               IN THE COURT OF APPEALS OF NORTH CAROLINA


                                   No. COA16-878


                                Filed: 15 August 2017

Watauga County, No. 14 CVS 625


ANDREA MORRELL, G. PONY MORRELL, and THE PASTA WENCH, INC.,
Plaintiffs,


              v.


HARDIN CREEK, INC., JOHN SIDNEY GREENE, and HARDIN CREEK
TIMBERFRAME AND MILLWORK, INC., Defendants.



        Appeal by Plaintiffs from order entered 27 April 2016 by Judge William

Coward in Watauga County Superior Court. Heard in the Court of Appeals 22 March

2017.


        Capua Law Firm, P.A., by Paul A. Capua and Genevieve A. Mente, for Plaintiff-
        Appellants.

        Wall Babcock LLP, by Joseph T. Carruthers and Lee D. Denton, for Defendant-
        Appellees.



        HUNTER, JR., Robert N., Judge.


        Andrea Morrell (“Andrea”), G. Pony Morrell (“Morrell”), and The Pasta Wench,

Inc. (“The Pasta Wench”) (collectively “Plaintiffs”) appeal the 27 April 2016 order by

Judge William Coward granting summary judgment in favor of Hardin Creek, Inc.
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                                  Opinion of the Court




(“Hardin Creek”), John Sidney Greene (“S. Greene”), and Hardin Creek Timberframe

and Millwork, Inc. (“Timberframe”) (collectively “Defendants”), and dismissing

Plaintiff’s third party complaint against John Ellis Greene (“E. Greene”) with

prejudice. After review, we reverse the trial court’s order and remand for further

proceedings.

                            I. Facts and Background

      Plaintiffs’ forecast of the evidence tends to show the following. Andrea and

Morrell are the founders and officers of The Pasta Wench.         The Pasta Wench

manufactures and distributes “specialty food products including homemade, organic

raviolis and other pasta products.”       Hardin Creek is a commercial landlord.

Timberframe is a timber manufacturing and construction company that builds and

remodels residential and commercial buildings. S. Greene is the president of Hardin

Creek, and the general contractor for Timberframe. E. Greene is S. Greene’s father

and owner of the property in question.

      Andrea and Morrell started The Pasta Wench in April 2010.                 After

experiencing success in local markets in Boone, North Carolina, Plaintiffs expanded

to distribute their product across western North Carolina. Plaintiffs later contracted

with Harris Teeter for regional distribution across North and South Carolina.




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                                     Opinion of the Court




      On 2 February 2011, Plaintiffs entered into a commercial lease (“the lease”)

with Hardin Creek for two units of a steel building located in Boone (“the premises”).

Plaintiffs operated their business from the premises, and used the units as a kitchen

and a pasta drying room.         The lease contained several provisions concerning

Plaintiffs’ responsibility to obtain liability and property insurance and to indemnify

Hardin Creek for damages. The relevant lease paragraphs are as follows:

             5. Alterations. . . .
             ....

             (b) Tenant’s Neglect. Subject to the provisions set forth
                 in the following sentence, Tenant shall pay for the cost
                 of any repairs or damage resulting from negligence or
                 the wrongful acts of his employees, representatives or
                 visitors. However, and notwithstanding any other
                 provision of this lease to the contrary, Landlord and
                 Tenant and all parties claiming under them agree and
                 discharge each other from all claims and liabilities
                 arising from or caused by any hazard covered by
                 insurance on the leased premises, or covered by
                 insurance in connection with the property owned or
                 activities conducted on the leased premises, regardless
                 of the cause of the damage or loss, provided that such
                 cause does not prevent payment of insurance proceeds
                 to Landlord under the provisions of the applicable
                 policy.
             ....


             8. Insurance: Tenant shall maintain insurance in
             accordance with the provisions of subparagraphs (a) and
             (b) of this paragraph, and Tenant shall indemnify Landlord


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                             MORRELL V. HARDIN CREEK



                                  Opinion of the Court




             in accordance with the provisions of sub-paragraph (c).

             (a) Property Insurance: Tenant shall hold Landlord
                 harmless for loss or damage by fire with regard to all
                 of Tenant’s furniture, fixtures, and equipment about or
                 within the leased premises.

             (b) Liability Insurance: Tenant shall provide and keep in
                 force for the protection of the general public and
                 Landlord liability insurance against claims for bodily
                 injury or death upon or near the leased premises and
                 the sidewalks, streets and service and parking areas
                 adjacent thereto to the extent of not less than
                 $500,000.00 in respect to bodily injuries or death to any
                 one person and the extent of not less than $500,000.00
                 for bodily injuries or death to any number of persons
                 arising out of one accident or disaster, and property
                 damage with limits of not less than $100,000.00. The
                 Tenant shall furnish Landlord with satisfactory
                 evidence of such insurance within thirty (30) days of
                 execution of this lease.

