STATE OF NORTH CAROLINA COUNTY OF YANCEY IN THE

Transcription

IN THE GENERAL COURT OF JUSTICE
STATE OF NORTH CAROLINA
SUPERIOR COURT DIVISION
06 CvS 54
COUNTY OF YANCEY
AUSTIN VIEW VILLAS CONDOMINIUM
)
ASSOCIATION, INC.,
)
Plaintiff,
)
)
v.
)
MOUNTAIN AIR DEVELOPMENT
CORPORATION, TYNER
CONSTRUCTION, INC., MELROSE
DESIGN GROUP, P.A., f/kla SCOTT R.
MELROSE & ASSOCIATES, P.A.,
CAVANAUGH AND ASSOCIATES,
P.A., YOUNG AND MCQUEEN
GRADING COMPANY, INC., PAUL
SCHMITT ARCHITECTURAL DESIGN
STUDIO, PLLC, JOHNSON,
LASCHOBER & ASSOCIATES, P.C.,
and FROEHLlNG & ROBERTSON,
INCORPORATED.
)
)
)
AMENDED COMPLAINT
)
)
)
)
)
)
)
)
Defendants.
)
)
The Plaintiff, complaining of the Defendants above named, alleges and says as
follows:
1.
Plaintiff Austin View Villas Condominium Association, Inc. ("Plaintiff'), is a
non-profit corporation
Carolina
organized and existing under the laws of the State of North
and maintains
a place of business
in Yancey
County,
North Carolina.
Plaintiff, by and through the declaration, by-laws, and other documents giving rise to the
Association and actions of the Board and Members, has the power and is authorized to
bring suit for the matters contained herein.
2.
Defendant
Mountain
Air
Development
Corporation
("MADC")
is
a
corporation organized and existing under the laws of the State of North Carolina with its
pr(ricipal place of business in Yancey County, North Carolina.
Upon information and
belief, MADC was responsible for the overall development of certain real property and
portions of real property collectively known and marketed as Mountain Air Country Club
Community.
More specifically, MADC undertook, through its own actions and thro!Jgh
the hiring of various contractors and professional consultants, the design, development,
and construction of that certain condominium project designated as Buildings C and D
of Austin View Villas ("Austin View") located at Mountain Air Country Club Community
and an adjacent nine-hole golf course addition ("Banks Creek Nine"), including a hole
abutting Austin View ("Hole #1 "), (collectively, the "Projects").
3.
Defendant Tyner Construction,
Inc. ("Tyner") is a corporation
organized
and existing under the laws of the State of North Carolina with its principal place of
business in Yancey County, North Carolina.
Upon information and belief, Tyner was
responsible for acting as general contractor for Austin View.
4.
Defendant
Melrose
Design
Group,
P.A., f/k/a
Scott
R. Melrose
&
Associates, P.A. ("Melrose"), is a professional association organized and existing under
the laws of the State of North Carolina with its principal place of business in Buncombe
County, North Carolina.
Upon information and belief, Melrose was responsible for site
and land design, assessment, and planning for both Austin View and Banks Creek Nine
and the roads and other site utilities attendant to the Projects and drafted and sealed
site work drawings for Austin View and various drawings used in the construction
Hole #1.
In the alternative, Melrose is the successor-in-interest
2
of
to Scott R. Melrose &
~-------
..
Associates, P.A., the entity who performed said work, and assumed all of the rights,
duties, and obligations of the former company.
5.
Defendant
Cavanaugh
and
Associates,
P.A.
("Cavanaugh"),
is
a
professional association organized and existing under the laws of the State of North
Carolina with its principal place of business in Forsyth County, North Carolina, and with
an office in Asheville, NC. Upon information and belief, Cavanaugh was responsible for
the sitework utilities for Austin View and for formulating the grading, drainage, and
erosion control plan for Banks Creek Nine and the construction drawings for Hole #1,
and participated in the site and land design, assessment, and planning for the Projects.
6.
Defendant Young and McQueen Grading Company,
Inc. ("Y&M"), is a
corporation organized and existing under the laws of the State of North Carolina with its
principal place of business in Yancey County, North Carolina.
Upon information and
belief, Y&M was responsible for all grading, excavation and other sitework at Mountain
Air Country Club Community,
including
both Austin View and Banks Creek Nine
(including Hole #1), and participated in the design as well as the construction of all siterelated matters at the Projects.
7.
Defendant Paul Schmitt Architectural Design Studio, PLLC ("Schmitt"), is a
professional limited liability company organized and existing under the laws of the State
of North Carolina with its principal place of business in Highlands, North Carolina. Upon
information and belief, Schmitt was responsible for architectural services and plans for
Austin View.
8.
professional
Defendant
Johnson,
corporation organized
Laschober
& Associates,
P.C. ("Johnson"),
is a
and existing under the laws of Georgia with its
3
principal place of business in Augusta, Georgia.
Upon information and belief, Johnson
was responsible for structural engineering for Austin View.
9.
Defendant Froehling & Robertson, Incorporated
("F&RfJ),
is a professional
corporation organized and existing under the laws of Virginia with its principal place of
business in Richmond, Virginia, and with an office in Asheville,
information and belief, F&R was responsible for geotechnical
North Carolina.
Upon
subsurface engineering
investigation for Austin View prior to construction and after condominium unit foundation
cracking first occurred in 2003.
Facts Common to All Defendants
10.
Upon
information
and
belief,
the
collective
actions,
conduct
and
agreements of the above named Defendants at all times contemplated the sale of the
Austin View condominium
condominium
units to individual
purchasers
and the formation
of a
owners' association which would take title to and be charged with the
responsibility for maintenance and repairs of the general and limited common elements.
11.
Upon information and belief, at all relevant times herein, Defendants knew
that Austin View was being built on steeply sloped land immediately
above and
overlooking Hole #1, and that the construction of Hole #1 would impact the supporting
land mass/slope for Austin View.
Further, upon information and belief, the Defendants
were on notice, prior to completion
of the design for the Projects and prior to the
commencement of construction of the Projects, that MADC had been advised to retain a
geotechnical engineer to be regularly involved to participate in the design, coordination,
and construction of the Projects.
