United States District Court, D. South Carolina, Beaufort Division
ORDER AND OPINION
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE
matter is before the Court on Defendants' motion for
partial summary judgment. For the reasons set forth below,
the Court grants the motion.
Chapman Coyle Chapman & Associates Architects, AIA
("Chapman") was responsible for the design and
oversight of the construction of the Hampton Hall Development
amenity facilities, including a gold house, sports center,
and community clubhouse. Defendant Choate Construction
Company was the general contractor. Plaintiff alleges the
construction of the community clubhouse was defective and
asserts claims for breach of contract, breach of warranty,
negligence, gross negligence, and breach of express and
community clubhouse was designed and constructed in 2006 and
2007. Plaintiff alleges there was a failure of the truss
members in the community clubhouse mezzanine roof over an
activity room with a vaulted ceiling and skylight. Plaintiff
alleges the truss assemblies failed in March 2007-before
completion of the community clubhouse-and again in 2009.
Remedial work was performed in 2009 or 2010 but the truss
members allegedly remained deficient.
filed the present action on May 12, 2017. Defendants move for
partial summary judgment, asserting that the applicable
eight-year statute of repose, SC Code § 15-3-640, bars
Plaintiffs claims, because the structure was substantially
completed in 2007. Plaintiff responds that the building
permit did not include a statutorily required notice of the
statute of repose, that claims for gross negligence is not
barred by the statute of repose, and that the statute of
repose has not yet accrued because the structure is not yet
judgment is appropriate if a party "shows that there is
no genuine dispute as to any material fact" and that the
movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). In other words, summary judgment should
be granted "only when it is clear that there is no
dispute concerning either the facts of the controversy or the
inferences to be drawn from those facts."
Pulliamlnv. Co. v. Cameo Props., 810F.2d 1282, 1286
(4th Cir. 1987). "In determining whether a genuine issue
has been raised, the court must construe all inferences and
ambiguities in favor of the nonmoving party."
HealthSouth Rehab. Hosp. v. Am. Nat'l RedCross,
101 F.3d 1005, 1008 (4th Cir. 1996). The party seeking
summary judgment shoulders the initial burden of
demonstrating to the court that there is no genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
the moving party has made this threshold demonstration, the
non-moving party, to survive the motion for summary judgment,
may not rest on the allegations averred in his pleadings.
Id. at 324. Rather, the non-moving party must
demonstrate that specific, material facts exist that give
rise to a genuine issue. Id. Under this standard,
"[c]onclusory or speculative allegations do not suffice,
nor does a 'mere scintilla of evidence'" in
support of the non-moving party's case. Thompson v.
Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.
2002) (quoting Phillips v. CSXTransp., Inc., 190
F.3d 285, 287 (4th Cir. 1999)).
Carolina Code § 15-3-640 provides that "[n]o
actions to recover damages based upon or arising out of the
defective or unsafe condition of an improvement to real
property may be brought more than eight years after
substantial completion of the improvement." The statute
of repose is not subject to tolling. See Holly Woods Ass
'n of Residence Owners v. Hiller, 708 S.E.2d 787,
793 (S.C. Ct. App. 2011). The statute also provides that a
certificate of occupancy "shall constitute proof of
substantial completion" unless the parties agree in
writing on a different date. S.C. Code § 15-3-640. The
certificate of occupancy issued on September 13, 2007. (Dkt.
No. 20-2.) Defendants argue the parties agreed on the earlier
date of July 20, 2007, based on a certificate of substantial
completion signed by all parties. (Dkt. No. 20-1.) In this
case, however, the difference between July and September 2007
is immaterial to the statue of repose. This action was filed
in May 2017, more than nine years after July or September
argues the statute of repose does not bar its claims for four
reasons. For the reasons set forth below, Plaintiffs
arguments regarding the date of substantial completion,
statutory notice requirements, and warranty claims fail.
Plaintiffs gross negligence claims, however, are not barred
by the statute of repose. .
Date of substantial completion
argues substantial completion has not yet occurred, and so
the statute of repose has not accrued. That argument is
without merit. Plaintiff does not dispute that its
representative signed on behalf of Plaintiff, the statement,
"The Owner [Hampton Hall] accepts the Work or designated
portion as substantially complete and will assume full
possession at 8:00 a.m. on July 20, 2017." (Dkt. No.
20-1.) Further, the statute provides that in the absence of a
written agreement that establishes a different date, the date
of the certificate of occupancy is proof of substantial
completion. S.C. Code § 15-3-640. Plaintiff does ...