Despite the opening paragraph’s language, Paragraph 8 contains no subparagraph

(c).

       In early 2012, the North Carolina Department of Agriculture and Consumer

Services (“NCDA&CS”) inspected the premises. The NCDA&CS determined the

interior required modification to accommodate food production.         The NCDA&CS

particularly required “the open layout of the kitchen in Unit B–four conventionally

framed walls exposed to the domed, steel roof trusses and insulation approximately

25 feet above–to be enclosed with an interior kitchen ceiling.”


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                                       Opinion of the Court




       Plaintiffs and Hardin Creek agreed to extend the lease by five years. As part

of this agreement, S. Greene agreed to modify the premises consistent with the

NCDA&CS’s requirements.1 In addition to building a new kitchen ceiling, S. Greene

raised the kitchen’s interior walls so the new kitchen ceiling was level with the drying

room’s ceiling. S. Greene also lowered the sprinkler system’s shower heads so they

protruded through the new ceiling. S. Greene expanded the sprinkler system to cover

the area over a walk-in cooler, and constructed a ladder to access the top of that

cooler.2

       On 7 January 2014, the temperature in Boone dropped into the single digits.

The cold temperature froze the water in Plaintiffs’ sprinkler system.                    Plaintiffs

alleged the pipes froze because Defendants “created two separate heating zones

between the newly enclosed kitchen and the open area above it, rendering the HVAC

thermostat in the kitchen useless for regulating air temperature above the kitchen

ceiling where the fire sprinkler system pipes were located.” Plaintiffs also alleged




       1The terms of the agreement to extend the lease do not include S. Greene’s promise to modify
the premises. However, in their answer to Plaintiffs’ complaint, Defendants admit S. Greene “on
behalf of Hardin Creek, arranged to have modifications made to the premises at Hardin Creek’s
expense[.]”

       2  Plaintiffs allege Hardin Creek, Timberframe, and S. Green were responsible for the
modifications since each provided “construction and construction management services” to Plaintiffs.

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                             MORRELL V. HARDIN CREEK



                                  Opinion of the Court




Defendants’ workers negligently left a vent near the apex of the roof open after

performing repairs in December 2013.

      Plaintiffs sought monetary damages for negligence and breach of the implied

warranty of workmanlike performance against all Defendants. Plaintiffs also sought

monetary damages for constructive eviction and breach of the covenant of quiet

enjoyment against Hardin Creek, Inc. Finally, Plaintiffs alleged unfair and deceptive

trade practices against S. Greene and Hardin Creek, Inc. Plaintiffs additionally

sought treble damages and attorneys’ fees under the unfair and deceptive trade

practices claim, and sought punitive damages “as a result of Defendants’ willful and

wanton conduct and indifference to [Plaintiffs’] rights.” Plaintiffs attached copies of

the lease and the lease extension agreement to their complaint.

      On 2 March 2015, Defendants answered Plaintiffs’ complaint as moving to

dismiss Plaintiffs’ claims. Defendants contended the lease was only between Hardin

Creek and Plaintiffs. Defendants therefore asked the trial court to dismiss Plaintiffs’

claims against Timberframe and S. Greene pursuant to Rule 12(b)(6). Defendants

also moved to dismiss Plaintiffs’ negligence, constructive eviction, and unfair and

deceptive trade practices claims pursuant to Rule 12(b)(6). Defendants asserted the

following affirmative defenses: (1) Plaintiffs were contributorily negligent in leaving

the roof vent open; (2) Plaintiffs’ assumption of the risk; (3) Plaintiffs’ failure to

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                             MORRELL V. HARDIN CREEK



                                  Opinion of the Court




mitigate damages; and (4) the damages were beyond the parties’ reasonable

expectation and are therefore barred by the economic loss doctrine.

      In an order filed on 15 October 2015, the trial court set a case management

conference and a discovery scheduling order (“scheduling order”).        Both parties

consented to the scheduling order which set the discovery deadline for 15 April 2015.

The parties consented to an amended scheduling order on 25 January 2016. This

amended scheduling order required the trial court to hear all dispositive motions not

more than thirty days before the trial date, which the trial court set for the session

beginning 6 June 2016.

      On 8 March 2016, Defendants amended their answer and filed two

counterclaims. First, Defendants alleged Plaintiffs negligently left the roof vent open

and breached their duty to maintain the premises. Second, Defendants claimed

breach of contract. Under this second claim, Defendants alleged the lease obligated

Plaintiffs to pay for repairs or damage due to Plaintiffs’ negligence. Defendants

sought monetary damages for each of these claims.