4
---------------------------------.--
12.
Upon information and belief, MADC hired and supervised the following
Defendants
in planning,
designing,
developing
and constructing
the Projects:
(i)
Schmitt, the architect that planned and designed the Austin View buildings and their
foundations; (ii) Johnson, the structural engineer that assisted Schmitt in designing the
buildings and their foundations; (iii) Melrose, the landscape architect that planned and
designed roads, site work utilities and other layout, grading, and drainage plans and
construction
drawings
for
the
Projects;
(iv) Tyner,
the
general
contractor
that
constructed Austin View; (v) Y&M, the grading and site work contractor that graded and
excavated all aspects of the Projects; (vi) Cavanaugh, the engineer that designed the
grading and erosion control plans and construction drawings for Banks Creek Nine and
Hole #1; and (vii) F&R, the geotechnical engineer for Austin View (collectively,
the
"Projects' Design/Builders").
and
MADC and the Project Design/Builders
designed
constructed the Projects in 2002 through 2004.
13.
During construction
of Austin View in 2002 and 2003, the Defendants
carried on excavation activities at the Austin View building pads and car port pads and
attendant
retaining walls anticipated
unsuitable materials.
by the design
of Austin View, and removed
The excavated areas at Austin View were thereafter
replaced
and/or backfilled using borrow material obtained from the slope below Austin View at
the location of Hole #1. The excavation of the slope below Austin View for backfill and
other suitable replacement
material at Austin View was conducted without any slope
stability analysis or other geotechnical investigation as to the effect of undercutting into
the slope below and supporting Austin View or the type and characteristics of the soil
5
immediately under Austin View and in the slope between the Projects which supported
Austin View.
14.
Since the completion of Austin View, several landslides or shifts in Austin
View's supporting land mass have occurred, resulting in damage to Austin View and
requiring urgent and costly repairs. An inspection of Austin View and surrounding area
in the first half of 2005 resulted in the discovery of structural and safety defects.
Upon
information and belief, the problems or defects at Austin View are a result of defective
investigation, analysis, design and construction of Austin View and/or Hole #1 and the
interaction between the two Projects.
15.
Upon information and belief, during the summer of 2004, prior to cutting
deeper into the mountainside underneath Austin View, the Defendants were cutting into
the mountainside underneath an adjacent MADC condominium
complex, the Hemlock
Bluff Villas Condominiums ("Hemlock Bluff"). This cutting was called for in the design of
Hole #1. The design for Hole #1, as originally configured as a par 5 golf hole, included
excavation below both Hemlock Bluff (near the golf tee and fairway area) and Austin
View (the green and approach areas).
16.
Upon information and belief, on August 15, 2004, during the construction
of Hole #1 below Hemlock Bluff, part of the mountainside
collapsed.
slope below Hemlock Bluff
As a result, Hemlock Bluff Units C and D began moving and sliding, and the
wall structures, floors, decks, and other components cracked and deteriorated, causing
substantial
damages.
Upon information
and belief, MADC immediately
halted all
grading and other work on Hole #1, and consulted with its Projects' Design/Builders,
who, except for F&R, were also the designers/builders
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for Hemlock Bluffs.
17.
Upon
information
and belief,
in August
2004
MADC
hired Bunnell-
Lammons Engineering, Inc., geotechnical engineers ("BlE") to recommend immediate
remedial action with respect to the slope collapse below Hemlock Bluff. In a letter dated
August 20, 2004, BlE
documented site observations
and verbal recommendations
made to MADC and Y&M personnel on August 17, 2004, that "no further excavation be
made at the toe of the slope" and "a buttress ...
of earthen fill approximately 20-25 feet
in height and 30-40 feet in width [be] placed at and against the toe of the existing slope.
This will serve to stabilize the toe against additional lateral movement."
BlE
also
recommended that the "soil supporting the wall foundation on the downhill side of the
[Hemlock
Bluff] condominium
structure should be stabilized/underpinned
[with soil
nails]."
18.
Upon information and belief, in a letter dated September 27, 2004, to
Y&M, summarizing a conference call held on September 15, 2004, BlE advised that its
initial determination
as to the cause of the slope collapse was (i) the presence of
approximately five feet of colluvial soils at the site surface of Hemlock Bluff, coupled
with (2) removal of the soils at the toe of the slope of Hole #1 below Hemlock Bluff.
19.
September
Upon information and belief, MADC hired geotechnical
1, 2004, to stabilize the mountainside
contractors
slope below Hemlock Bluff.
on
The
geotechnical contractors employed a system of soil nails and rock anchors to stabilize
the slope. In September 2004, MADC also hired F&R to perform a computerized
slope
stability analysis of the proposed cuts at Hole #1 below Austin View and Hemlock Bluffs.
This was the first such analysis to be performed at the Projects.
7
20.
A number of the collective acts or omissions of Defendants described
more particularly herein which caused or aggravated the damages to Austin View
occurred after nearly identical acts or omissions by the same Defendants caused similar
damages to Hemlock Bluff, and Defendants knew or should have known that the
damages at Hemlock Bluff could reoccur at Austin View and had ample opportunity to
remedy the same to prevent the damages at Austin View. Nevertheless, later in the fall
of 2004, Defendants commenced excavation and cuts at Hole #1 immediately below
Austin View, and landslide and soil movement at Austin View took place thereafter
similar to the movement
and landslide at Hemlock Bluff, and with similar resulting
damage and evacuation of Austin View.
21.
The defects in the investigation, design and/or construction complained of
include, but are not limited to, the following:
a.
Failure to adequately document and account for the colluvial soil
deposits located under and in the slope below Austin View in the
foundation design of Austin View and the design of Hole #1 ;
b.
Failure to have an adequate geotechnical engineering assessment
performed at the site of Austin View and Hole #1 to determine the
proper level of support needed for the slope between Austin View
and Hole #1 that considered the effects of each of the Projects on
the other;
c.
Failure to address the slope stability issues or properly investigate
the situation once cracking was observed at Austin View in 2003;
8
d.
Failure to address the slope stability issues or properly investigate
the situation once the landslide at Hemlock Bluffs occurred;
e.
