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 Third-Party Defendant Southern
Roof and Wood Care Corporation's ("Southern Roof)
motion for partial summary judgment. For the reasons set
forth below, the Court grants the motion in part and denies
it in part.
Chapman Coyle Chapman & Associates Architects, AIA was
responsible for the design and oversight of the construction
of the Hampton Hall Development amenity facilities, including
a golf clubhouse, sports center, and community clubhouse.
Defendant Choate Construction Company was the general
contractor. Plaintiff filed the present action on May 12,
2017, alleging defective construction and asserting claims
for breach of contract, breach of warranty, negligence, gross
negligence, and breach of express and implied warranties. On
February 2, 2018, the Court ruled that all claims relating to
the community clubhouse, except gross negligence claims, are
barred by the eight-year South Carolina statute of repose for
construction defect claims (S.C. Code § 15-3-640)
because the community clubhouse was substantially completed
in 2007. (Dkt. No. 36.) The golf clubhouse was substantially
completed on May 17, 2004. Before July 1, 2005, the
applicable statute of repose was thirteen years. Thus, the
present action was filed five days before the lapse of the
period of repose as to the golf clubhouse.
February 14, 2018, Choate filed a third-party complaint
against several of its subcontractors involved with the
construction at issue. The third-party complaint asserts
claims for negligence, gross negligence, breach of warranty,
breach of contract, indemnification, strict products
liability, and "apportionment of damages" against
the subcontractors. Southern Roof has moved for summary
judgment on all claims relating to the golf clubhouse and
community clubhouse, arguing claims other than gross
negligence claims are barred by the statute of repose and
that Choate has not set forth a. prima facie case
for gross negligence.
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." Pulliam
Inv. Co. v. Cameo Props., 810 F.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 Red Cross,
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. CSX Transp., Inc., 190
F.3d 285, 287 (4th Cir. 1999)).
Statute of Repose
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.
concedes its claims against Southern Roof (other than for
gross negligence) regarding the community clubhouse are
barred by the statute of repose, but argues the statute of
repose does not bar its claims against Southern Roof
regarding the golf clubhouse for two reasons. First, Choate
argues its third-party complaint included in its answer to
Plaintiffs amended complaint should relate back to the
original complaint filed in this action. Alternatively,
Choate argues the statute of repose should be tolled.
arguments are without merit. The statute of repose cannot be
tolled-that is the point of a statute of repose. CTS
Corp. v. Waldburger, 134 S.Ct. 2175, 2183 (2014)
("One central distinction between statutes of
limitations and statutes of repose underscores their
differing purposes. Statutes of limitations, but not statutes
of repose, are subject to equitable tolling .. ..");
Columbia/CSA-HS Greater Columbia Healthcare Sys., LP v.
S.C Med. Malpractice Liab. Joint Underwriting Ass'n,
769 S.E.2d 847, 848 (S.C. 2015). The doctrine of
"relation back" allows amended pleadings to
"relate back" to the date of the original pleading.
Fed.R.Civ.P. 15(c)(1). As Choate concedes, its third-party
complaint is not an amended pleading. Choate cites no
authority holding that a third-party complaint relates back
to the date of a pleading filed by an adverse party.
served Choate on May 17, 2017, the day the statute of repose
lapsed. The statute of repose thus barred Choate's
third-party action even before Choate's right to bring it
accrued. Choate argues that result is ...