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                                          Opinion of the Court




         On 14 April 2016, Defendants moved for summary judgment.3 Defendants

contended the trial court should dismiss Plaintiffs’ claims against Timberframe and

S. Greene since only Hardin Creek was responsible for the premises’ modifications.

Defendants contended (1) the lease was only between Plaintiffs and Hardin Creek;

(2) S. Greene only interacted with Plaintiffs on Hardin Creek’s behalf, not

Timberframe; and (3) any work Timberframe performed on the premises was done on

Hardin Creek’s behalf. Defendants also contended a lack of privity of contract to

support Plaintiffs’ claim against either Timberframe or S. Greene for breach of

implied warranty of workmanlike performance. As to Plaintiffs’ constructive eviction

claim and breach of the covenant of quiet enjoyment claim, Defendants alleged

Plaintiffs caused the flooding since Plaintiffs left the roof vent open. Also, Defendants

alleged Plaintiffs quit the lease despite Hardin Creek’s willingness to restore the

premises within ninety days of the incident. Finally, Defendants contended the lease

discharged Hardin Creek “from all claims and liabilities arising from or caused by

any hazard covered by insurance . . . regardless of the cause of the damage or loss . . .”

pursuant to Paragraph 5(b) of the lease.




         3   Defendants complied with the deadline for dispositive motions in the amended scheduling
order.

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                              MORRELL V. HARDIN CREEK



                                   Opinion of the Court




      On 15 April 2016, Plaintiffs filed a motion to amend their complaint to add E.

Greene as a party defendant. Plaintiffs alleged negligence and breach of the implied

warranty of workmanlike performance. Plaintiffs also alleged they learned through

discovery E. Greene “operated and oversaw property management and supervised the

construction activities on the property that [gave] rise to this lawsuit.”

      Also on 15 April 2016, Plaintiffs filed a motion to continue the hearings and to

enlarge the scheduling order deadlines.       Plaintiffs alleged Defendants purposely

delayed discovery, and Plaintiffs were still taking depositions and reviewing

transcripts. Plaintiffs contended Defendants’ motion for summary judgment was

“premature and prejudicial,” and requested more time “to prepare and present their

case” before the trial court heard arguments on the dispositive motions.

      On 22 April 2016, Plaintiffs filed a third party complaint against E. Greene.

This brought all five claims Plaintiffs alleged in their original complaint against E.

Greene. On 25 April 2016, the trial court heard Plaintiffs’ and Defendants’ motions,

as well as Plaintiffs’ third party complaint. On 27 April 2016, the trial court granted

summary judgment in favor of Defendants. The trial court found Plaintiffs presented

“no plausible reasons why further discovery would shed any light on paragraph 5(b)

in the Lease[.]”   The trial court also found “paragraph 5(b) in the lease is not

ambiguous and is a complete defense to the claims raised in the Complaint[.]”The

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                                  Opinion of the Court




trial court also sua sponte granted summary judgment in favor of Plaintiffs as to

Defendants’ counter claims.     The trial court dismissed Plaintiffs’ third party

compliant against E. Green with prejudice, and dismissed Plaintiffs’ motions to

amend and continue as moot.

      On 20 May 2016, Plaintiffs filed notice of appeal. Plaintiffs appealed the trial

court’s 27 April 2016 order and “all rulings and statements of the trial court that

contributed to, served as predicate for, or were encompassed by the foregoing Order,

including all statements and rulings made in Court during the hearing held April 25,

2016, and decision communicated April 27, 2016, to not hold further hearings.”

Pursuant to Rule 10(c) of the Rules of Appellate Procedure, Defendants notified

Plaintiffs and this Court of its intent to appeal the trial court’s grant of summary

judgment in favor of Plaintiffs on the counterclaim in the event this Court reverses

the trial court’s grant of summary judgment in favor of Defendants.

                                  II. Jurisdiction

      Plaintiffs appeal a superior court’s order in a civil action disposing of all the

parties’ issues. Therefore, this Court has jurisdiction pursuant to N.C. Gen. Stat. §§

1-277(a) and 7A-27(b) (2016).

                             III. Standard of Review




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                                    Opinion of the Court




         This Court reviews the trial court’s grant of summary judgment de novo. In re

Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008). This Court must review

the record in the light most favorable to the non-movant and draw all inferences in

the non-movant’s favor. Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835

(2000). See also Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975).

         Summary judgment is proper “if 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. Gen. Stat. § 1A-1, Rule 56(c) (2016). A party

opposing a motion for summary judgment must only establish the existence of a

genuine issue of material fact, and it need not show it would prevail on the issue at

trial. In re Will of Edgerton, 29 N.C. App. 60, 63, 223 S.E.2d 524, 526 (1976).

         “Appellate review of a trial court’s determination of whether a contract is

ambiguous is de novo.” Barrett Kays & Assoc., P.A. v. Colonial Bldg. Co., Inc. of

Raleigh, 129 N.C. App. 525, 528, 500 S.E.2d 108, 111 (1998).