Defective planning, design, and construction of Hole #1;
f.
Defective planning, design, and construction
of Austin View, and
coordination between the Projects and Hemlock Bluff; and
g.
22.
As otherwise alleged herein.
As a direct and proximate result of the numerous investigative, design
and/or construction defects and problems discussed above, Plaintiff has been severely
damaged, and has spent and will spend substantial sums of money for the extraordinary
repairs and reconstruction of the buildings and major portions of the common elements
at Austin View.
COUNT I
NeQliQence - Mountain Air Development Corporation
23.
Plaintiff incorporates into this cause of action the allegations in paragraphs
1-22 above as fully as if repeated verbatim herein.
24.
engineering
MADC
determined
and allocated
design and investigation
the extent
of the
pre-construction
that took place at the Projects, including the
amount of geotechnical engineering analysis of the Austin View site, Hole #1, and the
slope in between the two.
View and Hole #1.
MADC also closely supervised the construction
MADC exercised
control from its position
of Austin
at the top of the
development pyramid over the design and construction of Austin View and Hole #1 such
that MADC was responsible for the design and construction.
9
25.
MADC owed a duty to Plaintiff to exercise reasonable care in its design
and construction of Austin View and Hole #1 and to design and build in conformity with
the' customary and ordinary standards of the development,
industry such that there was not an unreasonable
building and construction
risk that Austin View would slide
down the mountainside.
26.
MADC also owed a duty to Plaintiff to exercise reasonable care in its
investigation into the foundation cracking at Austin View during late 2003/early 2004
and to design and build a repair solution for the cracking in conformity
with the
customary and ordinary standards of the building and construction industry such that
there was not an unreasonable risk that Austin View would slide down the mountainside
after the foundation repairs were constructed at Austin View.
27.
Defendant MADC breached these duties and was negligent and/or grossly
negligent in its capacity as developer, builder, vendor, and grantor when MADC:
a.
negligently failed to obtain a sufficient
geotechnical
engineering
assessment of Austin View and Hole #1 for use in development,
site preparation, design, and construction
and coordination of the
Projects, when a reasonable person under the circumstances
or a
professional developer would have done so;
b.
negligently
directly
designed the Austin View foundations
on top
of colluvium
deposits,
which,
to be located
without
proper
precautions, can be unstable and unsuitable for providing sufficient
support for foundations, when a reasonable person operating under
10
r---
the circumstances or a professional developer would not have done
so without proper planning;
c.
negligently planned, designed, developed, and constructed Austin
View and Hole #1 such that cutting into the slope underneath
Austin View would impair or deprive Austin View of adequate stable
supporting land mass, resulting in a landslide of the land mass and
causing
substantial
reasonable
person
property
operating
damage
to Austin View,
under
the
when
a
or
a
circumstances
professional developer would not have done so;
d.
negligently
failed to stop the cutting
of the toe of the slope
underneath Austin View at Hole #1 after the neighboring property at
Hemlock Bluff manifested damage from a mountain slide due to
similar cutting, when a reasonable
circumstances
person operating
under the
or a professional developer would have known or
should have known the golf course grading would accelerate
or
cause the same damages at Austin View;
e.
negligently failed to properly investigate and remediate or account
for
signs
immediately
of
Austin
View's
after construction
land
mass
shifting
during
and
of Austin View, when it became
aware of or should have become aware of said signs and when a
reasonable
person
operating
under
the
professional developer would have done so;
11
circumstances
or
a
f.
negligently approved the design and construction of the foundation
cracking "fix" in 2004 to include merely a cosmetic crack-filling with
dry mortar when a geotechnical investigation into the cause of the
cracking would have indicated this was not an adequate fix, when a
reasonable
person
under the circumstances
or a professional
developer would not have done so;
g.
otherwise failed to utilize the requisite skill, judgment, and expertise
of a professional developer in the industry; and
h.
28.
was otherwise careless and negligent on the occasions in question.
As a direct and proximate result and consequence of MADC's negligence
or gross negligence, Austin View suffered substantial damages in excess of $10,000
and consisting
of property
damage,
the extraordinary
repair,
maintenance,
and
construction costs required and to be required over the expected life of the structure,
loss of use, and depreciation in value.
COUNT II
Breach of Express Warranty - Mountain Air Development Corporation
29.
1 through 28 above as fully as if repeated verbatim herein.
30.
MADC made various representations and issued express warranties to the
unit purchasers of Austin View in a book entitled "Homeowner's
and Builder's
Limited Warranty
Policy" ("Homeowner's
Maintenance
Manual")
Manual
and in the sales
contracts with the unit purchasers of Austin View in accordance with N.C. Gen. Stat.
§ 47C-4-113.
Association,
The unit purchasers are members of the Austin View Villas Condominium
the Plaintiff.
Plaintiff took title to the common elements of Austin View
12
based on the representations made and express warranties issued by MADC. Because
Plaintiff
is comprised
of the
Austin
View
unit purchasers,
MADC
made
these
representations and issued the express warranties to Plaintiff.
31.
MADC
represented
and
warranted
that Austin
View,
including
the
condominium units and the general common elements, was of the highest quality and
more specifically gave warranties as to the planning, design and construction of the
structure, landscape, grading, and all other portions of the units and Austin View, and
the coordination
with other Mountain Air construction
activities, including the Banks
Creek Nine. Those representations and warranties were made in connection with the
sale of the units and formation of the Condominium Association.
To promote the sales
of Austin View, MADC published the Homeowner's Manual, which, among other things,
described the design construction of Austin View as follows:
a.
"we have set defined Standards of Performance in order to satisfy
you";
b.
"our ... plans are architecturally set and implemented
by a highly
qualified construction company [Tyner]";
c.
"we're ready to start construction ... Here is how your [Austin View]
home will be built":
1.
"The Foundation:
... Footings
are installed
bearing soils ... Piers and foundations
on approved,
are erected to carry
the load of the house ... The foundation is inspected to verify
that it meets all building code requirements
13
... ;"
2.
"[W]e install the foundation ... according to state and local
building codes of North Carolina ... ";
3.
