Construction Co., Inc., 301 N.C. 294, 271 S.E. 2d 385 (1980). The Supreme Court revised its interpretation of the 1963 statute in Lamb v. Wedgewood South Corp., 308 N.C. 419, 302 S.E. 2d 868 (1983), effectively overruling both Sellers and Feibus. We believe that the Lamb decision contains the correct interpretation of the legislature’s intent in enacting the 1963 version of G.S. 1-50(5), and this interpretation must govern the facts of this case. We have seen nothing to indicate that the legislature accepted the Sellers and Feibus analysis, and that it enacted the 1981 amendment with that in mind. The suit brought against Cimarron Apartments and Holland Construction is accordingly barred. As to the appeal of the order of summary judgment granted defendant A. G. Texafil on plaintiffs’ second cause of action, we find that Texafil’s imputed knowledge of the lack of fire walls, and its failure to correct this deficiency, were evidence of negligence, see Brooks v. Francis, 57 N.C. App. 556, 291 S.E. 2d 889 (1982), but not of wilful and wanton negligence. Plaintiffs have not produced evidence that Texafil or its agents had a deliberate pur [775] pose to fail to install the fire walls as required by law, nor have they shown any evidence of recklessness or of a “wicked purpose” which would make Texafil’s negligence wilful or wanton. See Siders v. Gibbs, 39 N.C. App. 183, 249 S.E. 2d 858 (1978). Moreover, plaintiffs have not produced evidence sufficient to create a genuine issue of material fact as to their claim that defendant Texafil wrongfully concealed the lack of fire walls. The fact that Texafil’s predecessors failed to construct attic entries for the individual condominiums, that Texafil on purchasing the complex did not cause them to be constructed, and that an agent of Texafil had observed that the fire walls and attic entries were absent, is not evidence of actual knowledge on the part of Texafil that fire walls were missing and that, by failing to construct the individual attic entries, Texafil intended to conceal the fire walls. The trial judge’s orders allowing summary judgment are Affirmed. Judges WHICHARD and EAGLES concur.