                                      IV. Analysis

         Plaintiffs contend the trial court erred in granting summary judgment in favor

of Defendants because the language of Paragraph 5(b) of the Lease is ambiguous. We

agree.

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                                  Opinion of the Court




      This Court interprets the terms of a lease as it would any contract. Martin v.

Ray Lackey Enterprises, Inc.¸ 100 N.C. App. 349, 354, 396 S.E.2d 327, 330 (1990)

(citation omitted).   “Interpreting a contract requires the court to examine the

language of the contract itself for indications of the parties’ intent at the moment of

execution.” State v. Philip Morris USA, Inc., 363 N.C. 623, 631, 685 S.E.2d 85, 90

(2009) (quoting Lane v. Scarborough, 284 N.C. 407, 409-10, 200 S.E.2d 622, 624

(1973)). “If the plain language of a contract is clear, the intention of the parties is

inferred from the words of the contract.” Walton v. City of Raleigh, 342 N.C. 879, 881

467 S.E.2d 410, 411 (1996).    This Court derives the intent of the parties from the

contract as a whole, rather than from any particular term or paragraph. Jones v.

Casstevens, 222 N.C. 411, 413-14, 23 S.E.2d 303, 305 (1942) (“Since the object of

construction is to ascertain the intent of the parties, the contract must be considered

as an entirety.”) (citation and internal quotation marks omitted).       “[I]f there is

uncertainty as to what the agreement is between the parties, a contract is

ambiguous.” Schenkel & Shultz, Inc. v. Hermon F. Fox & Assocs., 362 N.C. 269, 273,

658 S.E.2d 918, 921 (2008). “When an agreement is ambiguous and the intention of

the parties is unclear, interpretation of the contract is for the jury.” International

Paper Co. v. Corporex Constructors, Inc., 96 N.C. App. 312, 317, 385 S.E.2d 553, 556

(1989).

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                                   Opinion of the Court




      Here, in granting summary judgment in favor of Defendants, the trial court

exclusively relied on the lease’s language.         Specifically, the trial court found

Paragraph 5(b) was unambiguous and functioned as a complete defense to Plaintiffs’

claims. However, we conclude the text of the lease, when considered in its entirety,

fails to clearly state the parties’ intentions and is ambiguous.

      Paragraph 5(b) states the landlord and tenant discharge each other from “all

claims and liabilities arising from or caused by any hazard covered by insurance . . .

regardless of the cause of the damage or loss, provided that such cause does not

prevent payment of insurance proceeds to Landlord under the provisions of the

applicable policy.” Paragraph 8 then purports to define the type and amount of

insurance Defendants required Plaintiffs to carry. Paragraph 8 also includes the

terms under which Plaintiffs would indemnify Defendants for damages covered by

insurance. However, Paragraph 8 is incomplete. The opening sentence of Paragraph

8 states “Tenant shall maintain insurance in accordance with the provisions of

subparagraphs (a) and (b) of this paragraph, and Tenant shall indemnify Landlord in

accordance with the provisions of sub-paragraph (c).” The text of subparagraphs (a)

and (b) follow this sentence. Subparagraph 8(a), titled “Property Insurance,” contains

indemnification language and states Plaintiffs hold Hardin Creek harmless for

damages or losses caused by fire to Plaintiffs’ furniture, fixtures, and equipment.

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                            MORRELL V. HARDIN CREEK



                                 Opinion of the Court




Subparagraph 8(b), titled “Liability Insurance,” defines the types and amounts of

liability insurance Defendants required Plaintiffs to carry.        There is not a

Subparagraph 8(c).

      Both Subparagraph 5(b) and Paragraph 8 refer to limits on Hardin Creek’s

liability under the lease. The incomplete construction of Paragraph 8 creates an

ambiguity as to the type and amount of insurance Hardin Creek required of Plaintiffs.

The incomplete construction of Paragraph 8 also creates an ambiguity relating to the

scope of Subparagraph 5(b). The language the trial court relied on in Subparagraph

5(b) refers to any “hazard covered by insurance on the leased premises.” However,

when Subparagraph 5(b) is read in connection with Paragraph 8, the exact meaning

of the term “covered by insurance” is ambiguous. It is unclear whether that term

refers to hazards covered only by insurance coverage as required by the lease, or

whether that term is modified by the language in the missing subparagraph on

indemnification.

      Because the lease is ambiguous, and because the interpretation of an

ambiguous lease is a question for the jury, the trial court erred in granting summary

judgment in favor of Defendant Hardin Creek, Inc.

      Even if this Court concluded the lease was unambiguous, the trial court still

incorrectly found Paragraph 5(b) served as a complete release from liability.