"The foundation
of your home
has been designed
installed according to the recommendations
and
of an engineer
[Johnson]";
d.
"We thank
you
demonstrated
for the
trust
and
confidence
by choosing ... [MADC].
...
you
have
By being straightforward
with you, you will know what to expect from us before, during and
after construction ... ";
e.
"[O]ur contractor [Tyner], with our approval, obtains all materials
and labor incorporated
into your home ... This insures quality
control which ... gives us a warranty on which we can rely";
f.
"The layout has been carefully planned ... ";
g.
"Because of variations in slope ... soil and rock strata conditions ...
your foundation
may be notably different
from your neighbors'
foundation ... ";
h.
"Our company will build your new home to the quality standards
that you see demonstrated in all of our residential construction";
I.
"We work in conjunction with [Tyner], who inspects every step of
construction and is responsible for quality control.
engineer [Johnson] or architect [Schmitt]
In addition ... an
conducts a number of
inspections at different stages of construction.
Your home must
pass each inspection before construction continues";
14
I !
J.
"Your home is built through the combined efforts of specialists ...
from excavation and foundation through ... finish work ... [i]n order
to ensure you the highest possible standard of construction ... ";
k.
"The contractor [Tyner] building for [MADC] ... has constructed
your home with quality materials
craftsmen.
and the labor of experienced
All work is done under our supervision to attain the best
possible results for your investment ... once assembled ... quality
materials and workmanship have been used in your home"; and
I.
"[MADC] is proud of all the homes we build ... we strive to create
long-lasting value."
32.
Upon information and belief, MADC executed
Austin View unit purchasers between 2001 and 2003.
sales contracts with the
The sales contracts provided
that:
a.
"[MADC will] locate the unit so as to minimize grading and tree
removal
and
taking
into
account
the
existing
and
resulting
geographic and topographic conditions;"
b.
"All materials and equipment ... required to complete the Unit for
occupancy shall be provided for and securely installed in place ... ";
33.
MADC breached these express warranties
by producing,
selling, and
turning over to Plaintiff the common elements of Austin View and a rapidly deteriorating
condominium
project plagued with extensive
problems as set forth herein.
and severe
construction
defects
and
MADC issued these express warranties to Plaintiff in
order to induce Plaintiff to take title to the Austin View common elements.
15
34.
As a direct and proximate result and consequence of MADC's breach of
its express warranty, Plaintiff suffered substantial damages in excess of $10,000 and
consisting of property damage, the extraordinary repair, maintenance, and construction
costs required and to be required over the expected life of the structure, loss of use, and
depreciation in value.
35.
Plaintiff is also entitled to recover its attorneys'
accordance with N.C. Gen. Stat.
fees from MADC In
§ 47C-4-117.
COUNT III
Breach of Implied Warranties - Mountain Air Development Corporation
36.
37.
MADC as developer, builder, vendor, and grantor, made and gave implied
warranties of habitability, workmanlike construction, and the use of sound engineering
standards to Plaintiff through the Austin View unit owners in accordance with N.C. Gen.
Stat.
§ 47C-4-114.
38.
MADC has breached its implied warranties
by designing,
selling and turning over to Plaintiff an inferior and rapidly deteriorating
project plagued with extensive and severe construction
constructing,
condominium
defects and problems as set
forth herein.
39.
As a direct and proximate result and consequence of MADC's breach of
its implied warranties, Plaintiff has suffered substantial damages in excess of $10,000
and consisting
of property
damage,
the extraordinary
16
repair,
maintenance,
and
~----_.--
construction costs required and to be required over the expected life of the structure,
loss of use, depreciation in value and such other damages as may appropriate.
40.
fees from MADC In
§ 47C-4-117.
COUNT IV
Ne~li~ent Misrepresentation - Mountain Air Development Corporation
41.
42.
MADC is in the business of a professional developer, and is developing,
and has developed, numerous single-family residences, amenities, condominiums,
improvements,
site
roads, airport landing strip and related structures, and a 27 -hole golf
course in connection with the Mountain Air Country Club Community.
In the course of
MADC's business as a professional developer, it has supplied information to Plaintiff
through the Austin View unit owners for the guidance of Plaintiff and the Austin View
unit owners in their business transactions, specifically with their purchasing of the Austin
View units and in the ownership, operation and maintenance by Plaintiff as owner and
operator of the common areas of Austin View.
43.
professional
investigation,
As alleged herein, MADC failed to exercise the care and competence of a
developer
in obtaining
design, coordination,
and communicating
and construction
information
of the Projects to which Plaintiff
and the unit owners of Austin View were entitled to expect.
Further, Plaintiff and the
Austin View unit owners were within the class of persons/entities
the information was supplied by MADC.
17
relating to the
for whose guidance
44.
MADC supplied information as alleged herein to Plaintiff and the Austin
View unit owners intended by MADC to influence the conduct of Plaintiff and the unit
owners in connection with the acquisition and operation of Austin View and the care and
maintenance of its common areas.
Plaintiff arid the Austin View unit owners justifiably
relied upon the information supplied by MADC prior to the consummation of the unit and
common
area acquisition
responsibilities
and thereafter
to Plaintiff
in the conduct
for acquisition, operation and maintenance
of Plaintiff's
of the common areas of
Austin View.
45.
As a direct and proximate result and consequence
misrepresentations,
of MADC's negligent
Plaintiff has suffered substantial damages in excess of $10,000
consisting of property damage, the extraordinary repair, maintenance, and construction
costs required and yet to be required over the expected life of the structures, loss of
use, and depreciation in value.
46.
fees from MADC in
§ 47C-4-117.
COUNT V
Negligence - Tyner Construction. Inc.
47.
48.
Tyner owed a duty to Plaintiff to exercise the degree of skill and ability
required in the construction industry in order to provide reasonable and ordinary care to
construct, supervise and review the design of Austin View and to coordinate its work
with the other Projects' Design/Builders
so that Tyner's work and Austin View would be
18
free of construction defects, free of structural defects, and in conformity with customary
standards of the building and construction industry.
49.
