Joe Newton, Inc. v. Tull

330 S.E.2d 664 (1985)

JOE NEWTON, INC., a North Carolina Corporation, v. R. Read TULL, Charles W. Tull, Phyllis B. Tull; Sunbelt Properties, a Florida Limited Partnership; Idlewild Limited Partnership, a North Carolina Limited Partnership; Allied Properties Corporation, a North Carolina Corporation.

No. 8426SC1005.

Court of Appeals of North Carolina.

June 18, 1985.

*666 Erdman & Boggs by David C. Boggs and Kevin L. Barnett, Charlotte, for plaintiff appellant.

Richard A. Cohan, Charlotte, for defendants-appellees.

MARTIN, Judge.

Plaintiff assigns as error (1) the trial court's failure to rule upon plaintiff's motion to strike defendants' answer, and (2) the granting of summary judgment in favor of defendants. We conclude that neither assignment has merit and we affirm the judgment of the trial court.

Initially, plaintiff contends that the trial court erred in not ruling upon its motion to strike the answer before considering defendants' motion for summary judgment. Plaintiff argues that had the trial court allowed the motion to strike the answer, plaintiff would have been entitled to entry of default and defendants would not have been entitled to proceed with their motion for summary judgment. We find no merit in this argument.

By waiting until answer had been filed before seeking to obtain entry of default, plaintiff waived its rights to entry of default pursuant to G.S. 1-1A, Rule 55(a). Default may not be entered after an answer has been filed, even if the answer is tardily filed. Peebles v. Moore, 302 N.C. 351, 275 S.E.2d 833 (1981). Furthermore, even if plaintiff's motion to strike the answer had been ruled upon and allowed before the trial court considered the motion for summary judgment, defendants would, nonetheless, have been entitled to proceed with their summary judgment motion. The failure of a general contractor to be licensed is an affirmative defense which *667 must be pleaded. Barrett, Robert & Woods v. Armi, 59 N.C.App. 134, 296 S.E.2d 10, disc. rev. denied, 307 N.C. 269, 299 S.E.2d 214 (1982). Such an affirmative defense may be raised for the first time by affidavit for the purpose of ruling on a motion for summary judgment. Bank v. Gillespie, 291 N.C. 303, 230 S.E.2d 375 (1976); Furniture Industries v. Griggs, 47 N.C.App. 104, 266 S.E.2d 702 (1980). Summary judgment may be granted for a party upon an affirmative defense shown by affidavit before the party files answer. Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981). For these reasons, we find no error in the trial court's consideration of defendants' motion for summary judgment before ruling on the plaintiff's motion to strike the tardily filed answer.

Plaintiff also contends that the trial court erred in entering summary judgment for defendants. Plaintiff argues first that since its president and sole shareholder, Joe Newton, was individually licensed as a general contractor pursuant to G.S. 87-1 et seq., his license should inure to the benefit of plaintiff corporation. In Brady v. Fulghum, 309 N.C. 580, 308 S.E.2d 327 (1983), the North Carolina Supreme Court expressly rejected the "substantial compliance" doctrine and ruled "that a contract illegally entered into by an unlicensed general construction contractor is unenforceable by the contractor." Id. at 586, 308 S.E.2d at 331. In the instant case, defendants did not contract with Joe Newton individually; their contract was with plaintiff corporation. Defendants would have no right to enforce that contract against Joe Newton individually. Plaintiff corporation, as an unlicensed contractor, may not enforce the contract against defendants on the basis of Joe Newton's individual license. See Allan S. Meade & Assoc. v. McGarry, 68 N.C.App. 467, 315 S.E.2d 69 (1984).

Plaintiff also argues that if it is not entitled to payment pursuant to the contract, it should be permitted to recover on the theory of quantum meruit. The same rule which prevents an unlicensed contractor from recovering for breach of the construction contract also denies recovery on the theory of quantum meruit. Builders Supply v. Midyette, 274 N.C. 264, 162 S.E.2d 507 (1968).

Finally, plaintiff contends that summary judgment was inappropriate because the affidavit of Joe Newton created genuine issues of fact as to whether plaintiff, in fact, acted as a general contractor and whether the cost of the undertaking brought it within the provisions of G.S. 87-1. In the affidavit, Joe Newton asserted that plaintiff had no authority to control the work or to choose subcontractors, and that the portion of plaintiff's bill for "general contracting" work, as opposed to heating, air conditioning and electrical work, was less than the statutory amount, $30,000.00, prescribed in G.S. 87-1. We also find this contention to be without merit. Plaintiff alleged in its complaint that it was employed as a "general contractor," that it performed "general contracting services," and that in accordance with its contract it furnished materials and labor for which defendants agreed to pay the sum of $90,154.00.

A party is bound by his pleadings and, unless withdrawn, amended, or otherwise altered, the allegations contained in all pleadings ordinarily are conclusive as against the pleader. He cannot subsequently take a position contradictory to his pleadings.

Davis v. Rigsby, 261 N.C. 684, 686, 136 S.E.2d 33, 34 (1964). Plaintiff may not create genuine issues of fact in order to defeat summary judgment by filing affidavits which contradict the judicial admissions of its pleadings. See Rollins v. Miller Roofing Co., 55 N.C.App. 158, 284 S.E.2d 697 (1981). Summary judgment was appropriately entered for defendants.

Affirmed.

ARNOLD and PARKER, JJ., concur.