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                             MORRELL V. HARDIN CREEK



                                   Opinion of the Court




Generally, parties may contract to “bind themselves as they see fit” unless the

contract violates the law or is against public policy. Lexington Ins. Co. v. Tires Into

Recycled Energy and Supplies, Inc., 136 N.C. App. 223, 225, 522 S.E.2d 798, 800

(1999) (quoting Hall v. Sinclair Refining Co., 242 N.C. 707, 709-10, 89 S.E.2d 185

(1953)). “However, contracts which attempt to relieve a party from liability for

damages incurred through personal negligence are discouraged and narrowly

construed[.]” Id. at 225, 522 S.E.2d at 800 (citation omitted). “The contract will never

be so interpreted [to exempt liability for negligence] in the absence of clear and

explicit words that such was the intent of the parties.” Winkler v. Appalachian

Amusement Co., 238 N.C. 589, 596, 79 S.E.2d 185, 190 (1953).

      Here, the trial court ruled Paragraph 5(b) of the lease meant both parties

intended to waive claims relating to any matter covered by insurance. Plaintiffs

concede their insurance covered up to $60,000 for damages resulting from the flood.

However, Plaintiffs contend they did not intend to waive claims for business losses

not covered by insurance and caused by Defendants’ negligence.

      In William F. Freeman, Inc. v. Alderman Photo Co. this Court held a lease

which only addresses insurance coverage and subrogation rights will not extend to

exempt the parties from liability for negligence. 89 N.C. App. 73, 75, 365 S.E.2d 183,

185 (1988). There, the lease required the parties to insure their own property, and

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                               MORRELL V. HARDIN CREEK



                                     Opinion of the Court




this Court concluded the parties included the subrogation clause to ensure each party

would only be required to pay for damages to his own property. Id. at 76, 365 S.E.2d

at 185. This Court reasoned because the lease contained “no clear, explicit words

waiving liability for negligence[,]” it would not infer the parties intended to do so. Id.

at 76, 365 S.E.2d at 185.

       This Court later distinguished the lease in Freeman in Lexington at 226, 522

S.E.2d at 800 (1999). In Lexington, this Court concluded the terms of the lease

contained an explicit waiver by each party of its right to recover against the other for

loss covered by insurance. Lexington at 226, 522 S.E.2d at 801. Additionally, this

Court concluded the lease “clearly and explicitly evidences the intent of each of the

parties to relieve the other from all liability . . . including liability for negligence.” Id.

at 227, 522 S.E.2d at 801.

       Even though the lease in the instant case states the parties “agree and

discharge each other from all claims and liabilities arising from or caused by any

hazard covered by insurance,” the lease does not explicitly state the parties

contemplated to waive claims stemming from negligence. This Court will not infer

the parties intended to exempt each other from liability for negligence where the lease

does not contain specific language indicating the parties’ intent to do so. See Freeman

at 76, 365 S.E.2d at 185. Therefore, the trial court erred in interpreting Paragraph

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                             MORRELL V. HARDIN CREEK



                                  Opinion of the Court




5(b) as a complete release from all liability when that Paragraph did not contain

language explicitly covering negligence.

      In negligence cases, granting summary judgment is rare.           Here the facts

support a violation of a safety statute to wit: The pertinent provision of the North

Carolina State Building Code states “[a]ll areas used for commercial or institutional

food preparation and storage facilities adjacent thereto shall be provided with an

automatic sprinkler system.” N.C. Gen. Stat. § 143-138(m)(2) (2017). “[T]he [North

Carolina State Building] Code imposes liability on any person who constructs,

supervises construction, or designs a building or alteration thereto, and violates the

[Building] Code such that the violation proximately causes injury or damage.”

Lassiter v. Cecil, 145 N.C. App. 679, 684, 551 S.E.2d 220, 223 (2001) (quoting Olympic

Products Co. v. Roof Systems, Inc., 88 N.C. App. 315, 329, 363 S.E.2d 367, 375 (1988)).

“[A] violation of the North Carolina Building Code constitutes negligence per se

because the Code is a statute to promote the safety of others.” Id. at 684, 551 S.E.2d

at 223.   The owner of a building is not negligent per se for a violation of the North

Carolina Building Code unless: “(1) the owner knew or should have known of the

[Building] Code violation; (2) the owner failed to take reasonable steps to remedy the

violation; and (3) the violation proximately caused injury or damage.” Lamm v.

Bissette Realty, Inc., 327 N.C. 412, 415, 395 S.E.2d 112, 114 (1990).

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                                  Opinion of the Court




      Here, Plaintiffs alleged Defendants owed a duty to Plaintiffs “to inspect,

construct, and alter the Premises in a workmanlike manner such that it would be

. . . in accordance with local building codes, building plans, and industry standards.”