Tyner owed a duty to use reasonable care in selecting its subcontractors
and in supervising their work such as to deliver buildings free of substantial construction
or structural
defects and in conformity
customary
standards
of the building
and
construction industry.
50.
Tyner breached
its duties of care, proximately
resulting
in Plaintiff's
damages, in that it:
a.
negligently failed to construct and to grade, berm, or wall the land
mass supporting Austin View to accommodate
the load of Austin
View resulting in or contributing to a landslide underneath the same
which substantially damaged Austin View;
b.
negligently constructed the retaining walls and left open the building
pads such that the land mass under the Austin View foundations
became
unstable
resulting
in building
instability
that
caused
substantial damage to Austin View;
c.
negligently relied on architectural plans and drawings that it knew
or should have known did not incorporate
proper geotechnical
evaluation and were therefore inadequate for construction
at the
location in question;
d.
negligently relied on architectural drawings and specifications which
failed to account for cuts in Hole #1 when it knew or should have
known that the Banks Creek Nine was being built or would be built
19
and knew or should have known such plans and drawings failed to
account for the same;
e.
negligently undertook construction on Austin View without a sitespecific
geotechnical
inspection/observation
f.
analysis
and/or
without
geotechnical
during construction;
negligently failed to report the lack of or to request geotechnical
investigations or on-site observations
and failed to report signs of
land mass instability beneath Austin View to MADC and/or the
Projects' Design/Builders and other contractors when a reasonable
person under the circumstances or a professional contractor would
have done so and when it was under a duty to do so;
g.
failed to properly
construct
Austin
View
practices and methods of construction
by failing to employ
conforming with accepted
industry standards;
h.
failed to properly supervise the subcontractors
and or other trades
in order to ensure that all works proceeded in accordance with the
plans and specification and also in conformity with the customary
and ordinary standards of the construction industry;
I.
negligently
performed/supervised/coordinated
deficient and or defective workmanship,
and/or
accepted
without proper inspection
to ensure the work was correct and in conformity with industry
standards;
J.
20
51.
of the negligence of
Tyner, Plaintiff has suffered injuries and damages in an amount to be proven at trial and
in . excess
of $10,000
consisting
of property
damage
to Austin
View and
the
extraordinary repair, maintenance and reconstruction costs required and to be required
over the expected life of the structure, loss of use, depreciation
in value and for such
other damages as may be appropriate.
COUNT VI
Breach of Implied Warranties - Tvner Construction.
52.
Inc.
53.
Upon information and belief, Tyner, as general contractor of the Project,
made express warranties in connection with the its work on Austin View which it allowed
or required MADC to communicate to Plaintiff and member-owners
and which included
warranties regarding structural support, retaining walls, grading, and the construction of
the individual units.
54.
Tyner also impliedly warranted that the Project would be constructed in a
careful, diligent and workmanlike
manner, free of construction
defects and that the
Tyner breached these warranties
as otherwise alleged
of Tyner's breach of
building would be habitable.
herein.
55.
warranties, plaintiff has suffered injuries and damages in an amount to be proven at trial
and in excess of $10,000 consisting
of property damage
to Austin View and the
21
---------------------------
over the expected life of the structure, loss of use, depreciation in value and for such
other damages as may be appropriate.
COUNT VII
NeQIiQence - Melrose DesiQn Group, P.A.
56.
57.
Defendant Melrose owed a duty to Plaintiff to utilize its professional skill,
learning, and ability in connection with the Projects with reasonable and ordinary care.
58.
Defendant Melrose owed Plaintiff a duty to use ordinary and reasonable
care, and the judgment, ski!! and expertise of a qualified landscape designer, in the
work of Melrose in the design, planning, and assessment
coordinating
its work with other Projects'
Design/Builders
of the Projects and in
and MADC to properly
perform site design, planning, design and construction work for the Projects.
59.
Defendant Melrose was negligent in that it:
a.
negligently
prepared
incorporating
the
site
design
of
Projects
proper and sufficient geotechnical
without coordinating
without
information
the competing sitework requirements
and
of the
Projects so that grading the golf course would not impair or deprive
Austin View of adequate
landslide
of the
supporting
land mass
land mass, resulting
and causing
damage to Austin View, when a reasonable
circumstances
or a professional
22
landscape
substantial
in a
property
person under the
designer
with
the
------------------------------
requisite degree of expertise and skill in the relevant industry would
not have done so;
b.
negligently failed to obtain a geotechnical engineering assessment
of the Projects for use in site preparation, design, and construction;
c.
negligently
failed
to assess
the
geotechnical
interaction
and
interdependence between the Projects, when a reasonable person
under the circumstances or a professional with the requisite degree
of expertise and skill in the relevant industry would have done so;
d.
negligently failed to prepare or obtain designs for the Projects
which accounted for construction of both Austin View and Hole #1
such that the sitework would not result in removal or substantial
impairment of Austin View's supporting land mass, when it knew or
should have known the sitework for Hole #1 would remove or
substantially impair Austin View's supporting land mass resulting in
substantial property damage to Austin View;
e.
negligently failed to coordinate with Cavanaugh
and/or to provide
necessary information concerning the Projects so that Cavanaugh
could adequately prepare its designs for the Projects, when it knew
or should have known such information and plans would impact
Austin View and likely result in inadequate supporting structure and
land mass recommendations;
f.
negligently failed to obtain a geotechnical
engineering
analysis of
the Projects when it knew or should have known such site-specific
23
-_.~-----
analysis
had
been
recommended
pursuant
to
a
master
geotechnical assessment;
g.
negligently failed to correct errors in the design and construction of
the Projects
as they became
evident
during
the construction
phases for the Projects;
h.
of a qualified professional in the industry; and
I.
60.
Melrose, Plaintiff has suffered injuries and damages in an amount to be proven at trial
and in excess of $10,000 consisting
of property damage to Austin View and the
punitive damages as may be appropriate.
COUNT VIII
NeQIiQence - CavanauQh and Associates. P.A.
61 .
62.
Defendant Cavanaugh owed a duty to utilize its professional skill, learning,
and ability as a professional civil engineering firm with reasonable and ordinary care.
63.
