Westover Products v. Gateway Roofing

Annotate this Case

380 S.E.2d 375 (1989)

WESTOVER PRODUCTS, INC., Plaintiff, v. GATEWAY ROOFING CO., INC., James A. Moser and Clay A. Moser, Defendants. GATEWAY ROOFING CO., INC., Third Party Plaintiff, v. WESTOVER PRODUCTS, INC., The Carlisle Corporation, Kidde, Inc. d/b/a Walter Kidde & Company, J.M. Thompson Company, Third Party Defendants.

No. 8818SC882.

Court of Appeals of North Carolina.

June 6, 1989.

*376 Wishart, Norris, Henninger & Pittman by David O. Lewis, Raleigh, for third-party defendant-appellant Kidde.

Shope and McNeil by Richard I. Shope, Greensboro, for third-party defendant-appellee Westover.

ARNOLD, Judge.

Kidde first argues that the trial court committed reversible error in granting Westover's motion for summary judgment because it failed to comply with the *377 notice requirements of N.C.G.S. § 1A-1, Rule 56 prior to any hearing on the motion.

Rule 56(c) provides that a motion for summary judgment shall be served at least ten (10) days prior to any hearing on the motion. N.C.G.S. § 1A-1, Rule 56(c). Notice may be waived, however, by participation in the hearing and by a failure to object to the lack of notice or failure to request additional time by the non-moving party. Raintree Corp., Inc. v. Rowe, 38 N.C.App. 664, 248 S.E.2d 904 (1978); Story v. Story, 27 N.C.App. 349, 219 S.E.2d 245 (1975).

Kidde neither objected to Westover's lack of notice, nor did it request additional time. Furthermore, the hearing in which Westover made its oral motion was held to hear Carlisle's argument for summary judgment.

Kidde could have argued against Westover's motion. This fact is illustrated by Kidde's brief on appeal in which it refers this Court to Kidde's brief in its appeal of summary judgment in favor of Carlisle. Kidde states that the record evidence in the other case clearly establishes that the roof system sold by Westover was defective. The evidence of record on appeal was made entirely of the evidence presented by Carlisle in support of summary judgment and by Kidde in opposition.

We conclude that although no notice under Rule 56(c) was given to Kidde, it waived the notice requirement. See Raintree Corp., Inc., 38 N.C.App. 664, 248 S.E.2d 904.

Kidde next argues that the trial court committed reversible error in granting Westover's motion for summary judgment because Kidde was given no opportunity to be heard on the merits of the motion, and because no materials were submitted by the parties in support or opposition to the motion. Rule 56(c) states that judgment shall be rendered "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.G.S. § 1A-1, Rule 56(c) (emphasis added). Summary judgment may be granted to any party whether they move for it or not. See McNair Const. Co., Inc. v. Fogle Bros. Co., 64 N.C.App. 282, 307 S.E.2d 200 (1983), disc. rev. denied, 312 N.C. 84, 321 S.E.2d 897 (1984).

The trial court in the case sub judice could have granted Westover summary judgment based on the materials presented by Carlisle and Kidde even without Westover's motion. See id. We reject Kidde's argument, therefore, that the trial court committed error in granting Westover's oral motion.

Kidde lastly argues that there were genuine issues of material fact of Westover's negligence and breach of implied warranties.

N.C.G.S. § 25-2-314 provides in part:

(1) Unless excluded or modified (G.S. 25-2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.... (2) Goods to be merchantable must be at least such as (a) pass without objection in the trade under the contract description; and * * * * * * (c) are fit for the ordinary purposes for which such goods are used; and (d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and....

Westover was the wholesale supplier of the Carlisle materials used by Gateway on the Kidde project. From the evidence of record on appeal, Westover provided neither technical assistance nor installation training and instruction to Gateway. Likewise, no evidence on appeal shows that the Carlisle materials were in any way defective. It was the design and installation of the M.A.R.S. system that apparently caused the problems.

Westover only supplied the non-defective Carlisle goods and thus breached no implied warranty of merchantability. See id.

*378 No evidence on appeal shows that Kidde relied in any way upon Westover's advice in Kidde's selection of the M.A.R.S. system. It was Carlisle whom Kidde relied upon, and thus there was no implied warranty of particular purpose by Westover. See N.C. G.S. § 25-2-315.

Since there is no evidence on appeal that the Carlisle products were defective, Westover could not have been negligent in supplying them. We therefore conclude that the trial court committed no error in granting summary judgment for Westover.

Affirmed.

JOHNSON and PHILLIPS, JJ., concur.