Plaintiffs also alleged “Defendants were warned that the insulation in the building

was inadequate to properly protect the sprinkler systems during cold weather[.]”

Finally, Plaintiffs alleged they suffered damages as a “direct and proximate cause” of

Defendants’ negligence. Based on our review of these pleadings, along with the

provisions of the North Carolina Building Code, we conclude Plaintiffs sufficiently

alleged negligence to survive Defendants’ motion for summary judgment.

      We now address this case’s procedural posture in light of our ruling. First, we

reverse the trial court’s grant of summary judgment in favor of all Defendants as to

Plaintiffs’ negligence claims. “Negligence claims are rarely susceptible of summary

adjudication, and should ordinarily be resolved by trial of the issues.” Lamb. v.

Wedgewood South Corp., 308 N.C. 419, 425, 302 S.E.2d 868, 871 (1983). We cannot

review or resolve the issue of the various Defendants’ degree of involvement in

modifying the sprinkler system from our record on appeal. This is an issue for the

trial court which the trial court may be able to resolve upon motion for directed

verdict.




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                             MORRELL V. HARDIN CREEK



                                   Opinion of the Court




      Also, the trial court denied Plaintiffs’ motion to amend their complaint to add

E. Greene as a party defendant as a consequence of its order granting summary

judgment in Defendants’ favor. Because we reverse the trial court’s order granting

summary judgment as to Defendants, it follows the trial court should resolve and

reconsider Plaintiffs’ motion to add E. Greene as add a defendant to this action.

      As to Defendants’ counterclaims against Plaintiffs, Defendants’ brief

summarily addresses this issue as follows:

             Without diminishing the strength of Defendants’ argument
             that the Exculpatory Clause is valid and enforceable and
             bars Plaintiffs’ claims, Defendants, in the alternative, ask
             the Court to apply the Exculpatory Clause equally to both
             parties; and if the summary judgment in favor of
             Defendants is reversed, the Court should reverse the
             dismissal of the counterclaims.”

Defendants fail to cite any legal authority or otherwise argue this issue.

      Under our Rules of Appellate Procedure, “[t]he function of all briefs required

or permitted by these rules is to define clearly the issues presented to the reviewing

court and to present the arguments and authorities upon which the parties rely in

support of their respective positions thereon.” N.C. R. App. P. 28(a) (2017). “It is not

the duty of this Court to supplement [a party’s] brief with legal authority or

arguments not contained therein.” Eaton v. Campbell, 220 N.C. App. 521, 522, 725

S.E.2d 893, 894 (2012) (quoting Goodson v. P.H. Glatfelter Co., 171 N.C. App. 596,

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                                  Opinion of the Court




606, 615 S.E.2d 350, 358 (2005)). “Issues not presented and discussed in a party’s

brief are deemed abandoned.” N.C. R. App. P. 28(a) (2017).

      Here, Defendants fail to argue this issue and do not present this Court with a

reason to disturb the trial court’s order granting summary judgment in favor of

Plaintiffs as to Defendants’ counterclaims. Defendants have abandoned this issue on

appeal, and we consequently affirm the trial court’s ruling as to Defendants’

counterclaims.

      Finally, the trial court denied Plaintiffs’ motion to continue and to enlarge

discovery deadlines because the trial court found “no plausible reasons why further

discovery would shed any light on paragraph 5(b) in the Lease.” However, because

this Court disagrees with the trial court’s interpretation of Paragraph 5(b), the trial

court should, on remand, consider setting a new discovery schedule pursuant to Rule

26 to allow the parties to complete their discovery.

      Based on the foregoing, we reverse the trial court’s order of summary judgment

and remand this action with instructions for the trial court to proceed consistently

with this opinion.


      REVERSED AND REMANDED.


      Judge CALABRIA concur.


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                    MORRELL V. HARDIN CREEK



                         Opinion of the Court




Judge BERGER dissents in a separate opinion.




                                -2-
 No. COA16-878 – Morrell v. Hardin Creek, Inc.



      BERGER, Judge, dissenting in separate opinion.


      I respectfully dissent from the majority’s opinion reversing the trial court’s

order and remanding for further proceedings. The trial court properly granted

summary judgment in favor of Defendants as Paragraph 5(b) (the “Exculpatory

Clause”) of the lease is unambiguous and operates as a complete defense to the claims

raised by Plaintiffs.


      “[W]hen the language of a contract is plain and unambiguous, construction of

the language is a matter of law for the court.” Mountain Fed. Land Bank v. First

Union Nat. Bank, 98 N.C. App. 195, 200, 390 S.E.2d 679, 682 (1990) (citation

omitted). “The heart of a contract is the intention of the parties, which is to be

ascertained from the expressions used, the subject matter, the end in view, the

purpose sought, and the situation of the parties at the time.” Gould Morris Elec. Co.

v. Atl. Fire Ins. Co., 229 N.C. 518, 520, 50 S.E.2d 295, 297 (1948) (citation omitted).