Defendant Cavanaugh owed a duty owed Plaintiff a duty to use ordinary
and reasonable care, and the judgment, skill and expertise of a qualified professional
civil engineer, in the work of Cavanaugh in the design, planning, and assessment of the
24
Projects and in coordinating its work with other Projects' Design/Builders and MADC to
properly perform site design, planning, design and construction work for the Projects:
64.
Defendant Cavanaugh was negligent in that it:
a.
negligently
prepared
incorporating
the
site
proper and sufficient
design
of
Projects
geotechnical
without coordinating the competing
without
information
sitework requirements
and
of the
Projects so that grading the golf course would not impair or deprive
Austin View of adequate supporting
landslide
of the land mass
land mass, resulting
and causing
substantial
damage to Austin View, when a reasonable
circumstances
or a professional
landscape
in a
property
person under the
designer
with the
requisite degree of expertise and skill in the relevant industry would
not have done so;
b.
negligently failed to obtain a geotechnical engineering assessment
of the Projects for use in site preparation, design, and construction;
c.
negligently
failed
interdependence
to assess
the
geotechnical
interaction
and
between the Projects, when a reasonable person
under the circumstances or a professional with the requisite degree
of expertise and skill in the relevant industry would have done so;
d.
negligently
failed to prepare or obtain designs for the Projects
which accounted for construction of both Austin View and Hole #1
such that the sitework would not result in removal or substantial
impairment of Austin View's supporting land mass, when it knew or
25
should have known the sitework for Hole #1 would remove or
substantially impair Austin View's supporting land mass resulting in
substantial property damage to Austin View;
e.
negligently
failed to coordinate
with Melrose and/or to provide
necessary
information concerning
the Projects so that Melrose
could adequately prepare its designs for the Projects, when it knew
or should have known such information
and plans would impact
Austin View and likely result in inadequate supporting structure and
land mass recommendations;
f.
negligently failed to obtain a geotechnical
engineering analysis of
the Projects when it knew or should have known such site-specific
analysis
had
been
recommended
pursuant
to
a
master
geotechnical assessment;
g.
negligently failed to correct errors in the design and construction of
the Projects
as they became
evident
during
the construction
phases for the Projects;
h.
I.
65.
Cavanaugh, Plaintiff has suffered injuries and damages in an amount to be proven at
trial and in excess of $10,000 consisting of property damage to Austin View and the
26
over the expected life of the structure, loss of use, depreciation in value and for such
COUNT IX
NeQliQence - YounQ & McQueen GradinQ Company, Inc.
66.
67.
Defendant Y&M owed a duty to utilize its skill, learning, and ability in the
industry with reasonable and ordinary care.
68.
Defendant Y&M was negligent, and or grossly negligent in that it:
a.
performed grading and sitework for the Projects when it knew, or
should have known, that its various activities, including grading,
backfilling, excavating, rock removal and other attendant sitework
activities could cause serious property damage to Austin View, as
alleged above;
b.
knew, in its capacity as one of the Projects' Design/Builder
through its knowledge by virtue of the co-ownership
principals of MADC, that an onsite geotechnical
and
of Y&M by
engineer should
have been retained for the design and construction of the Projects,
but failed to either request or obtain said expertise;
c.
conducted
the sitework
at Austin
View without
subsurface
analysis relating to the building pads, carport pads,
retaining walls or related sitework at Austin View;
27
a geotechnical
d.
undertook excavation and sitework at Austin View and performed
same in a negligent manner so as to damage property other than
that within the scope of Y&M's work;
e.
performed backfilling and borrow functions for Austin View which
damaged property other than that within the scope of Y&M's work;
f.
failed to coordinate or communicate
Builders
and
MADC
with
with other Projects' Design/
respect
to
the
need
for
proper
geotechnical investigation and analysis to ensure the slope stability
between the Projects;
g.
failed,
following
coordinate
the
landslide
at Hemlock
sufficient geotechnical
Bluff, to obtain
or
work to ensure that the slope
between the Projects would allow for continued excavation at Hole
#1 ;
h.
negligently commenced excavation at the slope below Austin View
at Hole #1 following the landslide
geotechnical
at Hemlock
Bluff without
analysis of the effects of such excavation
Hole #1, after
having
been
advised
by MADC
a
work at
to have such
geotechnical work performed;
I.
performed grading work at Hole #1 on a land mass that supported
Austin View without a site-specific
geotechnical
assessment
that
accounted for the presence of Austin View and other projects when
reasonable person under the circumstances or a grading contractor
28
~-----------------------._-
with the requisite expertise or skill in the industry would not have
done so;
J.
failed to identify and account for objective signs of Austin View's
supporting land mass's susceptibility
to shifting by grading work,
such as the existence of colluvial soils and the instability of same
when ground or surface water is introduced, when a reasonable
person or grading contractor with the requisite expertise or skill in
the industry would have done so;
k.
of a qualified grading contractor in the industry;
I.
69.
As a direct and proximate result of Y&M's negligence or gross negligence,
Plaintiff has suffered injuries and damages in an amount to be proven at trial and in
excess of $10,000 consisting of property damage to Austin View and the extraordinary
repair, maintenance
and reconstruction
costs required and to be required over the
expected life of the structure, loss of use, depreciation in value and for such punitive
damages as may be appropriate.
COUNT X
Professional NeQIiQence - Paul Schmitt Architectural DesiQn Studio, PLLC
70.
71.
Defendant Schmitt owed a duty to utilize its skill, learning, and ability as a
licensed architect with reasonable and ordinary care.
29
72.
