Tort/Negligence – Breach of the Implied Warranty of Workmanlike Service – Negligent Supervision

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Evidence that a Blue Moon employee used Blue Moon’s general contractor’s license to pull a building permit for construction of the subject home without Blue Moon’s knowledge, is not sufficient to impose any liability on Blue Moon.

We affirmed the trial court’s grant of Respondents’ motions for summary judgement.

In 2017, Appellants purchased a newly constructed residential home from Gabriela B. Lopez on Foxhound Road in Simpsonville, South Carolina. Just over a year after purchasing the home, issues arose with water penetration and the home’s foundation. A contractor hired by Appellants discovered the original builders failed to properly waterproof the foundation and front entryway of the home, failed to install a proper drainage system in front of the home, used incorrect grout, and backfilled the lot with uncompacted dirt full of stumps, construction debris, and other organic matter.

The permit application for the home listed Blue Moon as the contractor and Scott Caufield as the contact person. Caufield had been Blue Moon’s production manager and license qualifier until 2016, when he was terminated for making personal charges on his company credit card. As Blue Moon’s primary qualifying party, Caufield was authorized to pull permits using Blue Moon’s general contractor’s license. Appellants alleged Caufield devised a plan with Lopez, Lopez’s husband Leopoldo Hernandez, who worked for Santa Fe Construction, and another Santa Fe employee to construct and sell shoddy homes using Blue Moon’s license. Appellants claimed Blue Moon either knew about the plan or should have known because its employee, contractor’s license, and funds were used to construct homes.

In 2020, Appellants sued Blue Moon for conspiracy, breach of implied warranty, negligence, negligent supervision, and equitable indemnity. Blue Moon filed a motion for summary judgment on the grounds that (1) Appellants had no evidence that Blue Moon participated in civil conspiracy; (2) Blue Moon did not build or sell the home, which is required for any implied warranty to arise; (3) Appellants had no evidence Blue Moon violated a legal duty owed to them to support a negligence claim; (4) Appellants were not subjected to a claim by a third-party and as such had no claim for indemnity; and (5) Appellants’ claims were barred by the South Carolina Notice and Opportunity to Cure Construction Dwelling Defects Act. The trial court granted Blue Moon’s motion.

Blue Moon primarily provided repair and mitigation services to customers whose homes have suffered fire or water damage and has never performed original construction of new residential homes. In an affidavit filed with its motion for summary judgment, Blue Moon’s owner stated he was unaware that Caufield used Blue Moon’s license to construct the Foxhound Road home. This affidavit further states Blue Moon did not contract to build the home, did not build the home, did not receive payment for construction of the home, did not sell the home, and did not receive any compensation for the construction or sale of the home. Thus, a Blue Moon employee used Blue Moon’s general contractor’s license to pull a building permit for construction of the home without Blue Moon’s knowledge. This is not sufficient to impose any liability on Blue Moon, and the trial court did not err by granting Blue Moon’s motion for summary judgment. Because Blue Moon did not construct or contract to construct the home, has never been in the business of constructing new homes, and has never held itself out as an expert in the construction of new homes, Blue Moon is not liable to Appellants for breach of the implied warranty of workmanlike service.

The trial court correctly determined Blue Moon did not owe Appellants any legal duty, which defeats their negligence claim as a matter of law. Additionally, if a duty did exist, the trial court correctly found Blue Moon was neither vicariously liable for Caufield’s torts nor negligent in its supervision of Caufield.

Affirmed.

Moody v. Lopez (Lawyers’ Weekly No. 012-052-25, 10 pp.) (Per Curiam) Appealed from Greenville County Circuit Court (J. Derham Cole, J. and G. D. Morgan, Jr., J.) Townes Boyd Johnson, III and Christian Hill Thorndike, both of Townes B. Johnson III, LLC, of Greenville, for Appellants. Robert T. Lyles, Jr. and Allen Leland DuPre, both of Lyles & Associates, LLC, of Sullivan’s Island, for Respondent ServPro of Pickens County. Daniel L. Draisen, of The Injury Law Firm, PC, of Anderson, and John S. Nichols, of Bluestein Thompson Sullivan LLC, of Columbia, both for Respondent TCT1, LLC. South Carolina Court of Appeals Unpublished