“[W]hen the language of the contract and the intent of the parties are clearly

exculpatory, the contract will be upheld.” Gibbs v. Carolina Power & Light Co., 265

N.C. 459, 467, 144 S.E.2d 393, 400 (1965) (citation omitted). Therefore, this Court

construes the parties’ contractual intent from the time of the writing as preserved in

the contract and their actions. See Mountain Fed. Land Bank, 98 N.C. App. at 200,

390 S.E.2d at 682.
                           MORRELL V. HARDIN CREEK, INC.



                                  BERGER, J., dissenting




        There is no question that leases


              which attempt to relieve a party from liability for damages
              incurred through personal negligence are discouraged and
              narrowly construed; any clause in a lease attempting to do
              so must show that this is the intent of the parties by clear
              and explicit language.



Lexington Ins. Co. v. Tires Into Recycled Energy & Supplies, Inc., 136 N.C. App. 223,

225, 522 S.E.2d 798, 800 (1999) (citation omitted).


        In Winkler v. Appalachian Amusement Co., 238 N.C. 589, 79 S.E.2d 185 (1953),

the defendant contended it was relieved of liability for negligence pursuant to the

terms of a commercial real estate lease with the plaintiff that provided, in relevant

part:


              [Paragraph 3]: The lessees . . . shall, at their own cost and
              expense, make any and all repairs that may be necessary
              inside the portion of the building hereby demised,
              excepting in case of destruction or damage by fire or other
              casualty, as set forth in Paragraph Six hereof.



              [Paragraph 6]: The lessors agree to keep said theater
              buildings, and the equipment hereby leased, insured to the
              extent of its full insurable value in some reliable insurance
              company. In event the premises or property hereby leased


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                                      BERGER, J., dissenting




               shall at any time during the operation and continuance of
               this lease be damaged or destroyed by fire or other
               casualty, the lessors shall thereupon and forthwith repair
               and restore said premises and property to the same
               condition in which they were before the happening of such
               fire or other casualty.



Id. at 592, 79 S.E.2d at 188 (internal quotation marks omitted).4 Our Supreme Court

held this language was insufficient to shield defendant from liability for damage

caused by its own negligence. Id. at 598, 79 S.E.2d at 192. The Court noted, “[i]f the

parties intended such a contract, we would expect them to so state in exact terms.”

Id. at 596, 79 S.E.2d at 191.


       Similarly, as the majority here correctly states, this Court found no such clear,

explicit waiver of liability for negligence in William F. Freeman, Inc. v. Alderman

Photo Co., 89 N.C. App. 73, 365 S.E.2d 183 (1988). The lease at issue in Freeman

contained the following relevant language:


               INSURANCE: The Lessor shall carry, pay the premium, and
               be responsible for fire and extended coverage insurance
               upon the premises. In the event any improvements or



       4 The lease provisions were listed in the facts section found prior to the opinion. The opinion
did not fully cite the provisions, but referenced the paragraph numbers and summarized the
provisions.

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             MORRELL V. HARDIN CREEK, INC.



                   BERGER, J., dissenting




alterations are made by the Lessee as provided hereinafter,
the amount of such insurance shall be increased, following
receipt, by Lessor, of written notice from Lessee, to such an
extent as to cover said improvements and alterations.
Unless the additional insurance coverage is increased to
cover any improvements and alterations as aforesaid, the
Lessor shall not be responsible for the replacement or
restoration in the event of other casualty.



The Lessee shall carry, pay the premiums, and be
responsible for fire insurance and other insurance upon its
property, contents and equipment and shall carry adequate
and sufficient liability insurance for both the Lessee and
Lessor and shall furnish the Lessor evidence of such
coverage.



The Lessee will not do, suffer or permit anything to be done
in or about the premises that will affect, impair or
contravene any policies of insurance against the loss or
damage by fire, casualty or otherwise that may be placed
thereon by the Lessee or the Lessor.



All insurance policies shall be in the name of the Lessor
and Lessee as their interests may appear. All insurance,
whether carried by the Lessor or the Lessee, shall provide
a waiver of subrogation against the other party[.]




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                               MORRELL V. HARDIN CREEK, INC.



                                      BERGER, J., dissenting




Id. at 75, 365 S.E.2d at 185 (internal quotation marks omitted). This Court stated

that the lease terms “contain[ed] no clear, explicit words waiving liability for

negligence as required by Winkler.” Id. at 76, 365 S.E.2d at 185.


       However, this Court previously enforced a commercial real estate lease which

included a broad exculpatory clause to prevent substantial damages. See Hyatt v.