Defendant Schmitt was negligent in that it:
a.
developed architectural and structural drawings and specifications
for the construction of Austin View when it knew, or should have
known, that geotechnical
subsurface investigation
for the Austin
View sites had not been performed when a reasonable person
or a professional
architect
with the
requisite expertise and skill would not have done so;
b.
developed architectural and structural plans and specifications for
the construction of Austin View without coordination with the Banks
Creek Nine Project and specifically Hole #1, when a reasonable
person under the circumstances or a professional architect with the
c.
failed
to
amend
its
architectural
and
structural
plans
and
specifications for Austin View or to warn MADC and other Projects'
Design/Builders
geotechnical
of the geotechnical inadequacy, of the need for a
subsurface
analysis for Austin
View and for the
coordination of geotechnical issues between Austin View and Hole
#1 as Austin View was supported by a land mass being excavated
during the construction
of Austin View for borrow fill, and to be
further excavated in the construction of Hole #1, when a reasonable
requisite expertise and skill would have done so;
30
d.
failed to request, obtain and/or warn MADC or the other Projects'
Design/Builders
regarding
the lack of geotechnical
concerning the Projects and the interdependence
information
of the Projects
and the possible effects of the lack of same, when a reasonable
e.
failed to request and/or obtain geotechnical
information regarding
the Projects and the stability of the slope between the Projects
despite movement at the Projects during and immediately following
Austin View construction and prior to the excavation at Hole #1,
when
a
reasonable
professional
person
under
the
circumstances
or
a
architect with the requisite expertise and skill would
have done so;
f.
the Projects following the landslide at Hemlock Bluff, when it knew,
or
should
have
investigation
known,
and design,
that
without
continued
proper
golf course
geotechnical
grading would
accelerate or cause the same damages at Austin View, and when
alerting MADC and other Projects'
prevented
under the
Design/Builders
would have
damages to Austin View, when a reasonable
circumstances
or a professional
architect
person
with the
requisite expertise and skill would have requested or obtained the
same;
31
d.
Design/Builders
regarding
information
of the Projects
e.
Austin View construction and prior to the excavation at Hole #1,
when
a
reasonable
person
under
the
circumstances
or
a
professional architect with the requisite expertise and skill would
have done so;
f.
the Projects following the landslide at Hemlock Bluff, when it knew,
or
should
have
investigation
known,
and design,
that
without
continued
proper
golf course
geotechnical
grading would
prevented
under
Design/Builders
would have
damages to Austin View, when a reasonable
the circumstances
or a professional
architect
person
with the
requisite expertise and skill would have requested or obtained the
same;
31
g.
h.
73.
As a direct and proximate result and consequence of the negligence and
gross negligence of defendant Schmitt, Plaintiff has suffered injuries and damages in an
amount to be proven at trial and in excess of $10,000 consisting of property damage to
Austin View and the extraordinary
repair, maintenance
required and to be required over the expected
and reconstruction
life of the structure,
costs
loss of use,
depreciation in value and for such punitive damages as may be appropriate.
COUNT XI
Professional Neqliqence - Johnson. Laschober & Associates, P.C.
74.
75.
Defendant Johnson owed a duty to utilize its skill, learning, and ability as a
licensed structural engineer with reasonable and ordinary care.
76.
Defendant Johnson was negligent in that it:
a.
developed
structural
drawings
and
specifications
for
the
construction of Austin View when it knew, or should have known,
that geotechnical subsurface investigation for the Austin View sites
had not been performed when a reasonable
circumstances
or a professional
structural
person under the
engineer
32
with
the
g.
h.
73.
gross negligence of defendant Schmitt, Plaintiff has suffered injuries and damages in an
amount to be proven at trial and in excess of $10,000 consisting of property damage to
Austin View and the extraordinary
required and to be required
repair, maintenance
over the expected
and reconstruction
life of the structure,
costs
loss of use,
COUNT XI
Professional Neqliqence - Johnson. Laschober & Associates, P.C.
74.
75.
Defendant Johnson owed a duty to utilize its skill, learning, and ability as a
licensed structural engineer with reasonable and ordinary care.
76.
Defendant Johnson was negligent in that it:
a.
developed
structural
drawings
and
specifications
for
the
construction of Austin View when it knew, or should have known,
that geotechnical subsurface investigation for the Austin View sites
had not been performed when a reasonable
circumstances
or a professional
structural
person under the
engineer
32
with
the
b.
developed structural plans and specifications for the construction of
Austin View without coordination with the Banks Creek Nine Project
and specifically
circumstances
Hole #1, when a reasonable
or a professional
structural
person under the
engineer
with
the
c.
failed to amend its structural plans and specifications
for Austin
View or to warn MADC and other Projects' Design/Builders
of the
need for a geotechnical subsurface analysis for Austin View and for
the coordination of geotechnical
issues between Austin View and
Hole #1, as Austin View was supported
by a land mass being
excavated during the construction of Austin View for borrow fill to
be further
reasonable
excavated
in the construction
of Hole #1, when
person under the circumstances
a
or a professional
structural engineer with the requisite expertise and skill would have
done so;
d.
Design/Builders
regarding
information
of the Projects
person
under
the
circumstances
or a professional
structural
engineer with the requisite expertise and skill would have done so;
e.
information
regarding
33
,----
m _
construction
reasonable
and prior to the excavation
of Hole #1, when a
or a professional
structural engineer with the requisite expertise and skill would have
done so;
f.
the Projects following the landslide at Hemlock Bluff, when it knew
or
should
investigation
have
known
that
without
and design, continued
proper
geotechnical
golf course grading
would
Design/Builders
would have
prevented damages to Austin View, when a reasonable
person
under the circumstances or a professional structural engineer with
the requisite expertise and skill would have requested or obtained
the same;
g.
h.
77.
gross negligence of defendant Johnson, Plaintiff has suffered injuries and damages in
an amount to be proven at trial and: in excess of $10,000 consisting of property damage
to Austin View and the extraordinary
repair, maintenance
34
and reconstruction
costs
required and to be required over the expected life of the structure,
loss of use,
COUNT XII
Professional NeQliQence - Froehlinq & Robertson, Inc.
78.
79.
Defendant F&R owed a duty to utilize its skill, learning, and ability as a
geotechnical engineering firm with reasonable and ordinary care.
80.
Defendant F&R was negligent in that it:
a.
failed
to
identify,
in the
subsurface
report
it performed
for
unidentified buildings at Austin View Villas in December 2001, the
existence of deep colluvial soils, or the inherent instability of such
soils, especially
once excavation
had taken
place which would
allow the entry of surface water, when a reasonable person under
the circumstances or a professional geotechnical engineer with the
requisite degree of expertise and skill would skill would have done
so;
b.
failed to warn of the existence of colluvial soils when F&R knew that
excavation at the building pad for the Austin View buildings and
retaining
rainwater
walls would
necessarily
expose
and surface water intrusion,
the colluvial
which
would
soils to
impair the
stability of the bearing soils for Austin View, when a reasonable
35
or a professional
geotechnical
engineer with the requisite degree of expertise and skill would skill
would have done so;
c.
failed to advise MADC or the other Projects' Design/Builders that its
soils investigation was only for two of the five Austin View Villas
buildings and that additional subsurface explorations
at the other
three Austin View Villas building sites was necessary to ensure
proper
design
reasonable
of
person
foundations
and
retaining
walls,
when
a
or a professional
geotechnical engineer with the requisite degree of expertise and
skill would skill would have done so;
d.
failed to advise MADC or the other Projects' Design/Builders that a
slope
stability
analysis
was
required
to
properly
address
coordination of the design and construction of the Projects, when a
reasonable
geotechnical
person
or a professional
engineer with the requisite degree of expertise and
skill would skill would have done so;
e.
failed to properly inspect or investigate the geotechnical reasons for
the cracks appearing at Austin View in 2003 and 2004 given the
initial excavation
at Hole #1 for backfilling
and other attendant
construction at Austin View or to notify MADC or the other Projects'
Design/Builders
of the need for the same, when a reasonable
36
or a professional
geotechnical
engineer with the requisite degree of expertise and skill would skill
would have done so;
f.
failed to properly assess or advise on the safety factors for slope
excavation
at Hole #1 below AVV following
the landslide
at
Hemlock Bluff, when a reasonable person under the circumstances
or a professional geotechnical engineer with the requisite degree of
expertise and skill would skill would have done so;
g.
failed
to perform
assumptions
September
and
a proper
proper
soil stability
and
analysis
professional
conclusions
2004 report, when a reasonable
circumstances
or a professional
with
geotechnical
proper
in
its
person under the
engineer with the
requisite degree of expertise and skill would skill would have done
so;
h.
otherwise failed to utilize the requisite skill, judgment and expertise
of a qualified professional geotechnical
engineer in the industry;
and
i.
81.
defendant F&R, Plaintiff has suffered injuries and damages in an amount to be proven
at trial and in excess of $10,000 consisting of property damage to Austin View and the
37
COUNT XIII
Ne~li~ent Misrepresentation - Froehlin~ & Robertson, Inc.
82.
83.
F&R
is
in the
business
of a
providing
professional
geotechnical
engineering services for the guidance of others in their business transactions,
including
the design and construction of Austin View and the coordination of Austin View with the
Banks Creek Nine Golf Course.
84.
F&R supplied information to MADC and for the benefit of Plaintiff through
the Austin View unit owners/purchasers
beginning in 2001 and thereafter through 2004.
F&R intended for Plaintiff, through MADC and the Austin View unit owners to rely upon
the information provided by F&R relating to F&R's work from 2001 through 2004 at the
Projects, and Plaintiff
was within the class of persons
for whose
guidance
the
information was supplied.
85.
F&R failed
communicating
to exercise
the information
the care and competence
in obtaining
(or the lack thereof) which Plaintiff was justified
and
in
expecting, as alleged herein.
86.
misrepresentations,
of F&R's negligent
Plaintiff has suffered injuries and damages in an amount to be
proved at trial in excess of $10,000 consisting of property damage to Austin View, and
the extraordinary repair, maintenance, and construction
costs required and yet to be
required over the expected life of the structures, loss of use, and depreciation in value,
and for such other damages as may be app_ropriate.
38
WHEREFORE, Plaintiff respectfully prays the Court as follows:
1.
That it have and recover damages in excess of $10,000 and in an exact
amount to be proven at trial from each of the Defendants or from the
Defendants jointly and severally;
2.
That the costs of this action, including a reasonable attorney fee as may
be allowed by law, be taxed to one or more of the defendants;
3.
That it have a trial by jury on all issues so triable;
4.
For other and further relief as the Court may deem just and proper
This the
Gay of January 2007.
CONNER GWYN SCHENCK PLLC
Post Office Box 20744
Greensboro, NC 27420
Tele: 336/691-9222
Fax: 336/691-9259
39
CERTIFICATE OF SERVICE
The undersigned
foregoing
Amended
does hereby certify that he has this day duly served the
Complaint
upon counsel for all Defendants
in this action by
depositing a copy of same in the United States mail, postage prepaid, addressed as
follows:
Counsel for MADC Development Corporation:
Ervin Ball
BALL, BARDEN & BELL, P.A.
P.O. Box 7157
Asheville, NC 28802
Counsel for Tyner Construction, Inc.:
Wyatt S. Stevens
ROBERTS & STEVENS, P.A.
P.O. Box 7647
Asheville, NC 28802
Counsel for Melrose Design Group, P.A., f/k/a. Scott R.
Melrose & Associates, P.A.:
Robert E. Allen
NORTHUP AND MCCONNELL, PLLC
123 Biltmore Avenue
Asheville, North Carolina 28801
Counsel for Cavanaugh & Associates, P.A.:
Steve M. Pharr
Kenneth E. Menzel
PHARR & BOYNTON, PLLC
2720 Georgetown Drive
Winston-Salem, NC 27106
Counsel for Young and McQueen Grading Company, Inc.:
John T. Jeffries
MCANGUS, GOUDELOCK & COURIE, P.L.L.C.
P.O. Box 30307
Charlotte, NC 28230
40
Counsel for Paul Schmitt Architectural Design Studio, PLLC:
W. James Johnson
VAN WINKLE, BUCK, WALL, STARNES AND DAVIS, P.A.
Post Office Box 7376
Asheville, NC 28802
Counsel for Johnson, Laschober
John W. Francisco
&
Associates, P.C.:
PARKER POE ADAMS & BERNSTEIN, L.L.P.
Three Wachovia Center, Suite 3000
401 South Tryon Street
Charlotte, NC 28202-1935
This is the
;;;J.
of January 2007.
41

STATE OF NORTH CAROLINA COUNTY OF YANCEY IN THE

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