Mini Storage on the Green, 236 N.C. App. 278, 763 S.E.2d 166 (2014) (enforcing an

exculpatory clause that protected against “any personal injuries” sustained on

landlord’s premises).5 In Hyatt, the contractual language read as such:


               Landlord shall not be liable to tenant and/or tenant[’]s
               guest or invitees for any personal injuries sustained by
               tenant and/or tenant[’]s guest or invitees while on or about
               landlord's premises.


Id. at 282, 763 S.E.2d 169 (brackets omitted).               This Court found this language

constituted an exculpatory clause which “clearly and explicitly provides that




       5 Commercial lessors are justified in including exculpatory clauses because “water damage to
merchandise may run to substantial amounts. For this reason[,] landlords tend to include the broadest
exculpatory clause that will be enforced.” MILTON R. FRIEDMAN, FRIEDMAN ON LEASES 1181 (4th ed.
1997).

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                          MORRELL V. HARDIN CREEK, INC.



                                 BERGER, J., dissenting




[defendant] would not be liable for personal injuries sustained on the premises.” Id.

at 282-83, 763 S.E.2d at 170.


      Further, in Lexington, this Court enforced a clause requiring the lessee to

maintain insurance and waiving their rights to recovery. Lexington, 136 N.C. App at

227, 522 S.E.2d at 801. In Lexington, the subrogation agreement stated:


             18. Waiver of Subrogation. Each party, notwithstanding
             any provision of this Lease otherwise permitting such
             recovery, hereby waives any rights of recovery against the
             other for loss or injury against which such party is protected
             by insurance, to the extent of the coverage provided by such
             insurance. Each insurance policy carried by either party
             with respect to the Leased Premises or the property of
             which they are a part which insures the interest of one
             party only, shall include provisions denying to the insurer
             acquisition by subrogation of any rights of recovery against
             the other party. The other party agrees to pay any
             additional resulting premium.



Id. at 223-24, 522 S.E.2d at 799 (emphasis added). This Court found the subrogation

clause “plain and unambiguous” as both parties “agreed to include a subrogation

waiver clause in any insurance policies . . . which covered the leased premises.” Id.

at 226-27, 522 S.E.2d at 801.




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                            MORRELL V. HARDIN CREEK, INC.



                                  BERGER, J., dissenting




         Conversely, in Winkler, the parties lacked contractual intent while the lease

lacked a subrogation clause, and Freeman only required the parties to protect against

damages to their own property. Commercial real estate leases which “clearly and

explicitly evidence[] the intent of each of the parties to relieve the other from all

liability for damages otherwise covered by insurance, including liability for

negligence” are enforceable. Lexington, 136 N.C. App at 227, 522 S.E.2d at 801.


         In the case sub judice, the parties clearly and explicitly waived all claims,

including claims for negligence. The relevant portion of the Exculpatory Clause

reads:


               [N]otwithstanding any other provision of this lease to the
               contrary, Landlord and Tenant and all parties claiming
               under them agree and discharge each other from all claims
               and liabilities arising from or caused by any hazard covered
               by insurance on the leased premises, or covered by
               insurance in connection with the property owned or
               activities conducted on the leased premises, regardless of
               the cause of the damage or loss . . . .



(Emphasis added).


         The Exculpatory Clause shields Defendants from liability for “all claims and

liabilities arising from or caused by any hazard covered by insurance on the leased

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                                MORRELL V. HARDIN CREEK, INC.



                                       BERGER, J., dissenting




premises . . . regardless of the cause of the damage or loss.” Similar to Lexington, the

Exculpatory Clause clearly and explicitly operates as a waiver of negligence for any

liability on the leased premises.


        Additionally, Paragraph 8 of the lease required Plaintiffs to possess both

property and liability insurance in clear and unambiguous terms. Cf. New River

Crushed Stone, Inc. v. Austin Powder Co., 24 N.C. App. 285, 210 S.E.2d 285 (1974)

(validating an indemnification clause where the contract (1) involved private parties,

(2) did not violate public policy, and (3) did not result from any gross inequality in

bargaining power).6 Including an insurance requirement is evidence of the parties’

intent to relieve the other from any liability or damages, including damages related

to negligence.


        It is not within this Court’s discretion to redraft a private commercial real

estate lease that is not contrary to public policy. Because the clear and unambiguous




        6It is in the best interest of the tenant to seek insurance because “the likelihood of getting [a
broad exculpatory clause] changed is slight. In these circumstances[,] the tenant should be protected
by adequate insurance.” MILTON R. FRIEDMAN, FRIEDMAN ON LEASES 1181 (4th ed. 1997) (emphasis
added).

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                          MORRELL V. HARDIN CREEK, INC.



                                BERGER, J., dissenting




language of this commercial lease precludes recovery by Plaintiffs, I would affirm the

trial court’s entry of summary judgment.




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